COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jimaleh, 2018 ONCA 841

DATE: 20181022

DOCKET: C64056

Sharpe, Lauwers and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Guled Jimaleh

Appellant

Dirk Derstine, for the appellant

Candice Suter, for the respondent

Heard: October 3, 2018

On appeal from the conviction entered on October 6, 2016,
    by Justice N. Backhouse of the Superior Court of Ontario, sitting without a
    jury.

REASONS FOR DECISION

[1]

The appellant was convicted of attempted murder and a number of related
    firearm offences. The appellant argues that the verdict was unreasonable
    because no properly instructed trier of fact could reasonably conclude that
    the Appellant was the shooter beyond a reasonable doubt.

[2]

The appellant advances two main arguments. The first is that the police
    committed procedural missteps, which would not have been necessarily fatal on
    their own, but which became fatal when coupled with the second error. The
    second is that the trial judge erred by focussing on credibility, not
    reliability, in circumstances where the complainants reliability was clearly
    in doubt. This resulted in misapprehensions of key aspects of the evidence.

[3]

We reject the appellants arguments and dismiss the appeal for the
    following reasons.

The facts

[4]

We begin with the narrative of events. According to the complainant, he
    was walking toward the bus stop from his wifes apartment, when he was
    approached by two males. He recognized one of them as Gucci. It seemed to the
    complainant from their conversation that Gucci did not remember him. The
    complainant was on the cellphone with his cousin during his encounter, and told
    him he was talking to Gucci. The complainant then looked away from the two
    men to a nearby vehicle, looked back, and was shot by Gucci. He was hit four
    times in the torso and once in the face.

[5]

Some details of the conversation between the complainant and Gucci were
    recounted by the trial judge:

[W]hen [the complainant] asked
    Arent you Gucci from Jamestown and told him that he knew him from high
    school, Gucci did not deny that this was his name. Instead, he said How do you
    know me?, intimating that he was who Mr. Ali believed him to be. Mr. Ali told
    his cousin he was talking to Gucci which likely led to his being shot.

These details flow from the complainants testimony; he
    was not cross-examined on the words he exchanged with Gucci.

[6]

The complainants wife called 911 and two police officers soon arrived.
    The complainant was in pain and suffering from loss of blood. One of the
    officers asked the complainant who shot him, and he replied that Gucci had
    shot him. He described Gucci as a Somalian man wearing a blue bandana.

The complainant identifies the appellant as the shooter

[7]

The complainant identified the appellant as the shooter on two
    occasions. The first was while he was in the ambulance awaiting transportation
    to the hospital. After telling the officer that Gucci had shot him, the
    officer showed the complainant a picture of a person known to the police by the
    nickname Gucci, which had been sent by a colleague to the officers
    cellphone. The complainant confirmed that the person in the picture was the one
    who shot him.

[8]

The second was four days later when the police showed the same photo to
    the complainant when he was in the hospital. Again, he identified the man in
    the picture as the shooter.

[9]

The appellant argued that flawed police methodology compromised the
    reliability of the complainants identification from the police photo. This
    court has said: Irreversible prejudice to an accused may flow from the use of
    inappropriate police procedure and, unless adequately counterbalanced during
    the course of the judicial process, may result in a serious miscarriage of
    justice:
R. v. Miaponoose
(1996), 30 O.R. (3d) 419, [1996] O.J. No.
    3216 (C.A.), at para. 17; see also
R. v. F.A
.
(2004), 183
    C.C.C. (3d) 518, [2004] O.J. No. 1119 (C.A.), at paras. 46-47.

[10]

It would be unfair to criticise the police officers action in showing the
    complainant the photograph on the first occasion when his death seemed
    imminent. Even so, the trial judge acknowledged that showing the picture to
    Mr. Ali of the man the police believed was Gucci weakens the reliability of
    the photographic evidence. But she then explained why she nonetheless found
    the identification to be compelling:

I also take into account that Mr. Alis
    condition was deteriorating and that he had an oxygen mask over his face by the
    time Cst. Chalmers held a picture over his face. [] I bear in mind that Mr.
    Ali was not being asked to identify a picture of someone he saw for the first
    time during a traumatic incident but a person he knew who he had identified to
    the police by nickname, area of residence and cultural background. He was then
    able to answer Cst. Chalmers question about whether he had a conversation with
    the guy who shot him by accurately responding yes and then he shot me. I also
    consider it significant that the initial identification of Gucci as the
    shooter, a Somalian from Jamestown, came from Mr. Ali, not from the police and
    then confirmed by Mr. Ali.

[11]

With
    respect to the second identification of the appellant by the complainant, the
    appellant argued that the police should have presented the complainant with a
    photo line-up. The police simply showed the complainant the photograph he had
    identified in the ambulance as that of the shooter.

[12]

The
    trial judge recognized that the actions of the police on this second occasion
    were not helpful. She noted that [h]aving been previously shown the accuseds
    picture and identified it, of course, may have predisposed Mr. Ali to reconfirm
    his previous identification. She took this into account, and concluded:

Nevertheless, it must be
    remembered that Gucci was someone that Mr. Ali knew from seeing at regular
    intervals for a year in a small specialty school and who he recognized
    immediately when he was approached by the 2 males. He confirmed when he was not
in extremis
from gunshot wounds that that was Gucci in the picture,
    the man who had shot him. It is apparent from looking at Exhibit 4 that it is a
    picture of the accused.

[13]

The
    appellant accepted that the trial judge rightly cautioned herself that [m]istaken
    eyewitness identification is the overwhelming factor leading to wrongful
    convictions, and that in cases of eye witness identification including
    recognition identification, the evidence has to be treated with caution. The
    trial judge covered the factors relevant to the evaluation of the complainants
    identification evidence, particularly the useful list in
R. v. Virk
,
2015 BCSC 981, at para. 117, which the
    court distilled from other cases.

[14]

The
    trial judge found, considering the
Virk
reliability factors, that the
    complainant was in a position to recognize Gucci as the shooter because the
    incident occurred in broad daylight and nothing impeded his view of the
    shooter. The complainant was not impaired or intoxicated. He recognized Gucci
    from the small high school they attended and knew some details about him (he
    was from Jamestown), even though he did not know his real name. The trial judge
    made these findings:

I accept Mr. Alis evidence that
    he knew Gucci from attending the same small speciality school, catering
    mainly to Somalian students. While he did not know him well enough to know his
    real name or to call him a friend, he saw Gucci three times a week during a
    year, knew his nickname, that he was Somalian and that he was from Jamestown.
    Mr. Ali may have been incorrect that they had an English class in common,
    although the student timetables for the accused and Mr. Ali which were entered
    into evidence during cross-examination were for different years. The timetable
    for the accused shows Gucci as having a Jamestown address at that time. The 4
    years since Mr. Ali had seen Gucci was not such a long period that one would
    expect him to no longer be able to recognize him. I find that Mr. Ali was
    capable of recognizing Gucci and was in a position to accurately observe the
    assailant who he recognized during the minute or so conversation with him which
    preceded the shooting.

