COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Attorney General) v. Reyes, 2017 ONCA 613

DATE: 20170720

DOCKET: M48054 (C63925)

B.W. Miller J.A. (In Chambers)

BETWEEN

Attorney General of Ontario

Plaintiff (Respondent/Responding Party)

and

Althea Reyes

Defendant (Appellant/Moving Party)

Althea Reyes, in person

Domenic Polla, for the respondent, Attorney General of
    Ontario

Kiran Arora, for the respondent, The Office of the
    Childrens Lawyer

Heard: July 19, 2017

ENDORSEMENT

[1]

The moving party, Ms. Reyes, is subject to a vexatious litigant order
    made by Perell J. and dated May 31, 2017. The terms of that order put
    constraints on her ability to commence or continue legal proceedings.
    Specifically, she cannot commence or continue any proceedings in Ontario
    without first obtaining leave from a judge of the Superior Court of Justice
    pursuant to s. 140(3) of the
Courts of Justice Act
, R.S.O. 1990, c.
    C.43.

[2]

The process for obtaining leave is expressly provided in rule 38.13 of
    the
Rules of Civil Procedure
. That rule provides that an application
    under s. 140(3) is to be heard in writing without the attendance of the
    parties, unless the Court orders otherwise. That means that the application
    will be decided by a judge, in chambers, based on the written materials that
    the applicant, and any responding party, files with the Court. The rule is
    intended to eliminate the need for counsel and parties to appear on the motion.

[3]

Ms. Reyes is concerned that the effect of the order of Perell J. is to prevent
    her from continuing two proceedings that require her immediate attention.

[4]

She appealed the vexatious litigant order to this Court by right:
Kallaba
    v. Bylykbashi
(2006), 265 D.L.R. (4
th
) 320 (ON CA). That appeal
    has not yet been heard, and in the interim she wishes to obtain a stay of the
    order. It is at this point that she has run into difficulties. She filed motion
    materials with this Court seeking a stay of the order. The Court Registry
    advised her that although it would hold the materials in abeyance, she would be
    required to obtain leave from a judge of the Superior Court before the motion
    could be heard in this Court.

[5]

Ms. Reyes ought to have brought that application for leave to the
    Superior Court in writing under rule 38.13. She did not do so, and instead
    brought a motion in the ordinary course both for leave and for the stay itself.
    The motion was heard by Lederer J. on July 18, 2017. He denied the motion, and
    concluded that it was itself an abuse of process for Ms. Reyes to have sought a
    stay from both the Superior Court of Justice and the Court of Appeal. For her
    part, Ms. Reyes argued before me that she was simply following the directions
    that had been given to her by the registry of the Court of Appeal, and that
    Lederer J. erred in concluding that she was thereby committing an abuse of
    process.

[6]

Regardless, and as Lederer J. noted, the leave motion ought to have been
    brought in writing pursuant to rule 38.13(2). As Lederer J. stated, the failure
    to follow rule 38.13 is more than a failure to comply with a formality. It
    circumvents a process designed to protect other litigants, putting them to the
    time and expense of an oral hearing. Failure to observe the prescribed process is
    not an irregularity which ought to be cured by the application of rule 2.01.

[7]

Decisively, s. 140(4)I of the
Courts of Justice Act
provides
    that no appeal lies from a refusal to grant relief to the applicant from a
    refusal by a judge of the Superior Court of Justice to grant leave to institute
    or continue a proceeding in any Court. Section 140(4)I is determinative of that
    aspect of the motion before me. Leave to bring a motion in this Court for a
    stay of the order of Perell J. pending appeal has been refused by Lederer J. No
    appeal from that decision is available, and that is the end of the matter in
    this Court.

[8]

Ms. Reyes argues, however, that this Court can nevertheless hear her motion
    for a stay under s. 106 of the
Courts of Justice Act
. The reasoning is
    this. If leave is not required to appeal a vexatious litigant order  because
    of the risk of fundamental unfairness if the order was granted in error:
Kallaba
 than neither should leave be necessary to seek an interim stay of that order
    pending the appeal: the same risk of unfairness from an order made in error
    hovers over them both.

[9]

I do not agree with this argument.

[10]

It
    must be remembered that the vexatious litigant order is presumptively correct
    and it strikes a balance between safeguards for the vexatious litigant and protection
    for other litigants. And although there is some risk of unfairness to the
    applicant should it later be determined that the order was made in error, such
    that the applicant should never have been put to the additional burden of
    having to seek leave, the risk of unfairness is nevertheless temporarily
    contained to the period of time up until the decision of the appeal. The risk of
    unfairness is further limited by the opportunity to seek leave in the Superior
    Court to bring the motion for a stay.

[11]

Were
    it to be otherwise, and a motion for a stay was available as of right, a
    vexatious litigant would be able to command two additional oral hearings: one
    for the stay motion and another for an appeal if the stay motion were
    unsuccessful. This would put opposing parties to further expense, contrary to
    the purpose of s. 140.

[12]

Accordingly,
    the motion must be dismissed.

[13]

That
    does not mean that Ms. Reyes has no further option open to her. She is at liberty,
    as counsel for the Attorney General of Ontario stressed in oral argument, to
    bring a proper application in writing under rule 38.13 for leave to continue in
    both proceedings that she has ongoing. Such an application would be decided
    based on the written materials filed, and Ms. Reyes would need to persuade the
    judge hearing the application that the proceeding is not an abuse of process
    and that there are reasonable grounds for the proceeding. She would need to
    file an application record, including an affidavit, supporting the relief
    sought.

[14]

The
    Registry Office of the Court of Appeal is not to accept any notice of motion or
    notice of appeal from Ms. Reyes while the May 31, 2017 order of Perell J.
    remains in effect, unless she has first obtained leave from a judge of the
    Superior Court of Justice.

Disposition

[15]

The
    motion is dismissed. There is no order as to costs.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Preiano v. Cirillo, 2017 ONCA 615

DATE: 20170724

DOCKET:
C63065

Sharpe, Lauwers and Roberts JJ.A.

BETWEEN

Sonia Preiano and Gianluca
    Preiano

Plaintiffs (Appellants)

and

Giuseppe Cirillo, the
    Estate of Giuseppe Cirillo and Antonia Cirillo

Defendants
    (Respondents)

Michael Freeman and Vusumzi Msi, for the
    appellants

Ben Hahn, for the respondents

Heard: July 19, 2017

On appeal from the order of Justice Kofi N. Barnes of the
    Superior Court of Justice, dated
November 10, 2016
.

REASONS FOR DECISION

[1]

The appellant purchasers sued the respondent
    vendors for specific performance of an Agreement of Purchase and Sale regarding
    the respondents home (the APS). The respondents brought a motion for the
    determination of a question of law under r. 21.01(1)(a) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194
. The motion
    judge dismissed the action, leading to this appeal.

A.

The Factual Context

[2]

On August 20, 2013, at the time they signed the
    draft APS by which they offered to buy the respondents house, the appellants delivered
    a $25,000 personal cheque as the deposit to Frank Finelli of Royal LePage, the respondents
    real estate agent. Mr. Finelli told the appellants that the personal cheque would
    have to be replaced with $25,000 in certified funds if the respondents accepted
    the APS. On behalf of Royal LePage, Mr. Finelli retained the appellants
    personal cheque although he did not attempt to deposit it.

[3]

The parties reached agreement at 12:30 p.m. on
    August 21, 2013. The APS required the appellants to pay the deposit of $25,000
    CAD within 24 hours of the acceptance, or by 12:30 p.m. on August 22, 2013. The
    APS stated that time shall be of the essence. They delivered $25,000 in
    certified funds in the form of a bank draft to the deposit holder, Royal
    LePage, by 1:53 p.m. on August 23, 2013.  Royal LePage provided the appellants
    with a receipt for their deposit.

[4]

On November 14, 2013, counsel for the
    respondents wrote to the appellants real estate lawyer asserting that there was
    no valid APS because of the late receipt of the deposit. This was six days
    before the scheduled closing date of November 20, 2013 set out in the APS. The
    letter concluded:

My clients are willing to return the sum of
    $25,000.00 allegedly paid by your clients, but cannot in good faith, knowing
    the improprieties on the part of the agent, the undue influence and pressure
    upon the clients to sign the document and the anomalies and inconsistencies in
    the document itself, proceed with this as some valid transaction.

(1)

The Motion Judges Approach

[5]

The evidence considered by the motion judge was
    adduced not by means of affidavits, but by a carefully arranged sequence of
    demands for particulars coupled with requests to admit under r. 51 issued by
    the respondents. The result was a set of terse written responses with little or
    no possibility of explanation.

[6]

The appellants point out that the respondents
    did not actually move for the admission of the evidence, but simply relied on
    it during argument. However, on his own motion the motion judge granted leave
    to the defendants to file evidence on the motion so that the interpretation of
    the APS would not occur in an evidentiary vacuum. While r. 21.01(2)(a)
    permits a motion judge to admit evidence on a motion under r. 21.01(1)(a), the
    appellants argue that the motion judge did not exercise his discretion fairly.

[7]

The result was effectively a motion under r. 20
    for summary judgment without any of the carefully balanced protections to all
    parties provided by that rule and the jurisprudence under it.

(2)

The Motion Judges Decision

[8]

The motion judge found that because the bank
    draft was delivered a day late, there was no APS in effect to be specifically
    performed and he dismissed the action on that basis. He found that the APS was breached,
    although it might be more accurate to express his understanding that the APS
    expired by its own terms.

B.

Discussion

[9]

Several issues arise from these facts. First,
    the APS provided for a Deposit of $25,000 by negotiable cheque payable to
    Royal LePage Realty Centre. It stated that: the Buyer is required to deliver
    the deposit to [Royal LePage] within 24 hours of the acceptance of this
    Agreement. The appellants provided a personal cheque in that amount to the
    vendors agent, Mr. Finelli, with the signed APS. Mr. Finelli believed that the
    cheque was capable of being cashed, although it was never presented for
    payment.

