COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Huh, 2015 ONCA 356

DATE: 20150519

DOCKET: C59460

Gillese, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Benjamin Huh

Respondent

Katie Doherty, for the appellant

Breana Vandebeek, for the respondent

Heard:  May 5, 2015

On appeal from the sentence imposed on September 15, 2014
    by Justice Heather E. Perkins-McVey of the Ontario Court of Justice.

By the Court:

[1]

The Crown appeals the sentence imposed on the respondent. It is common
    ground that deference is the guiding principle of appellate review of sentences,
    and intervention is only permitted if the sentencing judge committed an error
    in principle, or imposed a sentence that is demonstrably unfit:
R. v. M. (C.A.)
,
    [1996] 1 S.C.R. 500, at para. 90.

[2]

The respondent was found guilty of
    assault causing bodily harm under s. 267(b) of the
Criminal
    Code
, R.S.C. 1985, c. C-46
. He was 21 years of age when he committed the offence. The
    sentencing judge imposed a conditional discharge with two years probation.

[3]

The sentencing judge declined to impose
    a DNA order under s. 487.051 and a weapons prohibition order under s. 109. The
    respondent properly concedes that the sentencing judge erred in refusing to
    make these ancillary orders which, in the circumstances of this case, were
    mandatory.

[4]

The assault committed by the respondent
    while he was severely intoxicated, was extraordinarily violent. The beating left
    the victim with facial fractures and post-concussion syndrome. He suffered
    brain damage with impairment in the higher executive functions. The victim was
    forced to withdraw from his university courses in finance. He has problems
    communicating in a fluent manner due to difficulties in organizing his
    thoughts.  He also is fearful for his safety and for his future.

[5]

The pre-sentence report about the
    appellant was not especially positive. He was presented as a multi-substance
    abuser in denial of his need for rehabilitation. The Crown proposed a
    significant jail sentence within the reformatory range, on the basis that,
    according to the pre-sentence report, the respondent had no insight into his
    behaviour and the public ought to be protected from him. However, the Crown did
    not propose a specific sentence.

[6]

The sentencing judge adjourned the proceedings, at least in part in
    order to give the respondent an opportunity to show her that the public
    interest would not be offended by the imposition of a discharge.

[7]

In the months between the sentencing
    submissions on June 2, 2014 and the sentencing date of September 15, 2014, the
    respondent completed 144 hours of community service. He also met with a social
    worker at the Centre for Addiction and Mental Health and was awaiting placement
    into a counselling program.

[8]

Several additional positive letters of
    reference were filed, including from Reverend Mathias Kim. As a member of St.
    Andrews Church, the respondent had participated in a mission trip to Mexico
    and regularly helped organize youth activities. He had also been working at his
    familys convenience store.

[9]

The sentencing judge relied primarily on the sentencing
    objectives of individual deterrence and rehabilitation in the circumstances of young
    first offenders.
She was impressed by the respondents
    progress, and noted that he had gained some maturity, some insight and
    demonstrated his recognition of the importance of the matter. She said:

In the circumstances I am going to
    grant you that conditional discharge because you have earned it, sir.  You have
    done, as indicated, significant amount of community service, you have shown now
    some insight, and appropriately I am going to grant you that discharge.  Im
    going to place you on probation for two years, sir, because you do need that
    continued support and access to treatment.

[10]

The
    respondent submits that the two-year probationary term was carefully crafted to
    include a curfew term during the first six months, a requirement that the
    respondent perform an additional 50 hours of community service and a
    requirement that the respondent provide a letter of apology to the complainant.
    The fresh evidence shows the respondent remains committed to a counselling
    program, has taken classes related to drug and alcohol abuse, has completed the
    additional 50 hours of community service, and is employed full-time.
The respondent has expressed remorse for his crime.

[11]

The
    Crown submits that the sentence imposed in this case was manifestly unfit.  We
    agree. The sentence was not proportionate to the gravity of the offence. The
    conditional discharge did not reflect the degree of violence of the
    respondents assault, the seriousness of the injuries he inflicted on the
    victim, or the applicable sentencing principles.