[15]

In
    support of the argument that the trial judge focused on credibility at the
    expense of reliability, the appellant points out that the reasons have a
    Credibility heading but none for reliability. Counsel noted several problems
    with the accuracy of the complainants recall. He targeted particularly the
    complainants assertion that he knew Gucci because they had attended the same
    English class every other day. However, in cross-examination, on being shown
    timetables for two different years, the complainant admitted he was mistaken
    about the English class. The appellant argued that this rendered unreliable the
    complainants identification of the appellant as the one who shot him, from the
    photograph.

[16]

The
    trial judge agreed that there were reasons to be cautious about Mr. Alis
    identification evidence because there is no physical evidence, because of the
    way the photo was put to him and because of the instances of his unreliability
    and lack of credibility. The trial judge found the complainant to be generally
    a credible witness, even though his memory was unreliable in some respects but
    not on material points. He also admitted he lied on two occasions, but she did
    not find these lies to be material. However, she concluded that there are
    other overriding factors present in this case which have persuaded me that it
    is safe to rely upon Mr. Alis evidence. She listed those in succeeding
    paragraphs of her reasons. It is plain that she was conducting a reliability
    assessment.

[17]

The
    appellant argued

that the trial judge erred by implicitly accepting that
    the appellant was nicknamed Gucci in the absence of evidence; this amounted
    to a misapprehension. However, the trial judges treatment of the evidence is
    more nuanced. She made two links. The first was between the photograph and the
    appellant; she noted from her personal observation that the photograph is a
    picture of the accused. The second was that the complainant had recognized the
    appellant as the shooter. The trial judge recited the evidence at some length,
    and concluded:

There was nothing to support that
    Mr. Ali might have been fabricating his evidence that he recognized Gucci. I
    am satisfied beyond a reasonable doubt that Mr. Ali was being truthful and was
    reliable about recognizing Gucci from school and the picture of the accused
    as the person he knew as Gucci who shot him and I accept this evidence.

The trial judge plainly knew that this was not a case
    about who Gucci was, but about whether the appellant was the shooter.

[18]

While
    we agree with the appellant that the appeal turns on whether the evidence of
    the appellants identity as the shooter was sufficiently reliable to sustain
    the conviction, we find there to be no merit to the appellants argument that
    the trial judge focussed on credibility at the expense of reliability in her
    careful reasons. In effect, the appellant asks this court to retry the case on
    the same arguments heard and rejected by the trial judge. The appellant is
    unable to point to an error in principle made by the trial judge, or to a
    palpable and overriding error of fact. We reject the appellants argument that
    the trial judge allowed credibility to overcome reliability.

[19]

The
    appeal is dismissed.

Robert
    J. Sharpe J.A.

P.
    Lauwers J.A.

K.
    van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Joynt, 2018 ONCA 856

DATE: 20181025

DOCKET: C63605

Simmons, Juriansz and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Neil Henry Joynt

Appellant

Howard K. Krongold, for the appellant

Luke Schwalm, for the respondent

Heard: October 23, 2018

On appeal from the conviction entered on October 27,
    2016, and the sentence imposed on April 19, 2017, by Justice R. Scott of the
    Superior Court of Justice, without a jury.

APPEAL BOOK ENDORSEMENT

[1]

In our view, in his closing address to the jury, the trial Crown invited
    the jury to use evidence of prior consistent statements of the complainant,
    W.H., for the truth of their content.  Not only did the trial judge fail to
    correct this submission by the Crown, he failed to provide the jury with any
    instructions on the limited use that can be made of the prior consistent
    statements of the complainants, W.H. and T.E.

[2]

In these circumstances, the failure to deliver instructions on the
    permissible and impermissible use of prior consistent statements is an error in
    law.  Moreover, because the jury was permitted to use the evidence concerning
    the complainant, W.H., as similar fact evidence in relation to the complainant,
    T.E., this error taints the conviction in relation to T.E. as well.

[3]

We note, in addition, that apart from a cursory review of the similar
    fact evidence, the trial judge failed to provide the jury with any review
    whatsoever of the evidence led at trial.

[4]

The appeal is allowed, the convictions are set aside, and a new trial is
    ordered.


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. K.L., 2018 ONCA 792

DATE: 20181002

DOCKET: C60643

LaForme, Watt and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.L.

Appellant

Alexander Ostroff, for the appellant

David Friesen, for the respondent

Heard: September 24, 2018

On appeal from the conviction entered on March 14, 2015
    by Justice Leitch of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant and the complainant met in 2002 and moved in together within
    three months. Their first son was born in 2006. They married in 2007. They had
    a second son in 2008. The relationship ended in 2009. Shortly thereafter the
    complainant alleged that the appellant abused her, verbally, physically, and
    sexually, during the relationship.

[2]

The complainant alleged a number of incidents took place in which she
    was sexually assaulted, in addition to an incident involving a non-sexual
    assault, and another in which she was threatened with sexual violence. The
    sexual assault allegations involved the appellants demands that the
    complainant submit to anal intercourse and vaginal fisting.

[3]

The appellant testified that he and the complainant had sex often, in
    fact, so many times that he could recall no specific incidents. He agreed that
    they engaged in the acts that the complainant described, but that it was always
    consensual. The appellant claimed that the allegations
were fabricated as part of a custody dispute.

[4]

After a six-day jury trial, the appellant was found not guilty on one
    charge of sexual assault, but guilty on all the other charges. He was sentenced
    to 4.5 years in custody, less pre-sentence credit of 78 days. He appeals his
    convictions.

Issues

[5]

The main issue the appellant advances is trial fairness. He argues that
    Crown counsel at trial (not Mr. Friesen) pursued improper lines of questioning
    during his testimony. The improper lines of questioning had to do with the
    complainants attractiveness and the appellants sex drive. He contends that
    the unfairness was compounded when the Crown, in his closing address, argued
    that the appellant was not a credible witness because of his evasive responses
    to the improper questions. The Crown also invited the jury to make improper use
    of the appellants demeanour on the stand, characterizing it as controlling.

