COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kossyrine, 2017 ONCA 388

DATE: 20170515

DOCKET: C58017

Laskin, Watt and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dmitri Kossyrine

Appellant

Vincenzo Rondinelli, for the appellant

Michael Bernstein, for the respondent

Heard: April 10, 2017

On appeal from the conviction entered by Justice Eugene
    G. Ewaschuk of the Superior Court of Justice, sitting with a jury, on November 15,
    2012.

Laskin J.A.:

A.

Introduction

[1]

Glen Davis was a successful businessman and a passionate
    conservationist, who gave generously to the World Wildlife Fund and other
    environmental causes. In May 2007, Davis was murdered  shot and killed in an
    underground parking garage in Toronto. Davis nephew, Marshall Ross,
    orchestrated the murder. Rosss friend, the appellant Dimitri Kossyrine, acted
    as the middle man, and hired a close friend of his, Eugene Vorobiov, to carry
    out the killing.

[2]

Ross pleaded guilty to first degree murder. Vorobiov was separately
    tried and convicted of first degree murder. Kossyrine, too, was charged with
    first degree murder. In November 2012, after a six week trial before a judge
    and jury, he was found guilty and sentenced to life imprisonment.

[3]

Kossyrine raises two grounds of appeal. Both concern the composition of
    the jury. First, he argues that the jury was improperly constituted because the
    trial judge used
static triers
to
    decide the challenges for cause. Second, he argues that the trial judge erred
    by discharging one juror  juror 11  without reasonable cause. On either
    ground Kossyrine asks that his conviction for first degree murder be set aside
    and a new trial ordered.

[4]

For the reasons that follow, I would not give effect to either ground of
    appeal. I would therefore dismiss Kossyrines appeal.

B.

Brief
    Background

(1)

The
    unsuccessful and successful attempts on Daviss life

[5]

Ross and Davis were close. Over the years, Davis loaned about $2 million
    to Rosss construction company. But Ross business did poorly and he did not
    repay any of the loans. He mistakenly believed that he would inherit his
    uncles fortune, and decided to kill him to speed up receipt of his
    inheritance.

[6]

Rosss first attempt was unsuccessful. In 2005, Ross asked Kossyrine to
    recruit someone to kill Davis. Kossyrine hired a man named Cawley, whom he knew
    from work, and paid him $46,000 in cash to murder Davis. Cawley enlisted a
    cousin to carry out the murder. The cousin used a baseball bat instead of a gun
    and tried to beat Davis to death. During the attack, nearby construction workers
    heard Daviss cries for help and intervened. Cawley and his cousin fled without
    being identified. Daviss arm was broken in the beating and 100 stitches were needed
    to sew up his head.

[7]

After this unsuccessful attempt on Daviss life, the financial condition
    of Rosss construction company continued to deteriorate. In mid-May 2007, two
    days before the murder, Ross met with Davis and Davis agreed to loan Rosss company
    more money; another $350,000. Davis, however, told Ross he wanted all of his $2
    million in loans repaid. After this meeting Kossyrine recruited Vorobiov to
    kill Davis, and Vorobiov succeeded in doing so.

[8]

The beating and murder of Davis were unsolved for several years. However,
    in 2008, Cawley came forward and told the police about the beating and his
    involvement. After a further police investigation Ross, Vorobiov and Kossyrine
    were charged with first degree murder. Ross pleaded guilty, and Vorobiov was
    separately tried and convicted.

(2)

The Crowns
    case against Kossyrine

[9]

The Crown mounted a powerful case against Kossyrine. The Crowns
    evidence included the following:

·

the
    evidence of Cawley and another man named Smith. Smith was the getaway driver
    for Vorobiov, and pleaded guilty to being an accessory after the fact for
    helping Vorobiov flee the scene of the murder;

·

evidence
    of the close business and personal relationship between Ross and Kossyrine;

·

phone
    records;

·

wiretap
    intercepts of incriminating conversations between Ross and Kossyrine; and

·

evidence
    of Kossyrines conduct after the murder, which included his lies to the police
    and his giving Vorobiov $10,000 to flee Canada for Ukraine.

[10]

Kossyrine did not testify. His counsel argued that his client had no
    connection to the murder and the Crowns witnesses had lied in their testimony.
    The jury found Kossyrine guilty of first degree murder.

C.

The issues on appeal

(1)

Was the jury improperly
    constituted because the trial judge used s
tatic
    triers
to decide the challenges for cause?

(a)

Rotating
    and
static triers
to decide
    challenges for cause

[11]

Daviss murder generated a great deal of publicity before Kossyrines
    trial. This publicity raised a concern about the impartiality of prospective
    jurors. Both the Crown and the defence asked to challenge prospective jurors
    for cause based on pre-trial publicity. The trial judge agreed that they could
    do so.

[12]

Before 2008, challenges for cause to assess the impartiality of prospective
    jurors in a criminal trial were decided by rotating triers. The two last
    jurors sworn  or if no juror had been sworn, two persons appointed by the
    court  decided whether the next prospective juror was impartial.

[13]

In 2008, Parliament amended s. 640(2) of the
Criminal Code
, R.S.C. 1985, c. C-46
to provide for a
    second method of deciding challenges for cause  by
static

triers
.
    Under this amendment, two t
riers

appointed by the trial judge decide all challenges for cause. Unlike rotating
    triers,
static triers
do not
    become members of the jury that decides the case.

[14]

Subsections 640(2), (2.1) and (2.2) of the
Code
now provide:

(2) If the ground of a challenge is one that is not mentioned
    is subsection (1) and no order has been made under subsection (2.1), the two
    jurors who were last sworn  or, if no jurors have been sworn, two persons
    present who are appointed by the court for the purpose  shall be sworn to
    determine whether the ground of challenge is true.

(2.1) If the challenge is for cause and if the ground of the
    challenge is one that is not mentioned in subsection (1), on the application of
    the accused, the court may order the exclusion of all jurors  sworn and
    unsworn  from the court room until it is determined whether the ground of
    challenge is true, if the court is of the opinion that such an order is
    necessary to preserve the impartiality of the jurors.

(2.2) If an order is made under subsection (2.1), two unsworn
    jurors, who are then exempt from the order, or two persons present who are
    appointed by the court for that purpose, shall be sworn to determine whether
    the ground of challenge is true. Those persons so appointed shall exercise
    their duties until 12 jurors  or 13 or 14 jurors, as the case may be, if the
    judge makes an order under subsection 631(2.2)  and any alternate jurors are
    sworn.

[15]

Subsection 640(2) provides for rotating triers. Subsections 640(2.1) and
    (2.2) provide for
static triers.
The advantages and disadvantages of each method have been extensively discussed
    in
R. v. Noureddine
,
2015 ONCA 770, 128 O.R. (3d) 23, and
R. v. Grant
, 2016
ONCA 639, 342 C.C.C. (3d) 514.
    That discussion need not be repeated here.

[16]

The accused may choose which method to use. An accused who wants s
tatic triers
makes an application for an
    order under s. 640(2.1) to exclude all jurors from the courtroom during the
    challenges for cause. If the trial judge makes the order, the trial judge then
    appoints s
tatic triers
under s.
    640(2.2). If the accused does not ask for
static
    triers
,
rotating triers
are used. Recently in
Grant
, decided after the trial in this case, our
    court resolved a debate among trial judges and held that, even with rotating
    triers, a trial judge has discretion to exclude unsworn jurors from the courtroom
    during challenges for cause.

