WARNING

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

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of
the Criminal Code
provide:

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    that could identify the victim or a witness shall not be published in any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

(a)      any of the following offences;

(i)       an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

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

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

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of the
    victim or the prosecutor, make the order.

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

(4)      An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.R., 2017 ONCA 985

DATE: 20171215

DOCKET: C62619

Simmons, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M. R.

Appellant

Mark Halfyard, for the appellant

Andrew Hotke, for the respondent

Heard: December 12, 2017

On appeal from the judgment of Justice Brian P. OMarra of
    the Superior Court of Justice, dated June 29, 2016, dismissing the appeal from sentence
    entered on December 4, 2014, by Justice Marvin Zuker of the Ontario Court of
    Justice.

APPEAL BOOK ENDORSEMENT

[1]

In our view, leave to appeal should be granted and the appeal allowed.
    Like
R. v. McDonald
, [2013] O.J. No. 6336 (C.A.), this was not a case
    where the summary conviction appeal court judge should have approached the
    sentence appeal based on deference.  The conviction appeal was allowed in
    relation to two charges of assault against the appellants child, which were
    the sole focus of the sentencing submissions and the sentencing judges reasons
    in the trial court.  The sentencing judge gave no reasons in relation to the
    assault police charge for the purpose of resisting arrest.  He simply imposed
    the same global concurrent sentence he had imposed in relation to the other two
    offences.  Deference was not owed in these circumstances.  The summary
    conviction appeal court judge erred in principle in approaching sentencing on
    the basis that it was.

[2]

We accept the appellants submission that a conditional discharge is not
    contrary to the public interest and is in the appellants interest.  The
    circumstances of the appellants arrest were humiliating and the appellant
    suffered some injuries and served a couple of days in custody.  She has now
    served her entire probationary period without incident.  The police officers
    suffered no injuries and filed no victim impact statement.  We are satisfied
    that a conditional discharge with a three year probationary period had a
    sufficient denunciatory and deterrent effect in the circumstances.

[3]

As for the appellants
[1]
interest, the appellant is a 40 plus year old first offender.  Her employment
    goals are such that a conditional discharge is in her interest.

[4]

The appeal is allowed.  The suspended sentence is set aside, a
    conditional discharge substituted on the same terms as the suspended sentence,
    the probationary period
[2]
of which, as we have said, has now been served in full.

[1]

Amendment made December 14, 2017.

[2]

Amendment made December 14, 2017.


WARNING

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

An order restricting publication in this proceeding
    under ss. 486(1), (1.1), (2), or (3) of the
Criminal Code
shall
    continue.  These sections of the
Criminal Code
provide:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marshall, 2017 ONCA 1013

DATE: 20171221

DOCKET: C61358

Juriansz, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brandon Marshall

Appellant

Alison Craig, for the appellant

Deborah Krick, for the respondent

Heard: June 1, 2017

On appeal from the conviction entered on April 29, 2015 and
    the sentence imposed on August 11, 2015 by Justice Brian W. Abrams of the
    Superior Court of Justice, sitting with a jury.

Pepall J.A.:

Introduction

[1]

The appellant was convicted of sexual assault, sexual assault causing
    bodily harm, and forcible confinement in a trial before a judge and jury.  He
    received a sentence of seven years imprisonment.

[2]

He appeals from the convictions for sexual
    assault and sexual assault causing bodily harm.  He has abandoned his sentence
    appeal.

[3]

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

Background Facts

[4]

In November 2012, the complainant, age 19,
    moved into the appellants apartment in Brockville.  Their relationship became
    sexual and the complainant testified that she found herself falling in love
    with the appellant.  Things changed in December 2012 when he began to use
    marijuana and cocaine heavily.  He started behaving strangely, talking daily to
    himself, and accusing the complainant of being crazy and twisted.  He
    controlled the complainants contact with family members and set up his
    computer to monitor her text messages and phone calls.

[5]

On January 15, 2013, the complainant was in the
    bathroom doing her makeup and hair when the appellant entered and said: Suck
    my dick bitch.  His pants were down and he would not let the complainant leave
    the bathroom.  He only allowed her to leave after she did fellatio on him for
    about 40 minutes.  At trial, this was referred to as the bathroom incident.

[6]

The complainant decided to move out.  On the
    evening of January 17, 2013, she was packing her belongings in the living
    room.  The appellant came up behind her.  His pants were down and he forced his
    penis into her anus, which was dry.  The complainant was in a lot of pain and
    cried for him to stop, but he continued and also filmed the interaction on his
    smartphone.  He then brought her into the bedroom and continued to have anal
    intercourse.  I will refer to this incident as the anal penetration incident.

[7]

When the appellant stopped anal intercourse, the
    complainant ran from the apartment.  She went to her sisters house, but no one
    was home.  She next went to the house of a friends mother.  The complainant
    was distraught, in pain, and bleeding from the anus.  She had to use a sanitary
    napkin to control the bleeding.  She told her friends mother that the
    appellant had raped her.