[12]

We
    adopt  the observation in
R. v. Wood

(1975), 24 C.C.C. (2d) 79 (C.A.),
    at para 4: [i]n cases of violence resulting in injury the requirement of
    general deterrence to the public militates, in almost every case, against the
    grant of a conditional discharge, notwithstanding considerations personal to
    the accused.

In our view, a conditional discharge does not meet the
    public interest in this case.  While a discharge may have been in the interest
    of the appellant, in this circumstance, it was not in the public interest.
    Accordingly, leave to appeal the sentence is granted, and the sentence appeal
    is allowed.  It now falls to this court to impose what we deem to be an
    appropriate sentence.

[13]

The
    respondent submits that he should not now be incarcerated and that this court
    should take the route in
R. v. Smickle
, 2014 ONCA 49, 306 C.C.C. (3d)
    351, where, at para. 12, Doherty J.A. endorsed the view of Green C.J.N.L. in
R.
    v. Taylor
, 2013 NLCA 42, at para 133:

... there is nothing inconsistent with saying that the
    sentencing judge, with the record in front of him, should have sentenced the
    offender to greater incarceration than he did and at the same time saying that,
    with what the court now knows, the application of the sentencing principles
    does not now require the offender actually to serve the remainder of the
    sentence.
Unlike the sentencing judge, the court of appeal will be deciding
    whether the offender should actually serve the rest of his sentence with the
    benefit of hindsight, a perspective that the sentencing judge did not have. The
    corrective appellate function of giving guidance as to what the sentencing
    judge ought to have done can therefore be achieved while at the same time the
    court can make an appropriate practical disposition, based on current
    circumstances
. [Emphasis by Doherty J.A.]

[14]

Our
    task is to fashion a fit sentence based on current circumstances, not those at
    the time of sentencing.  The respondent is a young offender without a criminal
    record. He has expressed remorse. He has served his conditional sentence thus
    far without incident. He has, moreover, shown a commitment to change his life
    for the good and has continued in that path.

[15]

However,
    we do not agree with the respondent that no incarceration should now be imposed.
    This was a crime of violence that left the victim with serious and longstanding
    injuries.   The principles of deterrence and denunciation cannot be met without
    a period of incarceration. The Crown has urged a period of six to eight months
    incarceration, followed by two years of probation. That appears to be at the
    low end of the appropriate range.  Having said that, the fresh evidence shows
    that the respondent is a very different person today than he was when
    sentenced.  He has taken responsibility for his actions, continued with
    extensive community work, obtained professional help and is drug-free.  In
    these circumstances, we accept the Crowns submission as to the range.

DISPOSITION

[16]

We
    therefore set aside the sentence imposed by the sentencing judge, and exercising
    authority under s. 732 (1) of the
Criminal Code
, convict the
    respondent of assault causing bodily harm, and impose a sentence of six months
    incarceration, followed by a two-year term of probation. This sentence pays due
    regard to the principles of deterrence and denunciation, but also to the age
    and character of the offender, the nature of the offence and the circumstances
    surrounding its commission, and the respondents commendable efforts at
    rehabilitation. We also make the mandatory ancillary DNA and weapons prohibition
    orders.

Released:  May 19, 2015 EEG

E.E.
    Gillese J.A.

M.
    Tulloch J.A.

P.
    Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Jaques, 2015 ONCA 380

DATE: 20150527

DOCKET: M45031

Lauwers J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent (Responding Party)

and

Keith Jaques

Applicant Moving Party

Keith Jaques, acting in person

Kathryn Manning,
amicus
for the moving party

Jocelyn Speyer, for the responding party

Heard:  May 21, 2015

ENDORSEMENT

[1]

On October 1, 2007, Justice of the Peace W. Ross convicted Mr. Jaques
    for two counts for driving without insurance under the
Compulsory
    Automobile Insurance Act
, R.S.O. 1990 c. C-25, and one count of driving
    with a suspended licence. He appealed the convictions, and on December 15, 2008,
    Harris J. of the Ontario Court of Justice, affirmed the convictions but reduced
    the fine on the first count to $3,125, on the second count to $6,250, and on
    the third count to $875.