[6]

Finally, the appellant argues that, when the trial judge charged the
    jury she misstated the complainants evidence, which had the effect of making her
    evidence appear both internally consistent, and consistent with her fathers testimony
    when it was not. He also argues that the trial judge misstated background evidence
    (
i.e.
, the toilet paper incident) that related to the charge of
    threatening

[7]

We are not persuaded by the appellants submissions on any of the
    grounds of appeal.

Crown Conduct and Trial Fairness

[8]

This Court has previously described the standard of review for assessing
    the trial fairness arguments advanced by the appellant. First, it will only be
    conduct that compromises trial fairness that will justify ordering a new trial,
    not merely improper conduct. Second, while not dispositive of the issue, the
    failure of defence counsel to object at trial is a relevant factor to consider.
    And finally, the reviewing court will look at the overall effect of the
    improper questions and conduct of the Crown in the context of the full
    cross-examination and the entire trial:
R. v. A.G.
, 2015 ONCA 159, at
    paras. 20-25.

[9]

As to the standard of review when assessing the Crowns closing
    submissions, the issue is,
whether the Crowns
    closing remarks, caused a substantial wrong or miscarriage of justice:
R.
    v. John
,
2016 ONCA 615
.
Again, this
    will be examined
in
the context of the
    entire trial and a new trial will only be ordered if the appellants right to a
    fair trial has been compromised: see
R. v. J.S.
, 2018 ONCA 39, at
    para. 38.

[10]

This
    court has repeatedly cautioned against improper cross-examinations and closing
    addresses by the Crown:
R. v. Henderson
(1999), 44 O.R. (3d) 628, at p.
    639; and
John
, at para. 77. More particularly, this court has identified
    the dangers associated with the cross-examinations of an accused person about
    the complainants attractiveness: see, for example,
R. v. F. (M.)
, 2009
    ONCA 617, at paras. 19-25; and
R. v. E. (F.E.)
, 2011 ONCA 783, at paras.
    68-69. Here, Crown counsel ignored these principles of law and pursued the
    otherwise irrelevant lines of questioning. In doing so the Crown came
    perilously close to causing this trial to be unfair.

[11]

Before
    pursuing these lines of questioning, Crown counsel ought to have first vetted
    them with the trial judge, in the absence of the jury: see
E. (F.E.)
, at
    para. 70. He failed to do so.

[12]

Moreover,
    we do not accept the Crowns submissions on appeal that the appellants
    perception of the complainants attractiveness, or his sex drive, were relevant
    to any issue at trial. In our view, both lines of inquiry were utterly
    irrelevant and carried with them the possibility of improper propensity
    reasoning by the jury. Indeed, Crown counsel at trial admitted as much in his
    closing address to the jury, acknowledging that these topics were really just
    fodder for undermining the appellants credibility.

[13]

Nevertheless,
    despite these transgressions, no serious prejudice was occasioned mainly
    because the appellant acknowledged the sexual acts alleged by the complainant,
    but he claimed that they were consensual. Thus, while some of the
    cross-examination of the appellant by Crown counsel was improper, as were the
    related passages in his address to the jury, looked at in the context of the
    entire trial, these transgressions do not rise to the level of compromising
    trial fairness.

[14]

With
    respect to the Crowns contention that the appellant was controlling, we are
    not persuaded that this amounts to the improper use of demeanour evidence. On
    our review of the record, Crown counsel was asking the jury to consider the
    appellants response to questions when he testified and to use this when
    assessing his credibility. Crown counsels remarks were really about the
    appellants evasive answers, not his presentation when giving them. This is not
    the same thing as demeanour. There was no
substantial wrong or miscarriage of justice
.

[15]

Finally,
    we observe that defence counsel did not object to the relevance or propriety of
    the questions posed by the Crown in cross-examination of the appellant: see
R.
    v. Middleton
, 2012 ONCA 523, at para. 58. Furthermore, neither defence
    counsel nor Crown counsel objected to the others closing address to the jury.
    Moreover, neither party sought any corrective instruction in the judges charge
    to the jury.

The Trial Judges Charge

[16]

The
    imperfections in the charge that the appellant urges upon us relate to factual
    matters (
i.e.
, the so-called toilet paper incident and the details
    surrounding the common assault charge that occurred at the home of the
    complainants parents). The trial judge clearly instructed the jury to make its
    own factual findings based on its collective view of the evidence. The jury is
    taken to have abided by these instructions. Accordingly, any minor imperfections
    in the trial judges account of the facts, such as there may have been, did not
    render the trial unfair.

[17]

For
    these reasons the appeal is dismissed.

H.S. LaForme J.A.

David Watt J.A.

Gary T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lacroix, 2018 ONCA 842

DATE: 20181022

DOCKET: C62962

Sharpe, Lauwers and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alexandre Lacroix

Appellant

Leo Adler, for the appellant

Carmen Elmasry, for the respondent

Heard: October 5, 2018

On appeal from the conviction entered by Justice Kevin B.
    Phillips of the Superior Court of Justice, sitting with a jury, on June 30,
    2016, and from the sentence imposed on October 28, 2016.

REASONS FOR DECISION

[1]

The police recovered a .45 calibre semi-automatic handgun and ammunition
    when they executed a search warrant at the appellants residence. The appellant
    was convicted of unlawful possession of a firearm and given a 12 month
    conditional sentence that included eight months of house arrest.

[2]

He raises three grounds of appeal against conviction and seeks leave to
    appeal his sentence.

(1)

Validity of the search warrant

[3]

The appellant challenged the validity of the search warrant on a
    pretrial motion. We see no error in the comprehensive reasons of the motion
    judge rejecting that challenge, reported at 2015 ONSC 6258, that could warrant
    appellate intervention.

[4]

Any inaccuracies in the ITO were minor and inconsequential.

[5]

The ITO provided evidence that the appellant was the registered owner of
    a cell phone with a billing address at the appellants residence. On an
    intercepted call for which that cell phone was used, the speaker stated in
    coded language that he was still holding on to the .45 calibre firearm. This
    was one of 150 intercepted drug and gun related phone and text message conversations
    involving a speaker the officer identified as having the same voice.

[6]

In our view, the motion judge was entitled to conclude that the issuing
    justice of the peace could find on this record a reasonable basis to believe
    that the speaker was the appellant.

[7]

The appellant argued that there was no evidence linking the gun to the
    residence. He asserted that the speakers statement that Im still holding on
    to the [handgun] did not indicate that he was holding it at the residence in
    the absence of evidence establishing the speaker was in his residence and not
    in another location at the time of the cell phone call. In oral argument, the
    appellant acknowledged that evidence showing that the speaker was in the
    immediate vicinity of his residence at the time he made this statement would
    establish reasonable grounds linking the handgun to the residence.

