COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Khou, 2019 ONCA 189

DATE: 20190311

DOCKET: C63819

Juriansz, Pepall and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nao Khou

Appellant

David Parry, for the appellant

Katie Doherty, for the respondent

Heard: March 4, 2019

On appeal from the convictions entered by Justice Mavin
    Wong of the Ontario Court of Justice on October 6, 2016, with reasons reported
    at 2016 ONCJ 865, and from the sentence imposed on December 6, 2016.

REASONS FOR DECISION

[1]

The appellant appeals his convictions on three
    counts of fraud over $5,000  and possession of property obtained by crime over
    $5,000, contrary to ss. 380(1)(a) and 354(1) of the
Criminal Code
,
    R.S.C. 1985, c. C-46. He also seeks leave to appeal his custodial sentence of
    two years less a day.

[2]

He appeals his conviction on the sole ground
    that the trial judge erred by dismissing his s. 11(b) application. He abandoned
    the ground of appeal relating to the role of
amicus
prior to the
    hearing of the appeal.

[3]

The appellant was arrested and charged on
    September 30, 2013. Representing himself, he was arraigned on March 3, 2015,
    and elected trial in the Ontario Court of Justice. After making extensive
    inquiries, the trial judge determined that the appellant was completely
    unprepared to represent himself. On March 4, 2015, she adjourned the trial so
    that the appellant could reapply for legal aid and for the appointment of
amicus
.
Amicus
was appointed on March 23, 2015 and the trial was set to resume
    on October 19, 2015. On October 19, 2015, it was determined that the
    interpreter in attendance was unable to interpret for the trial. Consequently,
    the trial was further adjourned and resumed on November 30, 2015. The trial comprised
    13 days and concluded on July 19, 2016.

[4]

The total delay in the case greatly exceeded the
    presumptive ceiling of 18 months for provincial court trials specified in
R.
    v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631, which was released on July 8,
    2016 near the end of this trial. In the
Jordan
framework, this was a
    transitional case in which the Crown had to rebut the presumption of
    unreasonable delay on the basis of exceptional circumstances.

[5]

The trial judge found there were two reasons why
    this case took so long to complete. First, the appellant had come to court ill-prepared
    on March 3, 2015, when his trial was set to begin, completely unable to defend
    himself. The trial judge noted that he had no pen nor paper, that he could not
    read or write English, that he did not have the disclosure with him, and that
    he had a limited education. Furthermore, he required an interpreter. The trial
    judge found the appellants inability to represent himself was an exceptional
    circumstance that was reasonably unforeseen and reasonably unavoidable by the
    Crown. Second, the trial judge found that the case was complex because of the
    number of witnesses, the volume and nature of the disclosure, and the fact that
    the appellant was self-represented.

[6]

On appeal, the appellant contends that it should
    have been plainly obvious to the Crown and to the court much earlier that
amicus
would be required in this case. Certainly the need for
amicus
, where
    one is required, should be identified as early as possible. However, on the
    facts of this case, the trial judge did not err in finding that the need for
amicus
was not reasonably apparent before March 3, 2015. At the appellants pre-trial
    appearances, particularly those of July 23, 2014 and February 9, 2015, in
    response to questions from the presiding judge, the appellant consistently and
    repeatedly assured the court that he had read the disclosure, that he had read
    it carefully, and that he had the assistance of a computer literate person in
    reading the disclosure in electronic form. Though he required an interpreter,
    he was at all times adamant that he was able to represent himself. On March 3,
    2015, the Crown was ready to proceed, the court was available, but the
    appellant was unprepared to defend himself. His inability to do so caused the
    adjournment of the trial to October 19, 2015. On this record, we are satisfied
    that October 19, 2015 was the earliest available date for the resumption of a
    trial of this length.

[7]

The trial judge was correct in concluding that
    under the
R. v. Morin
, [1992] 1 S.C.R. 771 analysis this period of
    time would have been considered either defence caused delay or, a more
    generous interpretation, neutral in the s. 11(b) calculus.

[8]

The trial judge correctly observed that all
    involved were reasonably relying on the framework that existed for the
    determination of s. 11(b) claims prior to
Jordan
. After the case was
    necessarily adjourned,
amicus
did not raise s. 11(b), and while the
    appellant may not have understood the issue, he did not either. Rather, he
    recognized that the court was trying to help him have a fair trial. The s. 11(b)
    application was pursued following the release of
Jordan
, after all of
    the evidence had been adduced and the Crown had made its closing submissions.

[9]

The trial judge did find there was additional
    delay attributable to the Crown due to the lack of an accredited interpreter.
    This additional delay was from October 19 to November 30, 2015.

[10]

On these findings, the trial judge calculated
    that the total operative delay in the case was 18 months and 14 days. She
    concluded there was no unreasonable delay and dismissed the appellants s.
    11(b) application.

[11]

We are not persuaded there is any reversible
    error in the trial judges conclusion. The appeal against conviction is
    dismissed.

[12]

On the sentence appeal, we are not persuaded
    that the trial judge made any erroneous findings of fact. It was open to her to
    find the appellant played a central role in the fraud, and that he enlisted
    others in carrying it out. The Crown concedes that the mandatory victim fine
    surcharge order included in the sentence should be set aside.

[13]

Leave to appeal sentence is granted, the
    mandatory victim fine surcharge order is set aside, but the remainder of the
    sentence appeal is dismissed.

R.G. Juriansz J.A.

S.E. Pepall J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kos-Rabcewicz-Zubkowski, 2019 ONCA 234

DATE: 20190325

DOCKET: C64354

Rouleau, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Monica Kos-Rabcewicz-Zubkowski

Appellant

Ian R. Smith, for the appellant

Erica Whitford, for the respondent

Heard and released orally: March 19, 2019

On appeal from the conviction entered on August 30, 2010 by Justice Catherine A. Kehoe of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of failing to provide the necessaries of
    life and assault. Both counts related to her 86-year-old mother. The offences
    were said to have been committed in 2007 and the appellant was convicted in
    2010. We are informed that while the appellant appealed her convictions at the
    time, she did so on her own and the matter was never perfected. When this
    matter was discovered by the inmate appeal program, Mr. Smith took carriage of
    the appeal and it has moved forward expeditiously since then.

[2]

The trial Crown alleged a wide array of conduct
    said to underscore the fail to provide the necessaries of life count. The trial
    judge concluded that, while the conduct informed the context against which
    the charge could be considered, the elements of the offence were only made out
    in relation to a single incident on November 26, 2007, where the appellant left
    her mother sitting in a chair on the porch of their home for about an hour with
    the front door locked.