(b)

This
    case

[17]

Kossyrine did not make a formal application under s. 640(2.1) of the
Code
to exclude all jurors from the courtroom, and he did not specifically request
static triers
. He submits that the trial
    judges use of
static triers
to
    decide the challenges for cause resulted in an improperly constituted jury, and
    his conviction must therefore be quashed. The Crown submits that to give effect
    to Kossyrines position would elevate form over substance. Kossyrine wanted static
    triers, and in substance must be taken to have made an application under s.
    640(2.1). I agree with the Crowns submission.

[18]

The trial judge in this case was also the trial judge in
Noureddine
and
Grant
, and he had a strong
    preference for using static triers, which he viewed as more efficient. After
    agreeing to allow challenges for cause based on the effect of pre-trial
    publicity on the impartiality of the jurors, he told counsel he intended to use
    s
tatic triers
.

[19]

Defence counsel did not object to the use of s
tatic triers
or raise the possibility of
    using
rotating triers
. Indeed,
    it is evident from the dialogue between the trial judge and counsel that,
    because of the concern about pre-trial publicity, both the Crown and the
    defence wanted all the prospective jurors out of the courtroom during the
    challenges for cause. Excluding the prospective jurors and using static triers avoided
    the possibility that a jurors attitude could be tainted by an answer given by another
    prospective juror.

[20]

Defence counsels concern was that the static triers be properly vetted.
    The trial judge took defence counsels concern into account. He explained that
    he would vet each proposed static trier and give defence counsel a chance to
    object to any person chosen. The trial judge added, [y]eah, usually Ill
    accede to your opposition.

[21]

Defence counsel expressed satisfaction with the trial judges proposed
    approach. He said, [a]ll right. Sounds like itll work and later, [i]n
    principle it seems like it would work. The trial judge then identified two static
    triers and, after vetting them, found that they were suitable. Both Crown and
    defence counsel also approved them to decide the challenges for cause.

(c)

Analysis

[22]

Now in this court Kossyrine contends that because he did not make a
    formal application under s. 640(2.1), and did not expressly ask for
static triers
, the jury was improperly
    constituted. In three cases
Noureddine
,
Grant
and
R. v. Mansingh
,
2017 ONCA 68  this court has grappled
    with the question whether a trial judges use of s
tatic triers
to decide challenges for cause in the absence
    of an accuseds formal application under s. 640(2.1) of the
Code
results in an improperly constituted jury. In all three cases the accused did
    not make a formal application under s. 640(2.1) to exclude all jurors from the
    courtroom. In
Noureddine
,
we held that the jury was improperly constituted. In
Grant
and
Mansingh
,
we held that the jury was properly
    constituted. The result in each case was driven by the position defence counsel
    took at trial.

[23]

In
Noureddine
,
defence counsel not only did not make an application under s. 640(2.1) of the
Code
,
    she repeatedly insisted that rotating triers be used and objected to the use of
    static triers. Despite her objection, the trial judge ordered s
tatic triers
. Doherty J.A. held that the
    trial judges order deprived the accused of his statutory right to choose the
    method of deciding challenges for cause. Doherty J.A. also held that none of
    the curative provisions in the
Code
applied to the trial judges error.
    Thus, he held that the jury was improperly constituted and ordered a new trial.

[24]

In
Grant
, defence counsel first asked for r
otating triers
but also asked that the
    trial judge exercise his discretion to exclude unsworn jurors from the
    courtroom during the challenges. However, defence counsel gave the trial judge
    no reason to exercise his discretion in favour of exclusion. After further
    discussion with counsel, the trial judge gave defence a choice:
rotating triers
with unsworn jurors in
    the courtroom, or s
tatic triers
with
    the jury panel out of the courtroom. Faced with that choice, defence counsel
    said, [w]ell take the s
tatic triers
.
    This court held, at para. 51, that in substance, if not in form, the defence
    had made an application under s. 640(2.1), and so the jury was properly
    constituted:

The defence did not make a formal application under s. 640(2.1)
    to have the sworn and unsworn panels excluded, and to have the trial judge
    appoint static triers. But I would treat their decision to choose static triers
    as, in effect, an application to exclude both unsworn and sworn jurors.
    Otherwise form would supersede substance. Had the trial judge asked one
    additional question, Are you then applying for an order under s. 640(2.1),
    defence counsel would undoubtedly have answered yes.

[25]

Mansingh
confirmed the importance of looking at the substance
    of the defences position, not its form. There, the trial judge told counsel
    his practice was to use static triers, but invited counsel to make submissions
    on rotating triers. Defence counsel said that he mainly wanted the panel
    excluded and added, I actually like static triers. He and Crown counsel then
    discussed the steps to vet the static triers appointed by the trial judge.

[26]

On appeal, Mansingh argued that, as he had not made a formal application
    under s. 640(2.1), the use of static triers resulted in an improperly
    constituted jury. This court rejected that argument and, as in
Grant
,
    emphasized that the defence got what it wanted and, in substance, had made the
    necessary application.

[27]

At para. 12 of its reasons, the panel wrote:

This case is distinguishable from
Noureddine
and is
    governed by
R. v. Grant
, 2016 ONCA 639, at paras. 50-51. At trial,
    defence counsel made it clear that he wanted prospective jurors excluded during
    the challenge process. He was happy to use properly vetted static triers as
    long as the panel was excluded. As stated in
Grant
, substance must
    supersede form. Counsel got what he wanted and, in substance, if not in form,
    made the requisite application under s. 640(2.1). This ground fails.

[28]

In the case before us, as in
Mansingh
, Kossyrine wanted static
    triers. Unlike in
Noureddine,
Kossyrine did not ask for rotating
    triers or object to the trial judges practice of using static triers. His sole
    concern was that the static triers the trial judge identified be properly
    vetted. This courts conclusion in
Mansingh
is entirely appropriate in
    this case: [c]ounsel got what he wanted and, in substance, if not in form,
    made the requisite application under s. 640(2.1). The jury in this case was
    thus properly constituted.

[29]

Although what I have said is sufficient to decide this ground of appeal,
    there is another possible basis to uphold the trial judges use of static
    triers: by relying on s. 686(1)(b)(iv) of the
Code
and treating the
    absence of a formal application under s. 640(2.1) as a procedural
    irregularity. Subsection 686(1)(b)(iv) states:

686 (1) On the hearing of an appeal against a conviction or
    against a verdict that the appellant is unfit to stand trial or not criminally
    responsible on account of mental disorder, the court of appeal

(b) may dismiss the appeal where

(iv) notwithstanding any procedural
    irregularity at trial, the trial court had jurisdiction over the class of
    offence of which the appellant was convicted and the court of appeal is of the opinion
    that the appellant suffered no prejudice thereby.

[30]

In an appropriate case, treating the absence of a defence application
    under s. 640(2.1) as a procedural irregularity that would not affect the
    validity of the conviction seems to have merit. In
Noureddine
, Doherty
    J.A. refers to this possibility at para. 57 of his reasons:

It may be that s. 686(1)(b)(iv) could be applied if an accused
    had agreed to the use of static triers, but had failed to bring the required
    motion under s. 640(2.1). An accuseds willingness to use static triers may be
    enough to render the court properly constituted during the selection process.
    The failure to bring the appropriate motion may be characterized as a
    procedural irregularity potentially curable under s. 686(1)(b)(iv).

[31]

In the case before us, the Crown also suggests that we could rely on s.
    686(1)(b)(iv). As the issue was not fully canvassed it would be unwise to decide
    it on this appeal. The issue is better left to a future appeal where it is
    raised and fully argued by the parties.

[32]

I would not give effect to this ground of appeal.

(2)

Did the trial
    judge err by discharging juror 11 without reasonable cause?