[8]

The complainants mother picked her up and took
    her to the hospital.  The sexual assault nurse observed a one centimeter tear
    to the complainants anus.  The injury continued to bleed for two to three
    weeks after the incident.  The complainant also had bruises and bite marks on
    her neck, which were photographed.  The complainant did not initially make any
    report to the police because she said she was afraid of the appellant.

[9]

The complainant moved out west to Alberta to live
    with her father.  She made a report to the RCMP in Alberta in March 2013.  She
    moved back to Brockville in early May, but did not contact the local police.
    In June 2013, the Brockville police spoke with her and she gave them a
    statement.  On October 29, 2013, the police arrested the appellant and charged
    him with the offences for which he was convicted.

[10]

At trial, the defence took the position that the
    incidents never occurred and that the complainant was lying.  The appellant did
    not testify.  The jury convicted the appellant of
one count of each of
    the following offences: sexual assault; sexual assault causing bodily harm; and
    forcible confinement.  The jury acquitted the appellant of two additional
    counts of assault and assault with a weapon.  These counts were unrelated to
    the counts of which the appellant was convicted.

Grounds of Appeal

[11]

The appellant raises three grounds of appeal.

(i)

Timing of Complaints

[12]

First, he submits that the trial judge erred in
    the instructions given to the jury on the timing of complaints in sexual
    assault cases.

[13]

It took the complainant nearly two months to
    report the offences to the police.  In his closing address to the jury, defence
    counsel told the jury that there is no huge significance to when you go to the
    police.  But he also asked the jury to consider the complainants delay in
    reporting as one of several factors that ought to adversely affect the
    complainants credibility and raise a doubt about the appellants guilt.

[14]

At the pre-charge conference both counsel agreed
    to the judges suggestion that he would be charging the jury in accordance with
R. v. D.(D.)
,
2000 SCC 43, [2000] 2 S.C.R. 275.  Defence counsel subsequently
    reviewed the proposed instruction without objection.

[15]

Consistent with the language proposed at the
    pre-charge conference, in his charge to the jury, the trial judge stated:

The timing of disclosure of sexual assault
    signifies nothing.  Rather, the timing of disclosure depends upon the
    circumstances of the particular victim.  There is no inviolable rule on how
    people who are the victims of trauma, like sexual assault, will behave.

[A]gain, there is no inviolable rule on how
    people who are victims of trauma, like sexual assault, will behave.  Any rules
    once believed to be sound are based on what we now understand to be stereotypes
    and myths.

In assessing the credibility of a complainant,
    the timing of the complaint is simply one circumstance in the factual mosaic of
    a particular case.  A delay in disclosure or the fact that a complainant
    remains in an abusive relationship, standing alone, will never give rise to an
    adverse inference against the credibility of the complainant.

[16]

The appellant submits that the trial judges
    instruction that the timing of disclosure signifies nothing was in error as
    timing is a fact that may be considered when assessing a complainants
    credibility.  Moreover, the appellant submits that the trial judge compounded
    the error in instructing the jury to disregard defence counsels comments in
    his closing on why it took the complainant so long to report.  He instructed
    the jury:

With reference to specific examples, Mr.
    Barnes asked you to question why [the complainant] did not call the police
    following the bathroom incident.  Why did she leave town and move to Alberta
    without contacting the local authorities?  Further, if a guy starts acting
    badly, why not just leave?

Firstly, as I instructed you earlier, you must
    not speculate about what evidence there might have been or permit yourselves to
    guess or make up theories without evidence to support them.

[17]

The appellant submits that this instruction effectively
    told the jury that they were precluded from questioning the complainants
    evidence as counsel had suggested.

[18]

I would not give effect to either element of
    this ground of appeal.

[19]

The instruction given by the trial judge
    duplicated the language in
R. v. D.(D.)
and,
    while not dispositive, mirrored the language in the draft instruction shared
    with counsel and to which no objection was taken.  In addition, the trial judge
    instructed the jury that in assessing the credibility of a complainant, the
    timing of the complaint is a circumstance in the factual mosaic of a particular
    case.  He also noted that there is no inviolable rule on how victims of sexual
    assault will behave.  There was no error in this regard.

[20]

Nor was there any error with the trial judges
    instruction to the jury on defence counsels jury charge questions.  The trial
    judge instructed the jury to avoid speculating about what evidence there might
    have been, or to guess or make up theories without evidence in support.  This
    was necessary because of defence counsels closing address, which urged the
    jury to question why the complainant did not provide a report to the police
    sooner than she did.