[10]

However, based on the evidence, the
    admissibility of which is disputed, the motion judge found that the personal
    cheque was not capable of yielding funds upon negotiation because the record
    of the chequing account, which was admitted by the appellants to be authentic, did
    not show a balance that could accommodate payment of the cheque.

[11]

With respect, the record was not sufficient for
    the motion judge to draw the inference that the cheque was not negotiable. The
    motion judge made the error of interpreting the admission that the bank
    statement was authentic as an admission that the appellants did not have the
    money to pay the cheque, so that upon presentation, it would have been
    dishonoured by the bank. This additional inference was not open to the motion
    judge:
Wunsche v. Wunsche
, 18 O.R. (3d) 161,
    [1994] O.J. No. 816 (C.A.), at para. 19 (QL).

[12]

There is no evidence that the bank would not
    have honoured the cheque, nor is there evidence in the record as to the appellants
    financial capacity or their arrangements with the bank. There is evidence that
    within two days they were able to provide a bank draft in the appropriate
    amount.

[13]

On this basis alone the order under appeal must
    be set aside.

[14]

There is accordingly no need for us to address
    the issues of part performance, waiver and estoppel, and the application of the
    entire agreement clause in the APS to any possible waiver, which arose in
    oral argument and in the factums. These issues were not fully argued and there
    is no adequate evidentiary basis on which to address them.

C.

Disposition

[15]

The motion judges determination that the
    appellants failed to pay the requisite deposit on a timely basis was made in
    error. The order is set aside and the action, cross-claims and third party
    claims are restored to the trial list.

[16]

The appellants argue that the motion judge erred
    in not granting them leave to amend the Statement of Claim with text that would
    have better explained the events around the negotiation of the APS and the
    delivery of the deposit. The motion judges reason for refusing leave was
    rooted in his finding that the deposit was not paid in time. We grant the
    appellants leave to amend.

[17]

The respondents shall pay costs to the
    appellants in the amount of $15,000 inclusive of disbursements and taxes for
    this appeal and the motion below.

Robert
    J. Sharpe J.A.

P.
    Lauwers J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Aalami, 2017 ONCA 624

DATE: 20170726

DOCKET: C60510

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

BETWEEN

Her Majesty the Queen

Respondent

and

Reza Aalami

Appellant

Gregory Lafontaine and R. Golec, for the appellant

Shawn Porter, for the respondent

Heard: June 19, 2017

On appeal from the conviction entered on July 14, 2014
    and from the sentence imposed on May 20, 2015 by Justice Hugh K. Atwood of the
    Ontario Court of Justice.

REASONS FOR DECISION

A.

Introduction

[1]

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

[2]

The appellant was convicted of possession of child pornography and
    making child pornography available. He was sentenced to one year imprisonment
    for possession and two years for making available, served concurrently. He
    appeals his convictions on the basis that the trial judge erred: (i) in
    dismissing his application under s. 11(b) of the
Charter
; (ii) in
    dismissing his application under s. 8 of the
Charter;
and

(iii)
    in his credibility assessments of defence witnesses. The appellant also seeks
    leave to appeal his sentence on the basis that the trial judge erred in failing
    to apply the
Kienapple
[1]
principle.

B.

Background

Facts

[3]

The appellants conviction arose from his alleged use of a file-sharing
    network called GigaTribe. The critical evidence against the appellant came from
    Detective Sergeant Parisien. Parisien is an officer with the Saskatoon Police Service
    who has extensive experience investigating child exploitation and the use of GigaTribe.
    GigaTribe is a closed, peer-to-peer network, meaning users must invite and
    connect to others to share files. In Parisiens experience, he had seen little
    or no one using [GigaTribe] for any legitimate purpose.

[4]

On October 14, 2010, Parisien was investigating GigaTribe using a covert
    account. He received three messages from user Peter1111. Parisien saw that
    Peter1111 was sharing three identical folders, which each contained 1,310 files,
    totalling 825 megabytes. They contained child pornography. Parisien subsequently
    obtained Peter1111s Internet Protocol (IP) address, determined the relevant
    Internet Service Provider, and requested and received the subscriber
    information. This information revealed the user of the Peter1111 account was in
    Mississauga, Ontario, so Parisien passed the file over to the Peel Regional
    Police.

[5]

The Peel Regional Police submitted an information to obtain (ITO) in
    November 2011. They executed a warranted search at the appellants residence on
    December 22, 2011 and seized a laptop.

[6]

Police Constable MacDonald  an expert in forensic computer analysis
    with the Peel Regional Police  examined the laptop and testified that
    GigaTribe was installed on the computer with the single user account Peter1111.
    There were 49 images of readily accessible child pornography on the laptop.

[7]

Charges were laid against the appellant on January 6, 2012. He was
    arrested on January 16, 2012.

Section 11(b) application

[8]

On April 2, 2013, the appellant applied for an order staying the charges
    on the basis that his s. 11(b)
Charter
rights had been violated. The
    trial judge dismissed the application with reasons to follow. The reasons were
    never delivered.

Section 8 application

[9]

The appellant changed counsel at the end of April 2013. On October 11,
    2013, the appellants new counsel brought an application to exclude the laptop
    information on the basis that the appellants rights under s. 8 of the
Charter
had been violated. He submitted that Parisien had intercepted and recorded
    the appellants private communications without prior judicial authorization. This
    information formed the basis for the ITO, which then became tainted. He also
    argued the delay involved in the transfer of the file from Saskatoon to the Peel
    Regional Police meant the information relied on in the ITO was stale-dated.

[10]

The
    trial judge dismissed the application.

The trial

[11]

The
    matter proceeded to trial and the appellant testified. He confirmed he had
    downloaded GigaTribe onto the laptop and Peter1111 was his user name. He denied
    using GigaTribe for child pornography purposes. He testified his computer was
    password protected, but everybody knew the password, and he would often leave
    it lying around the house (where his brother also lived).

[12]

The
    appellants brother testified that he used the laptop and he downloaded child
    pornography onto that laptop. He said he would do this while the appellant was
    sleeping or not at home, using GigaTribe, which was already installed on the
    laptop.

[13]

The
    trial judge rejected the evidence of the appellant and his brother. The trial
    judge then reviewed the principles set out in the Supreme Courts decision in
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742. Applying those principles, he concluded
    the Crown had met its burden and convicted the appellant of both possession of
    child pornography and making child pornography available.

[14]

The
    appellant was convicted on July 14, 2014. The appellant changed counsel again
    and was ultimately sentenced on May 20, 2015.

C.

Issues

[15]

The
    appellant raises the following grounds of appeal:

1.

The trial judge erred in not providing reasons for his dismissal of the
    appellants s. 11(b)
Charter
application.

2.

The trial judge erred in not finding a breach of the appellants rights
    under s. 8 of the
Charter
and by not excluding evidence obtained as a
    result of that breach pursuant to s. 24(2).

3.

The trial judge erred in his credibility assessments of defence
    witnesses.

4.

The trial judge erred in not staying the conviction for possession of
    child pornography pursuant to the
Kienapple
principle.

D.

Discussion

(1)

Did the trial judge err in not providing reasons for his dismissal of
    the appellants s. 11(b)
Charter
application?

[16]

As
    the Crown acknowledged, the trial judge erred in principle by failing to
    provide reasons for his decision to dismiss the appellants s. 11(b) application.
R. v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, has been repeatedly
    cited and relied on to underscore a judges obligation to deliver a reasoned
    decision.

[17]

The
    appellant submits the judges failure to provide reasons requires this court to
    order a new trial.

[18]

We
    do not agree. As also stated in
Sheppard
,

there is no need
    for a new trial when the appellate court considers itself able to explain the
    result to the parties. In this situation, the error of law can be cured
    pursuant to the proviso in s. 686(1)(b)(iii) of the
Criminal Code
,
    R.S.C. 1985, c. C-46:
Sheppard
, at para. 55.

[19]

There
    were no credibility issues before the court on the s. 11(b) motion. The parties
    filed factums. This court is able to explain the result to the parties.

[20]

The
    application was argued under the framework in
R. v. Morin
, [1992] 1
    S.C.R. 771. The evidence disclosed that, although the intake period occasioned
    a slight delay, the court was ready to set trial dates in May 2012 for later
    the same year. The appellant, however, declined to set a target trial date
    until he had the final forensic report.

[21]

Once
    a trial date was set, the trial was anticipated to conclude in July 2013. On
    the s. 11(b) application, the court considered this anticipated trial
    completion date to calculate the period of delay. Thus, on April 2, 2013  when
    the application judge heard and decided the s. 11(b) application  the relevant
    period of delay was 17 months, 24 days. This is below the post-
Jordan
18-month
    presumptive ceiling for matters in the Ontario Court of Justice, and there is
    no evidence supporting a stay under these circumstances:
R. v. Jordan
,
    2016 SCC 27, [2016] 1 S.C.R. 631.

[22]

The
    appellant further submits the period of delay for this courts consideration
    should be expanded. Despite the anticipated end date of July 2013, the trial
    was not actually started until October 2013, and it was not completed until May
    2014. Judgment was delivered in July 2014. This resulted in a period of delay
    of over 29 months.

[23]

The
    problem with the appellants submission with respect to the expanded timeframe
    is that this court has not been provided with a record.

[24]

The
    recent decision of this court in
R. v. Gordon
, 2017 ONCA 436, sets out
    the steps to follow where a matter that was started under the pre-
Jordan
system is determined post-
Jordan
.

[25]

First,
    any time attributable to defence delay must be subtracted from the total delay
    to determine the net delay. From the partial record before this court, it is
    clear there is delay attributable to the defence. For example, the appellant changed
    lawyers twice. Second, the court must consider any exceptional circumstances
    or unexpected events. Third, the court must consider the transitional
    exceptional circumstances arising from reasonable reliance on the
Morin
criteria.
    As Doherty J.A. stated in
Gordon
, at

paras. 19 and 23:

Jordan
recognized that the new approach to delay could
    not simply be applied without qualification to those cases that were in the
    system prior to the release of
Jordan
and had proceeded on the basis
    that
Morin
established the constitutional standard for unreasonable
    delay.