[3]

Two plain clothes police officers arrived at the
    home and found the mother sitting there. They testified that she was cold and
    disoriented. Although she was wearing a coat, and had a wig on her head, she
    was not wearing mittens, a scarf or a hat. One officer thought that she may
    have only had running shoes on her feet, while the other officer thought that
    she recalled that the mother had winter boots on. The officers knocked at the
    door for a period of time and, when they did not get a response, they had the
    appellants mother wait in an unmarked police car and ultimately transferred
    her to an ambulance which delivered her to the hospital. The Crown led no
    evidence regarding any findings by the ambulance or hospital personnel.

[4]

The trial judge concluded as follows:

Halina Kos, at 86 years old, was frail, had
    suffered a stroke, and although recovered for the most part had limited
    mobility, early dementia, skin cancer and other medical conditions. She was
    left completely vulnerable to the elements on November 26
th
2007
that were well below freezing temperatures, snow and
    ice. Halina could not negotiate stairs, or the driveway on her own, even with
    the use of the walker. The door into the home was locked and [the appellant]
    did not answer it.

Having reviewed the law,
    considered all the submissions of counsel, I find that the danger of freezing,
    frostbite, or other injury was foreseeable and was completely avoidable.

[5]

On that basis, the trial judge found the
    appellant guilty of failing to provide the necessaries of life to her mother.

[6]

The trial judge erred in failing to address an
    element of the offence, specifically whether the appellants actions in failing
    to meet her legal duty to provide the necessaries of life constituted a marked
    departure from what a reasonably prudent person would do in those
    circumstances:
R. v. Naglik,
[1993]
    3 S.C.R. 122, at pp. 141-44;
R. v. S.J.,
2015 ONCA 97, at paras. 53-54.
Although we agree with Crown counsel that the trial judge adverted
    to this element of the offence on a few occasions, the trial judge erred when
    she failed to address what a reasonably prudent person would do in the
    circumstances of this case and whether the appellants conduct actually constituted
    a marked departure from that standard.

[7]

Although a new trial would typically be an
    appropriate remedy for this kind of error, the appellant goes further and maintains
    that the verdict of guilt was unreasonable. She relies primarily on the
    submission that there was no medical or other evidence to support the
    suggestion that the mothers life was endangered or that being left on the
    porch alone for up to one hour was likely to cause her health to be permanently
    injured.

[8]

While the evidence was that the appellants
    mother was frail and had previously suffered a stroke, there was unchallenged
    evidence that she loved to sit outside, that she frequently did so, and that
    over a three-year period preceding the offence, she never wandered from the
    chair on the porch where the police found her.

[9]

Although the Crown points to the fact that when
    the appellants mother would stay at a retirement residence, someone would keep
    an eye on her when she sat outside, nothing turns on this point. That the
    retirement residence chose to watch the mother on the frequent occasions she
    would sit outside does not mean that the daughters decision to leave the
    mother unattended on November 26
th
, particularly in light of the mothers
    track record of never wandering from the chair in the previous three years, represented
    a marked departure from what a reasonably prudent person would do in those
    circumstances. Against the factual backdrop of this case, and in the absence of
    medical evidence, the appellant maintains that it was not possible to find that
    the mothers life was endangered or that her health was likely to be
    permanently injured. She argues that this conclusion is reinforced by the fresh
    evidence tendered on appeal.

[10]

One of the detectives who dealt with the
    appellants mother on November 26
th
testified that the temperature
    was between minus eight and minus ten degrees Celsius. She testified that she
    recalled the temperature and that she later ran a Google search to confirm the
    temperature, but that she had forgotten to retrieve the printout of the Google
    search form from the printer. The trial judge found the police officers to have
    given credible and trustworthy evidence and made specific note of the
    temperature that day being minus eight degrees Celsius.

[11]

The appellant relies upon fresh evidence obtained
    from the Government of Canada demonstrating that the temperature in close
    proximity to the appellants home on November 26, 2007, at the time that the
    police were dealing with the appellants mother, was actually around four
    degrees Celsius, with virtually no wind.

[12]

Crown counsel objects to the admission of the
    fresh evidence on two bases under the test in
Palmer v. The Queen
, [1980] 1 S.C.R. 759, at p. 775: (a) cogency, and (b) due
    diligence.

[13]

As for cogency, while Crown counsel acknowledges
    that the fresh evidence brings into question the trial judges finding that the
    mother was in danger of freezing and frostbite, she argues that the trial judge
    also found that the mother was in danger of other injury that was foreseeable.
    Crown counsel has posited a number of possible injuries, including falling on
    the icy driveway, being attacked by a stranger, having a stroke, and so on. We
    do not agree with the Crowns position.

[14]

We see the fresh evidence as highly cogent. The
    only two things that the trial judge specifically pointed to as creating the
    risk of death or permanent injury were frostbite and freezing. That finding was
    made with no medical or expert evidence and is now significantly undermined by
    the 12 degree differential in temperature between what the trial judge noted the
    temperature was and what it actually was.

[15]

Crown counsel also says that the evidence should
    not be admitted for due diligence reasons.  We disagree. We can think of no
    strategic reason to explain why the appellants counsel at trial would not
    challenge the officer on her clearly wrong and misleading evidence about the
    temperature on the day in question. It is highly cogent evidence going to the
    heart of the trial judges reasoning process  the due diligence requirement
    must yield in order to avoid a miscarriage of justice:
R. v. J.A.
, 2010 ONCA 491, at para. 79. We would admit the fresh evidence.

[16]

In the end, the Crowns case, at its highest,
    was that the appellants mother was alone on the porch, dressed in a winter
    coat with a thick wig on her head, for up to an hour, where she had always sat
    for the few years previous and never strayed, in plus four degree weather. In
    these circumstances, even though the appellant did not answer when the police knocked
    at the locked door, in the absence of any medical or other evidence suggesting that
    the mother's life could have been endangered or how it was that those
    circumstances were likely to cause her health to be permanently injured, any verdict
    of guilt would be unreasonable.

