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    the complainant or a witness shall not be published in any document or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. Aird, 2013
    ONCA 447

DATE: 20130627

DOCKET: C54448

Laskin, LaForme and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Aaron Aird

Appellant

David M. Humphrey and Jill D. Makepeace, for the
    appellant

Gillian Roberts, for the respondent

Heard: January 10, 2013

On appeal from the conviction entered on June 22, 2011
    and the sentence imposed on October 20, 2011 by Justice James W. Sloan of the Superior
    Court of Justice, sitting without a jury.

Laskin J.A.:

A.

overview

[1]

Aaron Aird appeals his conviction on two counts of sexual exploitation
    of the complainant S.L. and his sentence of one year imprisonment.

[2]

The appellant and the complainant met in the fall of 2008.  He was 28
    and in his second year of teachers college.  She was nearly 17 and in grade
    12.  The complainants mother hired the appellant to tutor the complainant in
    math.  Tutoring sessions took place twice a week.

[3]

Eventually, the appellant and the complainant started a sexual
    relationship.  It began with sexual touching and progressed to oral sex and
    then sexual intercourse.  The appellant stopped tutoring the complainant in
    February 2009, but their sexual relationship continued until March 2010, when a
    close friend persuaded the complainant to go to the police.

[4]

There were two main issues at trial.  The first issue was whether the
    appellant and the complainant had a sexual relationship before the complainant
    turned 18.  The appellant testified that the sexual relationship began after
    tutoring ended and after the complainant turned 18.  The complainant testified
    that their sexual relationship began while the appellant tutored her and before
    she turned 18.  The trial judge rejected the appellants evidence and accepted
    the complainants evidence.

[5]

The second issue was whether the appellant was in a position of trust
    towards the complainant.  The trial judge found that he was.

[6]

On his conviction appeal, the appellant makes two submissions: the trial
    judge erred in finding that the appellant was in a position of trust towards
    the complainant because he equated the appellants position with that of a
    teacher; and the trial judge erred by scrutinizing the appellants evidence
    more strictly than that of the complainant.  On his sentence appeal, the
    appellant submits that the trial judge erred by drawing very little if any
    distinction between the appellants position and that of a teacher.

B.

background

(1)

The tutoring relationship

[7]

The complainants birthday is November 25, 1991.  As I said in the
    overview, in the fall of 2008, she was nearly 17 and was in grade 12.  She was
    a good student, getting marks in the 80s but wanted to do better, as she
    intended to apply to university.

[8]

In the fall of 2008, the appellant was placed as a student-teacher at an
    elementary school in Waterloo.  He was assigned to a grade 8 class, and one of
    his students was the complainants younger sister, J.L..  J.L. brought home a
    flyer about the appellant, which said that he had a university degree in
    mathematics.  The complainants mother, K.L., approached the appellant and
    asked him if he gave private lessons.  He said that he did, and they exchanged
    telephone numbers.

[9]

K.L. arranged for the appellant to meet the complainant twice weekly to
    help her with advanced functions.  She agreed to pay him $50 per week for the
    two sessions.

[10]

The
    complainant described the tutoring sessions.  They began either in late
    September or early October.  The first session was at Wilfred Laurier
    University; the other sessions were at a coffee pub, as it offered free
    internet access.  The sessions took place on Tuesdays and Thursdays at 6:00
    p.m. and were scheduled for an hour, though they sometimes went longer.  During
    the sessions, the complainant worked through her homework problems.

[11]

The
    complainant testified that the tutoring sessions were helpful and increased her
    confidence on tests.  She said that the appellant explained things well, was
    not intimidating, and tried to keep her ahead of the class.

[12]

The
    appellant and the complainant gave different evidence of when the tutoring
    sessions ended.  The appellant said that they ended in the first week of
    December 2008, as the complainant no longer needed his help.  The complainant
    said the sessions ended in February 2009.  She finished the course in advanced
    functions at the end of January.  She then began a course in data management,
    but it was easier and she did not need the appellants help with it.

(2)

The sexual relationship

[13]

The
    complainant and the appellant gave different accounts of when their sexual
    relationship began.  As I have said, the trial judge accepted the complainants
    account.

(i)

The complainants version

[14]

The
    complainant said that their sexual relationship began in late November or early
    December 2008.    On one occasion, while waiting in the appellants truck for her
    mother to pick her up, the appellant kissed her on the lips and she kissed him
    back.

[15]

The
    complainant testified that the first time they had oral sex was over the
    Christmas holidays of 2008.  After one of their tutoring sessions ended, they
    started kissing and the appellant wanted to go further.  They went to a
    parking lot where the appellant introduced oral sex, which she then performed
    on him.  Afterwards, he drove her to her car and she went home.  On another
    occasion over the holidays, the complainant saw the appellant at a Starbucks
    coffee shop.  They kissed and touched each other and then went for a drive.

[16]

Their
    sexual relationship continued in January 2009.  Early that month, the appellant
    invited the complainant over to his apartment.  While giving her a tour of his
    place, he pulled her onto his bed and they had oral sex.  The complainant
    testified that by late January 2009. they began to have sexual intercourse.
    Their sexual relations took place at the appellants apartment at times other
    than their tutoring sessions.  The complainant said that she agreed to have
    sexual intercourse with the appellant because she thought they were in a
    boyfriend/girlfriend relationship.  On Valentines Day 2009, she went to his
    apartment and gave him a bracelet with his name engraved on it.

[17]

Although
    the complainants tutoring sessions ended in February 2009, her sexual
    relationship with the appellant continued until March 2010.  She testified that
    their relationship did not consist of anything other than going to his
    apartment for sex.  She complained about this.  But he said that they could not
    do other things together because their relationship was wrong.

(ii)

The appellants version

[18]

In
    August 2009, the appellant was certified as teacher.  He obtained a long-term
    occasional contract position teaching math at a high school in Elmira.  He had
    a girlfriend but was on and off with her in the fall of 2009.  He would get in
    touch with the complainant during the off periods.

[19]

The
    complainant turned 18 in late November 2009.  The appellant testified that in
    December, he had a complete falling out with his girlfriend.  He said that he
    then began a sexual relationship with the complainant, which lasted until March
    2010, when she went to the police.

[20]

The
    appellant admitted that his sexual relationship with the complainant included
    sexual intercourse, oral sex, mutual masturbation, and kissing and that it all
    took place at his apartment.