In most cases, especially when all of the delay occurred prior
    to the release of
Jordan
, if the court concludes that the delay was
    not unreasonable under
Morin
, the transitional exceptional
    circumstance described in
Jordan
will justify delays beyond [the
    presumptive ceiling].

[26]

The
    absence of a record creates an insurmountable hurdle for the appellant. We are
    unable to consider the reasonableness of the delay  or indeed where the onus
    lies  without a record of events after
April 2,
    2013
. On an 11(b) application, the court expects all transcripts of all
    relevant proceedings to be filed:
see
R.
    v. Allen
(1996), 92 O.A.C. 345, at p. 344
.

[27]

We
    therefore conclude the trial judge did not err in dismissing the April 2, 2013
    application, and we are unable to expand the inquiry to include the actual time
    to judgment, as there is no record.

(2)

Did the trial judge err in not finding a breach of the appellants
    rights under s. 8 of the
Charter
and by not excluding evidence
    obtained as a result of that breach pursuant to s. 24(2)?

[28]

When
    the trial judge dismissed the appellants s. 8 application, he did not have the
    benefit of the Supreme Courts decision in
R. v. Spencer
,
2014 SCC 43, [2014] 2 S.C.R. 212,
which found that requests for Internet
    subscriber information that are warrantless engage serious privacy interests
    and therefore violate s. 8 of the
Charter.
The Crown concedes,
    pursuant to
Spencer
, the appellants s. 8 rights were infringed.

[29]

The
    appellant submits there was a further breach of s. 8 because of the staleness
    of the information underlying the ITO. We do not agree. The application judge concluded,
    based on the evidence available to the judicial officer considering the ITO,
    that there were reasonable and probable grounds to believe there was evidence
    that could be obtained from a search warrant. We see no basis to interfere with
    that conclusion.

[30]

We
    agree, however, in light of
Spencer
,

the appellants
Charter
rights were violated with respect to the polices requests for Internet
    subscriber information. Having found otherwise, the application judge did not
    proceed to a s. 24(2) analysis. This court, however, is in a position to do so.

[31]

The test for applying s. 24(2) is set out in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353. The court must assess and balance
    the effect of admitting the evidence on societys confidence in the justice
    system, having regard to the following factors: (1) the seriousness of the
Charter
-infringing state conduct; (2) the impact of the breach on the
Charter
-protected interests of the accused; and (3) societys interest in the
    adjudication of the case on its merits:
Grant
, at
    para. 71.

[32]

Here, the state conduct cannot be characterized as a willful or
    flagrant disregard of the
Charter
. The law was
    different at the time of the search, and the nature of the police conduct in
    this case would not tend to bring the administration of justice into disrepute.

[33]

Second, the impact of the
Charter
-
infringing conduct on the appellants
Charter
-protected privacy rights was serious, which weighs in favour of excluding
    the evidence.

[34]

Lastly, we consider societys interest in adjudicating
    the case on the merits
. As explained in
Grant
, while the public has a heightened interest in seeing a determination
    on the merits where the offence charged is serious, it also has a vital
    interest in having a justice system that is above reproach:
Grant
, at para. 84.

[35]

The offences here involve the victimization of children. The trial
    judge opined that the images were among the most extreme he had ever seen. If
    the evidence is excluded, the Crown will effectively have no case. The impugned
    evidence (the electronic files containing child pornography) is reliable and
    was admitted by the defence at trial to constitute child pornography. Society
    undoubtedly has an interest in seeing a full and fair trial based on reliable
    evidence, and all the more so for a crime which implicates the safety of
    children.

[36]

It
    is notable that in
Spencer,
Cromwell J. balanced the three factors in
Grant
and concluded:
exclusion of the evidence rather than its admission
    would bring the administration of justice into disrepute: at para. 81. Here,
    we come to the same conclusion.

(3)

Did the trial judge err in his credibility assessments of defence
    witnesses?

[37]

The
    appellant submits the trial judge held the defence witnesses to a different
    standard than he did the Crowns with respect to their credibility. In
    particular, the trial judge referred to Crown witnesses evidence as being
    uncontradicted and referred explicitly to evidence he would have expected the
    defence to lead to support its theory  for example, evidence there had been a
    virus installed on the appellants computer, or evidence that would refute the
    believed identity of the Peter1111 accounts user  which effectively reversed
    the burden of proof.

[38]

We
    do not agree.

[39]

The
    trial judge explicitly adverted to the Supreme Courts judgment in
W.(D.)
and applied it to his reasons. In referring to the Crowns witnesses evidence
    as uncontradicted, the trial judge did not reverse the burden of proof.
    Rather, he was describing the state of the evidence.

[40]

Nor
    did the trial judge subject defence evidence to a higher level of scrutiny than
    the Crowns evidence. The main aspects of the witnesses testimony did not
    overlap. The Crowns witnesses testified largely to the results of forensic
    examination of the appellants computer, whereas the appellant and his brother
    were discussing the use of the computer. In any event, the trial judge gave
    cogent and detailed reasons for his findings, which are entitled to deference.

[41]

We
    do not give effect to this ground of appeal.

(4)

Did the trial judge err in not staying the conviction for possession of
    child pornography pursuant to the
Kienapple
principle?

[42]

The
    appellant seeks leave to appeal his sentence on the basis that the trial judge
    should have applied the
Kienapple
principle to stay the charge of making
    child pornography available because both convictions arose from the same facts
    and time period. In failing to do so, the trial judge committed a reversible
    error.

[43]

We
    do not accept this submission.

[44]

There
    is no legal nexus between the offences of possession of child pornography and
    making child pornography available. The former involves possession, the latter
    involves distribution. In the circumstances of this case, a factual nexus is
    also absent. In any event, since the sentences were imposed concurrently, there
    is no practical result stemming from applying the
Kienapple
principle
    in terms of the effect on the overall sentence.

E.

Disposition

[45]

For
    these reasons, the appeal is dismissed. Leave to appeal sentence is granted,
    but the sentence appeal is dismissed.

George R. Strathy
    C.J.O.

M.L. Benotto J.A.

B.W. Miller J.A.

[1]

R. v. Kienapple
, [1975] 1
    S.C.R. 729.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Agresta, 2017 ONCA 603

DATE: 20170719

DOCKET: C62446

Hoy A.C.J.O., Simmons and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Antonio Agresta

Appellant

Amy Ohler, for the appellant

Antonio Agresta, appearing in person

Peter Fraser, for the respondent

Heard and released orally:  July 10, 2017

On appeal from the conviction entered on June 29, 2016
    and the sentence imposed on June 29, 2016 by Justice K. Carpenter-Gunn of the Superior
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant argues that the trial judge erred:  1) in applying the
Palmer
test and refusing to admit fresh evidence after his guilty plea and before
    sentencing that he says would establish he was not the driver of the vehicle
    that caused the June 15, 2012 accident; and 2) in refusing to permit him to
    withdraw his guilty plea before sentencing.

[2]

We reject these arguments and dismiss this appeal.

[3]

The proposed fresh evidence is evidence going to whether or not the
    appellant was the driver and factually innocent.  When the appellant brought
    his application in 2016 to admit the fresh evidence, he did not include
    affidavits of the persons he says could have provided an alibi for him.  He had
    ample time and opportunity to do so.  There are still no affidavits before the
    court.  The appellant having failed to provide affidavits, the trial judge was
    entitled to refuse to permit those persons to testify
viva voce
, if
    indeed they would have done so.

[4]

The trial judge reviewed the test to be applied when a guilty plea
    should be struck and found that the appellants plea was voluntary, unequivocal
    and informed, relying in part on the careful inquiry she had conducted under s.
    606 of the
Criminal Code
at the time she took the appellants guilty
    plea.  The trial judge properly rejected the appellants argument that his plea
    was not voluntary because he felt he had no choice but to plead guilty because
    his defence witnesses were not present at trial.

[5]

We are not persuaded there was a miscarriage of justice in this case.

Alexandra
    Hoy A.C.J.O.

J.M.
    Simmons J.A.

David M. Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Aviles, 2017 ONCA 629

DATE: 20170731

DOCKET: C61361

Feldman, Watt and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Walter Jose Aviles

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Jeremy Streeter, for the respondent

Heard: December 2, 2016

On appeal from the convictions entered on July 27, 2015
    by Justice Ian F. Leach of the Superior Court of Justice.

Feldman J.A.:

[1]

When the appellant was arrested for assault, the police searched his shoulder
    bag and found drugs. He was then arrested for possession for the purpose of trafficking,
    following which, the police searched his bag again and found a knife. When he
    was later searched at the police station, they found more drugs in his pocket.
    The appellant was convicted of possession for the purpose of trafficking and
    carrying a concealed weapon. He says the police had no grounds to arrest him
    for assault and no legal basis to search his bag and therefore breached his s. 9
    and s. 8
Charter
rights. He also says the trial judge misunderstood
    his counsels concession at the opening of trial with respect to continuity and
    erred in finding proof beyond a reasonable doubt of the continuity of the
    contents of the bag.

[2]

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

Facts

[3]

At around 3:17 a.m. on January 15, 2013, the London police received a
    report of an assault on a man in the vicinity of the Macs Milk at the corner
    of Dundas Street and Wellington Street. The complainant said he had lost his
    shoe in the assault. The police searched a nearby alleyway and found the shoe. The
    complainant said he knew one of the assailants, Mr. Earhart, by name. The other
    two were a man and a woman. The man had dark skin and was dressed in baggy
    hip-hop style clothing.

[4]

While speaking with the police, the complainant pointed through the
    convenience store window to three people approaching, a woman and two men, and
    identified them as his attackers. One of the men was recognized by one of the
    officers, based on a mobile data terminal check the officer had just conducted,
    as the individual the complainant had identified by name. The other male was
    the appellant. He was wearing a black pea coat, black jogging pants, brown
    boots and a black baseball cap.