[17]

The appellant was also convicted of assaulting
    her mother. That count rested entirely on a neighbours evidence that in the
    few months leading up to November 2007, on one occasion, from across the
    street, he saw the appellant push her mother out the front door. It appeared to
    the witness that the mother did not want to go outside and was upset. He
    recalled that the appellant had her hand on her mothers shoulder while her mother
    attempted to get back inside. There was yelling, but the appellant and her
    mother were not speaking in English; the witness could not understand what they
    were saying. The appellants voice sounded angry. The trial judge accepted the
    witnesss evidence and entered a conviction, finding that the mother did not
    consent to the touching witnessed by the neighbor.

[18]

The appellant says that the trial judge erred by
    failing to take into account her evidence on that point. She denied having
    pushed her mother out the door and explained that what the neighbour might have
    seen was an innocent interaction that could have had something to do with a
    loose door knob. At its core, this is an alleged
R. v. W.(D.)
, [1991] 1 S.C.R. 742,
error.

[19]

Although Crown counsel agrees that the trial
    judge did not give any reasons for rejecting the appellants evidence on this specific
    count, she maintains that the reasons in context show that the trial judge took
    the appellants evidence into account. Crown counsel emphasizes that the trial
    judge specifically adverted to
W.(D.)
and
    applied it in the context of the fail to provide the necessaries count.

[20]

We disagree with those submissions.

[21]

The trial judge did not advert in any way to the
    appellants explanation for what the neighbour might have seen. Although the
    trial judge was under no obligation to recount all of the evidence, it is
    unclear from her reasons that the trial judge even considered the appellants
    evidence on this point.

[22]

As a result, we set aside the conviction on the
    fail to provide necessaries of life count and enter an acquittal.

[23]

We also set aside the conviction on the assault count and order a
    new trial.

[24]

The Crown will undoubtedly take into consideration that the
    appellant has already served her sentence in determining whether to proceed
    with that prosecution.

Paul Rouleau J.A.
B.W. Miller J.A.
Fairburn 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(1), (1.1), (2),
    or (3) of the
Criminal Code
shall
    continue.  These sections of the
Criminal Code
provide:

486(1)          Any proceedings against
    an accused shall be held in open court, but the presiding judge or justice may,
    on application of the prosecutor or a witness or own his or her own motion,
    order the exclusion of all or any members of the public from the court room for
    all or part of the proceedings, or order that the witness testify behind a
    screen or other device that would allow the witness not to be seen by members
    of the public, if the judge or justice is of the opinion that such an order is
    in the interest of public morals, the maintenance of order or the proper
    administration of justice or is necessary to prevent injury to international
    relations or national defence or national security.

(1.1) The application may be made, during
    the proceedings, to the presiding judge or justice or, before the proceedings
    begin, to the judge or the justice who will preside at the proceedings or, if
    that judge or justice has not yet been determined, to any judge or justice
    having jurisdiction in the judicial district where the proceedings will take
    place.

(2)     In determining whether the order
    is in the interest of the proper administration of judge, the judge or justice
    shall consider

(a) societys interest in encouraging the
    reporting of offences and the participation of victims and witnesses in the
    criminal justice process;

(b) the safeguarding of the interests of
    witnesses under the age of 18 years in all proceedings;

(c) the ability of the witness to give a
    full and candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order
    for their security or to protect them from intimidation or retaliation;

(e) the protection of justice system
    participants who are involved in the proceedings;

(f) whether effective alternatives to the
    making of the proposed order are available in the circumstances;

(g) the salutary and deleterious effects
    of the proposed order; and

(h) any other factor that the judge or
    justice considers relevant.

(3)     If an accused is charged with an
    offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or
    (3) or section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273,
    279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or
    the accused applies for an order under subsection (1), the judge or justice
    shall, if no such order is made, state, by reference to the circumstances of
    the case, the reason for not making an order.

(4) No adverse inference may be drawn
    from the fact that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S., 1985, c. 27(1
st
Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4
th
Supp.) s. 1;
    1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s.7; 1997, c. 16, s. 6; 1999,
    c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133; 2002, c. 13,
    s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s. 4; 2012, c. 1, s. 28; 2014,
    c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.

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.A., 2019 ONCA 190

DATE: 20190307

DOCKET: C65359

Doherty, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.A.

Appellant

Sweta Tejpal, for the appellant

Rebecca De Filippis, for the respondent

Heard: February 28, 2019

On appeal from the conviction entered on April 21, 2017 by
    Justice Catrina D. Braid of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant submits that the trial judge misapprehended the evidence
    by failing to consider whether the complainants testimony was the product of
    life experiences and an after-the-fact reconciliation of dreams with actual
    events.

[2]

We do not accept this submission.  It was put to the trial judge and she
    carefully considered it.  In the end, the trial judge rejected the argument
    based on her assessment of the reliability of the complainants evidence and her
    finding that the complainants evidence had significant support in the rest of
    the testimony.

[3]

The appellant also argues that the trial judge misapprehended the
    evidence by considering the potential impact of the rumours evidence as part
    of the argument that the complainants alleged memories were, in fact,
    unreliable.  Again, we must disagree.  The trial judge, in our view, properly
    understood that the argument that the evidence that the complainants mother
    had told her about rumours of a sexual assault was one of the factors that
    had led the complainant to come to believe she had been assaulted.  The trial
    judge properly addressed this submission and rejected it.

[4]

We agree with the Crown that the appellants arguments are, in reality,
    a challenge to the reasonableness of the verdicts.

[5]

The allegations involved historical sexual assaults that occurred when
    the complainant was five or six years old.  This case turns largely on the
    trial judges assessment of the evidence of the complainant and the appellant
    and the application of the burden of proof to that assessment.  The trial judge
    gave reasons for accepting the complainants evidence.  She also gave several
    cogent reasons for rejecting the appellants evidence.  The verdicts were not
    unreasonable.

[6]

The appeal is dismissed.


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. Miller, 2019 ONCA 208

DATE: 20190314

DOCKET: M50039 (C66430)

Lauwers J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Miller

Applicant

Matthew Wolfson, for the applicant

Randy Schwartz, for the respondent

Heard: March 11, 2019

REASONS FOR DECISION

[1]

The applicant was convicted of sexual assault, and was sentenced to 6
    months imprisonment followed by 18 months probation. The applicant appeals
    his conviction.

[2]

The complainant, a 25-year-old male, drank during the evening with the
    applicant to the point of intoxication and vomiting, which led him to sleep in
    a bed provided by the applicant. The last paragraph of the trial judges
    reasons sets out her findings:

I find that Mr. Miller sexually
    assaulted [the complainant] on September 2, 2017 when he touched [the
    complainant] by putting his arm around him, by stroking his back, touching and
    performing oral sex on his penis while he slept and was unconscious during his
    sleep without his consent. Mr. Miller took no steps to ascertain [the
    complainants] consent at any time during the evening or when he initiated the
    sexual activity. Mr. Miller will be convicted of sexual assault.