(a)

Discharge
    for reasonable cause

[33]

Under s. 644(1) of the
Code
,
a trial judge may discharge a juror because of illness or for other reasonable
    cause:

644 (1) Where in the course of a trial the judge is satisfied
    that a juror should not, by reason of illness or other reasonable cause,
    continue to act, the judge may discharge the juror.

[34]

Here, over the defences objection, the trial judge discharged juror 11
    after the Crowns opening address to the jury. The trial judge concluded that
    reasonable cause existed to discharge the juror. He gave brief reasons:

I find that [juror 11] has serious problems which impact on his
    ability to concentrate and understand the evidence. These include his broken
    back, his being in a body brace, and is taking medication to control his pain.
    He is using a walker. He also has a significant hearing impairment. In the end,
    I find there is reasonable cause to discharge [juror 11] and replace him with
    the alternate juror. Well proceed in that fashion.

[35]

Kossyrine submits that the trial judges ruling deprived him of a fair
    trial because juror 11 was discharged without reasonable cause. I do not agree
    with this submission. A trial judge has broad discretion under s. 644(1) and
    the trial judge in this case exercised this discretion reasonably. Moreover,
    the discharge of juror 11 did not deprive Kossyrine of a fair trial, as the
    trial judge replaced him with another juror who passed the challenge for cause
    and who Kossyrine chose to sit on the jury.

(b)

The
    proceedings concerning juror 11

[36]

Before the formal jury selection began, the trial judge excused several
    potential jurors who had valid personal reasons for not serving. During this
    initial screening, juror 11 came before the trial judge. Through questioning,
    the trial judge learned that juror 11 was 70 years old, was a retired biology
    professor and walked with a walker because he had broken his back. The trial
    judge was inclined to excuse juror 11 due to his injury, but the juror said he
    did not want to be excused. The trial judge allowed him to remain in the jury
    pool.

[37]

A few days later, juror 11 came before the challenge for cause triers
    and both triers deemed him acceptable. Both the Crown and the defence also
    deemed him acceptable and he became a member of the jury.

[38]

Two days later, after the Crown finished his opening address to the jury,
    the trial judge again spoke to juror 11. During the discussion the trial judge
    learned that juror 11 had a hearing problem, that he used a hearing aid but had
    not yet activated it and that he was on painkillers for his back injury. Still,
    juror 11 said he would like to sit on the jury, though he was not insisting.

[39]

The trial judge then asked both counsel whether they had any concerns
    about juror 11 remaining on the jury. Crown counsel (Mr. Goody) said that juror
    11 did not seem to be listening to or understanding his opening address.

Mr. Goody:
    Well, my lord, based on concerns that we commenced to have after he was
    selected, this side of the room was watching [juror 11] yesterday as closely as
    we could during the opening addressFrom where I was standing it did not seem
    to me that he was listening, or paying particular attention to what I was
    saying.

The Court:
    Thats true, I observed that as well.

.

The Court:
    Well, in addition obviously hes in probably constant pain. Hes tolerating it
    to some extent, but hes on medication to control the pain and that likely will
    cause doziness, or impairment of the cognitive of functions, thats one of the
    difficulties.

Mr. Goody: Yes, and it crossed my mind that he may have been
    somewhat discomforted just by his physical situation. I could also help but
    notice that on the two occasions when the jury was asked to retire, both at the
    break and after the conclusion

The Court: He didnt understand what I said in plain English

Mr. Goody: He didnt seem to understand what it was that was
    being asked of him. So, I mean, there is an obvious mobility issue, but I dont
    think thats where were necessarily heading in these remarks. It just seem to
    me that he was having some comprehension problems, which isnt to

The Court: Well. The mobility issue impacts upon his

Mr. Goody: Yes.

The Court: On his  obviously his physical state and whether or
    not hes able to follow information.

[40]

Eventually Crown counsel took the position that juror 11 should be
    discharged under s. 644(1) because he was unable to competently fulfill his
    obligations as a juror. Defence counsel opposed the discharge. The trial judge then
    discharged juror 11.

(c)

Analysis

[41]

In his factum, Kossyrine argued that juror 11 was a victim of
    disability-based discrimination. He pointed to the statutory provisions
    showing that a person with a physical disability may sit on a jury and that trial
    judges may now accommodate jurors with physical disabilities. Section 4(a) of
    the
Juries Act
, R.S.O. 1990, c. J.3 provides that although physical
    disability may be a ground for ineligibility, it is not an absolute bar to serving
    on a jury. Under s. 627 of the
Code
, added in 1998, a judge may permit
    a juror with a physical disability who is otherwise qualified to serve as a
    juror to have technical, personal, interpretive or other supportive services.

[42]

The participation of jurors with physical disabilities on Canadian juries
    is important. And s. 627 of the
Code
is a laudable amendment, which
    significantly promotes participation by those with physical disabilities.
    Still, on my reading of the record, the trial judge did not discriminate
    against juror 11 because of his physical disability. The trial judge was
    concerned that juror 11 was unable to perform the duties of a juror.

[43]

As important, Kossyrine, the accused, cannot assert the rights of a
    juror. Both in
R. v. Gayle
(2001), 54 O.R (3d) 36 (C.A.), leave to
    appeal refused, (2002), 159 C.C.C. (3d) vi (note) (S.C.C.) and
R. v. Church
    of Scientology of Toronto
(1997), 33
    O.R. (3d) 65 (C.A.), leave to appeal refused, [1998] 1 S.C.R. vii,
this court affirmed that an accused has no standing to assert t
he
Charter
rights
of individuals deprived of their
    right to serve on a jury. Even if juror 11 had a claim for being discriminated
    against because of his physical disability, that is not a claim Kossyrine can
    maintain.

[44]

Instead, to succeed on his argument concerning juror 11s discharge,
    Kossyrine must show that the trial judge exercised his discretion unreasonably
    under s. 644(1) of the
Code
and by doing so deprived him of a fair
    trial. Kossyrine cannot do so.

[45]

To show that the trial judge exercised his discretion unreasonably,
    Kossyrine relies on the following considerations:

·

juror 11 wanted to continue serving on the jury and expressed no
    reservation about his physical ability to do so;

·

defence counsel objected to juror 11s discharge;

·

the trial judge had no evidence of what painkillers juror 11 was
    taking, or of the side effects of those painkillers, or of whether the side
    effects affected his ability to concentrate during the trial;

·

the trial judge made no inquiries to find out whether other
    jurors were taking medication; and

·

the trial judge did not consider his authority to accommodate
    juror 11s physical disability under s. 627.

[46]

Kossyrine contends that the unreasonable discharge of juror 11 affected
    his fair trial rights because juror 11 was acceptable to the triers and
    initially to both counsel.

[47]

I cannot accede to Kossyrines contention. Juror 11s wishes and defence
    counsels objection may be relevant considerations, but the trial judge was not
    bound by either. The trial judge had to make his own determination whether
    juror 11 was capable of serving as a juror  capable of listening to and
    concentrating on the evidence, and of comprehending and analyzing it.

[48]

The trial judge conducted his inquiries of juror 11 in open court as
    this court mandated in
R. v. Giroux
(2006), 207 C.C.C. (3d) 512 (C.A.), leave to appeal refused, [2006] 2 S.C.R.
    viii
. He thus had to be sensitive to the extent of his inquiries into
    juror 11s personal circumstances, such as the type of painkillers juror 11 was
    using and their effect on him. Also, inquiries of other jurors would not only
    have been inappropriate, they would have been irrelevant to juror 11s
    capability to serve.