(3)

Disclosure

[21]

The
    complainant reported her allegations to the police in March 2010.  She was
    upset that the appellant was not giving her definitive answers about his
    ex-girlfriend and particularly whether they had rekindled their relationship.
    She pestered him for answers, and he continued to ask for sex.  She testified
    that she decided to go to the police because she and the appellant were arguing
    a lot and because he began to make inappropriate sexual comments, including
    suggesting a threesome.

[22]

The
    complainant said that she had told a few close girl friends about her relationship
    with the appellant.  One of them initially went to the police.  Several days
    later, the complainant also went to the police.

C.

The conviction appeal

(1)

Did the trial judge err in finding that the appellant was in a position
    of trust towards the complainant?

(a)

Position of trust

[23]

Section
    153(1) of the
Criminal Code
, R.S.C. 1985, c. C-46, sets out the
    offence of sexual exploitation:

153. (1)
Every person commits
    an offence who is in a position of trust or authority towards a young person,

who is a person with whom the young person
    is in a relationship of dependency or who is in a relationship with a young
    person that is exploitative of the young person, and who

(a)
for a sexual purpose,
    touches, directly or indirectly, with a part of the body or with an object, any
    part of the body of the young person; or

(b)
for a sexual purpose,
    invites, counsels or incites a young person to touch, directly or indirectly,
    with a part of the body or with an object, the body of any person, including
    the body of the person who so invites, counsels or incites and the body of the
    young person.

Section 153(2) defines a young person
    as a person 16 years of age or more but under the age of eighteen years.

[24]

Section 153(1) thus bans any sexual contact between an adult and a
    young person within any of the four relationships enumerated in the section.
    That the young person consents, does not appear vulnerable, or does not subjectively
    view the relationship as one of trust, authority, or dependency or as
    exploitative is irrelevant.

[25]

In this case, to prove that the appellant was guilty of sexual
    exploitation, the Crown was required to establish four elements:

·

The appellant engaged in a form of sexual conduct
    prohibited by s. 153(1).

·

The complainant was at least 16 and under the age
    of 18 when the conduct occurred.

·

The appellant had the
mens rea
for each element of the offence.

·

The appellant stood in a position of trust towards
    the complainant when the sexual acts took place.

See
R. v. Audet
, [1996] 2 S.C.R. 171, at para. 16.

[26]

In this case, on the complainants evidence, the first three elements
    were easily established.  Thus, the central issue in the case was whether the
    appellant stood in a relationship of trust towards the complainant.

[27]

Parliament chose not to specify the relationships that would constitute
    relationships of trust under s. 153(1), likely for two reasons: because of the
    varied circumstances in which these relationships can arise; and because of the
    very fact specific nature of such an inquiry:  see
R. v. P.S.
,
[1993] O.J. No. 704 (Gen. Div.), at para. 31; affd
R.
    v. Sharma
, [1994] O.J. No. 3775 (C.A.).

[28]

The considerations that bear on whether a relationship comes within s.
    153 flow from the obvious purpose of this section:  to protect a young person
    who is vulnerable to an adult because of the imbalance in their relationship.
    With this purpose in mind, the courts have identified several considerations
    relevant to an assessment of whether a relationship of trust exists.  They
    include:

·

The age difference between the accused and the
    young person;

·

The evolution of their relationship;

·

The status of the accused in relation to the young
    person;

·

The degree of control, influence or persuasiveness
    exercised by the accused over the young person; and

·

The expectations of the parties affected, including
    the accused, the young person and the young persons parents.
[1]

See
R. v.
    Audet
;
R. v. C.D.
, [2000] O.J.
    No. 1667 (C.A.). See also
R. v. D.E.
, [2009] O.J.
    No. 1909 (S.C.).

[29]

No one consideration is determinative.  But each one may play a role.
    At bottom, trust, wrote La Forest J. for the majority in
Audet
, at para. 35, must be interpreted in accordance with its primary
    meaning: [c]onfidence in or reliance on some quality or attribute of a person
    or thing, or the truth of a statement.

(b)

Application to this case

[30]

In finding that the appellant stood in a position of trust towards the
    complainant, the trial judge applied the principles in
Audet
.  The crux of his finding is at pp. 35-36 of his reasons:

Aird was hired by K.L. to be S.L.s tutor because
    he was a student teacher and because he had a university degree in
    mathematics.  Certainly K.L. relied on Airds position in the teaching
    community and his integrity when she hired him to tutor her daughter.  Aird was
    a professional tutor in the sense that he had the credentials and was paid for
    his work.  The fact that Aird was a tutor was his introduction to S.L.  Airds
    university degree in mathematics, the fact that he was a student teacher and 28
    years of age gave Aird significant status in relation to S.L. who, in October,
    2008, was a 16-year-old high school student.

The nature of the tutor/student relationship
    between Aird and S.L. created an opportunity for Aird, 11 and ½ years S.L.s
    senior, to use his status and the persuasive and influencing factors he held in
    their relationship to effectively groom her into a sexual relationship.

[31]

That finding is a finding of fact.  It is, therefore, entitled to the
    usual appellate deference unless the appellant can show that it rests on an
    error of law or principle.  Mr. Humphrey submits that the trial judge erred in
    principle because he elevated the appellants status as a tutor to that of a
    teacher.  He points to several characteristics of the relationship between the
    appellant and the complainant that distinguishes it from a teacher/student
    relationship.  For example:

·

The complainant was not required to take tutoring
    sessions; she did so by choice.

·

The tutoring sessions were paid for privately; they
    were not part of a publicly-funded education system.

·

The appellant was employed by the complainant and
    her mother; his employment could be terminated at their discretion.

·

Tutoring sessions took place in a public coffee
    shop at selected times, not in a school as part of a formal academic program.

·

The appellant had no authority over the
    complainants grades.

·

The appellant had no ability to discipline the
    complainant.

[32]

I do not accept this submission for two reasons.  First, the trial
    judge did not equate the appellants status as a tutor with that of a teacher
    and therefore, presume a position of trust.  Rather, he took into account the
    appellants position at the school and his training as a teacher because they
    were key considerations in assessing whether the appellant stood in a position
    of trust.  The appellants position as a student teacher and his expertise in
    mathematics undoubtedly informed the complainants and, perhaps more importantly,
    K.L.s expectations about the relationship.