[8]

However, the speaker himself stated Im just at home at the beginning
    of the call prior to making the statement about the handgun. Later in the call,
    the speaker made statements indicating that he was just relaxing and was not
    sure if he would step out that are consistent with him being at home that
    evening. These statements provide a reasonable basis for inferring that the speaker
    was at home at the time he made the handgun statement.

[9]

It follows that the motion judge did not err in concluding there was
    sufficient credible and reliable evidence to permit the issuing justice to find
    that there were reasonable grounds that the handgun was in the residence. The
    officer provided evidence that a residence is one of the usual places where individuals
    in possession of illegal firearms will store and conceal those weapons. The
    issuing justice was entitled to rely upon this opinion: see
R. v. Prosser
,
    2016 ONCA 467, at para. 18, leave to appeal refused, [2016] S.C.C.A. No. 327. There
    was ample evidence to show that the appellant lived in the residence.

(2)

Admissibility of utterances upon arrest

[10]

We
    do not agree that the second motion judge erred in ruling, in reasons reported
    at 2016 ONSC 3052, 355 C.R.R. (2d) 219, that utterances the appellant made as
    to the location of the firearm following his arrest should be admitted into
    evidence.

[11]

The
    statement the appellant made was spontaneous and voluntary and he was
    appropriately cautioned before he made it.

[12]

In
    the immediate circumstances of the arrest, it was reasonable for the motion
    judge to find that it was not feasible to provide the appellant with a phone to
    speak to a lawyer before he reached the police station.

[13]

The
    motion judge concluded that the arresting officer did not have reasonable
    grounds to arrest the appellant and that the police breached the appellants s.
    9 right under the
Canadian Charter of Rights and Freedoms
.

[14]

We
    see no reason to interfere with the motion judges conclusion in his s. 24(2)
    analysis that the evidence should be admitted despite the s. 9 breach. The
    motion judge reasonably concluded  that the
Charter
-infringing state
    conduct was not serious and the connection between the arrest and the utterance
    was indirect

[15]

While
    the execution of the search warrant did not provide reasonable grounds to
    arrest the appellant, it did afford reasonable grounds for an investigative
    detention. The motion judge was entitled to find that the concern that
    motivated the appellants statement was his concern about his house being
    searched and the possible jeopardy in which that placed his partner. He did not
    engage in improper speculation by concluding that the accused would have had
    the same motivation to make the utterances had the police subjected him to
    investigative detention instead of arresting him. Accordingly, we are of the
    view that the motion judge did not err that in concluding that the appellant
    would have made the statements notwithstanding the
Charter
breach. He
    appropriately concluded that this lessened the impact on the accuseds
Charter
-protected
    interests: see
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at
    para. 96. He appropriately placed significant weight on the fact that the utterances
    were reliable evidence given after the appellant was cautioned and were
    important to the prosecutions case: see
Grant
, at paras. 81, 83.

(3)

Jury instruction

[16]

The
    appellant complains that there were discrepancies between the oral and written
    versions of the jury instruction. While there were some discrepancies, they
    were minor in nature. Neither version of the jury instruction revealed legal
    error and the differences could not have affected the jury in its
    deliberations.

[17]

Nor
    do we agree that the trial judge erred in his instruction on possession.

(4)

Sentence

[18]

We
    see no merit in the appellants submission that the trial judge erred by
    imposing a conditional sentence rather than a conditional discharge. The trial
    judge provided careful reasons considering the mitigating factors, including
    the significant rehabilitation of the appellant since the commission of the
    offence. He concluded that given the serious nature of the offence, the
    considerations of general deterrence and denunciation made a discharge an unfit
    sentence. That decision attracts deference in this court and we see no basis
    upon which we could interfere and substitute an even more lenient sentence.

Disposition

[19]

Accordingly
    the appeal from conviction is dismissed. Leave to appeal sentence is granted
    and the sentence appeal is dismissed.

Robert J. Sharpe
    J.A.

P. Lauwers J.A.

K.
    van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ling, 2018 ONCA 847

DATE: 20181023

DOCKET: C61181

Simmons, Juriansz and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jiang Kai Ling

Appellant

Darren Sederoff, for the appellant

Megan Petrie, for the respondent

Heard: October 22, 2018

On appeal from the conviction and the sentence imposed on
    October 20, 2015, by Justice Misener of the Ontario Court of Justice, without a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

On appeal, the appellant does not contest the finding that he was the
    driver of a van that neighbours saw pass a tool to the perpetrator of a
    daylight residential break-in.  Viewed as a whole, the constellation of
    evidence adduced at trial amply supported the inference that the driver of the
    van was party to a planned break and enter of a dwelling house.

[2]

The conviction appeal is dismissed.  The appellant abandoned his
    sentence appeal in oral argument.  Bail is rescinded.  The intermittent
    sentence shall resume October 26, 2018, at 6:00 p.m. at the Toronto South
    Detention Centre.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marshall, 2018 ONCA 794

DATE: 20181002

DOCKET: C61911

LaForme, Watt and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Marshall

Appellant

Gregory Lafontaine, for the appellant

Erica Whitford, for the respondent

Heard: September 28, 2018

On appeal from the conviction entered on October 26, 2015
    and the sentence imposed on March 18, 2016 by Justice Miriam Bloomenfeld of the
    Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of attempted fraud over $5,000 and sentenced
    to five months imprisonment and 30 months probation. He appeals conviction
    and seeks leave to appeal his sentence.

[2]

At the conclusion of the hearing of this appeal, we dismissed the appeal
    against conviction but allowed the appeal against sentence, with reasons to
    follow. These are our reasons.

[3]

The appellant was in the business of promoting concerts. He financed
    events by securing upfront funds from investors.

[4]

The appellant went to a branch of the TD Bank on December 2, 2013,
    accompanied by an accomplice named Patrick Lee, and another man known only as
    Ray. They were there to see the appellants long-time banker, Wassim Jami.

[5]

Mr. Lee testified at trial. He said that he was paid to impersonate Chua
    Hua Yong, a TD client with about $1,000,000 on deposit. Lee indicated that he
    wanted to transfer $600,000 into the appellants business account. He showed
    Mr. Jami false identification, which bore his photograph. Upon inspecting the
    fake ID, Mr. Jami became suspicious  the real Mr. Yong was 81 years old; Lee
    was only 44. When Mr. Jami left the room to make further inquiries, Lee and Ray
    fled. However, the appellant remained, and claimed to have no knowledge that
    anything was awry.