[49]

Finally, juror 11s situation was not really about whether he could be
    accommodated, and so s. 627 had no bearing on the trial judges decision. What
    rightly mattered to the trial judge was whether juror 11 was capable of
    carrying out his duties as a juror.

[50]

A trial judge has broad discretion under s. 644(1). The breadth of this
    discretion is reflected in the phrase other reasonable cause and the case law
    interpreting it. Other reasonable cause means any cause that could reasonably
    affect a jurors ability to discharge the duties of a juror in a competent and
    impartial manner: see
R. v. Holcomb
(1973), 12 C.C.C. (2d) 417
    (N.B.S.C. (A.D.)), affirmed [1973] S.C.R. vi and
R. v. Hahn
(1995), 62
    B.C.A.C. 6, leave to appeal refused, [1996] S.C.C.A. No. 139.

[51]

Also, in exercising the discretion under s. 644(1), a trial judge is in
    a far superior position to that of an appellate court. The trial judge is able
    to observe the juror, see how the juror answers questions and listens to
    instructions and watch how the juror reacts to what is going on in the
    courtroom. An appellate court has none of these advantages. For these reasons,
    a trial judges exercise of discretion under s. 644(1) is entitled to
    significant deference from an appellate court.

[52]

In this case, the trial judge had ample reason to discharge juror 11.
    The following considerations demonstrate the trial judge had reasonable cause
    to exercise his discretion under s. 644(1):

·

the trial was projected to last two months (and in fact lasted
    six weeks);

·

during juror 11s first appearance before the trial judge
    before the formal jury selection proceedings  juror 11 did not hear the trial
    judges questions, and the questions had to be repeated;

·

following the Crowns opening, juror 11 did not appear to hear
    the trial judges questions, which prompted the trial judge to inquire into
    juror 11s use of a hearing aid;

·

juror 11 acknowledged he was taking one or two painkillers every
    four to six hours for severe pain;

·

the trial judge observed that juror 11 did not seem to understand
    his instructions or be able to follow them; and

·

juror 11 did not seem to be following or comprehending the
    Crowns opening address.

[53]

These considerations afforded the trial judge a sound basis to conclude
    that he had reasonable cause to discharge juror 11.

[54]

And the discharge of juror 11 did not deprive Kossyrine of a fair trial.
    Kossyrine was not entitled to have a juror with a physical disability on the
    jury. He was entitled to an impartial and representative jury. He does not
    suggest that the discharge of juror 11 affected the jurys impartiality or
    representativeness. Nor could he. Juror 11 was replaced by an alternate juror
    deemed acceptable by the static triers and counsel.

[55]

I would not give effect to this ground of appeal.

D.

Conclusion

[56]

The trial judges use of static triers did not result in an improperly
    constituted jury. Nor did the trial judges discharge of juror 11 deprive
    Kossyrine of a fair trial. I would therefore dismiss the appeal.

Released: D.W. May 15, 2017

John Laskin J.A.

I agree. David Watt J.A.

I agree. C. W. Hourigan J.A.


WARNING

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

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

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

(a)       any
    of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Last, 2017 ONCA 406

DATE: 20170519

DOCKET: C60157

MacPherson, Blair and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gregory Last

Appellant

Daniel J. Brodsky, for the appellant

Dayna Arron, for the respondent

Heard: May 18, 2017

On appeal from the sentence imposed on January 15, 2013
    by Justice Lynne Leitch of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

We are satisfied that the appeal must be dismissed. The appellant met
    the criteria for a finding that he was a dangerous offender. Under the
    legislation as it then stood, the trial judge had a discretion to decline to
    declare the appellant a dangerous offender even though he met the criteria in
    the legislation. The judge appreciated that she had that discretion and
    declined to exercise it. Her exercise of that discretion is entitled to
    deference in this court.

[2]

In the course of her analysis, the trial judge found there to be a
    pattern of repetitive behaviour containing enough of the same elements of
    unrestrained conduct to predict that the appellant would likely offend in the
    same way in the future. The trial judge therefore found that the Crown had
    proven beyond a reasonable doubt that the appellant engaged in a pattern of
    repetitive behaviour.

[3]

From there the trial judge turned to whether the Crown had proven that
    there had been a failure on the part of the appellant to restrain his
    behaviour. The trial judge held that both the repetitive behaviour together
    with his in-custody conduct demonstrate an on-going inability to restrain his behaviour.

[4]

The trial judge finally considered whether the appellants failure to
    restrain his behaviour created a likelihood of causing death or injury to other
    persons or inflicting severe psychological damage on others. She found all of
    the medical evidence supported such a finding.

[5]

Against this background the trial judge, tracking the wording of s. 753
    (a) (i) of the
Criminal Code
,
said this:

I am satisfied that the Crown has proven beyond a reasonable
    doubt that there is a pattern of repetitive behaviour by [the appellant]
    showing a failure to restrain his behaviour and it has also proved beyond a
    reasonable doubt the likelihood of [the appellant] causing injury to other
    persons through failure in the future to restrain his behaviour.

[6]

The trial judge went further.  She also found that she was satisfied
    beyond a reasonable doubt that the Crown had demonstrated a pattern of
    persistent aggressive behaviour showing a substantial degree of indifference on
    his part respecting the reasonably foreseeable consequences to others of his
    behaviour under s.753 (a) (ii) of the
Code
.

[7]

The trial judge recognized that she was entitled to exercise her
    discretion in favour of designating the appellant as a long-term offender set
    out in s. 753.1 on the basis that there was a reasonable possibility of
    eventual control of the risks in the community. After an extensive review of
    the evidence relevant to this issue the trial judge concluded as follows:

I am not satisfied that the hope that [the appellant] will
    follow through his now stated intention to seek treatment allows me to conclude
    that the public threat can be reduced to an acceptable level through either a
    determinant period of  detention or a determinate period of detention followed
    by a long-term supervision order.

[8]

The trial judge noted that the hope that treatment might be successful
    had existed since 2006. She found that the appellants refusal to accept
    responsibility for his actions, his resistance to the high-intensity treatment
    available to him and his relentless in-custody misconduct illustrated that he
    poses a risk from which the public must be protected.

[9]

In this court, counsel for the appellant challenges the trial judges
    finding of a pattern of behaviour and her rejection of his position that the
    risk he posed could be managed in the community with the aid of a determinate
    sentence or a determinate sentence and a long-term supervision order.

[10]

In her comprehensive reasons, with which we entirely agree, the trial
    judge carefully considered the elements of the test set out in s. 753 of the
Code
and the related evidence. The findings she made, set out above, were open to
    her on this record. Consequently, those findings are entitled to deference. And
    on the basis of the trial judges findings, her determination that the
    appellant should be declared a dangerous offender was reasonable.

[11]

The appeal is therefore dismissed.

J.C. MacPherson J.A.

R.A. Blair J.A.

Gloria Epstein J.A.


WARNING

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

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

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

(a)      any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.N., 2017 ONCA 434

DATE: 20170531

DOCKET: 57189

Weiler, Feldman and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.N.

Appellant

Heather Pringle, for the appellant

Michelle Campbell, for the respondent

Heard: April 27, 2017

On appeal from the order of Justice Hugh K. OConnell of
    the Superior Court of Justice, dated May 14, 2013, dismissing an appeal from
    the conviction entered on September 4, 2009, by Justice J. Rhys Morgan of the
    Ontario Court of Justice.

Weiler J.A.:

A.

Overview

[1]

The appellant, M.N., was convicted of possession of child pornography pursuant
    to s. 163.1(4) of the
Criminal Code
, R.S.C. 1985, c. C-46. The images
    were stored in the temporary Internet files on a computer he shared with his
    common law spouse. The couples teenaged daughter also occasionally used the
    computer when she visited her parents.