[33]

Second, although the relationship between the appellant and the complainant
    differed from the traditional teacher/student relationship in a school, that
    difference does not undermine the trial judges finding of a relationship of
    trust.  The vast majority of teachers stand not only in a position of trust
    towards their students, they also stand in a position of authority towards
    them.  Some of the distinguishing characteristics Mr. Humphrey relies on  for example,
    authority over grades and ability to discipline  reflect only a position of
    authority.

[34]

Positions of trust and authority are related concepts.  But they are
    different concepts and provide separate routes to the offence of sexual
    exploitation.  An accused not in a position of authority towards a young person
    may nonetheless be found to be in a position of trust.  Blair J. made this
    point in
P.S.
, at para. 37:

I take a position of trust to be somewhat
    different than a position of authority.  The latter invokes notions of power
    and the ability to hold in ones hands the future or destiny of the person who
    is the object of the exercise of the authority: see, R. v. Kyle (1991), 68
    C.C.C. (3d) 286 (Ont. C.A.).  A position of trust may, but need not
    necessarily, incorporate those characteristics.  It is founded on notions of
    safety and confidence and reliability that the special nature of the
    relationship will not be breached.

[35]

The Crown did not argue that the appellant was in a position of
    authority towards the complainant, only that he was in a position of trust.
    And, as Ms. Roberts noted in her factum, in some important ways, the
    complainant and her family trusted or relied on the appellant more than they
    would have were he her teacher at school.  In particular:

·

The complainants family allowed the appellant to
    meet alone with the complainant.

·

They did so although the appellant was not subject
    to any of the oversight, safeguards, or discipline that a teacher would be
    subjected to in a school.

·

They allowed the appellant to set his own rules
    (within the context of tutoring math) and decide when and where he conducted
    the tutoring sessions.

[36]

According to the trial judge, when the complainant met the appellant,
    she was naïve, easy to lead on, and had no sexual experience.  She, along
    with her mother, looked to the appellant for his help and guidance.  She was
    entitled to trust that he would not take advantage of his position and use it
    to start a sexual relationship with her.

[37]

I would not give effect to this ground of appeal.

(2)

Did the trial judge err by scrutinizing the
    appellants evidence more strictly than that of the complainant?

[38]

Mr. Humphrey submits that the trial judge erred by applying different
    standards in assessing the evidence of the appellant and the complainant.
    Specifically, he contends that the trial judge scrutinized the appellants
    evidence more strictly than that of the complainant.  His contention has two
    parts to it:  the trial judge was unforgiving in his criticism of the
    appellants evidence; and he was not critical at all of various aspects of the
    complainants evidence that warranted scrutiny.

[39]

The different standards of scrutiny argument is a difficult argument
    to succeed on in an appellate court.  It is difficult for two related reasons:
    credibility findings are the province of the trial judge and attract a very
    high degree of deference on appeal; and appellate courts invariably view this
    argument with skepticism, seeing it as a veiled invitation to reassess the
    trial judges credibility determinations.  Thus, as Doherty J.A. said in
R.
    v. J.H.

(2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para.
    59: [t]o succeed in this kind of argument, the appellant must point to
    something in the reasons of the trial judge or perhaps elsewhere in the record that
    make it clear that the trial judge had applied different standards in assessing
    the evidence of the appellant and the complainant.

(a)

The appellants evidence

[40]

To support his argument, the appellant points to the trial judges
    rejection of his explanation why he could not remember certain details, at p.
    33:

When Aird allegedly had difficulty remembering
    things, he tried to blame his memory problems on a motor vehicle accident which
    took place approximately 12 years ago.  I find this extremely unlikely since
    hes been able to obtain two university degrees since the motor vehicle
    accident.

[41]

When viewed in context, I do not think this example assists the
    appellants different standards of scrutiny argument.  In his evidence-in-chief,
    the appellant did not mention that his car accident 12 years earlier had
    affected his memory.  In cross-examination, the Crown questioned the
    appellants evidence that he scheduled twice weekly physiotherapy appointments
    to begin across town at the same time as his tutoring sessions with the
    complainant ended.  During this questioning, the Crown asked for the name of
    the appellants physiotherapist.  Although the appellant apparently had been
    going to the physiotherapy twice a week for 16 months, he claimed not to recall
    the names of his therapists.  The Crown asked: [d]o you have an issue with
    your memory?  The appellant answered: I dont know.

[42]

Later in his cross-examination, the Crown returned to the theme of the
    appellants poor memory.  The appellant claimed not to recall where he met the
    complainant for their first tutoring session.  The following exchange then took
    place:

Q.      Okay.
    Again, do you have any issues with your memory?

A.      I dont know

Q.      Have
    you ever seen a doctor about your memory?

A.      Sure.

Q.      Okay.  For what purpose?

A.      I
    was in a bad car accident over 12  well, not this year, no.  Its almost 12
    years ago

Q.      Okay.
    And so do you have issues with your memory?

A.      To
    an extent.  Thats why I write things down.  Thats why I make sure that I keep
    records of stuff.

[43]

This was the only evidence that the appellant had a memory problem.
    The trial judge was entitled to reject his attempt to blame his memory on a car
    accident many years earlier, when in the years following, the appellant
    obtained a university degree in mathematics, completed teachers college, and
    became a skilled tutor.  Indeed, the appellant had no difficulty directly
    contradicting specific aspects of the complainants evidence.

[44]

However, even if the trial judge ought not to have rejected the
    appellants explanation for his poor memory, this error did not taint the trial
    judges assessment of the appellants credibility.  The appellant did not
    testify that he had trouble remembering what happened in his relationship with
    the complainant.  Instead, he gave a different account, and much of that
    account made little sense.

[45]

It made little sense that the appellant would schedule tutoring
    sessions back to back with his physiotherapy appointments, with no allowance
    for travel time.  It made little sense that the appellant stopped tutoring the
    complainant in December 2008, as he claimed, when her examination did not take
    place until the end of January 2009.  And it made little sense that the
    complainant would give the appellant an engraved bracelet on Valentines Day
    if, as he claimed, he stopped tutoring her months earlier, he had virtually no
    contact with her since then, and he had not yet begun an intimate relationship
    with her.

[46]

The trial judge did not err in rejecting the appellants evidence about
    his relationship with the complainant and in concluding that it did not raise a
    reasonable doubt about his guilt.