[21]

Although it was open to the defence to raise the
    delay, the trial judges instruction ensured that the evidence did not resort
    to speculation or impermissible stereotypical reasoning.  The appellants defence
    did not allege a specific motive to fabricate.  His defence was that the
    complainant was lying and these events did not occur.  Again, the language the
    trial judge used was similar to that in
R. v. D.(D.)
and served to avoid the trap of stereotypical thinking identified
    by the Supreme Court in that case.  Again, although not dispositive, no
    objection was taken by defence counsel.

(ii)

Review of Evidence in Support of Counts

[22]

Second, the appellant submits that the trial
    judge erred in reviewing with the jury evidence relating to two separate
    factual scenarios

the bathroom
    incident and the anal penetration incident

on both the sexual assault and the sexual assault causing bodily
    harm counts.  This allowed for the possibility that the appellant was convicted
    of both counts even though the jury might only accept that one of the scenarios
    occurred.

[23]

The appellant faced one count of sexual assault
    between January 1 and January 17, 2013 (count two), and another of sexual
    assault causing bodily harm on January 17, 2013 (count four).  The counts arose
    from separate alleged assaults: count two related to the bathroom incident of
    January 15, 2013; and count four related to the anal penetration incident of
    January 17, 2013.  The unlawful confinement count related to the bathroom
    incident.

[24]

The appellant argues that the trial judges
    charge improperly permitted the jury to convict the appellant of both counts if
    satisfied that either incident took place.  He complains that the trial judge
    did not instruct the jury that, if they only found one of the two incidents to
    have occurred, they could not convict on both counts.  Put differently, the
    trial judge allowed for the possibility that the appellant be convicted of both
    offences arising out of the same incident, when each arose out of discrete
    incidents.

[25]

The Crown responds that its opening and closing
    submissions were clear.  The jury was told from the outset that the appellant
    was charged with two very distinct allegations of sexual assault.  In its
    closing, the Crown used graphic slides depicting the separate counts and the
    separate incidents, describing count two as the bathroom incident sexual
    assault, accompanied with a list of details, and count four as the rape of
    the complainant  sexual assault causing bodily harm, accompanied with the
    factual details relating to that count.

[26]

The Crown also argues that count four, sexual
    assault causing bodily harm, had no lesser included offence of sexual assault
    and that this ensured that the jury would only convict the appellant of counts
    two and four if they concluded both sexual incidents occurred.  The essential
    element of bodily harm could only apply to count four.  Sexual assault was not
    left as a lesser included offence so the jury would have known that the
    bathroom incident could not be a basis to convict on count four.

[27]

In
    reviewing the adequacy of the trial judges instructions on this issue, the
    focus is on functionality and fairness; it is not a search for perfection: see
R.
    v. Jacquard
, [1997] 1 S.C.R. 314, at paras. 2 and 62.  Just as a jury
    charge must be evaluated in its entirety, and not in a piecemeal fashion, the
    charge as a whole must be considered in light of how the trial was conducted,
    including the addresses of counsel.  This point was made in
R. v. Daley
,
    2007 SCC 53, [2007] 3 S.C.R. 523, in which Bastarache J. said, at para. 58:

Finally, it should be recalled that the charge to the jury
    takes place not in isolation, but in the context of the trial as a whole.
Appellate
    review of the trial judge's charge will encompass the addresses of counsel as
    they may fill gaps left in the charge
Furthermore, it is expected of
    counsel that they will assist the trial judge and identify what in their
    opinion is problematic with the judge's instructions to the jury. While not
    decisive, failure of counsel to object is a factor in appellate review. The
    failure to register a complaint about the aspect of the charge that later
    becomes the ground for the appeal may be indicative of the seriousness of the
    alleged violation. [Emphasis added. References omitted.]

[28]

There
    are limits on the extent to which the addresses of counsel may be relied upon
    in this context.  Sometimes, such reliance is inappropriate: see
R. v.
    Prokofiew
, 2012 SCC 49, [2012] 2 S.C.R. 639, at paras. 86-88; and
R. v.
    Rodgerson
, 2015 SCC 38, [2015] 2 S.C.R. 760, at paras. 35-37.  Again, the
    test is whether, overall, the charge was fair and met the functional
    requirements set out in the
Jacquard
and
Daley
line of cases.  At
    para. 127 of
R. v. Flores
, 2011 ONCA 155, 274 O.A.C. 314, Watt J.A.
    said:

Jury charges do not take place in isolation, rather [they] are
    an integral part of the trial as a whole. They follow the addresses of counsel
    where, as here, each marshalls [
sic
] the salient features of the
    evidence in support of the position she or he advances.
The test, one of
    fairness, was met here
. [Emphasis added.]

See also:
R. v. Stubbs
, 2013 ONCA 514, 309
    O.A.C. 114, at paras. 137-138;
R. v. Saleh
, 2013 ONCA 742, 314 O.A.C.
    60, at para. 143;
R. v. Salah
, 2015 ONCA 23, 328 O.A.C. 333, at para.
    112; and
R. v. Speers
, 2017 ONCA 333, 347 C.C.C. (3d) 401, at paras.
    27-30.