[2]

In convicting the appellant, the trial judge misapprehended the evidence
    of the Crowns expert witness as to how images can appear in a computers
    temporary Internet files, or cache. This misapprehension led him to reject
    the appellants evidence that he was unaware of the presence of child
    pornography on the computer and conclude that the appellant had downloaded the
    images. The trial judge therefore determined the appellant had the requisite
    knowledge and control of the images and entered a conviction for possession of
    child pornography.

[3]

The appellant appealed to the summary conviction appeal court. The
    summary conviction appeal judge similarly misapprehended the expert evidence
    and dismissed the appeal.

[4]

The appellant, although having served his sentence of six months
    imprisonment, seeks leave to appeal to this court and, if leave be granted,
    asks that this court set aside his conviction and enter an acquittal.

[5]

The respondent Crown consents to leave to appeal being granted on the
    basis of the misapprehension of the experts evidence, but does not agree that this
    court should enter an acquittal. The respondent makes two arguments. First,
    accessing child pornography is an offence included in the offence of
    possession. The appeal should therefore be dismissed under s. 686(1)(b)(i) of
    the
Code

because the appellant was properly convicted on
    another count or part of the indictment. Second, and in the alternative, the
    respondent submits that it is in the interests of justice to amend the
    information pursuant to s. 683(1)(g) of the
Code
to accord with the
    evidence on which the trial judge based his finding that the appellant accessed
    child pornography.

[6]

For the reasons that follow, I would agree that leave to appeal should
    be granted. I would hold that accessing child pornography is not intrinsically
    included in the offence of possession of child pornography. I would also not
    give effect to the respondents argument that the information should be amended
    to substitute a charge of accessing child pornography. To do so would prejudice
    the appellant and would therefore not be in accordance with the interests of
    justice.

[7]

Accordingly, I would grant leave to appeal, allow the appeal, and enter
    an acquittal for the offence of possession of child pornography.

B.

Proceedings Below

(1)

Trial in the Ontario Court of Justice

[8]

At the appellants trial, he testified that his common law spouse, B.S.,
    discovered images depicting child pornography on her computer (which they shared).
    She showed him what she had found, and they decided to call the police. The
    police came the same day  February 4, 2007  and found 55 images of child
    pornography in the temporary Internet files folder on the computer. Although
    the appellant freely admitted that he possessed adult pornography, he denied
    any knowledge of the images of child pornography on the computer. He also said
    if he downloaded any images of child pornography, it was unintentional and he
    must have been drunk at the time.

[9]

R.N., the daughter of M.N. and B.S., was 14 years old at the time the
    child pornography was discovered. She did not live with her parents, but she testified
    she occasionally used their computer when she visited, including to sometimes
    access adult pornography. On one occasion, she used the computer to access an
    adult pornography site and a child pornography site popped up. She shut down the
    computer without downloading the pornography. At the appellants trial, on May
    28, 2009, she testified that this incident had occurred a couple of years ago.

[10]

The Crown had called Michael Ryder as a witness. Ryder is a civilian
    designated as a special constable in the Electronic Crimes section of the
    Ontario Provincial Police. Ryder had conducted a forensic analysis of B.S.s
    computer and had prepared a report. The trial judge qualified Ryder to give
    opinion evidence with respect to forensic computer analysis.

[11]

Ryder testified that temporary Internet files are created when a person
    uses a web browser, like Internet Explorer, and these files are automatically
    saved as cached files. In addition, two files on the computer were found on
    Google Desktop, an application that also caches websites that might be
    revisited.

[12]

The essential elements of possession of child pornography are knowledge
    and control. These elements are common to both personal possession and
    constructive possession:
R. v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R.
    253, at para. 15.

[13]

The trial judge found the appellant had knowledge of the child
    pornography. The trial judge rejected the appellants evidence that he did not
    know the images were on his computer. He found that the appellant had accessed
    the images over the Internet.

[14]

In regard to the second essential element, the exercise of control, the
    trial judge misapprehended Ryders evidence and concluded that the files could
    not have ended up in the computers temporary Internet folders without a
    deliberate act to download and save them there. On that basis, he inferred that
    the appellant had
downloaded
the child pornography, thereby exercising
    some control over the content stored in the temporary Internet files.

[15]

On September 4, 2009, the trial judge convicted the appellant of
    possession of child pornography. On October 22, 2009 the appellant was
    sentenced to six months imprisonment. He has since served that sentence.

(2)

Appeal to the Summary Conviction Appeal Court

[16]

The appellant appealed his conviction to the summary conviction appeal
    court and represented himself on appeal. Amongst other issues, he argued that
    the trial judge misapprehended Ryders evidence about how cached images get
    into computer memory.

[17]

The summary conviction appeal judge also misapprehended the evidence as
    to how images come to be saved in a temporary Internet cache. He found the evidence
    against the appellant substantiated the conviction for possession of child
    pornography and he accordingly dismissed the appeal.

C.

Issues

[18]

The issues raised on this appeal are:

1.   Should
    leave to appeal be granted?

2.   Is
    accessing child pornography a lesser included offence of possession of child
    pornography?

3.
    If not, is it in the interests of justice to amend the information to charge
    the appellant with accessing child pornography and to enter a conviction for
    that offence?

D.

Analysis

(1)

Leave to appeal should be granted.

[19]

As discussed, the respondent consents to leave to appeal being granted
    and acknowledges there is insufficient forensic evidence to support a finding that
    the appellant had the necessary
mens rea
to possess child pornography. I
    agree.

[20]

The question of whether an accused person can be said to be in culpable
    possession of a cached visual depiction alone, while perhaps a live issue at
    the time of the appellants trial in 2009, was definitively answered by the
    Supreme Court of Canada in 2010. In
Morelli
,
referenced above, Fish J. held, at para 19:

[P]ossession of an image in a computer means
possession of
    the underlying data file,
not its mere visual depiction. [Emphasis in
    original.]

[21]

He explained, at para. 14:

In my view, merely viewing in a Web browser an image stored in
    a remote location on the Internet does not establish the level of control
    necessary to find possession. Possession of illegal images requires
possession of the underlying data files in some way.
Simply viewing images
    online constitutes the separate crime of
accessing
child pornography,
    created by Parliament in s. 163.1(4.1) of the
Criminal Code
. [Emphasis
    in original.]

[22]

Fish J. concluded, at para 31, Plainly, the mere fact that an image has
    been accessed by or displayed in a Web browser does not, without more,
    constitute possession of that image. At paras. 35-36, he considered how the
    Courts understanding of possession applied to files in an Internet cache as
    follows:

When accessing Web pages, most Internet browsers will store on
    the computers own hard drive a temporary copy of all or most of the files that
    comprise the Web page.  This is typically known as a caching function and the
    location of the temporary, automatic copies is known as the cache.

On my view of possession, the automatic caching of a file to
    the hard drive does not, without more, constitute possession.  While the cached
    file might be in a place over which the computer user has control, in order
    to establish possession, it is necessary to satisfy
mens rea
or fault
    requirements as well.  Thus it must be shown that the file was
knowingly
stored
    and retained through the cache. [Emphasis in original.]

[23]

After commenting that most computer users are unaware of the contents of
    their cache, how it operates, or even its existence, Fish J. held that absent
    that awareness, they lack the mental or fault element essential to a finding
    that they culpably possess the images in their cache:
Morelli
, at para.
    37.