[3]

I am satisfied that the applicant would surrender himself into custody
    in accordance with the terms of any bail order. The Crown does not argue that
    the applicants detention is necessary in the public interest. The only issue
    argued by the Crown was that the appeal has no merit.

[4]

Among the grounds of appeal are that the trial judge misapplied the law
    concerning reasonable steps in ascertaining consent and that she gave
    insufficient reasons for judgment in explaining her findings in light of the
    applicants evidence.

[5]

The applicants counsel argued several misapprehensions of evidence by
    the trial judge, which he argues, leads to the prospect that she did not
    properly assess the issue of consent on which the conviction turned.

[6]

I find that the appeal is not frivolous within the meaning of s. 679
    (3) (a) of the
Criminal Code
, R.S.C. 1985, c. C-46, recognizing the
    directions of the Supreme Court in
R. v. Oland
, 2017 SCC 17, [2017] 1
    S.C.R. 250, at para. 20.

[7]

Mr. Miller is entitled to an appeal, and one that will not be rendered
    moot by the flow of time, which is entirely possible given the short sentence.
    In the circumstances the application for bail pending appeal is allowed.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nguyen, 2019 ONCA 180

DATE:

20190306

DOCKET: C63929

Juriansz, Lauwers and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Phuong Dui Nguyen

Appellant

Mark Halfyard, for the appellant

Xenia Proestos, for the respondent

Heard and released orally: March 5, 2019

On appeal from the conviction entered on March 24, 2017
    and the sentence imposed on June 28, 2017 by Justice Bonnie L. Croll of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant appeals his convictions by judge alone of three charges of
    possession for the purpose of trafficking methamphetamine, MDMA and ketamine.

[2]

The appellant was arrested when the police executed a search warrant at
    an apartment leased by the appellants girlfriend. When the police entered the
    apartment the appellant was the
only
occupant. The police found drugs in plain view in the kitchen and found more
    similarly packaged drugs in a bedroom in which the belongings of the appellant
    were located. The appellants drivers licence indicated his address was the
    address of the apartment. The appellant testified that he was simply a visitor
    and had no knowledge of any of the drugs. His testimony was rejected by the
    trial judge in thorough reasons.

[3]

The issue at trial became whether the Crowns evidence had proven the
    appellant had the requisite knowledge and control of the drugs to establish
    possession.

[4]

Appellants counsel invites us to revisit several of the trial judges
    findings of fact and credibility. He contends that the evidence of a
    surveillance officer, who testified he observed the appellant come out of the
    apartment building, engage in a suspected drug transaction and re-enter the
    building, is not reliable. He also submits that the testimony of another
    officer, who said that after hearing the report of the suspected drug
    transaction, he entered the building and made his way to the 20th floor in time
    to see the back of a man, possibly the appellant, entering the apartment, is
    implausible and unworthy of belief. The officer testified the man was wearing
    the same clothing as the man who had engaged in the hand-to-hand transaction
    moments earlier. The appellant argues the trial judges reasons do not
    sufficiently deal with this officers credibility.

[5]

It was for the trial judge to weigh the evidence of these officers. We
    are not persuaded there is any basis for us to interfere with her reliance on
    their evidence. We see no deficiency in her reasons. The trial judges
    conclusion rested principally on the appellants presence in the apartment,
    other items of evidence that tied him to the apartment and the location of the
    drugs and drug paraphernalia in the apartment.

[6]

The appellant also submits that the trial judge erred by relying on the
    fact that the appellant was the target of the search warrant to bolster the
    case for his knowledge and control of the drugs found in the apartment. On a
    reading of the trial judges reasons as a whole, it is clear to us that the
    trial judges mention of this fact is in the nature of narrative used to
    introduce her analysis. Again, the trial judges conclusion was based on the
    factors mentioned above.

[7]

The appeal is dismissed.

R.G. Juriansz J.A.

P. Lauwers J.A.

Gary Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Reis, 2019 ONCA 168

DATE: 20190305

DOCKET: C63626

Doherty, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tryden Reis

Appellant

Faisal Mirza and Kelly Gates, for the appellant

Amy Alyea, for the respondent

Heard: February 28, 2019

On appeal from the conviction entered on January 13,
    2017, and the sentence imposed on April 24, 2017, by Justice
Suhail
    A.Q.
Akhtar of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was found guilty of aggravated assault, discharging
    firearm with intent to wound, and use of a firearm while committing an
    indictable offence, arising out of an altercation with two men in which one of
    them was shot.

[2]

The appellant and three other men were approached by two men, Nana Tutu
    and Kaion Brown, as they sat in a gazebo. Tutu had pulled a gun and pointed it
    at the appellant and his friends a few weeks previously. On this occasion, Tutu
    approached the appellant and the other men and stated: Is it a thing? Is it a
    thing? An altercation ensued, during which the appellant took Tutus gun from
    him and shot Brown. The trial judge found that the appellant shot Brown
    deliberately, rejecting his claims of accident and self-defence.

[3]

The primary issue on appeal is whether the trial judge erred in
    rejecting the appellants claim of self-defence.

[4]

The trial judge properly set out the requirements of the law of
    self-defence. The appellant was entitled to be found not guilty if he believed
    on reasonable grounds that force was being used against him; his actions were
    committed for the purpose of defending himself; and his actions were reasonable
    in the circumstances. The trial judge found that the defence met the air of
    reality test and, as a result, the Crown was required to disprove the defence
    beyond a reasonable doubt.

[5]

The trial judge found that the danger to the appellant posed by Tutu had
    passed: Tutu was walking away from the appellant, with his gun in his
    waistband, when the appellant attacked him from behind and took his gun. On
    this basis, he concluded that there was no reason for the appellant to pursue
    and attack Tutu. The trial judge found, further, that there was no reason for
    the appellant to shoot Brown. There was no evidence that Brown had any type of
    weapon prior to the altercation.

[6]

The appellant submits that the trial judge erred in finding that the
    danger had passed, in view of Tutus prior conduct and gun violence in his
    neighbourhood. He characterized this variously as an error in principle, an
    unreasonable finding, and a palpable and overriding error.