[29]

In
    this case, the trial judges instructions fell short of the perfection
    standard.  Indeed, standing alone, I would consider them to be inadequate on
    this issue.  However, in the light of the trial as a whole, it cannot be said
    that the charge was unfair, or that the jury was misled in the manner suggested
    by the appellant.

[30]

The
    trial judge should have kept the evidence in relation to the bathroom incident
    and the anal penetration incident separate.  That is, the trial judge should
    not have referred to the evidence bearing on the anal penetration incident
    while reviewing the elements of sexual assault relating to the bathroom
    incident (count two).  Similarly, he should not have referred to evidence of
    the bathroom incident while reviewing the elements of sexual assault causing
    bodily harm relating to the anal penetration incident (count four).  Crown
    counsel at trial recognized the potential for confusion that this presented and
    brought it to the trial judges attention at the morning break, immediately
    after he had finished his instructions on count two.

[31]

Ideally,
    the trial judge would have acceded to Crown counsels concern and clarified
    things for the jury.  However, his failure to do so was not fatal.  I reach
    this conclusion for the following four reasons.

[32]

First,
    it would not have been lost on the jury that the trial centred on two separate
    incidents of sexual assault  one involving forced oral penetration, and the
    other involving a particularly brutal anal rape with demonstrable and
    disturbing physical consequences for the victim.  The two incidents were
    completely different and were alleged to have occurred on different days.

[33]

Second,
    and as noted above, the Crowns opening and closing addresses to the jury made
    it clear that there were two separate sexual assaults alleged  the bathroom
    incident and the incident of anal penetration.  Crown counsel at trial utilized
    demonstrative aids (
i.e.
slides) to illustrate the two incidents and
    summarized the different evidence that applied to each.

[34]

Third,
    at trial, defence counsel made no objection on this issue when reviewing the draft
    charge or even after the Crown flagged the issue for the trial judge.  While
    the failure to object is not determinative, it does reflect the fact that, from
    the perspective of the defence, the jury was adequately instructed:
Daley
,
    at para. 58.  It is clear that defence counsel was not concerned about the
    potential for confusion now raised on appeal.

[35]

Fourth,
    as is typically the case, the jury was invited to submit questions to the trial
    judge if it required clarification on any matter.  The jury did ask a question
    concerning access to prior statements used to cross-examine two Crown
    witnesses, but it sought no further direction on this aspect of the charge.

[36]

In
    reality, the trial, while very serious, was quite straightforward, involving
    two separate incidents of sexual assault.  In the absence of any defence
    evidence, the jurys equally serious but straightforward task was to determine
    whether either or both incidents were proved beyond a reasonable doubt.  By the
    end of the trial judges instructions, the jury was properly equipped to make
    these determinations.  When considered in the light of the trial as a whole,
    with particular emphasis on the addresses of counsel, the jury was adequately
    instructed on the requirements for separate verdicts on the two incidents and
    the evidence that pertained to each of them.

[37]

I would dismiss this ground of appeal.

(iii)

Balanced Jury Charge

[38]

Third, quite apart from the foregoing, the
    appellant submits that the charge was unfair, unbalanced, and failed to address
    the inconsistencies in the evidence of the complainant.

[39]

I disagree.

[40]

The defence did not call any evidence and
    therefore the trial judges review of the evidence necessarily consisted of
    that called by the Crown.  Furthermore, the defence closing address, which
    detailed all the alleged inconsistencies in the complainants evidence, took
    place the day before the trial judges charge to the jury.  Although the trial
    judge did not engage in a full scale repetition of the alleged inconsistencies,
    he advised the jury of the defence position.  Read as a whole, there was no
    unfairness in the charge.  Presumably the defence was of the same view as
    counsel advised that he had no concerns about the review of the evidence or the
    description of the defence position contained in the trial judges charge.

Disposition

[41]

For these reasons, I would dismiss the appeal.

Released:

SEP                                                 S.E.
    Pepall J.A.

DEC 21 2017                                   I
    agree R.G. Juriansz J.A.

I
    agree G.T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mayrhofer-Lima, 2017 ONCA 949

DATE: 20171206

DOCKET: C63293

Epstein, Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Marti Mayrhofer-Lima

Respondent

Davin Michael Garg, for the appellant

Philip B. Norton, for the respondent

Heard: December 1, 2017

On appeal from the order of Justice Kelly P. Wright of the
    Superior Court of Justice, dated January 4, 2017, allowing an appeal from the
    conviction entered on June 7, 2016 by Justice William R. Wolski of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant seeks
    leave to appeal a decision of the Summary Conviction Appeal Court (SCAC).  The
    SCAC judge set aside the respondents conviction for impaired operation of a
    motor vehicle and ordered a new trial.