[24]

Fish J. acknowledged that there could be rare instances where a person
    knowingly used the cache as a location to store copies of image files with the
intent

to retain possession of them through the cache
    (emphasis in original):
Morelli
, at para. 27. There is no evidence that
    this case is one of those rare instances. Thus, quite apart from the
    misapprehension of Ryders evidence, the existing jurisprudence would lead to
    the conclusion that the appellant was not guilty of possession of child
    pornography.

[25]

I would therefore agree that leave to appeal should be granted. Section
    839 of the
Code
provides for leave to appeal from a summary conviction
    to be taken on any ground that involves a question of law alone.

[26]

Justice Doherty elaborated on the requirements of s. 839 in
R. v.
    R.R.
, 2008 ONCA 497, 59 C.R. (6th) 258, in which he identified two key
    variables respecting the question of law raised: (1) the significance of the question
    of law to the general administration of criminal justice; and (2) the strength
    of the proposed appeal. The effect of these two variables is that leave may be
    granted in an arguable (although not strong) appeal where the issues have
    broader significance to the administration of justice. Similarly, leave may be
    granted where the merits appear very strong, even if the issues are not of
    general importance, especially if the conviction in issue is a serious one
    involving a significant deprivation of liberty:
R.R.
, at para. 37.

[27]

Both variables set out in
R.R.
support granting leave to appeal
    in this case. First, the question of law raised, namely, Is accessing child
    pornography an included offence for possession of child pornography? has
    significance to the administration of justice beyond the four corners of this
    case.

[28]

Second, the merits of the appellants appeal for possession of child
    pornography are very strong, having regard to: (a) the misapprehension of the
    experts evidence at trial,  (b) a similar misapprehension of that evidence on
    appeal to the summary conviction appeal court, as well as (c)  the Supreme
    Courts decision in
Morelli
.
In addition, not only is the
    conviction in issue a serious one that involves the risk of a significant
    deprivation of liberty, it carries a minimum sentence of imprisonment, and the
    appellant has already been deprived of his liberty for six months. It appears
    that a miscarriage of justice occurred. Further, the appellant continues to
    suffer the stigma associated with having to report under the
Sexual
    Offender Information Registration Act
,
    S.C. 2004, c. 10,
for a period of ten years.

[29]

For all of these reasons, I would grant leave to appeal.

(2)

Accessing child pornography is not intrinsically a lesser included
    offence of possession of child pornography.

[30]

The respondent submits that this court can substitute a conviction for
    accessing child pornography pursuant to s. 686(3) of the
Code

because
    accessing is a lesser included offence of possessing child pornography.

[31]

In
R v. R.(G.)
, 2005 SCC 45, [2005] 2 S.C.R. 371, at paras.
    25-34, the Supreme Court held that an offence is included in the offence
    charged in three instances:

i.

the offence is expressly stated as an included offence in the
Criminal
    Code
(s. 662);

ii.

the offences elements are embraced in the offence charged as described
    in the enactment creating it; or

iii.

the offences elements are embraced in the offence charged as described
    in the information or indictment.

The underlying principle is that the accused must have
    fair notice of the included offences he or she must meet:
R.
(G.)
,
    at para. 27.

[32]

Accessing child pornography is not stated as an included offence under
    s. 662(2) to (6) of the
Code
. The first instance cited above does not
    apply. Nor does the information describe accessing as part of the manner in
    which the offence of possession was committed. The third instance does not
    apply.

[33]

With respect to the second instance, the enactment creating the offence charged
     possession of child pornography  is s. 163.1(4) of the
Code
. It
states that every person who
    possesses any child pornography is guilty of an indictable offence, or an
    offence punishable on summary conviction. The question is, therefore, whether the
    offence of accessing child pornography is embraced in the offence of
    possession.

[34]

Accessing is contained in s. 163.1(4.1) of the
Code
,

which
    similarly states that every person who accesses any child pornography is guilty
    of an indictable offence, or an offence punishable on summary conviction.
    Subsection (4.2) defines accessing:

For the purposes of subsection (4.1), a person accesses child
    pornography who knowingly causes child pornography to be viewed by, or
    transmitted to, himself or herself.

[35]

The first definition of the word transmit or transmitted in the Canadian
    Oxford Dictionary, 2d ed. (Toronto: Oxford University Press, 2004), at p. 1654,
    is pass or hand on; transfer.

[36]

The Crown submits that it is legally impossible to possess child pornography
    without at some point accessing it. I disagree.

[37]

For example, if someone downloaded child pornography onto a memory stick
    and gave that memory stick to the appellant, and the appellant knew the memory
    stick contained child pornography, the appellant would be in possession of
    child pornography. He would have knowledge of the contents of the memory stick
    and control over those contents; therefore the elements of possession would be
    satisfied. He would not be guilty of accessing child pornography because he has
    not viewed the images on the memory stick nor has he transmitted them to
    himself.

[38]

As the above example illustrates, it is possible to possess child pornography
    without accessing it. The elements of the offence of accessing are not intrinsically
    embraced within the offence of possession.

[39]

My conclusion is also consistent with
Morelli
,
at para.
    27, where Fish J. observed that
viewing
and possession [of child
    pornography] should  be kept conceptually separate. (emphasis added.)

[40]

I note further that the penalty for included offences is generally a
    lesser penalty in part because the moral culpability is less than for the
    original offence charged. The penalty for accessing child pornography and for
    possession of child pornography is identical. With respect to both, if found
    guilty pursuant to an indictment, the sentence is a minimum term of
    imprisonment of one year and a maximum term of ten years; if found guilty
    pursuant to summary conviction, the sentence is a minimum term of imprisonment of
    six months and a maximum of two years less a day. Thus, Parliament has
    indicated the moral culpability is the same.

(3)

It is not in the interests of justice to amend the information to charge
    the appellant with accessing child pornography and to enter a conviction for
    that offence.

[41]

I now turn to the Crowns secondary submission that this court should
    amend the information pursuant to s. 683(1)(g) of the
Code
so that it
    conforms to the trial judges finding that the appellant viewed child
    pornography. Section 683(1)(g) states:

For the purposes of an appeal under
    this Part, the court of appeal may, where it considers it in the interests of
    justice,

(g) amend the indictment, unless it
    is of the opinion that the accused has been misled or prejudiced in his defence
    or appeal.

[42]

By analogy, this court may also amend an information:
R. v. Brownson
,
    2013 ONCA 619, 7 C.R. (7th) 327, at para. 20.

[43]

I do not consider it to be in the interests of justice to amend the
    information and enter a conviction for accessing child pornography. Even if,
    based on the manner in which the case was presented, the appellant would have
    appreciated that accessing child pornography was a live issue at his trial, the
    trial judges misapprehension of the evidence was central to his rejection of
    the appellants credibility. Indeed, in its factum, the respondent concedes,

[The trial judges and the summary conviction appeal judges]
    misapprehension [of the evidence] impacted the finding at trial, upheld on
    appeal, that the Appellant had the necessary
mens rea

for the
    offence of possession of child pornography pursuant to s. 163.1(4) of the
Criminal
    Code
.

[44]

It is impossible to measure the extent to which the trial judges
    misapprehension of the evidence affected his assessment of the appellants credibility
    concerning his
mens rea
.

Suffice
    it to say, that misapprehension was central to the trial judges reasoning. The
    appellant would be severely prejudiced if this court were to substitute a
    conviction for accessing child pornography for the count of possession in this
    case.

[45]

In oral submissions, the respondent submitted that if this Court was
    concerned about substituting a conviction for accessing child pornography, it
    should consider amending the information and ordering a new trial.  In my
    opinion, this would not cure the prejudice to the appellant created by amending
    the information for the first time on appeal.