[7]

We do not accept this submission.

[8]

This was a factual matter and was for the judge to determine. He
    specifically considered and rejected the appellants evidence that Tutu was
    holding a gun and facing him when he charged at him. That finding was open to
    him on the evidence, and cannot be said to be unreasonable or a palpable and
    overriding error.

[9]

The appellant argues, next, that the trial judge erred in finding that
    Brown posed no danger to him, and in particular erred in focusing on whether or
    not Brown had a gun. The altercation was ongoing; Brown was with Tutu when the
    appellant had been threatened on the prior occasion, and in all of the
    circumstances it was reasonable to think that he might have been armed.

[10]

Again,
    we disagree.

[11]

The
    trial judge considered and rejected the appellants evidence that he was
    terrified and had no intention of shooting Brown or harming anyone. He found
    that there was no reason to think that Brown was armed with a gun or any other
    weapon, and that the appellants actions had been motivated by a desire to make
    sure that he and his friends were not to be threatened by Tutu or his friends
    again. This finding is amply supported by the evidence and is neither
    unreasonable nor does it reveal a palpable and overriding error.

[12]

The
    trial judge considered and rejected evidence that the gun had discharged
    accidentally or unintentionally. He reviewed video evidence showing the
    appellant pursuing Brown and striking him after he had fallen. As the trial
    judge put it, If one thing is clear from the video, it is that the accused
    wanted to hurt Brown and hurt him badly. This was the trial judges call to
    make and we see no error that requires intervention.

[13]

These
    conclusions are sufficient to dispose of the appeal. The appellant acknowledged
    that the appeal could not succeed if the trial judges finding that the danger
    to the appellant had passed was upheld.

[14]

Nevertheless,
    the remaining grounds of appeal addressed by the appellant at the hearing may
    be dealt with briefly.

[15]

We
    see no error in the trial judges treatment of the post-offence conduct. He
    accepted that flight following the shooting might be explainable in all of the
    circumstances. However, the appellants post-offence conduct went beyond this,
    and in particular involved steps taken to dispose of incriminating evidence,
    including his clothing and the gun. It was open to the trial judge to find that
    taken as a whole, the appellants post-offence conduct was powerful
    circumstantial evidence of his guilt.

[16]

The
    appellant argued that the trial judge erred in relying on a KGB statement from
    Nicholas Gray, as discrepancies between the statement and his evidence at trial
    did not rise to the level of an unambiguous recantation.

[17]

We
    disagree.

[18]

The
    KGB statement was properly admitted for the truth of its contents. The trial
    judge accepted that Grays trial evidence was not an outright recantation of
    the statement, and was entitled to determine what weight to give to his
    evidence. His decision reveals no error, nor did the trial judge err in
    dismissing the appellants application to lead an utterance designed to bolster
    the appellants credibility. The trial judge properly applied the exception set
    out by this court in
R. v. Edgar
, 2010 ONCA 529, in which it was made
    clear that an out of court utterance by the accused is admissible as evidence
    of reaction and consistency, but only if the utterance is made in response to
    an accusation of a crime. In this case, the utterance was made in response to a
    question, so was inadmissible.

[19]

The
    appeal is dismissed.

Doherty
    J.A.

M.L.
    Benotto J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Reyes, 2019 ONCA 231

DATE: 20190322

DOCKET: M50037 (C64769)

Rouleau, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Althea Reyes

Applicant/Appellant

J.W. Irving, for the appellant

Andrew Hotke, for the respondent

Heard and released orally: March 19, 2019

REASONS FOR DECISION

[1]

This is an application to reopen the applicants appeal. The appeal was
    dismissed in accordance with this courts previous order that unless the appeal
    was perfected by August 31, 2018 her appeal would be dismissed.

[2]

Despite the clear notice as to what would result if that date was
    missed, the applicant missed that date. She now applies to reopen the appeal.
    We see no basis upon which to do so.

[3]

The applicant did not diligently pursue her appeal. Although she
    endeavored to file a few documents (factum and abbreviated appeal book) on
    August 31, 2018, the materials were inadequate. The appeal book did not contain
    the necessary materials and there was no transcript. These deficiencies were
    not remedied for some time. Indeed, it appears that the materials were not
    filed until January 15, 2019, long after the appeal had been dismissed by the
    Registrar.

[4]

Moreover, we see no merit to the underlying appeal, an attempt to review
    the decision refusing to quash a bench warrant in the Ontario Court of Justice.
    The factual record belies the suggestion that the trial judge erred in issuing that
    warrant, a clearly discretionary decision.

[5]

For these reasons, it is not in the interests of justice to reopen the
    appeal. The application is dismissed.

Paul Rouleau
    J.A.

B.W. Miller J.A.

Fairburn 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. S.C., 2019 ONCA 199

DATE: 20190313

DOCKET: C65198

Sharpe, Benotto and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

S.C.

Respondent

Lisa Joyal, for the appellant

Margaret Bojanowska, for the respondent

Heard: February 5, 2019

On appeal from the sentence imposed by Justice Donald
    McLeod of the Ontario Court of Justice on March 9, 2018.

Sharpe J.A.:

[1]

The Crown appeals the nine-year sentence imposed
    on the respondent following his guilty plea to eight counts of sexual assault,
    eight counts of making child pornography and one count of possession of child
    pornography. The sexual assault and making child pornography offences were
    committed against young children under the respondents care in a daycare
    centre. The Crown argues that the sentence the trial judge imposed failed to
    satisfy the principle of totality, ran afoul s. 718.3(7) of the
Criminal Code
because consecutive
    sentences were not imposed on some counts, overemphasized some mitigating
    factors, and was demonstrably unfit. The Crown asks us to impose a sentence of
    15 years.

[2]

For the following reasons, I would dismiss the
    appeal.

THE
    OFFENCES

[3]

In the course of a peer-to-peer child
    pornography investigation, the Peel Regional Police obtained a warrant and
    conducted a search of the respondents residence. The respondents computer was
    found to contain a massive amount of graphic and highly disturbing child
    pornography involving young prepubescent children, some in the form of still
    images and some in the form of videos. The police also found a folder labeled
    I Me Mine containing close-up images and videos taken by the respondent of
    the genitals of eight female toddlers between the ages of two and three years.
    Some images revealed male fingers touching the genital area of the children. In
    an agreed statement of facts filed on the sentencing proceeding, the respondent
    admitted that during the toddlers nap period when he was supervising them on
    his own, he pulled down their clothing and undergarments to expose their
    genitals and took close-up photographs with his phone while touching their
    genitals with one of his fingers.