(b)

The complainants evidence

[47]

The appellant points to the following aspects of the complainants
    evidence that he says called for scrutiny by the trial judge:

·

The complainants assertion at trial, for the first
    time, that she was uncomfortable with her relationship with the appellant
    because he was a tutor and she saw him as a professional.  The defence
    contended that the complainant tailored her evidence at trial to accord with
    the key issue in the case: whether the appellant was in a position of trust
    towards her.

·

The complainants admitted anger towards the
    appellant when she reported him to the police.

·

The inconsistency between the complainants
    evidence that tutoring ended in February 2009 and K.L.s evidence that she
    continued to give the complainant cash to pay the appellant for tutoring until
    March or April.

·

The inconsistency between the complainants initial
    statement that she was not shocked when the appellant kissed her and her
    evidence at trial that she was shocked.

[48]

The trial judge, however, addressed and scrutinized each of these
    aspects of the complainants evidence.  In particular:

·

The trial judge noted that before discussing the
    case with the Crown, the complainant did not complain about the tutor/student
    relationship.  But the trial judge also noted that the complainant saw the
    appellant as her sisters teacher and that he felt like a teacher to her.

·

The trial judge recognized that when the
    complainant spoke to the police she was angry with the way the appellant had
    treated her.  However, it was not the complainant, but her girlfriend, who
    initially went to the police.

·

During the Crowns submissions, the trial judge
    directly asked about the inconsistency between the complainants evidence and K.L.s
    evidence as to when tutoring ended.

·

The trial judge noted the inconsistency in the
    complainants evidence about whether she was shocked when the appellant kissed
    her.  However, the trial judge concluded that it made sense that a young
    17-year-old girl would think it was weird that a man, more than 11 years her
    senior and her tutor, would hold her hand after a tutoring session and on
    another occasion kiss her on the mouth.

[49]

It therefore seems to me that the appellants different standard of
    scrutiny argument cannot prevail.  The trial judge did scrutinize the
    complainants evidence appropriately.  He took into account the defence
    concerns about her testimony.  However, he found the complainants evidence to
    be candid and highly believable.  That was his call to make.

[50]

I would not give effect to this ground of appeal.  Accordingly, I would
    dismiss the appellants appeal against his conviction.

D.

The sentence appeal

[51]

At trial, the Crown asked that the appellant be sentenced to 12 to 18 months
    imprisonment.  The appellant asked for a sentence of between 45 days, which was
    the mandatory minimum at the time, and six months.  The trial judge imposed a
    sentence of one year imprisonment plus one year probation.

[52]

The appellant submits that his prison term ought to be reduced.  He
    contends that the trial judge overstated the gravity of his offence by
    effectively treating his tutoring relationship with the complainant as
    equivalent to a teacher/student relationship.  In support of his contention, he
    points to the following passage from the trial judges reasons on sentence:

The court draws very little if any distinction
    between the position of trust of a teacher and a tutor under the circumstances
    of this case.  As set out in the reasons for judgment, it was that position of
    trust that allowed Mr. Aird entre to the victim and gave him the continuing
    ability to groom her.

[53]

I do not agree with the appellants contention.  The trial judge knew
    that the appellant was not the complainants actual teacher.  And he did not
    sentence the appellant as if he were her teacher.  Later in his sentencing
    reasons, he noted that the cases the Crown relied on to support a sentence in
    the range of 15 to 18 months were all cases in which the accused was the
    victims teacher.  See for example,
R. v. Gaukrodger
(2006), 215 O.A.C. 74 (C.A.).  By sentencing the appellant to 12
    months, the trial judge rejected the range of sentence for teachers, who,
    unlike the appellant, stand in a position of authority as well as trust towards
    a young person.

[54]

In the passage the appellant relies on, the trial judge was merely
    expressing his opinion that under the circumstances of this case the
    seriousness of the appellants breach of trust was similar to the seriousness
    of a teachers breach of trust.  I agree with the trial judges assessment.  As
    I said earlier in these reasons, in some respects the complainant and her
    family placed more trust on the appellant than they would have placed on the
    complainants teacher.  That they did so elevates the seriousness of the
    appellants breach.  Therefore, the trial judge did not err in the way the
    appellant alleges that he did.

[55]

That leaves the issue whether the trial judge was justified in imposing
    a one year term of imprisonment.  The appellant can claim several mitigating
    considerations:

·

He had no previous criminal record;

·

He had a positive pre-sentence report;

·

He is not a danger to reoffend;

·

He has strong support from his family;

·

He worked long and hard to overcome the effects of
    his car accident and to obtain his teaching qualfication; and

·

He has suffered the collateral consequence of the
    loss of his licence to teach, at least for some time. See Allan Manson,
The
    Law of Sentencing
, (Toronto: Irwin Law, 2001) at pp. 136-7;
R.
    v. Pham,
2013 SCC 15.

[56]

However, balanced against these mitigating considerations are several
    aggravating considerations.  The appellants abuse of trust of a young person
    by itself is an aggravating consideration, though it is inherent in the offence
    of sexual exploitation. But even apart from that consideration, other
    considerations are aggravating in the present case.  They include:

·

The sexual activity took place over a considerable
    period of time: 15 months.

·

The sexual relationship included oral sex and
    ongoing sexual intercourse for at least a year.

·

The complainant was vulnerable because, although
    she was highly intelligent, she was also naïve, sheltered, and had no previous
    sexual experience.

·

In the light of the complainants vulnerability,
    the age difference between her and the appellant was significant: 11 years.

·

The complainant suffered because of this
    relationship.  She went from a very happy and trusting girl to a girl who
    lost her confidence and her trust in others.

·

The appellants breach of trust included the
    complainants mother, who hired him because of his skill and status and who
    placed her bright though naïve daughter under his guidance.

[57]

Despite the mitigating considerations, these highly aggravating
    considerations justify a one-year term of imprisonment.  The trial judge did
    not err in imposing it.  Accordingly, although I would grant leave to appeal
    sentence, I would dismiss the sentence appeal.

E.

conclusion

[58]

I would dismiss the appellants conviction and sentence appeal.

Released:

JUN 27 2013                                    John
    Laskin J.A.

JL                                                    I
    agree H.S. LaForme J.A.

I
    agree Alexandra Hoy J.A.