[2]

After hearing from counsel for the
    appellant, we denied leave to appeal.  We said our reasons would follow and we
    now provide those reasons.

[3]

The respondent crashed
    his car into a fire hydrant. An ambulance and fire crew arrived at the scene,
    followed by a police officer.  The officer attended at the ambulance to speak
    with the respondent, who promptly informed the officer that he had crashed the
    car.  The officer replied that an investigation was underway and advised the
    respondent that he did not have to say anything to the police.  The respondent
    nevertheless admitted to the officer that he had been drinking at a bar with
    friends and had blacked out while driving (the Ambulance Statement).

[4]

The respondent was
    placed under arrest, informed of his right to counsel, and transported to a
    police station.  While en route to the station, the respondent reiterated the
    Ambulance Statement to the police.  Upon arriving at the station, the
    respondent provided breath samples for an intoxilyzer reading.

[5]

The respondent was
    charged with impaired operation of a motor vehicle and driving over 80.  He
    brought applications under s. 7, s. 8, s. 9, s. 10(a) and s. 10(b) of the
Charter

to exclude from evidence the intoxilyzer
    results and his statements to the police.  The Crown conceded that the
    respondents s. 8, s. 9 and s. 10(b) rights had been breached, but opposed
    exclusion of the evidence under s. 24(2).  The trial judge rejected the Crowns
    concession that these
Charter

rights
    had been breached and found that no
Charter

breaches
    had occurred.  The trial judge therefore convicted the respondent of impaired
    operation of a motor vehicle.

[6]

The SCAC judge allowed
    the respondents appeal and ordered a new trial. She held that the Ambulance
    Statement had been obtained in breach of the respondents s. 10(a) rights.  The
    respondent, in her view, had not been properly informed that he was subject to
    a criminal investigation as opposed to an ordinary traffic investigation.  Second,
    the SCAC judge found that the trial judge had not provided the respondent a
    proper opportunity to make submissions on this courts decision in
R. v. Bush
, 2010 ONCA 554, 101 O.R. (3d) 641.

[7]

In support of the leave
    application the appellant submits the SCAC judge erred in finding a s. 10(a)
    breach.  In the appellants view, the respondents s. 10(a) rights were not
    engaged because he had not been detained in the ambulance.  The appellant also
    argues the SCAC judge erred in finding that the respondent was deprived of the
    opportunity to make submissions on
Bush

at
    trial.

[8]

This courts decision in
R. v. R. (R.)
(2008), 90 O.R. (3d) 641 sets out the principles that govern whether
    leave to appeal will be granted under s. 839(1)(a) of the
Code
.  A
    second appeal in summary conviction proceedings is the exception, not the rule:
R. (R.)
, at para. 24.  Appeals under s. 839(1)(a) are
    restricted to questions of law alone:
R.
    (R.)
, at para. 24.  The principal
    factors that influence the decision about whether leave to appeal should be
    granted are the significance of the proposed question of law beyond the
    circumstances of the case to the administration of justice in the province and
    the strength of the appeal.
R. (R.)
, at para. 30.  Leave to appeal may be granted where
    the merits of the proposed ground of appeal are arguable, even if not strong,
    provided the proposed question of law has significance to the administration of
    justice beyond the facts of the case under appeal.  Leave to appeal may also be
    granted where the decision of the appeal judge reflects a clear error, even
    if the error lacks general significance to the administration of justice:
R. (R.)
, at
    paras. 32 and 37.  Appeals under s. 839(1)(a) are appeals from the decision of
    the appeal judge, not a second appeal from the decision of the trial judge:
R. (R.)
,
at para. 24.

[9]

In our view, neither
    branch of the
R. v. (R.)
test has been met.

[10]

This appeal does not
    raise an issue of significance to the general administration of criminal
    justice.  We do not share the appellants concern that the SCAC judges
    decision improperly lowers the standard to trigger a detention.  The SCAC
    judge, in fact, made no effort to explain why the respondent was detained,
    undoubtedly because the issue was not contested before her by the appellant,
    and was expressly conceded by the appellant at trial.  In the circumstances, we
    are of the view that the SCAC judges decision does not introduce any meaningful
    change to the legal principles governing investigative detention or raise any
    other issue of general importance.

[11]

Nor has a clear error
    been demonstrated. Detention was not contested before the SCAC judge. If the
    respondent was detained, it is not clear that the respondent was advised
    adequately of the reason for his arrest. When the trial record is examined, the
    claim that the SCAC judge was clearly wrong in finding that the respondent was
    not given an adequate opportunity at trial to respond to the reasonable and
    probable grounds issue is not made out, either.