[6]

The appellant testified that the transaction that was to transpire at
    the bank had been arranged by another individual, who the appellant described
    as a known fraudster. The appellant denied any knowledge of a plan to defraud
    the bank. The trial judge provided detailed reasons for rejecting his evidence.

[7]

The trial judge found that there could be no doubt that an attempt to
    defraud the bank was perpetrated at the meeting described above. The only question
    was whether the appellant knew about the scheme. After examining all of the
    evidence, the trial judge found, at para. 64, that she was satisfied beyond a
    reasonable doubt, that Mr. Marshall set up this meeting at the bank intending
    to present Mr. Lee as Mr. Yong and, by doing so, deceive Mr. Jami into allowing
    at least $600,000 to be transferred from Mr. Yongs account to Mr. Marshalls
    business account.

[8]

The appellant challenges his conviction by raising a number of grounds
    of appeal focused on how the trial judge analyzed various pieces of evidence.
    More specifically, his counsel submits that the trial judges adverse
    credibility findings in relation to the appellant were unfairly harsh. Looking
    at her reasons as whole, we conclude that the trial judge approached the
    evidence in a fair and even-handed manner. We can identify no errors in her
    treatment of the evidence as a whole.

[9]

The appeal from conviction is dismissed.

[10]

The
    appellant seeks leave to appeal his sentence. Due to uncertainty in the law
    concerning the immigration consequences of a custodial sentence of six months
    or more, and at the invitation of defence counsel (not Mr. Lafontaine), the
    trial judge imposed a sentence of five months imprisonment, as opposed to an
    18-month conditional sentence. As the trial judge said in her reasons for
    sentence:

A conditional sentence in the range of 18 months to two years
    less a day may.potentially supply the necessary deterrence and denunciation,
    while simultaneously satisfying other pertinent sentencing principles. Given
    Mr. Marshalls specific circumstances however, and in accordance with the
    request made by his counsel during submissions, I am satisfied that
    proportionality, rehabilitation, deterrence and denunciation could also be
    addressed with a much shorter sentence involving actual incarceration.

[11]

In
    the meantime, the Supreme Court of Canada has clarified the law such that the
    concerns expressed by the trial judge (and defence counsel) about conditional
    sentences of six months or more have disappeared: see
R. v. Tran
, 2017
    SCC 50, [2017] 2 S.C.R. 289.

[12]

In light of this development, we would give effect to the trial
    judges observations about the suitability of a conditional sentence. We grant
    leave to appeal sentence, allow the appeal, and set aside the period of
    incarceration and substitute a conditional sentence of 18 months duration, on
    the terms upon which counsel have agreed. All other aspects of the sentence
    remain in effect.

H.S. LaForme J.A.

David Watt J.A.

Gary T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. LaPierre, 2018 ONCA 801

DATE: 20181004

DOCKET: C52785

MacPherson, Huscroft and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Trevor LaPierre

Appellant

James C. Fleming, for the appellant

Eric H. Siebenmorgen, for the respondent

Heard: September 5, 2018

On appeal from the conviction entered by Justice Stephen
    Glithero of the Superior Court of Justice on January 18, 2010, and from the
    sentence imposed on January 21, 2010.

MacPherson J.A.:

A.

INTRODUCTION

[1]

The appellant pleaded guilty to the savage, unprovoked and inexplicable
    killing of Hugh Hunter Brown, a defenceless 74-year-old man delivering
    Christmas cards to neighbours on a residential street in Kitchener in December
    2007. In advance of the trial, he was examined by two psychiatrists; both
    offered the opinion that the appellant was not eligible for a
Criminal Code
s. 16 defence of not criminally responsible (NCR). The appellant pleaded
    guilty to second degree murder and assault. The trial judge imposed a sentence
    of life imprisonment with no possibility of parole for 17 years.

[2]

The appellant appealed his sentence. During the appeal process, this
    court ordered a new psychiatric report. The author of this report, Dr. John
    Bradford, concluded that the appellant suffered from severe treatment resistant
    schizophrenia at the time of the commission of the offence and met the threshold
    to be found NCR. Based on this report, the appellant decided to appeal his
    conviction as well as the sentence.

[3]

The principal issue on the conviction appeal is whether the fresh
    evidence anchored in Dr. Bradfords psychiatric report is sufficient to sustain
    a determination, at this juncture, that the appellant was NCR when he killed
    Mr. Brown. The principal issue on the sentence appeal is whether a parole
    ineligibility period of 17 years is too harsh.

B.

FACTS

(1)

The parties and events

(a)

The homicide and the assault

[4]

On Saturday, December 15, 2007, at approximately 12:45 p.m., Hunter
    Brown, a 74-year-old man, was walking on his street delivering Christmas cards
    to his neighbours. The appellant, a 22-year-old Kitchener resident, had been
    seen standing at a nearby intersection looking straight ahead. The appellant
    and Mr. Brown were strangers to each other. Mr. Brown said hello to the
    appellant. The appellant said nothing. He took a large knife out of his pocket.
    He stabbed Mr. Brown more than 40 times, mostly in the head and face.

[5]

A neighbour heard the commotion through a window. She saw Mr. Brown on
    the ground being attacked by a man and then observed the man walking away from
    a motionless Mr. Brown. The neighbour said that the assailant was walking
    normally as if nothing happened.

[6]

Two days later, on December 17, Corey Speck, a 35-year-old man living in
    the same neighbourhood as Mr. Brown, was at home shovelling his driveway. After
    an exchange of a few words, the appellant attacked Mr. Speck, swiping him in the
    head. Mr. Speck was able to repel the attack and suffered no injury. He
    reported the incident to the police and was able to help locate and identify
    the attacker.

[7]

The appellant was arrested. He confessed to both the killing of Mr.
    Brown and the assault on Mr. Speck. He told police that he killed someone to be
    the wrong kind of person and that he walked around quite a bit on December 15
    looking for someone to kill and working up the courage to do it. He said that
    he killed Mr. Brown to please Satan and because he thought he was the right
    one. He also stated that the voices were telling me that [Mr. Brown] was a
    Christian. These voices wanted me to kill Christians and they keep on saying
    that.

[8]

Following his confession, the appellant was placed in a holding cell. He
    told an undercover police officer, who was posing as another inmate, that he
    needed to kill someone and he did it to save himself and that his boss made
    him do it. The appellant also stated he was going to use the insanity
    defence.