[5]

The appellant was arrested by Constable Bronson for assault and
    handcuffed. During the arrest, a grey single-strap shoulder bag dropped from the
    appellants shoulder. Constable Bronson escorted the appellant to the police
    car, gave him his right to counsel and caution, and searched him incident to
    arrest, finding two cell phones and a wallet with $160 in cash inside.

[6]

As the appellant was taken to the police car, another officer, Sergeant Austin,
    picked up the appellants shoulder bag and searched it quickly for a weapon for
    officer safety reasons.  He found a leather box inside which contained a
    digital scale and several types of narcotics. He then brought the bag over to
    the police cruiser where Constable Bronson had taken the appellant. He turned
    the bag over to Constable Bronson and advised him of what he had found inside.

[7]

Constable Bronson looked inside the shoulder bag, pulled out the leather
    case and saw the scale and narcotics, then put the case back inside the
    shoulder bag. He then re-arrested the appellant for possession of narcotics for
    the purpose of trafficking, and again gave him his right to counsel and
    caution, following which the appellant asked to speak to a lawyer.

[8]

Constable Bronson then turned the appellant and the bag over to a third
    officer, Constable Thorner, who conducted his own search of the bag and found a
    large knife inside the top flap of the bag as well as three cellphones. At the
    station, Constable Thorner searched the appellant and his clothes and found a
    bag of cocaine in the pocket of the appellants pea coat. The appellant was
    formally charged with possession of controlled substances for the purpose of
    trafficking and carrying a concealed weapon. He was not formally charged with
    the assault as the complainant had indicated he did not wish to pursue an
    assault charge and had left the scene.

Decision of the Trial Judge

[9]

The trial judge found that the appellant was originally arrested for assault
    by Constable Bronson, rejecting the defence argument that it was just an
    investigative detention. The officer had reasonable and probable grounds for
    the arrest, based on the identification by the complainant of the three
    assailants shortly after the assault occurred, as well as the corroborative
    fact of finding the complainants shoe in the alley where he said the assault
    occurred.

[10]

The
    trial judge ruled that the appellant was therefore not arbitrarily detained
    contrary to s. 9 of the
Charter
. He also ruled that the searches
    conducted by the police were proper searches incident to arrest based initially
    on officer safety. Therefore, there was no breach of the appellants s. 8
Charter
right.

[11]

He
    also rejected the argument that the Crown had not proved the continuity of the
    contents of the bag. As part of his analysis, he criticized defence counsel for
    resiling from his concession at the opening of trial regarding the continuity
    of the drugs. However, that concession was with respect to continuity once the
    drugs had been seized by the police, not before.

Issues on Appeal

[12]

The
    appellant raises five grounds of appeal:

1)

Did the trial judge
    err by placing the burden of proof on the appellant to prove a breach of his s.
    8
Charter
right in respect of the warrantless search of the shoulder
    bag?

2)

Did the trial judge
    err in finding that the police had objective reasonable and probable grounds to
    arrest the appellant for assault?

3)

Did the trial judge
    err in finding that the police had grounds to search the shoulder bag incident
    to the appellants arrest for assault?

4)

Should the trial judge
    have excluded the drugs located in the shoulder bag under s. 24(2) of the
Charter
?

5)

Should the trial
    judges finding with respect to the continuity of the contents of the shoulder
    bag be set aside and a new trial ordered because the trial judge misapprehended
    the concession made by defence counsel with respect to continuity?

Analysis

(1)

Burden of proof for s. 8 breach

[13]

The
    trial judge gave lengthy and detailed reasons for decision. At the beginning of
    those reasons, the trial judge stated, as a general principle, that the
    appellant had the onus to prove any
Charter

breaches. He
    repeated that statement of the onus twice later when he began his analysis of
    the alleged ss. 8 and 9
Charter
breaches and in his conclusion that the
    appellant had not satisfied him on a balance of probabilities that there was
    any
Charter

breach.

[14]

The
    appellant submits that the trial judge erred in his statement of the burden of
    proof in this case, where the search was without a warrant and therefore presumed
    to be unreasonable.  When the police conduct a warrantless search, the onus is
    on the Crown to prove on a balance of probabilities that the search was a
    reasonable one.

[15]

Reading
    the reasons as a whole, it is clear that the trial judge was well aware of this
    principle. As part of the discussion of general principles regarding s. 8 of
    the
Charter
, the trial judge began by stating that warrantless searches
    are
prima facie
unreasonable and that the party seeking to justify a
    warrantless search bears the onus of rebutting the presumption of
    unreasonableness.

[16]

The
    trial judge also set out in detail the principles to be applied in the
    consideration of whether a warrantless search incident to arrest is a
    reasonable one. As part of that discussion, he stated that the police must be
    able to explain the purpose for the search, which must be one of the purposes
    set out in
Cloutier v. Langlois
, [1990] 1 S.C.R. 158. He explained
    that the reason must be related to the arrest and that reason must be
    objectively reasonable, referring to
R. v. Caslake
, [1998] 1 S.C.R. 51.
    By correctly articulating what must be proved by the Crown to justify a search
    incident to arrest, it is clear that the trial judge understood that the onus
    of proof was on the Crown.

[17]

I
    am satisfied that the trial judge was well aware that the onus was on the Crown
    in this case and that in reaching his findings, which I will discuss under the
    succeeding issues, he applied that onus.

(2)

Objective grounds for the arrest for assault

[18]

The
    appellants submission is that the police had objective grounds to arrest Mr.
    Earhart because he was specifically identified by the victim and known to him.
    However, they had no more than a suspicion that the appellant was the second
    man involved in the robbery. First, the appellant was not wearing baggy hip hop
    clothing as described by the complainant. Second, Mr. Earhart could have been
    walking with a new person by the time he showed up after the assault at the
    convenience store.

[19]

The
    trial judge gave detailed reasons for his finding that the police had
    reasonable and probable grounds for arresting the appellant for assault that
    satisfied both the subjective and the objective component of that test. He
    articulated the objective component requirement as follows: a reasonable
    person placed in the position of Constable Bronson would conclude that there
    were indeed reasonable and probable grounds for the arrest.

[20]

In
    summary, those reasons were that the officer had received a report of an
    assault directly from the alleged victim; he had obtained some corroboration
    that the assault had occurred from finding the victims shoe in the alley where
    he said he had lost it during the assault; the victim expressly identified the three
    people approaching the convenience store as the three perpetrators; the three
    people matched in significant detail the description that the victim had
    initially given: two men and a woman; one man named and known to the victim;
    the second man (the appellant) with dark skin.

[21]

The
    appellant submits that because the clothing the appellant was wearing was not the
    baggy hip hop style clothing described by the complainant, the factors
    highlighted by the trial judge do not amount to objective reasonable and
    probable grounds sufficient to justify an arrest. As mentioned, the appellant
    was wearing black jogging pants, brown boots, a pea coat and a baseball cap. Constable
    Bronson agreed in cross-examination that a pea coat would not be considered
    baggy hip hop style clothing. He was not asked about the characterization of
    the rest of the clothing the appellant was wearing.

[22]

I
    would reject this submission. I agree with the trial judge that the officers
    were entitled to rely on the victims identification of the appellant as one of
    his assailants from only a short time before. Further, as the trial judge
    noted, the group of people identified by the complainant as his assailants
    matched in significant respects the description the complainant had already
    given. These factors were sufficient to justify the appellants arrest.

[23]

I
    see no error in the trial judges analysis on this issue.

(3)

Search incident to arrest for assault

[24]

The
    appellants bag was searched a number of times following his two arrests. The
    trial judge found that all of the searches were incident to the lawful arrest
    and re-arrest of the appellant. On this appeal, the appellant submits that the
    trial judge erred in holding that Sergeant Austins initial search of the
    shoulder bag was a lawful search incident to arrest.

[25]

The
    trial judge set out the general principles applicable to warrantless searches
    and in particular, searches incident to arrest. Referring to
R. v. Feeney
,
    [1997] 2 S.C.R. 13, he stated that to comply with s. 8 of the
Charter
,
    a warrantless search must be authorized by law, and both the law and the manner
    in which the search is conducted must be reasonable. He then referred to the
    long-standing common law power of search incident to arrest and discussed the
    legitimate scope of this power.

[26]

He
    stated the limits on the power to search incident to arrest: it must be for a
    valid criminal justice objective, such as police or public safety or discovery
    of evidence; the purpose of the search must not be contrary to the proper
    administration of justice such as to intimidate, ridicule or pressure the
    accused into making admissions; the search must not be conducted in an abusive
    manner; and, most importantly for this case, the search must be truly
    incidental to the arrest. Referring to the authority of
Cloutier

and
Caslake
, the trial judge explained that the police must be able to provide
    a reasonable basis (i.e. protecting the police, protecting the evidence,
    discovering evidence) for the search that is related to the arrest. I add here
    that the evidence sought to be discovered must be evidence of the crime for
    which the person has been arrested:
Caslake
, at para. 22.

[27]

Lamer
    C.J. articulated the test as follows in
Caslake
, at para. 25:

In summary, searches
    must be authorized by law. If the law on which the Crown is relying for
    authorization is the common law doctrine of search incident to arrest, then the
    limits of this doctrine must be respected. The most important of these limits
    is that the search must be truly incidental to the arrest. This means that the
    police must be able to explain, within the purposes articulated in Cloutier, supra
    (protecting the police, protecting the evidence, discovering evidence), or by
    reference to some other valid purpose, why they searched. They do not need
    reasonable and probable grounds. However, they must have had some reason
    related to the arrest for conducting the search at the time the search was
    carried out, and that reason must be objectively reasonable.