[2]

Mr. Jaques is aware that driving without insurance is a serious offence
    and places others in jeopardy of insufficient insurance for serious injuries.
    He understands that this is why the
Compulsory Automobile Insurance Act
imposes mandatory minimums for conviction of $5,000
    and $10,000 for first and second offences, respectively. Ensuring adequate
    insurance coverage is undoubtedly an important public policy goal.

[3]

Mr. Jaques seeks an extension of time to serve and file a notice of
    motion to seek leave to appeal the decision of the appeal judge. He explains
    the multi-year delay on the basis that he did not know until recently that he
    could appeal the decision.

[4]

Mr. Jaques explains his situation eloquently, both in his affidavit and
    in his oral presentation. In his affidavit, he notes that he is an alcoholic
    and was suffering from related mental disabilities at the time of the appeal. He
    states:

I had just joined Alcohol Anonymous, was withdrawing from many
    years of alcohol abuse and was living at Alpha House (a clean living house) at
    the time of the first appeal. I was in a confused state and I was not able to
    comprehend, or fully participate, in the appeal process because of my mental
    state.

[5]

Mr. Jaques states that he knew he could not afford the fines, but wanted
    to take responsibility for the offences. He hoped that, on appeal, his fines
    would be further reduced than they were. Regrettably, given the passage of
    time, no transcripts are available.

[6]

Mr. Jaques swears that:

Although I have remained sober since that time, I find now, many
    years after my conviction and sentence, that these fines, over $10,000 in
    total, are affecting my financial circumstances very negatively. I have had to
    ask for numerous extensions to pay and I have made payments as I could. These
    amounts outstanding, I am very negatively affected because I have attempted to
    apply for a record suspension for unrelated charges from many years ago, but I
    was told I could not receive one until these fines have been paid.

[7]

Mr. Jaques asserts that this situation has negatively affected his
    ability to apply for various jobs, although he is now gainfully employed.

[8]

I have great sympathy for Mr. Jaques plight, and accept without
    reservation his assertion that the debt burden of these fines is staggering for
    him. I also accept that he has changed his life in a positive way, for which he
    is to be greatly commended and supported.

[9]

Regrettably, I advised Mr. Jaques that, in these circumstances, under
    the rules of court, the provisions of the
Provincial Offences Act
, R.S.O.
    1990, c. P.33, and the legislation under which he was convicted, there is
    nothing I can do for him. He was successful on the first appeal in having his fines
    reduced, indicating that the appeal judge turned his mind to Mr. Jaques
    plight.

[10]

Mr.
    Jaques did not form an intention to appeal within the time required. He argues
    that an extension of time is warranted because the due administration of
    justice and broader public interest issues related to accommodation for
    disabilities are implicated by his appeal.

[11]

Mr.
    Jaques is not the first person in such a situation to come to this court in
    order, as he put it, to beg for mercy.  He plainly deserves it, but I cannot
    grant it. The legislative scheme offers no way out for people who are
    impoverished, dealing with health issues or other difficulties, and who bear
    the burdens of these enormous fines for many years. It is most unfortunate that
    there is no process in the system for commuting old and backbreaking fines for
    people who have little prospect of paying them, and whose lives are being
    ruined. Perhaps it is time to consider a quasi-bankruptcy scheme for people in
    Mr. Jaques unfortunate position.

[12]

The
    motion is dismissed.

P.
    Lauwers J.A.


WARNING

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

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

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

(a)     any of
    the following offences;

(i)   an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 346 or 347,

(ii) an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.C., 2015 ONCA 370

DATE: 20150526

DOCKET: C58559

Simmons, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.C.

Appellant

Meaghan Thomas, for the appellant

Greg Skerkowski, for the respondent

Heard: April 10, 2015

On appeal from the conviction entered by Justice C. Kehoe
    of the Ontario Court of Justice, dated October 9, 2013.

By
    the Court:

[1]

The appellant appeals from her conviction for
    sexually assaulting a child of approximately five years old.

[2]

Following a trial, the trial judge rejected the
    appellant's evidence and accepted the complainant's evidence that the appellant
    performed a single act of oral sex on her.