[1]
Several of these considerations are captured in s. 153(1.2) of the
Code
, which allows the trial judge to
    infer that a relationship is exploitative.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Clare, 2013 ONCA 377

DATE: 20130606

DOCKET: C49152

Weiler, Blair and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lloyd Edwin Clare

Appellant

Paul Burstein, for the appellant

Rosella Cornaviera, for the respondent

Heard: May 22, 2013

On appeal from the decision of the Summary Convictions
    Appeal Court dated July 11, 2008 by Justice Peter B. Hambly of the Superior
    Court of Justice, dismissing the appeal from the conviction entered on July 17,
    2007 by Justice Michael J. Epstein of the Ontario Court of Justice.

Strathy J.A.:

[1]

The appellant was convicted of dangerous operation of a motor vehicle
    contrary to s. 249(1)(a) of the
Criminal Code
. He was sentenced to a
    fine of $800. He appealed his conviction to the Summary Conviction Appeal Court.
    On July 11, 2008, Hambly J. dismissed his appeal.

[2]

The appellant seeks leave to appeal the decision of the Summary
    Conviction Appeal Court on the ground that he was denied an adjournment to
    either retain new counsel or to prepare his own submissions.

[3]

If leave is granted, he submits that the trial judge erred in finding
    that the Crown had proven dangerous operation of a farm tractor in the absence
    of any expert evidence to establish that the appellant could have appreciated
    and avoided the risk of his driving. He submits that the operation of a tractor
    is materially different from a motor vehicle and a lay trier of fact lacks the
    necessary knowledge and experience to resolve that question.

[4]

He also submits that the trial judge erred in inferring that that the
    appellants driving was dangerous from the consequences of his driving
i.e.
,
    an accident.

[5]

Having heard the appellants submissions on all issues, I acknowledge
    that the appellant, who was self-represented at the time, may have
    misunderstood the procedure that would be followed in the Summary Conviction
    Appeal Court and did not expect that the appeal would proceed on July 11, 2008.
    In the rather unusual circumstances of this case, therefore, I would grant
    leave to appeal. For the reasons that follow, however, I am not persuaded that
    the trial judge made any error and I would dismiss the appeal.

[6]

There was ample evidence identified by the trial judge that the vehicle
    was driven in a manner dangerous to the public, having regard to all the
    circumstances. These circumstances included:

·

the appellant was driving the tractor at 30-35 kilometers per
    hour along a rutted gravel and dirt road, causing the tractor to bounce along
    the road;

·

the appellant was driving in a deliberate manner, and appeared
    determined to return to his property, heedless of those who were in his path or
    were attempting to stop him;

·

without slowing, the appellant drove the tractor through a narrow
    opening between two trailers, one of which was moving, barely missing both;

·

the appellant drove toward Constable Diemert, ignored his motions
    and shouts to stop, and drove within a few of meters of his vehicle before
    making an evasive manoeuvre to avoid it;

·

he continued along the road at top speed toward Constable
    Lalonde, who feared for his own safety, to the extent that he nearly drew his
    own service revolver, before the appellant abruptly veered away at the last
    minute to avoid striking him;

·

he drove up onto the narrow berm, adjacent to and above Constable
    Keller in his cruiser, putting the officer in fear for his own safety, before
    the tractor did in fact roll off the berm; and

·

the evidence of several witnesses, including the officers, who testified
    that the appellants driving caused them to fear for their own safety.

[7]

While I accept that the accident itself cannot be used as proof that the
    driving was dangerous, the finding in this case was amply supported by other
    evidence.

[8]

The appellant submits, however, that the
mens rea

analysis
    requires a determination of whether the manner of driving was a marked
    departure from the standard of care. This, he says, requires an examination of
    two questions. First, whether a reasonable person would have foreseen the risks
    arising from the driving and taken steps to avoid them. Second, if so, whether
    the accuseds failure to foresee those risks and take measures to avoid them
    was a marked departure from the standard of care. The appellant submits that a
    lay person, lacking specialized knowledge of the operation of a tractor, is not
    able to appreciate the risks of operating a tractor in the circumstances or the
    measures a reasonable person would take to avoid them. This, he says, calls for
    expert evidence.

[9]

The trial judge found that the appellants driving was a marked
    departure from what would be expected from a prudent driver in similar
    circumstances. In making this finding, he identified a number of circumstances,
    including the appellants disregard of the officers who were attempting to stop
    him, driving toward the police vehicles in such a way as to require the
    officers to take evasive measures for the own safety, and leaving the road and
    mounting the berm in order to avoid the police. Based on this evidence, he
    inferred the requisite
mens rea
.

[10]

In
    my view, this was a case in which the risks of the accuseds driving and the
    means of avoiding them were plain and obvious and did not call for expert
    evidence. While there may be cases in which expert evidence is required to
    establish the standard of care in the operation of a tractor and whether the
    accuseds driving was a marked departure from that standard, this case is not
    one of them.

[11]

In
    the result, leave to appeal is granted, but the appeal is dismissed.

Released:

JUN -6 2013                                    G.R.
    Strathy J.A.

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

I
    agree R.A. Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Corbett, 2013 ONCA 431

DATE: 20130621

DOCKET: C56069

Rouleau, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert P. Corbett

Appellant

Vincenzo Rondinelli, for the appellant

Michael Medeiros, for the respondent

Heard and released orally: June 13, 2013

On appeal from the conviction entered by Justice David G.
    Carr of the Ontario Court of Justice on April 5, 2011.

ENDORSEMENT

[1]

The appellant appeals from his conviction for aggravated assault. He
    argues that the trial judge applied a different level of scrutiny to the Crown
    and defence evidence, and that the trial judge erred in drawing an adverse
    inference from the appellants exercise of his right to silence at the time of
    his arrest.

[2]

With respect to the first ground of appeal, the appellant submits that
    the trial judge provided no analysis or reasons as to why he accepted the
    complainants evidence, apart from the latters seemingly forthright demeanour.
    Given the complainants criminal record, his high level of intoxication that
    evening, and his acrimonious relationship with the appellant, the trial judge
    ought to have scrutinized the complainants evidence and his credibility in
    more detail. According to the appellant, this failure to scrutinize the
    complainants credibility stands in sharp contrast to the trial judges
    treatment of the appellants testimony.