[46]

The time that has passed between the appellants trial in January 2009
    and this second appeal, heard in April 2017, and the additional expense and
    effort the defence would need to incur to defend such a charge, together with
    the fact that the appellant has already served his sentence for possession of child
    pornography, exacerbates the prejudice to the appellant. It would not be in the
    interests of justice for further proceedings to ensue.

E.

Disposition

[47]

Accordingly, I would grant leave to appeal, set aside the conviction for
    child pornography and enter an acquittal.

Released: K.M. May 31, 2017

Karen M. Weiler J.A.

I agree. K. Feldman J.A.

I agree. Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mathur, 2017 ONCA 403

DATE: 20170518

DOCKET: C59678

Gillese, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Harinarain Mathur

Appellant

Eva Taché-Green, for the appellant

Erin Carley, for the respondent

Heard: May 5, 2017

On appeal from the sentence imposed by Justice Donald McLeod
    of the Ontario Court of Justice, dated September 24, 2014.

Trotter J.A.:

A.

Introduction

[1]

Mr. Mathur appeals from a 12-month prison
    sentence imposed on one count of fraud over $5,000, contrary to s. 380(1)(a) of
    the
Criminal Code
. At the conclusion of the
    hearing of the appeal, the appeal was dismissed with reasons to follow. These
    reasons explain why the appeal was dismissed.

B.

the offence and the offender

[2]

At the time of the offences, the appellant was
    an accountant, as well as a real estate agent and broker. Between December 31,
    2009, and March 30, 2012, using the social insurance numbers and dates of birth
    of his real estate clients, and without their knowledge or consent, the
    appellant prepared 292 false tax returns. He created T4 slips from two
    fictitious companies. He generated small refunds on these tax returns. He
    received a total of $35,321 under this fraudulent scheme, although he attempted
    to obtain $343,840.

[3]

The appellant was 65 years old at the time of
    sentencing. He had no prior criminal record. The appellant had the full support
    of his family. Many character reference letters were filed on his behalf.
    Before sentencing, the appellant took psychological counseling and gained some insight
    into his behaviour. Also, through his counsel, he offered to make restitution
    at the time of sentencing, but this did not happen. I will return to this issue
    below. The appellant has since lost his accreditations to work as an accountant
    and as a real estate agent/broker.

C.

the sentencing judges reasons

[4]

At the sentencing hearing, the Crown requested a
    16 to 18-month jail sentence. The appellant requested a 12-month conditional
    sentence.

[5]

The sentencing judge concluded that a conditional
    sentence was not appropriate in the circumstances of this case. He held that
    general deterrence is the most important factor in fraud cases involving
    breaches of trust, with rehabilitation assuming a secondary role. After listing
    numerous aggravating factors, some of which are discussed below, the sentencing
    judge imposed a sentence of 12 months imprisonment.

D.

analysis

[6]

In her factum, counsel for the appellant advanced a number of arguments why
    this court should intervene and impose a conditional sentence. At the hearing
    of the appeal, Ms. Taché-Green focused on the trial judges failure to consider
    the appellants offer to make restitution before being sentenced, and on the
    overall fitness of the sentence.

[7]

The issue of restitution was raised with the sentencing judge, but in an
    abstruse manner. The appellants trial counsel (not Ms. Tach
é
-Green) said:

Hes prepared to make restitution although restitution itself,
    it doesnt really  I dont think my friend is asking for as such. A fine under
     that Your Honour imposes because this a fine under the revenue law of Canada,
    under s. 734(2) of the
Criminal Code

will go to the Receiver
    General of Canada, so essentially back into the federal coffers. And he has
    well over, well over $35,000 in trust for the  to ensure that the money is, is
    returned to the Canadian taxpayer. So hes prepared to do that and essentially
    that would be restitution that would be offered.

The Crown did not request restitution under s. 738 of
    the
Criminal Code
. No restitution order was made.

[8]

Ms. Tach
é-Green
advised that the
    appellant made unsuccessful efforts to pay restitution. Shortly after
    sentencing, the appellant went bankrupt. At the hearing of the appeal, the
    court was advised that funds may be available to pay restitution, but no
    attempt was made to enlarge the record by way of fresh evidence. The bottom
    line is that restitution has still not been made.

[9]

Restitution advances important goals of
    sentencing, such as provid[ing] reparations for harm done to victims or to the
    community (
Criminal Code
, s. 718(e)), and
    promoting a sense of responsibility in offenders, and acknowledgement of the
    harm done to victims or to the community (s. 718(f)): see Allan Manson,
The
    Law of Sentencing

(Toronto: Irwin Law, 2001), at
    p. 139. Like a guilty plea, making restitution prior to sentencing is a clear
    acknowledgment of responsibility and an important step towards rehabilitation.

[10]

The sentencing judge failed to mention the restitution offer in his
    reasons. I agree with the appellant that the failure to take this into account was
    an error in principle. As Tulloch J.A. said in
R. v. McLellan
, 2012
    ONCA 717, 293 C.C.C. (3d) 326, leave to appeal refused, [2013] S.C.C.A No. 100,
    at para. 44:
An offender's ability and willingness to pay
    restitution is an important consideration in the sentencing of fraud and
    related offences. In
R. v. Bogart

(2002), 61
    O.R. (3d) 75 (C.A.), leave to appeal refused, [2002] S.C.C.A. No. 398, Laskin
    J.A. recognized that the payment of full restitution before sentencing might
    be a special circumstance justifying a conditional sentence where a prison
    sentence is otherwise appropriate (para. 38).

[11]

However, merely identifying an error on sentencing will not displace the
    customary deference afforded to sentencing judges; nor does it automatically warrant
    appellate intervention. As Wagner J. wrote in
R. v. Lacasse
, 2015 SCC
    64, [2015] 3 S.C.R. 1089, at para. 44:

In my view, an error in principle, the failure to consider a
    relevant factor or the erroneous consideration of an aggravating or mitigating
    factor will justify appellate intervention
only
    where it appears from the trial judges decision that such an error had an
    impact on the sentence.
[Emphasis added.]

See also
R. v. Fraser
, 2016 ONCA 745, 33 C.R.
    (7th) 205, at paras. 17-20.

[12]

I am not persuaded that the sentencing judges failure to mention or
    consider the appellants offer of restitution had any impact on the sentence he
    imposed. In large fraud cases involving a breach of trust, a genuine offer to
    make full restitution, while important, must take a secondary role to the
    sentencing objectives of general deterrence and denunciation: see
R. v.
    Bertram
(1990), 40 O.A.C. 317, at para. 7; and
R. v. Castro
, 2010
    ONCA 718, 102 O.R. (3d) 609, at paras. 30, 35.

[13]

As an accountant involved in the preparation of tax returns, the
    appellants actions constituted a breach of trust against the Government of
    Canada: see
R.

v.

Leo-Mensah
, 2010 ONCA 139,
    101 O.R. (3d) 366, leave to appeal refused, [2010] S.C.C.A. No. 170, at para.
    11;
R. v. Dwyer
, 2013 ONCA 34, 296 C.C.C. (3d) 193, at paras. 9-10;
    and
R. v. Tennina
, 2013 ONSC 4694, 108 W.C.B. (2d) 267, at para. 3. Moreover,
    the identify thefts from his real estate clients involved multiple breaches of
    trust: see
R. v. Oton
, 2012 ONSC 861, 99 W.C.B. (2d) 877, at para. 13.