[3]

In her reasons for finding the appellant guilty,
    the trial judge relied, in part, on the unlikelihood that a young child would
    have the knowledge the complainant displayed about oral sex and on the absence
    of any evidence at trial concerning any source of such knowledge other than the
    conduct of the appellant complained of by the child.  At para. 224 of her
    reasons, the trial judge said:

[The complainant] was able to tell and show [the
    police officer who conducted the complainant's videotaped interview] what [the
    appellant] did to her and how she licked her vagina with her tongue. The fact
    that [the complainant] was caught showing Z, her 4 year old cousin, how to lick
    her vagina although not determinative that it was because of what the [the appellant]
    had done to [the complainant], corroborates that [the complainant] had seen or
    had the act performed on her prior to July 2009.
There is no
    evidence before the court that [the complainant] would have seen or experienced
    the act other than the one time with [the appellant]. It is obviously not
    something one would expect to be within a 6 year old child's knowledge and
    especially in [a] family where sex was not even discussed. There was no evidence
    that [the complainant] had seen similar activity in her home, on TV or anywhere
    else, other than [the appellant] licking her vagina
.
    [Emphasis added.]

[4]

On appeal, the appellant argues that the Crown
    did not contend at trial that a young child would have no knowledge of the
    sexual activity at issue. The appellant therefore submits that, to the extent the
    trial judge considered this a live issue, the trial judge erred in dismissing the
    appellants application under s. 276 of the
Criminal Code
to cross-examine the complainant in relation to prior sexual
    activity, or, in the alternative, in failing to permit the appellant to re-open
    her s. 276 application once the trial judge determined that the complainants
    knowledge about oral sex was a live issue.

[5]

In her s. 276 application, the appellant sought
    leave to cross-examine the complainant on, or lead evidence about, three
    incidents of alleged prior sexual activity.

[6]

In oral argument on appeal, the appellant
    acknowledged that the conduct allegedly involved in the first two incidents was
    not sufficiently similar to the conduct forming the subject matter of the
    offence to warrant a s. 276 order permitting that evidence to be led. She
    therefore abandoned any reliance on the first two incidents and confined her submissions
    to the third incident.

[7]

The third incident involved an interaction
    between the complainant, when she was about six, and the complainant's cousin Z.,
    when Z. was about four.

[8]

In her s. 276 application, the appellant alleged
    that Z.'s mother caught Z. "licking the complainant's privates".
    Further, the appellant alleged that the complainants mother became very angry
    when she learned about the incident and that the complainant disclosed her
    allegations against the appellant to her mother as a result of being
    disciplined by her mother.

[9]

During submissions on the s. 276 application, defence
    counsel for the appellant (not Ms. Thomas) clarified that she intended to
    cross-examine the complainant about a motive to fabricate arising from the incident
    with Z.  In her ruling on the application, the trial judge noted that defence
    counsel "stated several times there is no intention to cross-examine on
    the actual activity but simply on the consequences of being caught engaging in
    the activity."

[10]

In her ruling on the s. 276 application, the
    trial judge held that the complainant could be cross-examined as to "the
    consequences of being caught and whether she was punished and if she was
    punished and what impact that had on her reporting the allegations concerning
    the [appellant]."

[11]

On appeal, the appellant submits that, the trial
    judge's ruling on the s. 276 application created unfairness because the trial
    judge prohibited cross-examination on the incident with Z., yet relied on the absence
    of evidence at trial of any other source for the complainant's knowledge of
    oral sex to support a conviction. The appellant submits that cross-examination
    of the complainant about the incident may have revealed that Z. was actually the
    source of the complainant's knowledge about oral sex.

[12]

We do not accept these submissions.

[13]

The appellant's argument that the trial judge
    should have permitted cross-examination of the complainant at trial to show
    that the complainant may have learned about oral sex from Z. is raised for the
    first time on appeal and is contrary to the position taken by the appellant at
    trial.