(b)

Pre-trial psychiatric history

[9]

Prior to trial, the appellant underwent assessments of his Fitness to
    Stand Trial and Criminal Responsibility. The Crown and the defence each retained
    psychiatrists to provide expert reports.

[10]

Dr.
    Derek Pallandi, the psychiatrist retained by the Crown, offered the opinion
    that the appellant did not suffer from a major mental illness and was fit to
    stand trial. He was of the view that the appellant was malingering. Dr.
    Pallandi relied on a psychology report prepared by Dr. Percy Wright. Dr. Wright
    noted that the appellant displayed no overt signs of thought disorder and was
    cognitively quite organized, but added that he was clearly a troubled man,
    possibly suffering from periods of depression. It was unclear to him whether
    the appellant had a psychiatric disorder. He strongly urged that caution be
    exercised in basing a s. 16 defence on self-reported symptoms. Dr. Pallandi
    concluded:

Summarily, I am of the opinion that Mr. LaPierre does not
    suffer from a major mental illness as typically defined from a psycholegal
    perspective. He is malingering psychotic and cognitive symptoms and likely has
    done so for some period of time in the past to gain admission to hospital.

[11]

Dr.
    Julian Gojer, the psychiatrist retained by the defence, also concluded that a
    s. 16 defence was not available to the appellant. Dr. Gojer agreed that there
    was an embellishing of, or manufacturing of psychotic symptoms and that the
    appellant was likely to be able to appreciate the nature and consequences of
    his actions and know that what he was doing was morally wrong. Dr. Gojer did
    make a diagnosis of a personality disorder with borderline schizoid traits; he
    stated that a psychotic illness could not be ruled out and that it was possible
    that at the height of his distress he experienced psychotic symptoms.

(c)

The conviction and sentence

[12]

The
    appellant, who had been charged with first degree murder, decided not to
    advance an NCR defence. He pleaded guilty to second degree murder. The trial
    judge accepted the plea. The appellant does not challenge this proceeding.

[13]

Three
    days after the conviction, the trial judge imposed a sentence of life
    imprisonment with a period of parole ineligibility of 17 years. He identified
    many aggravating factors in support of this sentence  the killing was brutal
    and senseless, the degree and duration of force used were excessive, the
    killing occurred in broad daylight in a quiet residential neighbourhood, the
    appellant was armed with a hunting knife, the victim was 74 years old, unarmed,
    and much smaller than the appellant, the appellant went home and acted as
    though nothing had happened, he lied to the police until faced with the
    prospect of damning physical evidence, and ultimately he told the police that
    he had walked around looking for someone to kill.

(d)

Post-conviction psychiatric history

[14]

After
    the appellant was sentenced on January 21, 2010, he was assigned to Kingston
    Penitentiary. Six months later, on July 30, 2010, he was transferred to the
    Regional Treatment Centre (RTC) in Kingston. He stayed there for several
    years in the Psychosocial Rehabilitation Unit under the care of psychiatrist
    Dr. Stephen Hucker. In a letter dated June 18, 2013, Dr. Hucker noted that when
    the appellant was first admitted to the RTC in 2010 from Kingston Penitentiary,
    he was described as suffering from severe intractable schizophrenia.

[15]

Based
    on Dr. Huckers information, and within the framework of his sentence appeal,
    Tulloch J.A. ordered an assessment, pursuant to s. 672.11 of the
Criminal
    Code
, to determine whether the accused suffered from a mental disorder so
    as to exempt the accused from criminal responsibility by virtue of s. 16(1) of
    the
Criminal Code
at the time of the commission of the offences.

[16]

The
    court-ordered assessment was conducted by Dr. John Bradford. He interviewed the
    appellant multiple times over a 60-day period and carefully considered the
    medical material. He concluded that, from a forensic psychiatric standpoint,
    the appellant had a mental disorder  severe treatment resistant schizophrenia
     when he killed Mr. Brown and that he was not capable of knowing that this was
    morally wrong.

[17]

Following
    Dr. Bradfords report, there was a flood of supplemental reports from Dr. Pallandi,
    Dr. Gojer and Dr. Bradford himself. As well, Dr. Bradford was examined and
    cross-examined on his report, Dr. Pallandi was cross-examined and re-examined
    on his reports, and Dr. Gojer was cross-examined on his reports. I think it is
    fair to say that, on the ultimate question of whether an NCR defence was
    available to the appellant at the time of his trial in 2010, the three doctors
    answers would be: Dr. Bradford  Yes; Dr. Pallandi  No; Dr. Gojer  on the
    fence.

(e)

Sentence appeal  fresh evidence

[18]

On
    August 2, 2018, the appellant also filed a notice of application to admit fresh
    evidence on the sentence appeal relating to the period of parole ineligibility.
    The proposed fresh evidence includes Referral Decision Sheets for Voluntary Institutional
    Transfer and Offender Security Level; Assessments for Decision for Voluntary
    Institutional Transfer and Security Level; an Updated Correctional Plan;
    Program Performance Reports; and a 2013 Psychological/Psychiatric Assessment
    Report. These reports tend to show that the appellant has made good progress
    during his eight years in prison.

C.

issues

[19]

The
    issues on the appeal are:

1.

On the conviction appeal, should the fresh evidence tendered by the
    appellant be admitted?

2.

If the fresh evidence is admitted, what should be the disposition  an
    NCR declaration or a new trial limited to the NCR defence?

3.

On the sentence appeal, should the period of parole ineligibility be
    reduced?

D.

analysis

(1)

Conviction appeal  fresh evidence

[20]

The
    appellants essential position is that the fresh evidence, especially the
    diagnosis of Dr. Bradford, conclusively establishes that the appellant was
    profoundly misdiagnosed, particularly by Dr. Pallandi, prior to his trial. The
    appellants true condition when he killed Mr. Brown in December 2007 was that
    he suffered from the mental disorder, severe treatment resistant schizophrenia.

[21]

Against
    the backdrop of this diagnosis, if the trial had proceeded, the appellant would
    have been able to avail himself of a very triable, and likely successful,
Criminal
    Code
s. 16 defence.

[22]

In
R. v. Palmer
, [1980] 1 S.C.R. 759 at 775, the Supreme Court of Canada
    set out the four criteria that should be considered if an appellant seeks leave
    to introduce fresh evidence on an appeal:

·

the evidence should generally not be admitted if, by due
    diligence, it could have been adduced at trial;

·

the evidence must be relevant in the sense that it bears upon a
    decisive or potentially decisive issue in the trial;

·

the evidence must be credible in the sense that it is reasonably
    capable of belief; and

·

it must be such that if believed it could reasonably, when taken
    with the other evidence adduced at the trial, be expected to have affected the
    result.