[14]

The sentencing judge characterized the offence as a large-scale fraud.
    This was evident from the amount that the appellant attempted to defraud the
    Government ($343,800), despite the smaller amount that he actually recovered ($
35,321)
. I agree that this amounted to a large-scale fraud.
    However, irrespective of the adjective used to describe the level of the appellants
    offending, given the presence of the many aggravating factors in this case, the
    sentencing judge was correct to emphasize general deterrence and denunciation.
    These factors included: (1) the degree of sophistication and planning involved;
    (2) the significant number of transactions (
i.e.
, 292 tax returns); (3)
    the duration of the fraud (over 27 months); (4) the fraud was perpetrated on
    the Government of Canada; and (5) the appellant was caught, as opposed to
    voluntarily terminating his activities.

[15]

In the circumstance of this case, even with an offer of restitution
    (which was ultimately not made), a conditional sentence would not achieve the
    goals of general deterrence and denunciation. The sentence imposed was fit.

E.

Disposition

[16]

I would grant leave to appeal, but dismiss the appeal.

Released:

GTT                                                   G.T.
    Trotter J.A.

MAY 18 2017                                    I agree
    Eileen E. Gillese J.A.

I
    agree Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McGregor, 2017 ONCA 399

DATE: 20170518

DOCKET: C62174

Feldman, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jordan McGregor

Respondent

Allyson Ratsoy, for the appellant

Richard Addelman, for the respondent

Heard: March 13, 2017

On appeal from the sentence imposed on April 29, 2016 by
    Justice Robert L. Maranger of the Superior Court.

REASONS FOR DECISION

[1]

This is a Crown appeal against sentence.

[2]

The respondent was a long-time distributor of
    cocaine for a criminal organization. He was charged with offences committed in
    2012-2013, but admitted on wiretaps that he had been trafficking in cocaine as
    a distributor for an organized crime gang for over ten years and that he had also
    acted as an enforcer. Following his arrest in October 2013, he was released on
    bail. In February 2015, he was re-arrested for numerous breaches of
    recognizance and for possession of 17 oxycodone pills for which he had no
    prescription. His bail was revoked pursuant to s. 524(4) of the
Criminal
    Code
and he remained in custody until his sentencing.

[3]

He pleaded guilty in May 2015 but was not
    sentenced until April 2016. He served one year, 69 days in pre-sentence
    custody.

[4]

After his guilty plea, the respondent was
    sentenced to seven years and 69 days imprisonment, broken down as follows: five
    years for conspiracy to traffic cocaine, five years to be served concurrently
    for trafficking in cocaine, two years and 69 days to be served consecutively
    for committing an indictable offence for the benefit of a criminal
    organization, one year to be served concurrently for possession of oxycodone
    and one year on each of the seven counts for breach of recognizance, to be
    served concurrently. The sentencing judge gave 1:1 credit for pre-sentence
    custody in accordance with ss. 719(3) and (3.1) of the
Criminal Code
. He applied the credit to the sentence for the criminal
    organization offence, thereby reducing it to under two years.

[5]

The Crown raises three arguments on appeal.

[6]

First, the Crown says that the sentencing judge
    erred in applying pre-sentence custody credit to the sentence for the criminal
    organization offence rather than to one of the other sentences. Pursuant to s.
    743.6(1.2) of the
Criminal Code
, the court is
    presumptively required to delay parole to one half of the sentence or ten
    years, whichever is less, for an offender receiving a sentence of imprisonment
    of two years or more on conviction of an offence for the benefit of a criminal
    organization. Also the sentence is to be served consecutive to any other
    sentence imposed:
Criminal Code
, s. 467.14.

[7]

The Crown submits that the sentencing judges
    approach, which reduced the length of the sentence for the criminal
    organization offence to under two years, had the effect of avoiding the
    statutory consequence regarding parole eligibility and therefore undermined the
    intended effect of this section, which is to enhance punishment for offences
    involving criminal organizations.

[8]

We do not accept this submission. While it is
    clear that the intent of the quoted provisions is to enhance the severity of
    sentences imposed for an offence involving criminal organizations, there is
    nothing in the
Criminal Code
that prohibits a
    judge from applying the pre-sentence custody in the manner that was done in
    this case. Furthermore, the Crown acknowledged in oral argument that, as
    submitted by counsel for the respondent, because of the total length of the
    sentence imposed in this case, the appellants parole eligibility will not be
    affected by the approach taken by the sentencing judge. Although he did not say
    so, this consequence may well have informed his decision.

[9]

Second, the Crown asserts that the sentencing
    judge erred in making the breach of recognizance and possession of oxycodone
    sentences concurrent to the other sentences when the respondent committed these
    offences 16 months after his initial arrest, and when there was no nexus
    between the two sets of offences. While the sentencing judge was entitled to
    impose concurrent sentences after applying the totality principle, he did not
    advert to totality in his reasons for sentence.

[10]

We agree that in the normal course, the sentence
    for the breaches and possession of oxycodone would be consecutive to the other
    sentences because they were entirely separate offences committed later in time,
    and constituted breaches of his release terms. However, it is clear from a
    review of the entire sentencing reasons as well as the sentences imposed on
    other members caught in the same police project that the sentencing judge
    imposed a sentence that in total accorded with his view of what was appropriate
    in all the circumstances. Furthermore, we were told that the respondent spent
    11 months in pre-sentence custody following his guilty plea because of the
    unavailability of the court. That custody could only be credited on a 1:1
    basis. This factor may also have influenced the sentencing judges decision to
    make the sentence concurrent.

[11]

Finally, the Crown says that the sentence for
    conspiracy to traffic in cocaine and trafficking in cocaine was unfit as it was
    outside the proper range for the quantity of cocaine and level of involvement
    of the appellant.

[12]

At sentencing, the Crown asked for a sentence at the
    top end of the range which it submitted was 8-14 years. The appellant asked for
    5 years, which he stated was the low end of the range, which he argued was 5-13
    years. The cases cited by the parties include:
R. v. Battista
, 2011 ONSC 6394;
R. v. Bryan
, 2011
    ONCA 273;
R. v. Majnoon
, 2009 ONCA 876, 257
    O.A.C. 108, leave to appeal refused, [2010] S.C.C.A. No. 288;
R. v. Nero
,
    2008 ONCA 622;
R. v. Muise
, 2008 ONCA 665;
R.
    v. Bajada

(2003), 173 C.C.C. (3d) 255 (C.A.);
R.
    v. Feeney
, 2015 ONSC 3218;
R. v. Chaves
, [2013] O.J. No. 5423 (C.J.). The sentencing judge then imposed the
    five year sentence, as part of the total sentence of seven years, 69 days. This
    court was apprised of two other sentences imposed on two offenders charged in
    the same police investigation, one by the same judge, of eight years each based
    on joint submissions in
R. v. Perron
, (11
    October 2016), Ottawa, 13/30422 (S.C.) and
R. v. Gheorghevici
. Although this was not a joint submission, the trial judge referred
    to the sentence imposed in
Gheorghevici

and it is apparent he considered the parity principle when imposing
    this sentence.

[13]

We agree with the Crown that the case law supports the submission that
    eight years is toward the low-end of the accepted range for conspiracy to
    traffic in cocaine for mid-level dealers trafficking in quantities that include
    the kilogram level. While a very heavy sentence was warranted in this case, we
    cannot say that it is an error of law beyond the discretion of the trial judge
    to have imposed five years as part of a total sentence following a guilty plea
    and that is in accord with other sentences to which the parity principle
    applies.

[14]

In the result, while leave to appeal sentence is granted, the appeal is
    dismissed.

K. Feldman J.A.

K. van Rensburg J.A.

G. Pardu J.A