[14]

At trial, the appellant's position was premised
    on the theory that the complainant was the instigator of the incident with Z.
    When cross-examining the complainant at trial, defence counsel asked the
    complainant why she had dared Z. to lick her. The appellant does not suggest on
    appeal that this question lacked a proper foundation.
[1]

[15]

Although the formal s. 276 application was
    framed as a request to cross-examine on the incident, defence counsel did not
    pursue that request on the application. Instead, as mentioned above, defence
    counsel repeatedly stated that she intended to limit cross-examination to
    questions about Z.s motive to fabricate.  Since the trial judge was not asked
    to permit cross-examination on the incident, in our view, she made no error in
    failing to permit it.

[16]

Further, in the face of the defence position at
    trial that the complainant was the instigator of the incident with Z., we see
    no error in the trial judges reliance on the absence of evidence at trial that
    the complainant would have seen or experienced oral sex other than the one time
    with the appellant and on the unlikelihood that a young child would have any
    knowledge about oral sex. As noted above, defence counsel at trial suggested in
    cross-examination that the complainant dared Z. to lick her privates and did
    not pursue the request made in the formal s. 276 application to cross-examine
    the complainant on the incident.

[17]

Similarly, we reject the appellants submission
    that, on determining that the complainants prior knowledge of oral sex was a
    live issue at the trial, the trial judge should have afforded the appellant an
    opportunity to re-open her s. 276 application. Again, there was no suggestion at
    trial that the complainant was not the instigator of the incident with Z.

[18]

Further, the appellant has not demonstrated any
    basis on appeal for ordering a new trial to permit her to make a s. 276
    application premised on a different theory than the theory she advanced at
    trial. The appellant has not claimed that defence counsel at trial's suggestion
    to the complainant that she dared Z. to lick her [the complainant's] privates
    was improper; she has not raised any other issue concerning ineffective
    assistance of counsel; and she did not make a fresh evidence application.

[19]

In all the circumstances, we are not satisfied
    that the trial judges s. 276 ruling and her subsequent reliance on the absence
    of evidence concerning an alternate source for the complainants knowledge about
    oral sex created unfairness to the appellant. Further, we see no other basis
    for ordering a new trial.

[20]

The
    appeal is therefore dismissed.

Released:

MT                                         Janet
    Simmons J.A.

MAY 26 2015                          M. Tulloch J.A.

Grant Huscroft J.A.

[1]

The evidentiary
    foundation at trial for what happened during the incident with Z. came from the
    complainants assertion in her videotaped statement to police, which she
    adopted at trial, and from the testimony of the complainants mother. In her
    videotaped statement, the complainant told police that Z. had licked her
    private and that she got in trouble. The complainants mother testified that,
    on the day in question, she heard Z.s mother scream, and she went upstairs to see
    what was going on. She found Z. squatted down and crying kind of in front of
    her daughter. Her daughter had no pants on. She was lifting up her pants and
    appeared embarrassed. The complainants mother also testified that Z.'s mother
    told her that the complainant was trying to get Z. to lick her vagina. Although
    the latter statement was hearsay, the complainants s. 276 application contains
    a statement that the complainant disclosed the details of the incident with Z.
    to her mother and a social worker on August 26, 2010. According to the s. 276
    application, the complainant advised these individuals that:

[S]he was playing
    upstairs with her friend, [Z],and that she dared Z to lick her vagina while
    they were lying down watching TV at [Zs] home. [The complainant] advised that
    this was the only thing that happened because [Zs] mother, A, came into the
    room.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Laponsee, 2015 ONCA 344

DATE: 20150513

DOCKET: C57164

Juriansz, Rouleau and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Laponsee

Appellant

Diane Condo, for the appellant

Matthew Asma, for the respondent

Heard and released orally: May 7, 2015

On appeal from the conviction entered on December 4, 2012
    and the sentence imposed on May 1, 2013 by Justice Robert G. Selkirk of the Ontario
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of several offences arising out his attempt
    to board a flight at the Ottawa International Airport with a 22 calibre pistol
    and 100 rounds of ammunition in his checked baggage. He initially told the
    police he owned the gun and was taking it back to Calgary. At trial, he
    testified that his mother packed his luggage and that he did not know it contained
    a gun or bullets. His mother supported his story by testifying that she had
    packed the gun and ammunition into his bag without telling him. The trial judge
    disbelieved the mother, concluded he had packed his own bag and convicted him.