THE
    OFFENDER

[4]

At the time of sentencing, the respondent was 38
    years old, single and had no prior criminal record. He lived with his mother
    and had worked at several daycare centres as an early childhood educator for a
    number of years. He maintained that the children were asleep when he sexually
    assaulted them and he filed written apologies for his conduct. He admitted that
    he had an unhealthy affection for the children, that he was addicted to child
    pornography, and that he had become obsessed with acquiring more and more
    images.

SENTENCING
    PROCEEDINGS

[5]

Sentencing submissions were made over the course
    of several days.

[6]

Parents of the child victims read victim impact
    statements indicating the profound effect these offences had upon them. The
    trial judge aptly summed up the effect of the victim impact statements in his
    reasons:

A common theme that resonated through the various messages was
    real and palpable  emotional destruction of trust. The statements were riddled
    with emotional moments that run the gamut from self-doubt and guilt to anger,
    and feelings of betrayal

[7]

The trial Crown argued that a sentence of 17 to
    19 years was the appropriate range but recommended a sentence of 15 years
    imprisonment to take into account the principle of totality and mitigating
    circumstances. The respondent asked for a global sentence of 6 years.

[8]

The trial judge gave oral reasons for imposing a
    global sentence of nine years, which comprised of six years for the sexual
    assaults, one year for making child pornography and two years for possession of
    child pornography.

ISSUES

[9]

The Crown raises the following issues on appeal:

1.

Did the trial judge err in his application and
    interpretation of the principle of totality?

2.

Did the trial judge err by failing to impose
    consecutive sentences pursuant to s. 718.3(7) of the
Criminal Code
?

3.

Did the trial judge err in his assessment of
    mitigating factors?

4.

Did the trial judge impose a sentence that was demonstrably unfit?

ANALYSIS

[10]

As I see it, there is a substantial overlap
    between issues 1, 2 and 4. In my view, the logical starting point for analysis
    of these issues is to consider the application of s. 718.3(7), then to consider
    the issues of totality and the fitness of the sentence, and finally to ask if
    any error was made with respect to the mitigating factors.

Criminal Code
, s. 718.3(7)

[11]

Section 718.3(7), introduced as part of the
Tougher Penalties for Child Predators Act
, S.C. 2015, c. 23, provides:

718.3(7)
When a court sentences an accused at the same
    time for more than one sexual offence committed against a child, the court
    shall direct

(a)
that a sentence of imprisonment it imposes for an
    offence under section 163.1 be served consecutively to a sentence of
    imprisonment it imposes for a sexual offence under another section of this Act
    committed against a child; and

(b)
that a sentence of imprisonment it imposes for a
    sexual offence committed against a child, other than an offence under section
    163.1, be served consecutively to a sentence of imprisonment it imposes for a
    sexual offence committed against another child, other than an offence under
    section 163.1.

[12]

This provision must be read alongside the
    fundamental sentencing principle expressed in s. 718.1 which states: [a]
    sentence must be proportionate to the gravity of the offence and the degree of
    responsibility of the offender and the totality principle enshrined in s.
    718.2(c) which states: where consecutive sentences are imposed, the combined
    sentence should not be unduly long or harsh.

[13]

Section 718.3(7) came into force on July 17,
    2015. The offences with which we are concerned in this appeal straddle that
    date. It is common ground that s. 718.3(7) applies to four pairs of counts of
    sexual assault and making child pornography against four victims. Each of those
    offences carries a minimum sentence of 1 year. In addition, the one count
    possession of child pornography is covered by s. 718.3(7). The mandatory
    minimum sentence that attaches to that offence was struck down by this court in
R. v. John
, 2018 ONCA
    702, 142 O.R. (3d) 670. As a result, the total of the mandatory minimum
    sentences to which s. 718.3(7) applies come to 8 years.

[14]

Four pairs of counts for sexual assault and
    making child pornography predate s. 718.3(7). The mandatory minimum sentence
    for those offences total 8 years but they are not governed by the requirement
    for consecutive sentences under s. 718.3(7) and therefore can be imposed
    concurrently.

[15]

I do not accept the Crowns submission that the
    sentence imposed by the trial judge was illegal because of s. 718.3(7) for
    the following reasons.

[16]

First, the total number of years required by
    mandatory minimums comes to 8 years, well within the 9 years imposed by the
    trial judge.

[17]

Second, the
Criminal Code
does not mandate a purely mechanical approach whereby all sentences
    governed by s. 718.3(7) must be simply added up and imposed. Both at trial and
    in oral argument before us, the Crown properly conceded that s. 718.3(7) is
    subject to the totality principle. Section 718.3(7) must be read together with
    s. 718.2(c) stating that where consecutive sentences are imposed, the combined
    sentences should not be unduly long or harsh. In
R.
    v. Ahmed
, 2017 ONCA 76, 346 C.C.C. (3d) 504, this
    court dealt with
s. 83.26 of the
Criminal
    Code
,
which provides that
    a sentence other than one of life imprisonment, imposed on a person for a
    terrorism offence, must be served consecutively to any other punishment imposed
    on the person for an offence arising out of the same event or series of
    events. This court, following the Supreme Court of Canada in
R. v.
    Khawaja
, 2012 SCC 69, [2012] 3 S.C.R. 555,
stated, at para.
    79:

The totality principle is a particular
    application of the general principle of proportionality. It requires a
    sentencing judge who orders an offender to serve consecutive sentences for
    multiple offences to ensure that the cumulative sentence rendered does not
    exceed the overall culpability of the offender. Following
M.(C.A.)
, the
    sentencing provisions in the
Criminal Code
were amended.
    Proportionality was included as the fundamental principle of sentencing (s.
    718.1) and sentencing courts were instructed to take into consideration the
    totality principle when imposing consecutive sentences to ensure that the
    combined sentence is not unduly long or harsh (s. 718.2(c)). The totality
    principle applies in sentencing persons convicted of terrorism offences.
    [Citations omitted.]

[18]

As I have noted, the mandatory minimum sentences
    applicable in this case by virtue of s. 718.3(7) total eight years. It was open
    to the trial judge to take into account the totality principle as a
    qualification on s. 718.3(7) when imposing the sentences for the other offences
    for which the mandatory minimums did not apply.