[23]

The
    appellant can easily establish the first three of the
Palmer
criteria.
    Dr. Bradfords evidence could not have been adduced at trial. There was no
    trial  the appellant pleaded guilty. The evidence is highly relevant  it
    bears on the potentially decisive issue of whether the appellant was NCR when
    he killed Mr. Brown. Finally, the evidence is credible  Dr. Bradford is an
    experienced and highly respected psychiatrist in the criminal justice system.

[24]

The
    crux of the matter on this issue is the fourth
Palmer
criterion  could
    Dr. Bradfords evidence, if believed, and taken together with the other
    evidence, have affected the result?

[25]

There
    is no question that Dr. Bradfords evidence is strong and clear.

[26]

On
    the question of diagnosis, Dr. Bradford says:

From a forensic psychiatric standpoint, with a reasonable
    degree of certainty, in my opinion, Mr. LaPierre was clearly suffering from a
    mental disorder, specifically treatment resistant schizophrenia, prior to; at
    the material time of the index offences; and subsequently.

[27]

And,
    on the ultimate question  the effect of this disease on the appellants state
    of mind when he killed Mr. Brown  Dr. Bradford says:

At the time of the index offences Mr. LaPierre would not have
    been in control of his operating mind in terms of making rational decisions.
    Furthermore, he was driven by a delusional belief that most people killed and
    that he had to kill in order to save his soul. In my opinion, this would fit
    the definition of the second branch of Section 16(1) of not knowing that what
    he was doing was wrong in terms of moral wrongfulness subject of course to the
    legal definitions and interpretation of this section of Section 16(1). This is
    my opinion, however, based on a reasonable degree of medical certainty.

[28]

I
    begin my analysis with two contextual points.

[29]

First,
    the appellant argues, relying on the evidence of Dr. Bradford, that he was
    misdiagnosed during his pre-trial forensic assessment. He seeks to hold Dr.
    Pallandi and Dr. Gojer, as well as the psychologists with whom they worked,
    responsible for this. Yet it was found by the trial judge, and even accepted by
    the appellants trial counsel, that the appellant, by his own conduct,
    frustrated the attempts by health care professionals, including those retained
    by his own counsel, to properly diagnose him. As stated by the trial judge in
    the context of the parole eligibility determination:

I am left without any expert evidence as to how long any
    appropriate form of treatment would take and no information as to the likely
    rate of success of any such treatment. The lack of such relevant information
    is largely the result of efforts by Mr. LaPierre in feigning, exaggerating,
    malingering and generally being manipulative with mental health care
    professionals in his efforts to achieve what he thinks to be a favourable
    result.

The nature and extent of his mental difficulty remains
    undetermined, largely as a result of his own choices as to how to interact over
    the years with mental health professionals. He has tried to influence them to
    his own advantage. As a result, he stymied them in their efforts to find out
    what is wrong with him and what can be done about it.

[30]

Second,
    due to the progressive and changing nature of major mental disorders, including
    schizophrenia, it cannot be definitively inferred that a condition described as
    severe treatment resistant schizophrenia in 2010 existed in that form in 2007
    when the killing took place. In the appellants case, there is compelling
    evidence that his mental condition deteriorated sometime between the 2009
    pre-trial assessment and his post-sentence arrival at the RTC in July 2010. Dr.
    Gojer pointed this out, and the appellant appears to acknowledge this
    deterioration, saying in his factum at para. 27, The appellants mental condition
    acutely deteriorated as he made his way into the penitentiary system after
    sentence was imposed on January 21, 2010. The appellant was admitted to the
    Millhaven Assessment Unit (MAU) on February 10, 2010. The appellant was
    ultimately transferred from KP to RTC within his first two months in federal
    custody.

[31]

Against
    this backdrop, I turn to a consideration of Dr. Bradfords opinion which serves
    as the foundation for the appeal. In the end, I do not think that Dr.
    Bradfords ultimate conclusion, namely, that the appellant, at the time he
    killed Mr. Brown, did not know that what he was doing was wrong in terms of
    moral wrongfulness, is sustainable. I say this for several reasons.

[32]

First,
    Dr. Bradford himself recognized that the concept of moral wrongfulness has
    different meanings in medical and legal contexts (he qualified his ultimate
    conclusion set out above, with subject of course to the legal definitions and
    interpretation of  Section 16(1)). In my view, Dr. Bradfords ultimate
    conclusion about the appellants knowledge of moral wrongfulness is
    inconsistent with the legal definition of those words.

[33]

The
    legal definition of moral wrongfulness is set out in
R. v. Oommen
,
    [1994] 2 S.C.R. 507, and was summarized by this court in
R. v. Woodward
,
    2009 ONCA 911, at para. 5: [T]he court must determine whether the appellant
    was
incapable
of understanding that his acts were wrong according to
    the ordinary moral standards of reasonable members of the community (emphasis
    in original).

[34]

Dr.
    Bradford was aware of this legal definition. In cross-examination, he answered
    a question in this fashion:

Q. And you agree that it's not enough that the act was a result
    of a delusion, that if the accused was capable of knowing that in spite of a
    delusion,
that the act in the particular circumstances
    were wrong on a societal standard?

A. Yeah.
That's a legal test.
[Emphasis added.]

[35]

However,
    in his reports and in cross-examination on his reports, Dr. Bradford
    consistently grounded his analysis in the appellant's subjective views about
    his thoughts and behaviour; he spoke of the appellant's "internal
    motivation" for what he had done, not "the ordinary moral standards
    of reasonable members of the community": see
Woodward
. Dr.
    Bradford's ultimate conclusion about "moral wrongfulness is, therefore,
    grounded in the medical, not the legal, definition of that term.

[36]

Second,
    the appellant's actions surrounding his killing of Mr. Brown belie a legitimate
    NCR defence. Before the killing, the appellant was seen in a busy section of Kitchener.
    He moved from there to a quiet residential neighbourhood. He admitted that he
    walked around for quite a while looking for someone to kill. There appeared to
    be no one else around (at least outdoors) when the appellant attacked Mr.
    Brown. Immediately after the attack, a woman in a nearby house saw the attacker
    walk away quickly. When the appellant got home, he changed his toque because he
    didnt want to go to jail, changed his jacket, and cleaned the blade of his
    knife and put it in a drawer. In the view of his father who spent time with him
    that evening, the appellant seemed fine.