[2]

On appeal the appellant argues the trial judge erred in his credibility
    findings because he misapprehended the mothers evidence. In our view, the
    transcript shows the trial judge misapprehended only one aspect of the mothers
    testimony. The judge was mistaken in stating the gun was found in between
    licence plates. However, that one misapprehension cannot be said to have been
    essential to trial judges analysis. There was several other inconsistencies in
    the mothers description of how she packed the appellants bag and how it was
    actually packed. There were also inconsistencies between the mothers testimony
    and the appellants regarding who drove him to the airport and the mothers
    claim that she did not tell the appellant she had packed a gun in his bag.

[3]

In our view the record amply supports the trial judges conclusion the
    mothers testimony was not to be believed. The appeal of conviction is
    dismissed.

[4]

The appellant also appeals his sentence. He was sentenced to a 12 months
    conditional sentence. He submits the trial judge erred by not granting him a
    conditional discharge with strict probation. The trial judge considered all the
    circumstances and concluded that a conditional discharge would be contrary to
    the public interest. He said that denunciation and general deterrence required
    that the message must be clear that one does not bring a gun and bullets to an
    international airport without severe consequences. We agree.

[5]

The sentence appeal is dismissed.

R.G.
    Juriansz J.A.

Paul
    Rouleau J.A.

C.W. Hourigan
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lin, 2015 ONCA 314

DATE: 20150505

DOCKET: C58717

Juriansz, Rouleau and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shan Da Lin

Appellant

Darren S. Sederoff, for the appellant

Sandy Thomas, for the respondent

Heard and released orally: May 4, 2015

On appeal from the sentence imposed on April 24, 2014 by
    Justice Kevin B. Phillips of the Ontario Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

After a guilty plea, the appellant was convicted of possession of over
    three kilograms of marijuana for the purpose of trafficking. The appellant was
    sentenced to 12 months incarceration followed by 12 months of probation.

[2]

He appeals his sentence relying on the parity principle, pointing out
    that other mid-level participants in the extensive commercial grow-operation
    received conditional sentences of 18 months. He submits that the sentencing
    judge erred by violating the parity principle.

[3]

The parity principle does not require that all co-accused receive equal
    sentences. It is not our function to minutely reassess the relative roles and
    culpability of the various offenders. The sentencing judge in this case expressly
    considered the parity principle and recognized it would tend to drive the
    quantum of the sentence down. He also considered whether a conditional sentence
    was appropriate for the appellant. He then imposed the sentence that he did.
    The sentence is well within the range and in the absence of an error of
    principle in the sentencing judges analysis, there is no basis to interfere.

[4]

Leave to appeal sentence is granted but the appeal is dismissed.

R.G.
    Juriansz J.A.

Paul
    Rouleau J.A.

C.W.
    Hourigan J.A.


WARNING

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

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

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

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

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

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

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

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

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

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.D.R., 2015 ONCA 323

DATE: 20150511

DOCKET: C57760

Feldman, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.D.R.

Appellant

Robert J. Reynolds, for the appellant

John McInnes, for the respondent

Heard: April 28, 2015

On appeal from the conviction entered on July 24, 2013 by
    Justice Sheffield of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted by a judge sitting without a jury of sexual
    assault and sexual touching of his daughter when she was 8 and 9 years old. He
    was also found guilty of simple assault with respect to a spanking incident
    that occurred around the same time. The appellant appealed only the sexual
    offence convictions.

[2]

The complainant was 15 years old at the time of trial. She described
    incidents that she said occurred six and seven years earlier when the appellant
    would visit her and her sister on Saturday nights at the home of his second
    spouse and her children, where the complainant and her sister would visit as
    well.

[3]

On those occasions the complainant and her sister would sleep on
    mattresses on the floor with about one foot of space in between. The appellant
    would come and lie down between them in that one-foot space. They would then
    watch movies. Sometimes he would cuddle the complainant but sometimes he would
    rub her vagina and her breasts. When she told him she did not like that, he
    responded that she did. This occurred between 5 and 20 times.