[12]

Since the result of the SCAC
    judges determination is that there must be a new trial, the issue of whether
    there was a breach of any of the respondents
Charter
rights will fall
    to be determined afresh on the evidence and submissions that are then made. Nothing
    in this decision is to be taken as predetermining any of those issues.

[13]

The appellant submits
    that even if the respondents s. 10(a) rights were breached, the curative
    proviso should be employed to uphold his conviction. We disagree. The
    unchallenged evidence at trial was not so overwhelming that the appellants
    conviction would have been inevitable:
R. v. Sekhon
, 2014
    SCC 15, [2014] 1 S.C.R. 272, at para. 53.

[14]

Leave to appeal is therefore denied.

Gloria Epstein
    J.A.

David M.
    Paciocco J.A.

I.V.B.
    Nordheimer 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. 486.5(1), (2), (2.1),
    (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of the
Criminal
    Code
provide:

486.5 (1)     Unless an order is made under section
    486.4, on application of the prosecutor in respect of a victim or a witness, or
    on application of a victim or a witness, a judge or justice may make an order
    directing that any information that could identify the victim or witness shall
    not be published in any document or broadcast or transmitted in any way if the
    judge or justice is of the opinion that the order is in the interest of the
    proper administration of justice.

(2)     On application of the prosecutor in respect
    of a justice system participant who is involved in proceedings in respect of an
    offence referred to in subsection (2.1), or on application of such a justice
    system participant, a judge or justice may make an order directing that any
    information that could identify the justice system participant shall not be
    published in any document or broadcast or transmitted in any way if the judge
    or justice is satisfied that the order is in the interest of the proper
    administration of justice.

(2.1) The offences for the
    purposes of subsection (2) are

(a) an
    offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious
    offence committed for the benefit of, at the direction of, or in association
    with, a criminal organization;

(b) a
    terrorism offence;

(c) an
    offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security
    of Information Act
; or

(d) an
    offence under subsection 21(1) or section 23 of the
Security of Information
    Act
that is committed in relation to an offence referred to in paragraph
    (c).

(3)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding judge or
    justice or, if the judge or justice has not been determined, to a judge of a
    superior court of criminal jurisdiction in the judicial district where the
    proceedings will take place; and

(b) provide notice of the application to the
    prosecutor, the accused and any other person affected by the order that the
    judge or justice specifies.

(5)     An applicant for an order shall set out the
    grounds on which the applicant relies to establish that the order is necessary for
    the proper administration of justice.

(6)     The judge or justice may hold a hearing to
    determine whether an order should be made, and the hearing may be in private.

(7)     In determining whether to make an order, the
    judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk
    that the victim, witness or justice system participant would suffer harm if
    their identity were disclosed;

(c) whether the victim, witness or justice system
    participant needs the order for their security or to protect them from
    intimidation or retaliation;

(d) societys interest in encouraging the
    reporting of offences and the participation of victims, witnesses and justice
    system participants in the criminal justice process;

(e) whether effective alternatives are available
    to protect the identity of the victim, witness or justice system participant;

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

(g) the impact of the proposed order on the
    freedom of expression of those affected by it; and

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

(8)     An order may be subject to any conditions
    that the judge or justice thinks fit.

(9)     Unless the judge or justice refuses to make
    an order, no person shall publish in any document or broadcast or transmit in
    any way

(a) the contents of an application;

(b) any evidence taken, information given or
    submissions made at a hearing under subsection (6); or

(c) any other information that could identify the
    person to whom the application relates as a victim, witness or justice system
    participant in the proceedings.
2005, c. 32, s.
    15; 2015, c. 13, s. 19

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. Pettipas-Lizak, 2017 ONCA 963

DATE: 20171207

DOCKET: C62507

Laskin and Pepall JJ.A. and Gans J.(
ad hoc
)

BETWEEN

Her Majesty the Queen

Appellant

and

Shiloh Pettipas-Lizak

Respondent

Andrew Hotke, for the appellant

Nathan Gorham, for the respondent

Heard and released orally: November 28, 2017

On appeal from the acquittals entered on July 11, 2016 by
    Justice Anne Mullins of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The Crown appeals directed verdicts of acquittal on three firearms
    charges. The narrow issue on the application was whether the respondents gun
    was operable. In granting the application the trial judge concluded that the
    evidence was insufficient for a properly instructed jury to consider whether
    the respondent had an operational firearm.

[2]

The Crown submits that in reaching her conclusion the trial judge made
    three errors in law: (1) she applied the wrong test; (2) she wrongly weighed
    competing references; and (3) she wrongly considered the respondents
    credibility.

[3]

We agree with the Crowns submission. And we also agree that there was
    evidence, which if believed, could reasonably support an inference of guilt.
    The following are our brief reasons on each of the three errors of law made by
    the trial judge.

(1)

The wrong test

[4]

At the beginning of her ruling, the trial judge said:

Here the narrow question for the jury would be whether such an
    inference is the only reasonable or rational inference to be drawn from the
    evidence.