[3]

We disagree. The alleged omissions relating to the complainants
    intoxication, acrimony towards the appellant, and criminal record had little or
    no importance in the circumstances of this case. First, the same alleged
    shortcomings applied equally to the appellant and the trial judge did not rely
    on them when assessing his credibility. Second, and more importantly, as the
    trial judge noted, the complainants evidence was straightforward, corresponded
    with the nature of the injuries the complainant suffered, and was supported by the
    testimony of the other witnesses whose evidence the trial judge accepted. By
    contrast, the appellants testimony defied common sense. For example, according
    to the appellants account of how he held his knife, one would have expected a
    puncture wound  but the complainants injury was a slash wound. This is
    clearly inconsistent with the accuseds testimony that he neither moved nor
    swung the knife.

[4]

The trial judges rejection of the appellants evidence was detailed and
    well-reasoned. There was simply no different level of scrutiny applied to the
    Crown and defence evidence.

[5]

The second ground of appeal is that the trial judge erred in drawing an
    adverse inference from the appellants exercise of his right to silence at the
    time of his arrest. We would not give effect to this submission.

[6]

In our view, the trial judge did not fault the appellant for failing to
    disclose his claim of self-defence upon arrest, as alleged by the appellant.
    Rather, the trial judge noted that upon arrest, the appellant chose to make a
    statement to police. His statement come on its a pocket knife made his trial
    testimony less likely to be true. The appellants trial testimony was that the complainant
    attacked him without provocation and that he accidentally injured the
    complainant with a knife whilst falling. Our reading of the relevant passage in
    the trial judges reasons does not support the claim that the trial judge used
    the appellants right to silence as a piece of evidence supportive of his
    guilt. Rather, the trial judge considered the inconsistency between the
    appellants statement to the police and his trial testimony as a factor, along
    with others, relevant to the appellants credibility and the reliability of the
    evidence he gave at trial.

[7]

This was a permissible use of the statement. Read in context, we do not therefore
    interpret the trial judges reference to what the appellant did not say upon
    arrest as indicating that the trial judge improperly drew an adverse inference
    from the appellants exercise of his right to silence.

[8]

As a result, the appeal is dismissed.

Paul Rouleau J.A.

David Watt J.A.

Gloria Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Cotterell, 2013 ONCA 446

DATE: 20130625

DOCKET: C55826

Doherty, Simmons and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Craig Cotterell

Appellant

Erin Dann, for the appellant

Marcella Henschel, for the respondent

Heard and released orally: May 24, 2013

On appeal from the decision of the Summary Convictions
    Appeal Court dated July 9, 2012 by Justice Anne Mullins of the Superior Court
    of Justice, dismissing the appeal from the conviction entered on January 18,
    2007 by Justice J.J. Keaney of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant applies for leave to appeal from
    the decision of a summary conviction appeal court judge dismissing his appeal
    from two not criminally responsible (NCR) verdicts.

[2]

In our view, leave to appeal must be granted and
    this appeal must be allowed.

[3]

The appellant pleaded guilty in the Ontario
    court to three offences: theft under; threatening to use a weapon during an
    assault and uttering a death threat.

[4]

Prior to the pleas being entered the Crown
    requested an assessment to determine whether the appellant was criminally
    responsible. The appellant opposed this request but it was granted nonetheless.

[5]

Despite the appellant's consistent opposition to
    NCR verdicts, and despite the presence of
amicus
, the hearing to determine whether the appellant was NCR proceeded
    virtually as if the issue was uncontested.

[6]

The hearing proceeded on the same day an
    assessment report opining that the appellant suffers from schizophrenia and could
    qualify for an NCR defence was received. Prior to the hearing, and after they
    had an opportunity of reviewing the assessment report, Crown counsel,
amicus
and the trial judge met in chambers.

[7]

The hearing then proceeded in what can only be
    described as a summary fashion.

[8]

The assessment report was admitted as an exhibit
    without comment on whether the author would testify.

[9]

After very brief submissions from counsel and
amicus
, the trial judge invited the appellant to make submissions.
    Although the trial judge told the appellant he was entitled to say anything he
    wished, in essence he directed the appellant to make sentencing submissions on
    the theft under charge.

[10]

The trial judge proceeded to sentencing
    immediately. He found the appellant guilty on the theft under charge based on
    the appellant's conduct in attempting to conceal his activities in the store,
    but entered verdicts of NCR on the assault charge and the uttering threats
    charge based on the assessment report. The charges forming the subject matter
    of the NCR verdicts were referred to the Ontario Review Board without further
    submissions.

[11]

On his appeal to the summary conviction appeal
    court, the appellant raised substantially the same issues he seeks to raise in
    this court: i) he was improperly excluded from the judicial pre-trial; ii)
    given his status as an unrepresented litigant, the trial judge failed in his
    duty to assist him; and iii) the verdicts were inconsistent and unreasonable.

The summary
    conviction appeal court judge rejected these grounds.

[12]

In all the
    circumstances, this is an appropriate case in which to grant leave to appeal.
    The procedural errors alleged, although specific to this case, are sufficiently
    meritorious having regard to the serious impact on the appellants liberty
    interest to justify granting leave.

[13]

In our view, having regard to the appellants
    consistent opposition to an NCR verdict, the trial judge failed to do enough to
    ensure that the unrepresented appellant understood his procedural rights at the
    hearing.

[14]

For example, the trial judge did not inform the
    appellant of his right to testify or to call other evidence, of his right to cross-examine
    the author of the assessment report or of his right to obtain another
    assessment report. The trial judge never raised the possibility of differing
    verdicts on the various charges and he never made clear to the appellant that
    he (the appellant) was entitled to make submissions on the NCR issue. In the
    light of the appellant's position on the NCR issue, it was essential that he
    understand these rights.

[15]

No evidence was adduced before us concerning
    what happened at the in-chambers conference that preceded the appellant's
    guilty pleas. In the absence of such evidence, we are reluctant to draw any
    inferences.

[16]

In our view, however, at a minimum, it was
    incumbent on the trial judge to confirm on the record that such a meeting had
    taken place. Moreover, in the light of the failure of
amicus
to make any statements on the record confirming the appellant's
    position concerning his procedural rights, it was incumbent on the trial judge
    to ensure that the appellant understood those rights.

[17]

We have no doubt that the participants in this
    hearing were motivated by a desire to do what they perceived was in the
    appellant's best interests, and in that regard, they may well have been
    correct. Nonetheless, in all the circumstances, in our view, the criminal
    responsibility hearing was so lacking in an appearance of fairness as to give
    rise to a miscarriage of justice.