[37]

Third,
    the appellant's own utterances near the time of the killing also belie a
    legitimate NCR defence. When the appellant confessed to the killing during a
    police interview three days later, he said:

Q. And then what did you do Trevor?

A. I did the wrong thing.

Q. What was the wrong thing?

A. (crying) I did the wrong thing and killed him.

Q. You killed him how Trevor?

A. With a knife.

Q. And where did you stab him?

A. The quickest way to die.

Q. And what way is that?

A. In the face.

[38]

Further,
    Dr. Gojer, in his report dated December 12, 2009, recorded the following
    admission:

With further interviewing, I challenged him on the authenticity
    of the voices that he had described. He did not retract his assertions that the
    voices were experienced by him but described them as paranormal phenomena. He
    admitted that he was concerned about his future, the nature of the charges he
    was facing and that it was possible that he had begun to dwell on thoughts of
    isolation, alienation from society and that thoughts that he had of God and
    Satan became prominent in his mind to the extent that he found life unbearable.
    He felt angry towards the world and began to think of Satan as influencing his
    thoughts and actions. In this context he became angry with Christians and felt
    that he had to appease Satan.
He said that he was aware that killing was
    legally and morally wrong
. [Emphasis added.]

[39]

Fourth,
    when he was placed in a cell three days after the homicide, the appellant told
    an undercover police officer who was pretending to be a fellow inmate that he
    was going to use the insanity defence. In cross-examination, Dr. Bradford
    acknowledged some of the detail relating to this statement:

Q. From my review of Constable Laynes evidence, there was also
    an indication beyond just saying that he wanted to use the insanity defence,
    that he thought he would be NCR and hoped to get 7 to 12 years. Do you recall
    that detail as to providing a specific time range for his incarceration which
    he hoped to achieve?

A. I believe so. I could check if you like.

Q. So, you accept that he actually gave a time range for when
    he expected to hope to be out after an NCR defence?

A. Right.

[40]

Taking
    these factors together, I am prepared to accept Dr. Bradfords diagnosis of the
    appellant, namely, that he suffered from schizophrenia when he killed Mr.
    Brown. I am also prepared to accept that there may well have been a causal
    relationship between the appellants illness and the criminal offences he
    committed in December 2007. However, these two conclusions are not enough to
    establish that at the material time the appellant was incapable of knowing that
    his conduct was wrong according to the ordinary moral standards of reasonable
    members of society. Dr. Bradfords evidence was, overwhelmingly, directed to
    the appellants subjective belief that his conduct was justified and not to his
    awareness of societal moral standards, as required by
Oommen
and
Woodward
.
    Accordingly, I would not give effect to this ground of appeal. I would not
    admit the fresh evidence because it could not reasonably be expected to have
    affected the result at the trial.

(2)

Remedy

[41]

In
    light of my conclusion on the first issue, this issue does not arise.

(3)

The sentence appeal
[1]

[42]

The
    appellant contends that the 17-year period of parole ineligibility imposed by
    the trial judge in 2010 is too long. In support of this position, the appellant
    has filed an Application Record to Admit Fresh Evidence on Sentence Appeal of
    Parole Ineligibility. The material in this record establishes that the
    appellant has made progress during his incarceration in the federal
    penitentiary system. Indeed, in an internal report dated July 3, 2018 dealing
    with a proposal to transfer the appellant to a minimum security unit at Collins
    Bay Institution, Correctional Service Canada noted, There are no incompatibles
     to prevent the transfer. Also, there are no physical or mental health care
    concerns that will preclude as noted in consultations with health care and
    psychology.

[43]

I
    see nothing in the trial judges reasons that would suggest that a 17-year
    period of parole ineligibility was unfairly imposed or too harsh. The recent
    fresh evidence does not change this conclusion.

E.

disposition

[44]

I
    would dismiss the conviction and sentence appeals.

Released: JCM OCT 4 2018

J.C. MacPherson
    J.A.

I agree. Grant
    Huscroft J.A.

I agree. I.V.B.
    Nordheimer J.A.

[1]
The court did not call on the respondent to address this issue at
    the appeal hearing.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Merritt, 2018 ONCA 824

DATE: 20181011

DOCKET: C64941

Simmons, Rouleau and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dante Merritt

Appellant

Andrew Faith, as duty counsel

Dante Merritt, in person

Hannah Freeman, for the respondent

Heard: October 2, 2018

APPEAL BOOK ENDORSEMENT

[1]

On behalf of the appellant, duty counsel argues that in her charge to
    the jury, the trial judge erred in failing to sufficiently caution the jury
    that the items she listed as linking the appellant to a particular address were
    relevant only to his relationship with the passenger of the vehicle on the
    night in question and did not directly support his identification as the
    driver.

[2]

We do not accept this submission.  In her instructions, the trial judge
    clearly identified the matter she listed as being relevant to the appellants
    link to the vehicle and the passenger.  While it may have been preferable had
    the trial judge added additional cautions, no such cautions were requested.
    Nor, in our view, did the failure to provide them amount to misdirection or
    non-direction.  On our review of the charge, the jury was sufficiently
    instructed on the issues of identification and circumstantial evidence.  The
    conviction appeal is dismissed.

[3]

The appellant has served the custodial portion of his sentence.
    The issue in the regard is moot.  We see no basis on which to interfere with
    the length of the driving prohibition.  Leave to appeal sentence is granted;
    the sentence appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Moore, 2018 ONCA 825

DATE: 20181011

DOCKET: C62813

Simmons, Rouleau and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Moore

Appellant

Louis P. Strezos, as duty counsel

Mark Moore, in person

Lorna Bolton, for the respondent

Heard: October 4, 2018

APPEAL BOOK ENDORSEMENT

[1]

On behalf of the appellant, duty counsel raised three issues on the
    conviction appeal.  He argued that the trial judge misapprehended the evidence
    as to who instigated the dispute, that the trial judge erred in finding
    excessive force was used given the jail cell context, and further erred in her
    assessment of Officer Chens observations of the altercation.

[2]

We do not accept these submissions.  It was for the trial judge to make
    the factual determinations based on the evidence led before her.  On our review
    of the record we see no error.  The conviction appeal is dismissed.

[3]

As for sentence, this was a serious aggravated assault and the context
    as found by the trial judge was interference with a justice system participant,
    namely a person about to testify against the appellant on very serious
    charges.  In the circumstances, we consider the sentence imposed entirely fit
    and reject the appellants submissions that it was harsh and excessive or
    otherwise in error.  Leave to appeal sentence is granted, but the sentence
    appeal is dismissed.