[5]

Her statement captured the test a jury must apply in a case such as this
    one where the Crowns case depends at least in part on circumstantial evidence.
    But it is not the test on a directed verdict application. The test, instead, is
    the same test that a judge applies at a preliminary inquiry.

[6]

On a directed verdict application the judge must determine whether the
    circumstantial evidence is reasonably capable of supporting the inferences the
    Crown seeks to have the jury draw. The test is whether the evidence, if
    believed, could reasonably support an inference of guilt.

[7]

The trial judge never stated the correct test and, as it is evident from
    the remainder of her ruling, she applied the wrong test.

(2)

Weighing of competing inferences

[8]

On a directed verdict application, where the Crown leads circumstantial
    evidence, the trial judge must consider all the evidence and weigh it to a
    limited extent. This limited weighing means that the trial judge must assess
    the evidence in a way that is most favourable to the Crown: see
R. v.
    Arcuri
2001 SCC 54, at para. 23. The trial judge is not entitled to weigh
    the competing inferences available to the Crown and the accused. Yet that is
    what the trial judge did in this case.

[9]

In her ruling the trial judge relied on the respondents evidence of
    where the gun came from, the evidence of the gun falling apart, and the
    evidence about the likely age of the gun. She made no reference to the following
    evidence supporting the inferences favourable to the Crown:

·

the expert evidence that the gun was a real gun;

·

Millers evidence that the respondent acquired the gun for his
    protection;

·

the respondents evidence that he treated the gun as capable of
    being fired;

·

C.P.s evidence that she saw bullets;

·

the evidence that the respondent repeatedly inserted and took out
    the magazines, suggesting his familiarity with the gun;

·

and finally the experts evidence that there were reasons why the
    gun could be operable but fail to fire.

[10]

From
    her failure to refer to these pieces of evidence and the inferences that could
    be drawn from them, the trial judge showed that her conclusion inevitably
    rested either on weighing competing references or disregarding altogether the
    inferences favourable to the Crown. Thus in weighing the evidence as she did,
    the trial judge went well beyond the limited weighing permitted in a case of circumstantial
    evidence.

(3)

Consideration of the respondents credibility

[11]

The trial judge could only have reached the conclusion she did by
    accepting that the respondents evidence was credible. The law is well
    established that on a directed verdict application the trial judge is not
    entitled to assess the respondents credibility. It was an error of law for her
    to do so.

[12]

The errors of law made by the trial judge do not by themselves determine
    this appeal. We must still consider whether on the correct test there is
    evidence, which if believed, could reasonably support an inference of guilt. We
    are satisfied that there is such evidence on this record. That evidence is
    concisely summarized at para. 50 of the Crowns factum. This evidence is
    reasonably capable of supporting the inferences the Crown seeks to have the
    jury draw.

[13]

We allow the appeal, set aside the verdicts of acquittal and order a new
    trial on the firearms charges.

John Laskin J.A.

S.E. Pepall J.A.

Arthur Gans J.


WARNING

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

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (2.1),
    (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall
    continue.  These sections of
the Criminal Code
provide:

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

(a)      any
    of the following offences;

(i)       an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)      REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

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

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

(2.1)
    Subject to subsection (2.2), in proceedings in respect of an offence other than
    an offence referred to in subsection (1), if the victim is under the age of 18
    years, the presiding judge or justice may make an order directing that any
    information that could identify the victim shall not be published in any
    document or broadcast or transmitted in any way.

(2.2) In
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice shall

(a) as
    soon as feasible, inform the victim of their right to make an application for
    the order; and

(b) on
    application of the victim or the prosecutor, make the order.

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

(4)      An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community. 2005,
    c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29;
    2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.O., 2017 ONCA 987

DATE: 20171215

DOCKET: C60636

Hoy A.C.J.O., Doherty
and Feldman JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.O.

Appellant

Richard Diniz, for the appellant

Craig Harper, for the respondent

Heard and released orally: December 7, 2017

On appeal from the conviction entered by Justice R.C.
    Gates of the Superior Court of Justice, dated November 26, 2014, and the
    sentence imposed on June 23, 2015.

REASONS FOR DECISION

[1]

This case arises within the context of an acrimonious divorce and custody/
    access battle between the appellant and the complainant, his ex-wife.  After a
    trial where the evidence unfolded over 30 days, the appellant was convicted of
    criminal harassment and sentenced to 18 months in prison. He appeals his
    conviction and seeks leave to appeal the sentence imposed.

[2]

The appellant argues that the trial judge demonstrated a reasonable
    apprehension of bias by improperly intervening during the trial, applying a
    higher level of scrutiny to the defence evidence, and imposing a sentence
    significantly longer than that requested by the Crown.