[28]

In
    this case, the reason for the initial search of the bag was officer safety.
    Once the police arrested the appellant and were transporting him to the police
    station, they would not be leaving his bag on the ground but taking it with
    them to the station. Sergeant Austin was concerned whether there could be a
    firearm in the bag that could be dangerous if not discovered and secured. The
    trial judge found that the search for the purpose of officer safety and the
    detection of a possible weapon, in the context of an assault arrest, was
    objectively reasonable in the circumstances.

[29]

The
    appellant submits that there was no objectively reasonable basis to search the
    bag on the grounds of officer safety. There was no suggestion that a weapon had
    been used in the assault and no basis to believe there would be one in the bag.
    Also, there was no danger to police because all three accused were handcuffed.

[30]

In
    support of his position, the appellant refers to this courts decision in
R.
    v. Kelsy
, 2011 ONCA 605, 289 C.C.C. (3d) 456. In that case, the accused
    was leaving a violent situation carrying a knapsack. As she was not under
    arrest, the police could not search the knapsack as an incident to arrest.
    Nevertheless, they searched the knapsack without a warrant and discovered a
    firearm and drugs. At trial, the Crown sought to justify the search based either
    on exigent circumstances or the
Waterfield
doctrine of reasonable necessity.
    Both justifications were rejected by this court. The court found that there was
    no basis to believe that the knapsack contained contraband or a weapon and that
    the search was not reasonably necessary. Rosenberg J.A. explained, at para. 21:

In my view, the police only had the power to seize the
    appellants bag until the situation was no longer in the chaotic state
    Constable Ahmad found it. At that point, if there were no grounds to obtain a
    warrant to search the bag, it had to be returned to the appellant, unless she
    gave a valid consent to search it.

[31]

This
    case is wholly distinguishable from
Kelsy
. The circumstances in this
    case differ in four respects. First, the appellant was under arrest. As a result,
    there was no option for him to leave or take the bag away. Second, because of
    the arrest, the police had the power to search incident to arrest, if there was
    a basis to do so in accordance with
Cloutier
and
Caslake
:
    officer or public safety, preserving evidence, discovering evidence relevant to
    the offence for which the individual is being arrested. Third, because they
    would be taking the bag to the station, Sgt. Austin was concerned for officer
    safety and believed the bag should be checked for a loaded firearm. Fourth, the
    fact that the accused was being arrested for a violent offence informed the officers
    concern.

[32]

Although
    there was no report of a weapon as part of the assault, because the police had
    reasonable and probable grounds to believe that the appellant committed a
    violent offence, this was not a case like
Kelsy

where there was
    no basis for the officers to believe there could be a weapon in the bag. As a
    result, I do not agree that because the accused persons were all handcuffed
    there was no objectively reasonable concern of danger to the police from a
    loaded firearm in the shoulder bag.

[33]

In
    my view, the trial judge made no error in his conclusion that the officer had
    both a subjective and objectively reasonable basis to conduct a search of the
    bag incident to the appellants arrest in all the circumstances of this case,
    and that there was therefore no breach of the appellants s. 8 right against
    unreasonable search and seizure.

(4)

Section 24(2)

[34]

As
    I agree that there was no s. 8 breach, there is therefore no need to conduct a
    s. 24(2) analysis.

(5)

Error in continuity analysis

[35]

The
    continuity issue, raised both at trial and on appeal, is that the police
    handled the appellants shoulder bag in a sloppy manner and left it unattended
    for several minutes at the scene. They also conducted a number of searches and
    discovered certain items, like the knife, only after a couple of searches. As a
    result, the defence submits that the trial judge could not be satisfied of the
    continuity of the contraband found in the bag from the time it was in the
    appellants possession or that it was even the same bag.

[36]

On
    appeal, the appellant says that the trial judge erred in his analysis of this issue
    because he criticized the appellants trial counsel for resiling from a
    concession he gave at the opening of the trial regarding the continuity of the
    drugs. He referred to it as a matter of trial fairness for the Crown,
    suggesting that the Crown was not alerted to the need to ask certain questions
    of its witnesses akin to the rule in
Browne v. Dunn
. However, the
    trial judge misunderstood the concession, which was only with respect to the
    continuity of the drugs once they were located by the police and transferred
    for analysis. It was not a blanket waiver of the general continuity issue.

[37]

The
    appellant says that by taking the misunderstood waiver into account as part of
    his analysis, the trial judge erred and that error resulted in a miscarriage of
    justice, and a new trial must therefore be ordered.

[38]

Reading
    the reasons as a whole, although the trial judge misunderstood the limited
    concession by defence counsel regarding the continuity and nature of the
    substances, which led to his misapprehension regarding trial fairness concerns,
    he nevertheless went on to make findings regarding the continuity of the
    shoulder bag and of the substances and the weapon found in the bag, based on
    the evidence. Based on those findings, he was satisfied that none of the
    continuity concerns identified by the appellant gave rise to a reasonable
    doubt. He stated:

In this case, I think the Crown provided evidence, not
    challenged in cross-examination, and not contradicted by other evidence,
    indicating an unbroken chain of custody in relation to all of the seized items
    relied upon by the Crown in support of the charges in the indictment.

[39]

He
    then made the following specific findings regarding continuity based on the
    evidence that he reviewed earlier in his reasons: 1) the shoulder bag went from
    the appellant, to Sgt. Austin, to Cst. Bronson, to Cst. Thorner; 2) the
    narcotics in the shoulder bag went, in that bag, from the appellant, to Sgt.
    Austin, to Cst. Bronson, who then removed the narcotics from the shoulder bag
    and maintained custody over them until they were handed over to Cst. Thorner at
    the police station; 3) the knife in the shoulder bag went, in that bag, from
    the appellant, to Sgt. Austin, to Cst. Bronson, to Cst. Thorner (although it
    was only the last officer who detected its presence in the bag that was being
    successively transferred); and 4) the wallet and cellular phones went from the
    appellant, to Cst. Bronson, to Cst. Thorner (regardless of the precise manner
    in which they were transferred to Cst. Throner).

[40]

He
    concluded on this point:

In my opinion, there was no evidence whatsoever to support any
    suggestion that the seized items and evidence relied upon by the Crown was in
    any way the subject of contamination, tampering or improper identification.
    Suggested concerns in that regard accordingly are mere speculation. For all
    these reasons, I reject defence suggestions that continuity concerns undermine
    the admissibility or reliability of the Crowns evidence, or otherwise give
    rise to reasonable doubt.

[41]

In
    my view, while it is unfortunate that the trial judge misunderstood defence
    counsels proper and very common concession at the opening of trial regarding
    the continuity of the substances found and admissibility of the certificates of
    analysis without the need to call the witnesses who prepared them, in this
    case, that error by the trial judge did not undermine the conclusions he
    reached, based on the evidence, regarding continuity. I would therefore not give
    effect to this ground of appeal.

Conclusion

[42]

I would therefore dismiss the appeal.

Released: D.W. July 31, 2017

K. Feldman J.A.

I agree. David Watt J.A.

I agree. Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Black, 2017 ONCA 599

DATE: 20170713

DOCKET: C62729

Weiler, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Omar Black

Appellant

Maija Martin, for the appellant

Sarah Egan, for the respondent

Heard: July 4, 2017

On appeal from the conviction imposed on June 7, 2016 by
    Justice Irving W. André of the Superior Court of Justice, sitting without a
    jury and with reasons reported at 2016 ONSC 3754.

Hourigan J.A.:

A.

Introduction

[1]

The appellant was convicted of importing 15 kilograms of cocaine. On
    appeal, he submits that the trial judge made two errors. First, the trial judge
    failed to properly apply the third part of the
W.(D.)
analysis: see
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742. Second, the trial judge provided
    insufficient reasons in support of the conviction. In particular, he did not
    adequately explain why he was convinced beyond a reasonable doubt that the appellant
    had knowledge of the cocaine.

[2]

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

B.

Background Facts

[3]

The appellant travelled to Antigua in November 2012 to attend a wedding
    with his girlfriend. He returned to Toronto on November 21, 2012 after
    extending his stay in Antigua at his girlfriends request.

[4]

Upon his arrival at Pearson Airport, a
    primary inspection officer asked him a few questions. He hesitated before
    answering and gave two different answers when asked about his friends name. He
    had a garment bag and two other pieces of hand luggage. The officer referred
    the appellant to secondary inspection. He was then cleared to exit the airport.

[5]

A Canada Border Services Officer attended
    the airline on which the appellant arrived to observe the offloading of the
    luggage from the aircraft. The purpose of doing so was because of internal
    conspiracies in which workers at Pearson Airport had been implicated in drug
    importation.

[6]

The officer observed nothing unusual. He
    then followed the bags into the airport and saw them being offloaded onto a
    carousel and he waited to ensure all the bags were picked up. The officer
    observed a red suitcase was unclaimed from the carousel. When the officer opened
    the bag he observed a thick layer of white foam cushioning. An x-ray of the bag
    revealed several brick-like objects. On further investigation, it was confirmed
    the bag contained 15 one-kilogram bricks of cocaine.

[7]

The bag had two luggage tags on it. One
    was a handwritten tag with the appellants name and address on it. The other
    was an airline tag that included a print out of the appellants name. The bag
    contained a white sock, a pair of Nike shoes and tank tops.

[8]

The RCMP obtained a DNA sample from the
    appellant and sent the sock for forensic analysis. The sock revealed two DNA tracings.
    One was the appellants and the other was from an unknown source. It could not
    be determined whether the DNA was from a primary source or a secondary
    transfer. A handwriting expert concluded the handwriting on one of the
    identification tags was probably the same as that on the appellants customs
    declaration card.

[9]

At trial, the appellant testified and
    denied any knowledge of the drugs. He denied checking the luggage on his flight
    from Antigua. He testified that he travelled with the suitcase to Antigua in
    January 2012 along with gifts and clothing for his girlfriend who had a
    clothing business. According to the appellant, he gave her the suitcase at that
    time with the handwritten tag bearing his name attached to it. He testified that
    when he travelled to Antigua in November 2012 to attend a friends wedding with
    his girlfriend, he did not have any checked luggage. On that trip he ended
    their relationship. He testified that he never saw the red suitcase he had
    given her in January 2012. In addition, he said that the shoes found in the
    suitcase were not his size.