[18]

We do not accept the appellant's argument that
    the NCR verdict was unreasonable. In the assessment report, Dr. Pallandi said:

However, his own account is radically
    divergent from that contained in official records where he was behaving in a
    bizarre fashion including using weapons in an unpredictable and clearly
    psychotic fashion.  As such, one would be very concerned about [the appellants]
    self-report as it relates to his mental state at the critical moments.

If one were to ascribe relatively more weight to
    the official or independent version of his mental state at the time of the
    commission of the offences, one would be certainly compelled to believe that he
    would have been unable to know the wrongfulness of his actions, or at least to
    have access to that requisite knowledge given the overall burden of his illness
    that he was experiencing.

In short, although [the appellant] tends to disagree,
    I am of the opinion that he would, in fact, qualify for a defence of Not
    Criminally Responsible on account of Mental Disorder concerning the present
    offences.

[19]

In our view, standing unchallenged, this opinion
    could provide a basis to ground the NCR verdicts.

[20]

The appeal is allowed, the Not Criminally
    Responsible verdicts are set aside and a new trial is ordered.

Doherty
    J.A.

Janet
    Simmons J.A.

G.R.
    Strathy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Curry, 2013 ONCA 420

DATE: 20130620

DOCKET: C55966 and C56663

Feldman, MacPherson and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tristan Curry

Appellant

Tristan Curry, in person

Brian Snell, duty counsel for the appellant on the
    conviction appeal (C55966)

Janani Shanmuganathan, counsel for the appellant on the
    sentence appeal (C56663)

Avene Derwa, for the respondent

Heard: June 10, 2013

On appeal from the conviction entered on May 29, 2012 and
    the sentence imposed on July 23, 2012 by Justice Michael Code of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

By the Court:

[1]

The appellant was convicted of possession of a loaded prohibited
    weapon.  He was sentenced to three years and six months imprisonment, less 20
    months credit for pre-sentence custody calculated at a ratio of 1:1.  He
    appeals from his conviction and sentence.

A.      Conviction Appeal

[2]

The appellant argues that the police conduct at the scene, in particular,
    the police decision to take the appellant to the ground and handcuff him as he
    was about to enter a taxi with his co-accused, constituted an arrest and that
    the ensuing police search of his person breached his ss. 8 and 9
Charter
rights.

[3]

We reject this argument for several reasons.

[4]

First, the trial judge rejected the suggestion that the appellant was
    prevented by police from entering the taxi.  The trial judge held:

I am satisfied, in all these circumstances, that Curry was only
    asked the same kinds of exploratory questions as [his co-accused] were asked
    and that he was delayed from entering the taxi for less than a minute, as
    permitted by
Suberu
and
Grant
and without engaging s. 9
    and s. 10
Charter
rights.  [Citations omitted.]

We agree.

[5]

Second, the trial judge found that when the police took the appellant to
    the ground, they were acting in the exercise of their common law duty to
    protect life.

[6]

Again, we agree.  The take down of the appellant occurred after a police
    officer observed a gun in the possession of one of the appellants co-accused
    and shouted a warning to the other police officers.  The officers attending to
    the appellant did not know who had the gun.  Their decision to take the
    appellant to the ground after they heard the word gun shouted out by a fellow
    officer was made in a volatile and rapidly evolving situation.  In the
    circumstances, this decision was both eminently reasonable and a lawful exercise
    of the officers common law detention power.

[7]

Third, the trial judge found that the subsequent handcuffing and search
    of the appellant were similarly carried out pursuant to the police common law
    power of investigative detention.  He stated, at para. 115:

In the case at bar, the handcuffing and the pat search for
    weapons of Curry [and his co-accused] lasted no more than a few seconds.  They
    remained on the street and were not taken anywhere and confined.  They were
    both compliant and their guns were immediately discovered.  This all fits with
    the very definition of a common law investigative detention pursuant to
Mann
.
    [Citations omitted.]

[8]

He went on to conclude, at para. 116: For all these reasons, I was
    satisfied that the police were, in reality, exercising common law powers of
    investigative detention and not statutory powers of arrest.

[9]

We see no error in this conclusion.  It follows, as found by the trial
    judge, that the impugned police action did not breach the appellants ss. 8 and
    9
Charter
rights.

[10]

Accordingly,
    the conviction appeal is dismissed.

B.      Sentence Appeal

[11]

The
    appellant appeals from sentence on two grounds.  He submits that the trial
    judge erred: (1) by denying him enhanced credit, at a ratio of 1.5:1, for time
    spent in pre-sentence custody; and (2) by failing to take account of the constitutional
    invalidity of the three-year mandatory minimum sentence provided for in s.
    95(2)(a) of the
Criminal Code
, R.S.C. 1985, c. C-46, as pronounced in
R.
    v. Smickle
,  [2012] O.J. No. 612 (S.C.).

(a)

Enhanced
    Credit for Pre-Sentence Custody

[12]

At
    trial, the appellant argued that he should receive credit for pre-sentence
    custody under s. 719(3.1) of the Code at the enhanced rate of 1.5:1 because his
    custodial conditions at the Don Jail were harsh and, further, he was ineligible
    for statutory remission and parole while in remand custody.

[13]

The
    trial judge considered, and rejected, this argument.  He held:

The accused must have known, with counsels advice, that
    their chances at trial on the Charter motion were speculative at best and that
    they had no defence whatsoever on the merits.

Although conditions at
    the Don Jail are harsh and I am sure that these three young men suffered during
    the 13 months they spent at the Don Jail, they effectively chose their own fate
    by instructing counsel to go to trial in a case where they had no realistic
    chance of success
.  This is one of the very few decisions in criminal
    litigation where the accused makes the call and counsel does not make the call
    for the accused and
they must bear responsibility for their decision to go
    to trial in a case where they had no realistic chance of success on a Charter
    motion and no defence on the merits.

I want to be very clear that I do
    not penalize them for exercising their right to argue a weak Charter motion
.
    That is their right and they are entitled to have the issue litigated in this
    court at a trial.
But exercising this right to go to trial in a weak,
    speculative Charter motion is not an appropriate circumstance that justifies
    enhanced credit under s. 719(3.1)
.  [Emphasis added.]