[19]

Nor do I agree that the trial judge erred in law
    by failing to advert specifically to s. 718.3(7) in his reasons for sentence.
    The trial judge was certainly alive to the possible application of 718.3(7) as
    the provision was the subject of detailed consideration in the sentencing
    submissions of counsel. Moreover, the trial judge did refer to 718.3(7)
    indirectly when reviewing the totality principle, by citing the passage I have
    quoted above from
Ahmed
.

[20]

The trial judge did not take as his starting point the determination
    of the appropriate sentence for each individual count and then add up all the
    count by count sentences to determine the global sentence, but rather
    identified the gravity of the conduct overall and then determined the total
    sentence that should be imposed
and then apportioned it to
    the various offences.

In so doing, he followed the
    practice approved by this court in
R. v. Jewell
(1995), 100 C.C.C. (3d)
    270 (C.A.) at p. 279;
R. v. R.B.
, 2014 ONCA 840, 327 O.A.C. 20, at para.
    8;
R. v. J.S.
, 2018 ONCA 675, 142 O.R. (3d) 81, at para. 66; and
R.
    v. Ahmed
, at para. 85. It would be an error in taking that approach to
    ignore the effect of s. 718.3(7). While it would have been preferable for the
    sentencing judge to specifically address s. 718.3(7), I am satisfied from reading
    the record as a whole including the sentencing submissions, that the trial
    judge was alive to the provisions of 718.3(7).

[21]

For these reasons, I conclude that the trial judge
    did not err
by failing to impose consecutive sentences for
    all offences pursuant to s. 718.3(7) of the
Criminal
    Code
.

Totality
    and fitness of the sentence

[22]

The Crown argues that the trial judge erred in
    his interpretation and application of the principle of totality and imposed a
    sentence that was demonstrably unfit. The Crown argues that a sentence of nine
    years imprisonment failed to address the cumulative gravity and moral
    blameworthiness of the respondents conduct.

[23]

There can be no question that these were very
    serious offences that called for a substantial prison sentence. The victims of
    the sexual assault and making child pornography were defenseless toddlers. The
    respondent was entrusted with their care. He abused his position of trust to
    satisfy his sexual cravings. The victim impact statements powerfully
    demonstrate the harm caused to the families of the victims. The quantity of
    child pornography in the respondents possession was massive. The content was
    disturbing in the extreme. It depicted scenes of sexual abuse on a very large
    number of children who were the victims of an entirely evil industry.

[24]

It is well-established in the case law that
    crimes of this nature call for sentences that emphasize deterrence and
    denunciation: see
R. v. J.S
.

[25]

In my view, the trial judges reasons indicate
    proper awareness of both the gravity of the crimes for which the respondent was
    being sentenced and the legal principles bearing upon the appropriate sentence.
    He observed that his primary consideration should be given the objectives of
    denunciation and deterrence and that the gravity of the offence is properly
    the central factor. He reviewed the victim impact statements and was fully
    aware of the devastating impact of the crimes. He described the respondents
    conduct as an egregious breach of trust and his crimes as heinous.

[26]

The trial judge described the harm caused by the
    respondent and the message that had to be sent by the sentence imposed by
    referring to and applying the statement of this court in
R. v. D.
(D.)
(2002)
,

58 O.R. (3d) 788 (C.A.),
    at para. 45:

The appellant was
    prepared to risk the lives of innocent children to satisfy his sexual cravings.
    His conduct was reprehensible and it must be condemned in the strongest of
    terms. The harm occasioned by the appellant and others like him is cause for
    grave concern. Children are robbed of their youth and innocence, families are
    often torn apart or rendered dysfunctional, lives are irretrievably damaged and
    sometimes permanently destroyed. Because of this, the message to such offenders
    must be clear  prey upon innocent children and you will pay a heavy price!

[27]

I do not agree with the Crowns submission that
    the trial judge erred by placing reliance on
R. v. D.(D.).
In that case,
    this court upheld a sentence of nine years and one month for the sexual abuse
    of four young boys over a seven-year period. The offender had abused a position
    of trust with families, groomed the boys over a lengthy period, and regularly
    engaged in all manner of sexual activity including anal intercourse. He used
    violence and threats of violence to compel compliance and keep the boys quiet. Despite
    the differences in these crimes, the passage the trial judge quoted from
R. v D.(D.)
was nevertheless pertinent
    to sentencing on sexual offences involving children. Further, given the gravity
    of the crimes committed in
R. v. D.(D
.
)
against children, I fail to see why
    this case calls for a longer sentence.

[28]

I agree with the Crown that sentences for sexual
    offences involving young children and child pornography have been increasing:
    see
R. v. J.S.
;
R. v. L.M.
,
2008 SCC 31, [2008] S.C.R. 163. However, I am satisfied that the
    nine-year sentence imposed by the trial judge is consistent with that pattern.
    The 18-year sentence upheld by this court in
J.S.

post-dated the sentencing proceedings
    in this case and there are several distinguishing factors. First, that case
    involved an offender who recorded acts against his three infant nieces of
    attempted anal and vaginal penetration with an erect penis, digital
    penetration, penetration with a marker, digital masturbation and cunniligus.
    That conduct is even more disturbing than the conduct at issue here. Second,
    that case did not involve this court overturning a sentence imposed at trial
    and it is clear from the courts reasons that deference to the sentencing
    discretion of the trial judge was a primary factor. Third, the court observed,
    at para. 123, that the 18-year sentence was at the high end of the range for
    such offences, and possibly in excess of the range but that it was not the
    product of an error in principle. The refusal of this court to set aside the 18-year
    sentence does not establish 18 years as a benchmark for future cases.

[29]

The sentence in this case was not demonstrably unfit.

Mitigation

[30]

The Crown submits that the trial judge erred in
    determining that certain factors were mitigating, citing the following
    paragraph from his reasons:

[S.C.] is a first-time offender. He has [
sic
] the court time, and resources have been saved. He appears to be a
    good candidate for rehabilitation and none of the victims suffered physical
    injury or required mental treatment. No physical violence was used by [S.C.]
    during the course of the sexual assaults of the eight victims. There was no
    evidence that the downloads were unusually brutal.

[31]

The Crown submits that the lack of need for
    medical treatment is not a mitigating factor, that sexual assaults are
    inherently violent, and that while brutality can be an aggravating factor, the
    lack of brutality is not mitigating.