[4]

The appellant testified. He agreed that he would lie down between the
    children and watch movies and that he would sometimes cuddle the complainant,
    but he denied the allegations of sexual impropriety.

[5]

A number of grounds of appeal were raised by counsel on behalf of the
    appellant. The court did not call on the Crown on all grounds. In light of our
    conclusion that the appeal must succeed on the
R. v.
W.(D.)
ground and that a new trial must be ordered, it is unnecessary to address the
    other grounds raised.

[6]

In his reasons for judgment, having found the complainant to be
    believable and reliable, the trial judge referred to the rule in
R. v.
W.(D.)
,
    [1991] 1 S.C.R. 742, stating correctly that the
W.(D.)
test requires
    that judges and juries refrain from engaging in credibility contests between
    the accused and the complainant. He went on to state that the court is
    required to assess the totality of the evidence and on that basis determine
    whether any doubt remains, in which case the accused is given the benefit of
    that doubt.

[7]

After discussing the evidence given by the appellant, the trial judge
    concluded:

While I am not prepared to say that
    his evidence is wholly incredible and unreliable, I nonetheless find that on
    matters germane to the question of whether he touched his daughter in a sexual
    context, I find his evidence to be less credible than that of the complainant.
    As such, he has failed to raise a reasonable doubt in my mind with respect to
    those offences.

[8]

He then went on to find that the appellant was deliberate in his timing
    of the sexual assaults comfortable in the knowledge that his actions would go
    undetected by the other sleeping children, and rejected the appellants
    testimony that he was not adversely under the influence of alcohol when in
    charge of the children, based on some photographs of him drinking in their
    presence.

[9]

After acknowledging that the complainant has lived a troubled life, he
    stated:

Yet, on the whole of the evidence, I found her evidence to be
    the more credible and persuasive. I found the straight denial by the accused
    less credible, less reliable and therefore, of little probative weight.

[10]

Crown
    counsel fairly acknowledged that the two quoted statements, viewed in
    isolation, were erroneous formulations of the burden of proof, but submitted
    that when the reasons are read as a whole, the court could find that the trial
    judge applied the correct burden of proof to the finding of guilt beyond a
    reasonable doubt.

[11]

We
    cannot accept that submission. The Crown relies on this courts decision in
R.
    v.
J.J.R.D.
(2006), 215 C.C.C.
    (3d) 252
(Ont. C.A.), where Doherty J.A. explained that it was not
    an error for a trial judge to reject an accuseds evidence based on a
    considered and reasoned acceptance beyond a reasonable doubt of the truth of
    conflicting credible evidence.

[12]

The
    important difference between the reasons for judgment in this case and in
J.J.R.D.
is that while in the reasons in this case, the trial judge also discussed why
    he accepted the evidence of the complainant, despite the fact that she had
    earlier denied any sexual misconduct to the police, and why he rejected the
    denial by the appellant, he then made the two impugned statements about whose
    evidence he preferred.

[13]

Those
    two statements indicate clearly that despite the reference to
W.(D.)
,
    the trial judge engaged in a credibility contest, making his decision on which
    version he believed based on whose evidence he preferred, rather than by
    addressing the problems and inconsistencies in the evidence tendered by the
    Crown and determining and articulating why they did not raise a reasonable
    doubt.

[14]

In
    this case, although there are other passages in the reasons for judgment that
    demonstrate a proper approach, one cannot be satisfied, reading the reasons as
    a whole, that the trial judge did not ultimately use the erroneous burden of
    proof to convict the appellant.

[15]

As
    the reasons disclose an error of law, the verdict must be set aside and a new
    trial ordered.

K. Feldman J.A.

C.W. Hourigan J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Mainville, 2015 ONCA 319

DATE: 20150507

DOCKET: M44947 (C60270)

Juriansz, Rouleau and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Mainville

Appellant

Jane Stewart, for the appellant

Leslie Paine, for the respondent

Heard and released orally: May 5, 2015

ENDORSEMENT

[1]

The applicant wishes to appeal the dismissal of his appeal of his
    sentence to the Summary Conviction Appeal Court. He was sentenced to 45 days in
    jail to be served intermittently after being convicted of operating a motor
    vehicle with a blood alcohol content of 192 mg of alcohol in 100 ml of blood.
    On the record before the sentencing judge it was his fourth conviction for a
    drinking and driving offence. He also applies for release pending appeal.