[14]

We
    accept that the trial judge did not seek to penalize the appellant for pursing
    his
Charter
rights.  Indeed, the trial judge said as much.  However,
    as we read his reasons, the trial judge rejected enhanced credit by focusing solely
    on what he regarded as the appellants ill-conceived
Charter
motion
    and meritless defence at trial.  With respect, this was an error.

[15]

The
    appellant was seeking enhanced credit on the basis of onerous remand
    conditions.  This is a well-established ground justifying enhanced credit for
    pre-sentence custody: see
R. v. Summers
, 2013 ONCA 147, 105 W.C.B.
    (2d) 789.

[16]

The
    trial judge accepted that the appellants remand conditions were harsh and that
    the appellant, like his co-accused, suffered from his detention conditions as a
    result.  The record amply supports this characterization of the appellants
    detention conditions at the Don Jail.

[17]

The
    fact that the appellant pursued
Charter
-based relief that was
    ultimately denied and that his defence at trial was weak does not change the
    nature and severity of his remand detention conditions.  Those conditions
    warranted consideration of enhanced credit for pre-sentence custody under s.
    719(3.1) of the Code.

[18]

The
    appellant was also ineligible for remission and parole during the period of his
    remand custody.  There was information before the trial judge indicating that
    during his remand detention, the appellant had voluntarily attended school,
    actively participated in class and completed assignments, and avoided visitors
    at the Don Jail in an effort to avoid conflict with other inmates.  Thus, there
    was at least some foundation on the record to grant the appellant enhanced
    credit on the basis of the absence of remission and parole eligibility: see
Summers
at paras. 117 and 118.  In his reasons for sentence, the trial judge himself
    noted that these factors would make the appellant eligible for remission and
    that he had real rehabilitative potential.

[19]

In
    our view, in combination, the appellants conditions of remand detention and
    his ineligibility for remission and parole while in remand custody justified
    credit for his pre-sentence custody at the enhanced rate of 1.5:1 under s. 719(3.1)
    of the Code.

(b)

Constitutionality of
    Mandatory Minimum Sentence,

Section 95(2)(a) of
    the
Criminal Code

[20]

We
    see no error in the trial judges consideration of the decision in
Smickle
regarding
    the three-year mandatory minimum sentence provided for under s. 95(2)(a)
    of the Code.

[21]

We
    agree with the Crowns submission that the constitutionality of s. 95 of the
    Code was irrelevant here.  The trial judge concluded that, in the circumstances
    of this case, a fit sentence for the appellant was in the three-year range,
    without regard to the newly legislated mandatory minimum sentence under s.
    95(2)(a).

[22]

Indeed,
    while the appellants counsel urged the trial judge to follow the Superior
    Court of Justice decision in
Smickle
, a decision appealed to this
    court and now under reserve, he nonetheless argued for a sentence in the range
    of two and one-half to three years imprisonment.  Thus, on the appellants own
    submissions at trial, a penitentiary sentence was fit.

[23]

In
    these circumstances, the constitutional question raised in
Smickle
was
    simply irrelevant.

(c)

Conclusion

[24]

We
    conclude that the sentence of three years and six months imprisonment imposed
    by the trial judge was fit.   The appellant was in possession of a loaded,
    prohibited firearm in a public place.  In these circumstances, an exemplary
    sentence was appropriate: see
R. v. Danvers
(2005), 199 C.C.C. (3d) 490
    (Ont. C.A.).

[25]

However,
    the trial judges approach to the calculation of credit for pre-sentence
    custody was flawed.  Accordingly, the credit afforded to the appellant for
    pre-sentence custody should be calculated at the rate of 1.5:1.

C.      Disposition

[26]

For
    the reasons given, the conviction appeal is dismissed.  The sentence appeal is
    allowed to the extent of affording the appellant credit for pre-sentence custody
    at the enhanced rate of 1.5:1.  In all other respects, the sentence imposed
    remains intact.  This results in a sentence of three years and six months
    imprisonment, less credit of 30 months imprisonment for pre-sentence custody.

Released:

JUN 20 2013                                    K.
    Feldman J.A.

KF                                                   J.C.
    MacPherson J.A.

E.A.
    Cronk J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dwyer, 2013 ONCA 368

DATE: 20130604

DOCKET: C56407

Doherty, Simmons and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Lee Dwyer

Appellant

P. Andras Schreck and Dean F. Embry for the appellant

Suhail Akhtar for the respondent

Heard and released orally: May 23, 2013

On
    appeal from the judgment of Justice Bryan J. Shaughnessy of the Superior Court
    of Justice, dated November 21, 2012, dismissing a certiorari application
    requesting that the committal order of Justice S. MacLean of the Ontario Court
    of Justice, dated May 10, 2012 in relation to the charge of second degree
    murder be set aside.

ENDORSEMENT

[1]

The appellant was committed to stand trial on the charge of second
    degree murder, robbery and aggravated assault by McLean J. The appellant had
    conceded committal on the robbery and aggravated assault charges but argued
    that he should be committed for manslaughter rather than second degree murder.

[2]

His application for an order of
certiorari
quashing the
    committal for second degree murder was dismissed by Shaughnessy J. The
    appellant appeals that ruling and argues there was no evidence led at the
    preliminary hearing upon which a reasonable jury properly instructed could find
    that the appellant had the required
mens

rea
in relation to a
    count of murder.

[3]

In the appellants submission the preliminary inquiry judge and the reviewing
    justice did not appreciate the distinction between a possibility and some level
    of probability. As a result, the preliminary inquiry judge drew inferences that
    were unreasonable and amounted to mere speculation. We disagree.

[4]

Reasonable inferences are not necessarily likely or probable inferences.
    The inference that is most favourable to the Crown must be drawn at the
    preliminary inquiry stage. Difficult inferences to draw may still nonetheless be
    reasonable.

[5]

In justifying committal under s. 21(1) and s. 21(2), the preliminary
    inquiry judge and the reviewing justice carried out a detailed review of the
    evidence and the law. In our view, it is unnecessary to carry out a third
    review, as we see no error in their conclusion that the inferences necessary to
    warrant committal were reasonably available given the nature and quality of the
    appellants acts, the acts of his accomplices and the planning and execution of
    the robbery.

[6]

The appeal is dismissed.

D. Doherty J.A.

J.M.
    Simmons J.A.

Paul
    Rouleau J.A.