[32]

In my view, the passage quoted by the Crown must
    be read together with the immediately preceding paragraph where he refers to
    the aggravating factors.  In that paragraph he recites the massive amount of
    pornography found on the respondents computer, the fact that the assaults took
    place while the children were sleeping, that the respondent was in a position
    of trust, the number of victims and their young age and the potential for
    latent psychological damage.

[33]

I have already referred to the passages from the
    trial judges reasons that indicate his awareness of the gravity of the
    offences. The Crown may be correct in pointing out that some of the points
    listed under the heading mitigating factors were not strictly speaking
    mitigating. However, they were relevant to the assessment of the gravity of the
    respondents conduct and, when read in the context of the reasons as a whole,
    do not reveal any legal error.

[34]

I add that there were significant mitigating
    factors. The respondent pleaded guilty thereby saving the victims, their
    families and the system the cost and trauma of a trial. The respondent was a
    first offender and he expressed remorse. He has faced the fact that he has a
    serious problem that needs to be addressed and he has expressed a willingness
    to undergo treatment. The institutional records filed as fresh evidence, which
    I would admit, indicate that he is ready and willing to follow programs that
    will assist in rehabilitation.

Conclusion

[35]

As the Crown acknowledges in its factum, it is
    well established that sentencing decisions attract a high level of deference.
    Absent an error in principle or a failure to consider a factor relevant to an
    aggravating or mitigating factor, this court is not entitled to intervene
:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44
. The trial judge recognized that deterrence and denunciation were
    the primary sentencing objectives in this case. As a consequence, he imposed a
    very substantial penitentiary sentence of nine years. He did so to denounce the
    respondents conduct and to deter the respondent and others from committing
    offences against children in the future. That sentence took into account the
    gravity of the respondents conduct and moral culpability. The message the
    nine-year sentence sent is loud and clear. I am not persuaded that the longer

sentence
    sought by the Crown at trial and on appeal would appreciably add to the
    deterrent effect of the sentence that was imposed. A longer sentence could
    discourage guilty pleas and undermine the interest of rehabilitation. In my view,
    the trial judge was entitled to conclude that the sentence sought by the Crown
    would not be consistent with the principles of proportionality and totality.

[36]

For these reasons, I would dismiss the appeal.

Released: MLB March 13, 2019

Robert
    J. Sharpe J.A.

I
    agree. M.L. Benotto J.A.

I
    agree. David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Rea v. Rea, 2019 ONCA 247

DATE: 20190328

DOCKET: C66460

Simmons, Tulloch and Brown JJ.A.

BETWEEN

Natale Antonio Rea

Respondent (Appellant)

and

Tracy Bernadette Rea

Applicant (Respondent)

Julie Hannaford, Marie Henein and Heather Hansen, for
    the appellant

Laurie Pawlitza and Christine Ashbourne, for the
    respondent

Heard in writing

On appeal from the order of Justice David Jarvis of the
    Superior Court of Justice, dated January 22, 2019.

COSTS ENDORSEMENT

[1]

Mr. Rea appealed from a contempt order under which he was ordered
    jailed.

[2]

On virtually the eve of the expedited appeal hearing, he accepted an
    offer to settle under which he is to pay Ms. Rea's costs of the appeal on a
    full indemnity scale.

[3]

We have reviewed the costs claimed and conclude they are wholly
    disproportionate and far beyond the range of anything that could be considered
    reasonable, even on a full indemnity basis.

[4]

Costs of the appeal are to Ms. Rea on a full indemnity basis as agreed,
    fixed in the amount of $30,000, inclusive of disbursements and applicable
    taxes.

[5]

While the appeal was pending, Mr. Rea sought an extension of time to
    appeal the order underlying the contempt finding and several other orders.
    Apart from an order staying portions of the contempt order, Mr. Rea was wholly
    unsuccessful.

[6]

Costs of Mr. Rea's motions are to Ms. Rea on a partial indemnity scale
    fixed in the amount of $7,500, inclusive of disbursements and taxes.

[7]

We make no order as to costs in relation to Ms. Rea's motion to deny
    audience to Mr. Rea.

Janet Simmons J.A.

M. Tulloch J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Sadat v. Pica, 2019 ONCA 186

DATE: 20190307

DOCKET: C65909

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

Ahmed Fordjour Sadat

Plaintiff (Appellant)

and

Venessa Pica, Mary A. Pica, Lascelles A. Browney,
    Roberto Manco, Sabrina Manco, Nazar Kwarkies, Jian Lin, Jian Hing Supermarket
    Inc., Matthew Tersigni, Mary Tersigni, Nilamkumari C. Patel, John Doe and
    Certas Direct Insurance Company

Defendants (Respondents)

Ian Little, for the appellant

J.-C Rioux and Candace Mak, for the respondent Certas
    Direct Insurance Company

Mark Fonseca, for the respondents Jian Lin and Jian Hing
    Supermarket Inc.

Heard and released orally: March 4, 2019

On appeal from the judgment of Justice Michael G. Emery
    of the Superior Court of Justice, dated August 22, 2018.

REASONS FOR DECISION

[1]

This is an appeal from a decision granting summary
    judgment dismissing the action against the respondent insurer.  The appellant
    was involved in a car accident where his vehicle was struck from behind.  The
    appellant has liability coverage under his own policy with the respondent
    insurer in accordance with s. 265 of the
Insurance Act
,
R.S.O. 1990, c. I.8,
and s. 5 of the standard
    Ontario motor vehicle liability policy on behalf of uninsured and unidentified
    automobiles.  An unidentified automobile is defined in the Policy as one where either
    the owner or driver cannot be ascertained.

[2]

The appellant argues that the motion judge erred
    by releasing the respondent from the claim for the uninsured or unidentified
    automobile coverage. He says that if the jury finds no liability on the part of
    either of the two driver defendants at trial, then he should be able to recover
    from the respondent because the jurys verdict will mean that the accident was
    caused by an unidentified automobile.

[3]

The motion judge carefully analyzed the context
    for the appellants claim.  There is no dispute about the identity of the two
    other motorists involved in the accident: either Jian Lin or Venessa Pica was the
    driver responsible for the accident.  There is no evidence that there was a
    third unidentified car and no one takes the position that there was.  The sole
    question at trial will be which, if either, of the known vehicles or drivers
    was legally responsible for the accident.  On that basis, the motion judge
    correctly dismissed the appellants claim against the respondent because there
    is no alleged unidentified automobile.

[4]

The appeal is dismissed.

K. Feldman J.A.
L.B. Roberts J.A.
Fairburn J.A.