[2]

Pursuant to s. 839 of the
Criminal Code
, the applicant requires
    leave of this Court, or a judge of this Court, to appeal his sentence.

[3]

We do not agree with the applicant counsels reading of the reasons of
    both the sentencing judge and the Summary Conviction Appeal judge. On our
    reading, both judges did consider and apply s. 718.2 of the
Criminal Code
.
    We agree with them that there was no alternative to a jail sentence and a
    conditional sentence was manifestly not appropriate in the circumstances.

[4]

The applicants proposed appeal has not identified an arguable error of
    law alone in the Summary Conviction Appeal judges careful and comprehensive
    reasons. Further the proposed appeal has no significance to the general
    administration of justice and no apparent merit.

[5]

The application for leave is dismissed. His application for judicial
    release cannot proceed in the absence of leave.

[6]

This is a matter that could be dealt with by a single judge sitting in
    chambers.

R.G.
    Juriansz J.A.

Paul
    Rouleau J.A.

C.W.
    Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Mohamed, 2015 ONCA 335

DATE: 20150512

DOCKET: C56679

Watt, Pepall and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sheik Mohamed

Appellant

Stephen Whitzman, for the appellant

Mary-Ellen Hurman, for the respondent

Heard and released orally: April 30, 2015

On appeal from the decision of Justice Faye E. McWatt of
    the Superior Court of Justice, sitting as a Summary Conviction Appeal Court on
    February 15, 2013, dismissing the appeal from the conviction entered on June
    24, 2012 by Justice Bruno Cavion of the Ontario Court of Justice.

ENDORSEMENT

[1]

Sheik Mohamed was convicted of operation of a motor vehicle with a
    prohibited blood alcohol level after a trial before a judge of the Ontario
    Court of Justice. The Crown proceeded by summary conviction.

[2]

Mr. Mohamed appealed his conviction the Superior Court of Justice. A
    judge of that court dismissed his appeal and affirmed the conviction.

[3]

Mr. Mohamed now seeks leave to appeal to this court under s. 839(1)(a)
    of the
Criminal Code
. The application asserts essentially one ground
    of appeal. The ground is said to raise a question of law alone.

[4]

The applicant contests the correctness of the trial courts finding,
    affirmed on the summary conviction appeal, that the officers demand that the
    applicant provide a sample of breath into an alcohol screening device was made
    forthwith, as required by s. 254(2)(b) of the
Criminal Code
.

[5]

It is well settled that leave to appeal to this court under s. 839(1)(a)
    should be granted sparingly. Two key variables inform the leave decision, for
    which no bright line rule exists. Those variables are:

i.

the significance of the legal issue or issues raised to the general
    administration of criminal justice; and

ii.

the merits of the proposed ground or grounds of appeal.

See
R. v. R.(R.)
(2008), 234 C.C.C. (3d) 463,
    at para. 37.

[6]

Where the issues raised have significance to the administration of
    justice beyond the specific case in which they arise, leave may be granted,
    even if the merits of the appeal are not particularly strong. On the other
    hand, where the merits appear very strong, leave to appeal may be granted, even
    if the issues to be argued are of no general importance, especially where the
    convictions are serious and the applicant is facing a significant deprivation
    of his or her liberty:
R.(R.)
, at para. 37.

[7]

The proposed ground of appeal here is the subject of well-established
    principles of law. Those principles are not in need of restatement or
    reaffirmation. The controlling precedent is recent, and was advanced as
    applicable in the submissions of counsel below and noted in the reasons of the
    summary conviction appeal court judge. The application of the principles that
    ascribe meaning to the term forthwith in s. 254(2)(b), to the circumstances
    of any case, involve a fact-specific inquiry that, in all likelihood, does not
    raise a question of law alone. Even if it did, such a question does not rise to
    the level required by
R.(R.)
.

[8]

For these reasons, leave to appeal is refused.

David
    Watt J.A.

S.E.
    Pepall J.A.

M.L.
    Benotto J.A.