C.

Decision Below

[10]

The trial judge identified four possible scenarios that could explain
    how the cocaine-filled suitcase came to be found at the airport:

i.

it was placed on the flight by the
    appellant;

ii.

it was placed on the flight by a
    person or persons unbeknownst to the appellant;

iii.

it was brought into Canada by the
    appellant but he abandoned his intention to retrieve it from the carousel; or

iv.

it was brought into Canada by the
    appellant for someone who intended to retrieve it from the aircraft.

[11]

The trial judge found the appellants testimony denying knowledge of the
    suitcase unworthy of belief and incapable of raising a reasonable doubt. He
    queried why, if the appellant gave his girlfriend the suitcase for use in her
    clothing business, she would have kept the identification tag with his name and
    address attached to the suitcase from January to November 2012.

[12]

The trial judge also addressed the
    appellants testimony that his girlfriend may have intended to get back at him
    for breaking up their relationship. He concluded it defied common sense or
    reason that his girlfriend would have been involved in sending 15 kilograms of
    cocaine on the plane he was travelling on to an unknown person.

[13]

The trial judge acknowledged the defence
    submission that the presence of an unknown persons DNA on the sock and the
    fact that the Nike shoes did not fit the appellant point to the involvement of an
    unknown person in the importation scheme. However, he concluded that those
    facts do not eliminate the involvement of the appellant. The trial judge found that
    the nature of the evidence did not lend itself to a conclusion that the
    appellant was an innocent victim.

[14]

The trial judge ultimately held that the
    Crown had proved the appellants guilt beyond a reasonable doubt based on the
    following evidence:

i.

the suitcase belonged to the
    appellant;

ii.

the appellants name and address
    were on two identification tags on the suitcase;

iii.

the suitcase travelled from
    Antigua to Canada on the same flight as the appellant; and

iv.

the appellants DNA was found on a
    clothing item in the suitcase.

D.

Analysis

(1)

Third Step of the
W.(D.)
Analysis

[15]

The appellant submits the trial judge did not undertake the inquiry
    mandated under the third step in the
W.(D.)
analysis, being a
    consideration of whether the evidence he accepted satisfied him beyond a
    reasonable doubt of the appellants guilt.

[16]

The appellant further submits the trial
    judge misstated and misapplied the third branch of the
W.(D.)
test in the following passage from para. 18 of his
    reasons:

All [Mr. Black] is required to do is raise a reasonable doubt
    in the Crowns case. This can be done if I believe his evidence or
    alternatively, find that it is capable of raising a reasonable doubt in the
    Crowns case.

[17]

The appellant correctly asserts that the burden is not on him to raise a
    reasonable doubt. It is on the Crown to prove beyond a reasonable doubt that he
    imported cocaine.

[18]

The appellant goes on to argue that
    through the misapplication of
W.(D.)
, the trial judge effectively turned the appellants case into a
    credibility contest. The trial judges reasons show that his decision was based
    on which witnesses he believed, not whether the Crown had proved its case
    beyond a reasonable doubt.

[19]

I acknowledge that the appellant has a
    legitimate argument regarding the trial judges analysis of the burden of
    proof. The trial judges reasons did not track precisely the language in
W.(D.)
, and the statement quoted above is troubling.
    However, after careful review, I would not give effect to this ground of
    appeal.

[20]

With respect to the trial judges comment
    where he appears to reverse the onus of proof, it is important consider that
    statement in context. The full quote from para. 18 is as follows:

The Crown clearly bears the burden of proving Mr. Blacks guilt
    beyond a reasonable doubt. Mr. Black is not required to prove anything.
    Specifically, he is not required to prove the existence of internal
    conspiracies at the Antigua airport or that unknown workers at that airport
    were involved in sending the suitcase filed with contraband to Toronto. All he
    is required to do is raise a reasonable doubt in the Crowns case. This can be
    done if I believe his evidence, or alternatively, find that it is capable of
    raising a reasonable doubt in the Crowns case.

[21]

The language used by the trial judge is not a model of clarity. But read
    in context, I am satisfied that he understood the burden of proof and that he properly
    applied it. In my view, what he was saying was that there is no burden on the
    appellant to prove anything, including an alternative explanation as to how the
    cocaine ended up in his suitcase. As long as the evidence was capable of
    raising a reasonable doubt in the Crowns case, that was a sufficient basis for
    an acquittal.

[22]

The appellant also complains that the
    trial judge erred in rejecting the appellants theory that his girlfriend got
    back at him for breaking up with her by sending the suitcase on the plane, when
    he stated, at para. 23 of reasons, that there was no evidence to lend credence
    to this theory. The appellant submits that the trial judge erred because in a
    case based solely or largely on circumstantial evidence an inference of guilt
    must be the only reasonable inference that the evidence permits. Inferences
    consistent with innocence do not have to arise from proven facts:
R.
    v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R.
    1000, at para. 35.

[23]

The appellant is correct in his
    submission on the law. However, I do not read the trial judges comment as
    requiring an evidentiary basis for an inference consistent with guilt. Rather,
    read in context, the trial judge was saying that, in addition to there being no
    reliable evidence to support the appellants theory, this theory defies common
    sense or reason (see para. 23 of his reasons).  Circumstantial evidence need
    not totally exclude alternative conceivable inferences, and a verdict is not
    unreasonable simply because the alternatives do not raise a reasonable doubt in
    the mind of the trier of fact:
Villaroman
, at para. 56.

[24]

I am also not satisfied that the
    trial judge turned this case into a credibility contest. This was not a case of
    competing narratives, with the judge picking one version over that of the
    accused. In this case, the Crown adduced strong physical evidence to prove the
    appellants guilt, including the fact that the cocaine was in a suitcase that
    he owned and that contained an item of clothing with his DNA on it.

(2)      Sufficiency of Reasons

[25]

The appellant submits the trial judge failed to provide sufficient
    reasons on the issue of the appellants knowledge of the cocaine in the
    suitcase. He asserts that the Crowns case was entirely circumstantial. There
    was no direct evidence the appellant checked any luggage in Antigua or had
    knowledge of its contents. In order to convict, the trial judge would have to
    be satisfied beyond a reasonable doubt the only conclusion available on the
    whole of the evidence was that the appellant knew about or was wilfully blind
    to the cocaine in the suitcase. In these circumstances, the appellant submits,
    the trial judge was obliged to consider the possibility that the appellant did
    not knowingly import cocaine into Canada.

[26]

The appellant argues that although the
    trial judge explained in detail why he rejected the appellants evidence, he
    did not explain whether the Crown had proven the
mens rea
element of importing cocaine beyond a reasonable
    doubt. He submits that the trial judges reasons are fatally silent on the
    mental element required to uphold a conviction for importing cocaine and render
    the reasons for judgment deficient. According to the appellant, the reasons do
    not explain the decision to the parties, provide public accountability or allow
    for meaningful appellate review. I would not give effect to this submission.

[27]

Watt J. in
R. v. Wolynec
, 2015 ONCA 656, 339 O.A.C. 237, at paras. 57-60, provided
    a comprehensive review of the considerations that apply in an analysis of an
    inadequate reasons ground of appeal:

The reasons of a trial judge fulfil their purpose if the
    reasons, read in context, show
why
the
    trial judge decided as she did. To show
why
,
    the reasons need not show
how
the
    judge reached her conclusion in a watch me think fashion:
R.E.M.
, at para. 17. The reasons must display a
    logical connection between the what  the verdict  and the why  the basis
    for the verdict:
R.E.M.
, at
    para. 17. But explaining the why and its logical link to the what imposes
    no obligation on a trial judge to set out every finding or conclusion in the
    process of reaching a decision:
R.E.M.
,
    at para. 18.

A trial judge need not explicate the well settled, repeat the
    uncontroversial or retill common legal ground between the parties. So too with
    evidence. A trial judge is not obliged to detail his or her finding on each
    morsel of evidence or controverted fact, provided the findings linking the
    evidence to the verdict can be logically discerned:
R.E.M.
, at paras. 19-20.

The core question to be answered in determining whether a trial
    judges reasons are sufficient is whether those reasons, read in context, show
    why the judge decided as she did on the offences charged:
Vuradin
, at para. 15.

To succeed on an appeal based on inadequate reasons, an
    appellant must show not only a deficiency in the reasons, but also that the
    deficiency has occasioned prejudice to the exercise of his or her legal rights
    to an appeal in a criminal case:
Sheppard
,
    at para. 33;
R. v. Braich
, 2002
    SCC 27, [2002] 1 S.C.R. 903, at para. 31. An appeal based on insufficient
    reasons will only be allowed where the trial judges reasons are so deficient
    that they foreclose meaningful appellate review:
Sheppard
, at para. 25;
Vuradin
, at para. 10;
R. v. Dinardo
, 2008 SCC 24, [2008] 1
    S.C.R. 788, at para. 25. A failure to explain rejection of a submission does
    not mean the reasons are deficient, provided the reasons demonstrate the
    acceptance of contrary evidence:
Vuradin
,
    at para. 13.

[28]

Again, I acknowledge that the trial judges reasons could have been
    clearer. For example, he could have explicitly stated that he was satisfied
    beyond a reasonable doubt that the appellant had knowledge of the cocaine after
    making the findings of fact that supported his finding at the end of his
    reasons. But in considering the sufficiency of reasons an appellate court must
    read the reasons as a whole, in the context of the evidence, the arguments and
    the trial, together with an appreciation of the purposes or functions for which
    reasons are delivered:
Wolynec
at para. 56.

[29]

Context is critical in this case. This was a one-issue trial. The
    Crowns case in chief and the set of facts that the trial judge explicitly
    accepted established a
prima facie
case that the appellant had committed
    the
actus reus
of the offence, with the compelling resulting inference
    that he did so knowingly. The appellant testified and denied knowledge. His
    evidence was not believed, and the trial judge gave detailed reasons for
    rejecting it.

[30]

That the trial judge was left without a reasonable doubt is apparent
    from a review of his reasons in light of the record. This was a situation where
    the trial judge rejected the appellants evidence that the appellant was a
    blind courier, and then, considering the evidence he did accept, implicitly
    drew the inference that the appellant knew about the presence of cocaine in the
    suitcase. Read in context, the reasons sufficiently explain the basis upon
    which the trial judge found the knowledge component had been proven beyond a
    reasonable doubt.

E.

Disposition

[31]

I would dismiss the appeal.

C.W. Hourigan J.A.

I agree. K.M. Weiler
    J.A.

Pardu J.A. (dissenting):

[32]

I do not disagree with any of the legal principles
    explained by the majority but disagree with their application to this case.

[33]

My concern is with the combination of the trial judges
    misstatement of the onus of proof under the third step of
W.(D.)
 saying that [a]ll [Mr. Black] is required to do is raise a
    reasonable doubt in the Crowns case  together with his failure to make a
    finding of fact about the only factual matter in issue  whether the appellant
    knew about the cocaine in his suitcase.

[34]

The majority acknowledges that the trial judges
    approach to these issues is problematic, but they do not see the problems as
    serious enough to justify appellate intervention. However, I am not convinced
    that, absent the combined effect of these two errors, the trial judges decision
    to convict the appellant would have necessarily been the same as it would he had
    he held the Crown to its obligation to prove beyond a reasonable doubt that the
    appellant knew about the cocaine.

[35]

The need to relate the Crowns evidence and its onus to
    factual findings on the only issue in a criminal prosecution with sufficient
    clarity is, of course, fundamental to a trial judges decision whether to
    convict. A trial judges inability to articulate this may signal a gap in the
    logical reasoning necessary to arrive at a guilty verdict. This militates in
    favour of this court ordering a new trial.

[36]

Here, this court is not in a position to discern
    whether the trial judge found that the Crown proved beyond a reasonable doubt
    that the appellant knew his luggage was used to transport drugs or, indeed,
    whether instead he found that the appellant was wilfully blind to that use.
    This is not a case like most other importing cases, where the accused has his
    or her luggage in hand. The theory of the Crown advanced at trial was that the
    plan to import the cocaine was for a complicit airport worker to covertly
    retrieve the luggage from the plane before the luggage was sent to the baggage
    carousel. This plan was thwarted when a Canada Border Services Officer oversaw
    the unloading of the baggage from the plane. The appellant did not pick up the
    luggage from the carousel.

[37]

In addition to saying that [a]ll [Mr. Black] is
    required to do is raise a reasonable doubt in the Crowns case, the trial judge
    stated at para. 26 of his reasons that the Crown had proven the appellants
    guilt beyond a reasonable doubt because:

i.

the suitcase belonged to the
    appellant;

ii.

the appellants name and address
    were on two identification tags on the suitcase;

iii.

the suitcase travelled from
    Antigua to Canada on the same flight as the appellant; and

iv.

the appellants DNA was found on a
    clothing item in the suitcase.

[38]

I agree with the majority that these reasons does not resemble the model
    of clarity on the correct articulation of the Crowns onus in an importing case
    such as this. Its deficiencies can be brought to light by contrasting them with
    the reasons of Mossip J. in
R. v. Desilva
, [2004] O.J. No. 5971
    (S.C.), at paras. 10-12:

Directing myself on the law, Ms.
    Desilva testified at this trial and I remind myself with respect to the
    principles set out in the Supreme Court of Canada case of
R. v.
    W.(D.)
,

[1991] 1 S.C.R. 742, as follows: if I believe Ms. Desilvas evidence
    that she did not know the duffel bag contained cocaine, I must find her not
    guilty of the offence of importing. Secondly, even if I do not believe Ms.
    Desilva's evidence, if it leaves me with a reasonable doubt as to whether she
    knew the duffel bag contained cocaine, I must find her not guilty. Thirdly,
    even if Ms. Desilvas evidence does not leave me with a reasonable doubt that
    she knew the cocaine was in the duffel bag, I may only find her guilty of
    importing if, on the rest of the evidence I do accept, it proves beyond a
    reasonable doubt that Ms. Desilva knew the cocaine was in the duffel bag.
    Finally, I remind myself of the standard of reasonable doubt as set out in [
R.
    v. Lifchus
],

[1997] 3 S.C.R. 320, and more recently in
Starr
,

[2000] 2
    S.C.R. 144.

Having regard to all of those legal principles and considering
    all of the evidence, I find Ms. Desilva not guilty of the offence of importing
    for the following reasons: I cannot say that I entirely believe or accept Ms.
    Desilvas evidence with respect to the circumstances of her having the duffel
    bag in her possession. In fact I find it likely or probable that Ms. Desilva
    did know the cocaine was in the duffel bag

Ms. Desilvas evidence in the end leaves me with a reasonable
    doubt as I am not sure as to whether Ms. Desilva knew the cocaine was in the false
    bottom of the black duffel bag. Ms. Desilva is entitled to the benefit of that
    doubt and therefore must be found not guilty of the offence of importing a
    narcotic into Canada.

[39]

Unlike my colleagues, I am not prepared to infer that the trial judge
    engaged in the necessary reasoning from the conclusory statements contained in para.
    26 of his reasons. From those explicit statements, the majority concludes,
    based on the context of the evidence and the arguments made at trial, that the
    trial judge implicitly held that the appellant in this case knowingly imported
    cocaine.

[40]

Although I agree with the principle of law that the sufficiency
    of the trial judges reasons must be assessed within this context, [t]his
exercise is not an invitation to appellate courts to
    engage in a reassessment of aspects of the case not resolved by the trial
    judge. Where the trial judges reasoning is not apparent from the reasons or
    the record, as in the instant case, the appeal court ought not to substitute
    its own analysis for that of the trial judge:
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 32. I am
    not convinced that in this case the trial judges reasoning was apparent enough
    in the context of the record for it to be discernable to this court without
    this court having to reassess the case itself and substitute its own analysis.
    There may be an implicit route available from the trial judges explicit
    factual findings at para. 26 to a finding of the appellants guilt, but it is
    not appropriate for this court to attempt to discern that route and explain
    it:
R. v. Capano
, 2014 ONCA
    599, 313 C.C.C. (3d) 135, at para. 74.

[41]

I would allow the appeal and order a new trial.

Released: GP JUL 13 2017

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Boast, 2017 ONCA 602

DATE: 20170720

DOCKET: C62374

Hoy A.C.J.O., Simmons and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cody Boast

Appellant

Michael Dineen, for the appellant

Cody Boast, appearing in person

Jennifer Epstein, for the respondent

Heard:  July 10, 2017

On appeal from the conviction entered on May 11, 2016 by
    Justice Jonathan Brunet of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

Among other counts, the appellant was charged
    that in Ottawa, between December 17, 2014 and January 1, 2015, he did wrongfully
    and without lawful authority, for the purpose of compelling the complainant to
    abstain from doing something that the complainant had a lawful right to do,
    namely proceed in public without fear, intimidate by threats that punishment
    would be inflicted on the complainant contrary to s. 423(1)(b) of the
Criminal
    Code
.

[2]

The trial judge found the appellant guilty of
    attempting to intimidate, contrary to s. 423(1)(b), and, given that finding,
    also found him guilty of two counts of breach of probation alleging failure to
    keep the peace and be of good behavior at the relevant time.

[3]

Section 423(1)(b) provides as follows:

423(1) Every one is guilty of an indictable offence and liable
    to imprisonment for a term of not more than five years or is guilty of an
    offence punishable on summary conviction who, wrongfully and without lawful
    authority, for the purpose of compelling another person to abstain from doing
    anything that he or she has a lawful right to do, or to do anything that he or
    she has a lawful right to abstain from doing,

[]

(b)
    intimidates or attempts to intimidate that person or a relative of that person
    by threats that, in Canada or elsewhere, violence or other injury will be done
    to or punishment inflicted on him or her or a relative of his or hers, or that
    the property of any of them will be damaged

[4]

We agree with Duty Counsel that the appellants conviction under s.
    423(1)(b) cannot stand.  As a result, we allow the appeal and acquit the
    appellant on all counts.

[5]

As Duty Counsel argues, the accuseds purpose in attempting to
    intimidate the complainant is one of the essential ingredients of the offence
    created by s. 423(1)(b) of the
Criminal Cod
e and the onus rests upon
    the Crown to prove the accuseds purpose beyond a reasonable doubt:  see
R.
    v. Branscombe
(1956)
, 25
    C.R. 88, [1956] O.J. No. 374 (C.A.).

[6]

The trial judge stated that the elements of s. 423(1)(b) had been proven
    beyond a reasonable doubt. However, in support of that conclusion, the trial
    judge pointed only to: (a) two aggressively worded text messages and (b) an in-person
    encounter (the look on the appellants face as he held his arms out to his
    sides when he encountered the complainant on the street). These could be
    characterized as
attempts
to intimidate the
    complainant (a means of committing the offence set out in s. 423(1)(b)).

[7]

There was no direct evidence of the
purpose
of the appellants conduct and the trial judge did not explain how the alleged
    purpose of the appellants conduct necessarily flows by inference from the
    circumstances. The trial judge found that the appellants actions did not make
    the complainant fearful. Further, the record disclosed that, in the past, the
    complainant and the appellant had been good friends and that there was an
    intervening text, conveying Christmas wishes. In the face of these facts, and
    the trial judges finding that the appellants actions did not make the
    complainant fearful, the evidence equally supports that the complainant may
    have had another purpose in sending the texts  namely what the trial judge
    found was the actual effect of the appellants actions:  to vex, disquiet or
    annoy the complainant, a person with whom the appellant was quite familiar. Based
    on the whole of the evidentiary record, and in the light of the trial judges
    findings, we are not persuaded that the evidence permitted the trial judge to
    conclude beyond a reasonable doubt that the purpose of the appellants conduct
    was to compel the complainant to abstain from proceeding in public without fear
     the alleged purpose of the appellants conduct as framed in the information
    and an essential element of the offence.

[8]

In the absence of evidence capable of establishing the appellants
    alleged purpose beyond a reasonable doubt, the s. 423 conviction cannot stand,
    and, consequently, neither can the two breach of probation convictions which
    rise and fall on the s. 423 conviction.

[9]

Given that we dispose of the appeal on this basis, it is unnecessary for
    us to determine whether, as Duty Counsel argues, to proceed in public without
    fear is not something that the complainant has a lawful right to do within
    the meaning of s. 423(1)(b).

[10]

We observe, however, that the alleged purpose of the appellants conduct
    was not to compel the complainant from abstaining from proceeding in public,
    full stop; the addition of the words without fear may be significant. To proceed
    in public
without fear
 could be equated with
    being free from intimidation.  Thus, arguably, the appellant was found guilty
    of attempting to intimidate the complainant for the purpose of intimidating
    him. We question whether this is what is contemplated by s. 423(1)(b), which specifically
    requires, as an essential ingredient, in addition to a finding that the accused
    attempted to intimidate a person, that the attempted intimidation have been
    for the purpose of compelling another person to abstain from doing anything
    that she has a lawful right to do.

[11]

That said, this issue was raised in the context of an in-person appeal,
    conducted with the assistance of Duty Counsel. Because we have disposed of the
    appeal on other grounds, we are not inclined to address this issue of statutory
    interpretation. We do not have the assistance of a full record, which would
    disclose whether this issue was raised at trial, or written argument.

[12]

Finally, we do not accept the Crowns argument that uttering threats to
    cause bodily harm is an included offence under s. 423(1)(b) as particularized
    in the information.

Alexandra Hoy A.C.J.O.

J.M. Simmons J.A.

David M. Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. DaCosta, 2017 ONCA 588

DATE: 20170707

DOCKET: C60741

Weiler, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tomika DaCosta

Appellant

Michael Dineen, for the appellant

Kathleen Healey, for the respondent

Heard: July 6, 2017

On appeal from the conviction entered on April 8, 2015 by
    Justice S. Casey Hill of the Superior Court of Justice, sitting without a jury,
    with reasons reported at 2015 ONSC 1478.

REASONS FOR DECISION

A.

Introduction

[1]

The appellant was charged with smuggling 830 grams of cocaine dissolved
    in two bottles of ginger wine she took with her on a flight from Jamaica to
    Toronto. She was convicted of importing cocaine and sentenced to three years
    imprisonment.

[2]

On her conviction appeal, she submits
    that the trial judge erred in his findings of fact and credibility assessments
    and gave unsupportable reasons for rejecting her evidence. The appellant
    requests a new trial.

[3]

For the reasons that follow, we dismiss
    the appeal.

B.

Background

[4]

The appellant testified she decided to go to Jamaica in May 2010 to visit
    her father and her grandfather. At the time she was unemployed. She had about
    $700 for spending money but could not afford a plane ticket.

[5]

The appellant had met Ralph Fletcher
    through her boyfriend Paul, who had known him for about a year. At the time of
    the offence, she knew his first name was Ralph, but did not know his last
    name. The appellant talked to Fletcher about her life problems and he offered
    to buy her a plane ticket. A few days later, the appellant and Paul saw
    Fletcher again and Paul asked Fletcher if he was serious about the plane ticket.
    Fletcher said he would buy it.

[6]

The appellants evidence was that
    Fletcher purchased a round trip ticket from Toronto to Montego Bay for her
    online and then provided her with his email address and password so she could
    print the ticket. She did not have a passport when Fletcher purchased the
    ticket, so she paid $100 to get a rush passport.

[7]

Fletcher testified for the defence. He
    has a prior criminal record of six convictions between 1990 and 2003, which did
    not include any drug-related convictions. Fletchers evidence was that he did
    not purchase a plane ticket for the appellant, but rather loaned Paul $1,000
    for plane tickets and expenses.

[8]

The appellants expectation was that her
    father would pick her up at the airport in Montego Bay. During the flight,
    however, passengers were advised that Jamaica was under a state of emergency
    and there were travel advisories into Kingston. As a result, her father was not
    able to get to Montego Bay. She took a cab to a hotel and stayed in Montego Bay
    for the duration of her trip. On May 25, 2010, the appellant received a call
    from someone named Peter who was a friend of Fletchers. She spent the next
    couple of days with Peter.

[9]

The appellant testified Peter drove her
    to the airport on May 28, 2010. She wanted to replace her sisters bottle of
    ginger wine  which she and Paul had consumed  and get a second bottle for
    herself. She went to a duty-free liquor store and bought two bottles of wine.
    The cashier suggested the liquor could be boxed for her if she had a third bottle,
    so she purchased a bottle of rum. The cashier packaged the three bottles in a
    box and the appellant paid for her purchase. She testified her bags and the box
    were always in her possession except for a short time when she left them
    outside a washroom stall. She could see the bottoms of the bottles under the
    stall and she did not see anyone interfering with them.

[10]

On May 28, 2010, the appellant arrived at
    Pearson International Airport in Toronto. In the secondary customs area, CBSA
    Officer Dixon stopped the appellant and interviewed her. She was carrying a
    duty-free liquor box clearly marked from Jamaica, and Officer Dixon questioned
    the appellant about the duty-free box.

[11]

On opening the box, he found three 750 millilitre
    bottles: two bottles of Stones Ginger Wine and one bottle of rum. In response
    to his questions, the appellant said she purchased the alcohol from the
    duty-free shop in Jamaica on the day she left that country. She handed him a
    receipt from her purse. She told the officer she was unsure when she purchased
    the alcohol, but it was around 12:00 or 12:30 p.m. The officer noted that the
    transaction time printed on the receipt was 1:25 p.m.

[12]

Officer Dixon testified to having
    discovered cocaine coming from Jamaica ten days earlier dissolved in Stones
    Ginger Wine. In this case, an initial test identified cocaine on the bottles of
    wine. Officer Dixon arrested the appellant for attempting to smuggle suspected
    narcotics into Canada.

[13]

The contents of the two bottles of ginger
    wine were later tested and were found to each contain 415 grams of dissolved
    cocaine, resulting in a total value between $30,000 and $91,300.

[14]

The Crowns theory was that the appellant
    was a knowing participant in the cocaine importation scheme, a plan perhaps
    facilitated by Peter, which also involved Fletcher and his associates in
    Montego Bay. The appellants motivation was a free trip to Jamaica and very
    likely courier compensation.

[15]

The appellant testified she had no
    knowledge there was cocaine in the wine bottles and was unaware that cocaine
    came in liquid form. The defence theory was the accused was an innocent dupe in
    a sophisticated drug operation involving Fletcher and Peter. There was no
    financial motive to be involved in drug importation because the appellant had
    never experienced difficulty in finding employment.

C.

Analysis

[16]

The appellant submits the trial judge erred by relying on a finding that
    the appellant told Officer Dixon that Reg bought her plane ticket, instead of
    Ralph, as she testified. The officer acknowledged that his notes were not a
    verbatim account of what the appellant had said because they were recorded
    hours after the conversation in question. She argues that the trial judge
    failed to even advert to the possibility that the officer misheard the appellant.

[17]

We disagree that the trial judge erred in
    making this finding. He carefully and fairly reviewed the evidence at trial. It
    was open to him to find that the appellant lied about who bought her ticket.

[18]

The appellant further submits the trial
    the trial judge discounted her evidence for a series of unfair reasons: (i) by
    finding the appellant was unlikely to travel given her financial situation;
    (ii) by relying on a spurious contradiction between the appellants testimony
    and her mothers testimony regarding the explanation for the appellant flying
    into Montego Bay rather than Kingston; and (iii) by placing excessive weight on
    the appellants incomplete memory.

[19]

In our view, there was nothing unfair
    about these findings. They were part of the trial judges very thorough
    credibility review. Particular deference must be given to a trial judges
    credibility findings. Absent palpable and overriding error, an appellate court
    should not intervene in a trial judges credibility analysis:
R. v.
    Chhina
, 2016 ONCA 663, 340 C.C.C. (3d) 557,
    at para. 21. The trial judge was in the best position to assess the appellants
    demeanour and credibility throughout her testimony. He gave thorough reasons
    for his finding that the appellant was not credible and was aware of the cocaine.

[20]

Finally, the appellant submits that there
    was no evidence to support the trial judges finding that the cocaine was not
    likely to be placed under the exclusive control of an unknowledgeable courier.

[21]

We would not give effect to this
    argument. It was open to the trial judge to draw the inference that the manner
    of the cocaine smuggling that occurred in this case was not consistent with the
    use of a blind courier. In particular, the total value of the dissolved cocaine
    found in the appellants custody was significant enough to contribute to a
    common sense inference that a third party would not entrust it to her as a
    blind courier for the purpose of importation: see
R. v. Ukwuaba
, 2015 ONSC 2953, at para. 101; and
R. v.
    Bains
, 2015 ONCA 677, 127 O.R. (3d) 545, at
    para. 527, leave to appeal refused, [2015] S.C.C.A. No. 478.

[22]

A trier of fact is entitled to draw
    factual inferences based on his or her assessment of the totality of the
    evidence. The trial judge concluded, on the totality of the evidence, the only
    reasonable inference was that the appellant had knowingly imported cocaine.
    Circumstantial evidence need not totally exclude alternative conceivable
    inferences, and a verdict is not unreasonable simply because the alternatives
    do not raise a reasonable doubt in the mind of the trier of fact:
R.
    v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R.
    1000, at para. 56.

D.

Disposition

[23]

The appeal is dismissed.

K.M. Weiler J.A.

C.W. Hourigan J.A.

G. Pardu J.A.