[3]

We are not persuaded that a reasonable informed observer, fully aware of
    all relevant aspects of the case, would conclude that the trial was unfair.  The
    appellant takes issue with a few interventions made in the course of his trial
    counsels seventh day of cross-examination of the complainant. In our view,
    those interventions, which attempted to limit appellants counsel to relevant
    matters, were fully warranted.

[4]

Nor do we view the fact that the trial judges reasons for rejecting the
    appellants evidence exceeded the length of his reasons for accepting the
    evidence of the complainant, a CAS worker, a neighbour, and the police officers
    who attended at the complainants home on approximately 37 occasions, as an
    indication that he reviewed the defence evidence more stringently than the Crowns
    evidence.  In our view, the trial judge simply detailed the multiple reasons
    why he found the appellant incredible and the appellant asks this court to
    reassess the trial judges credibility determination.  The trial judges
    credibility findings are entitled to deference and there is no basis for the
    court to interfere with them.

[5]

While we do not agree with the appellant that a reasonable and informed
    observer would conclude that the trial was unfair because the trial judge
    significantly exceeded the sentence proposed by the Crown, we do agree that he
    erred in doing so, without first indicating to the parties that he was inclined
    to do so and giving the parties the opportunity to make further submissions:
R.
    v. Hagen
, 2011 ONCA 749, at para. 5
;
R. v. Gamble
, 2017 ONCA 610
.

[6]

We agree with the trial judge that a sentence longer than that proposed
    by the Crown at trial is required. The harassment, although not physical or
    violent, was egregious and continued over four years. The appellant showed no
    remorse. Denunciation and deterrence are paramount. However, the appellant has
    been on bail in relation to these offences since 2009 without incident. There
    is an indication that the appellant has mental health issues. He has no other
    criminal record and has other positive antecedents.

[7]

In our view, in all the circumstances, a fit sentence is 12 months, to
    be followed by three years probation on the terms imposed by the trial judge.

[8]

Accordingly, the appellants appeal against conviction is dismissed.
    Leave to appeal sentence is granted. The sentence imposed by the trial judge is
    set aside and the appellants sentence is varied as provided above. The other
    ancillary orders imposed by the trial judge shall remain in place.

Alexandra Hoy
    A.C.J.O.

Doherty J.A.

K. Feldman J.A.


WARNING

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

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

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

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

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

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

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

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

(4)      An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sanchez, 2017 ONCA 994

DATE: 20171218

DOCKET: C61682

Epstein, Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Arturo Sanchez

Appellant

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

Christine Tier, for the respondent

Heard: November 29, 2017

On appeal from the conviction entered on December 7, 2015
    and the sentence imposed on March 30, 2016 by Justice Nancy Backhouse of the Superior
    Court of Justice, sitting without a jury.

CRIMINAL  Historical sex offences  Misapprehension
    of evidence

Nordheimer J.A.:

[1]

The appellant is a pediatrician who was charged with five counts of
    indecent assault, two counts of sexual assault and one count of sexual
    interference.  The charges span a period from 1964 to 2013 and involve six
    former female patients.  The appellant was 81 years old at the time of trial.

[2]

The appellants trial proceeded before a judge alone.  At the end of the
    trial, the appellant was convicted of three counts of indecent assault.  He was
    found not guilty of all other charges.  Two of the convictions related to the
    complainant, L.H., and one related to the complainant, L.C.  The events
    relating to L.H. occurred in 1964 and 1965 and the events relating to L.C.
    occurred in 1980.

[3]

On March 30, 2016, the appellant was sentenced to 15 months imprisonment
    in relation to the convictions for indecent assault on L.H., consecutive to
    three months imprisonment in relation to the indecent assault on L.C.  The
    appellant appeals both his conviction and his sentence.

Background Facts

(i)       L.H.

[4]

L.H. was hospitalized at the Hospital for Sick Children (HSC) on two
    occasions when she was a teenager.  On the first occasion, she was 14 and on
    the second occasion, she was 15.

[5]

The appellant was a senior associate resident in pediatrics at HSC from
    July 1, 1964 to June 30, 1965. He was responsible for supervising interns over
    an assigned patient load, and he made daily rounds with the interns, other
    residents and staff physicians. The appellant had direct interaction with
    patients, including conducting physical examinations.

[6]

The appellant gave evidence at his trial. He had no recollection of L.H.
    However, based on her medical records, the appellant said that he had a single
    interaction with her on September 2, 1964. The appellants signature also
    appeared on the discharge report of Dr. Singer, which was dated September 9,
    1964.  The appellant acknowledged that he signed the discharge report on behalf
    of Dr. Singer, and corrected a typographical error in the report. The appellant
    did acknowledge that he might have had interactions with L.H. as he went about
    his rounds as he is generally friendly and talkative.

[7]

In contrast, L.H. specifically remembered the appellant. She recalled
    that he was an intern during her two admissions to the HSC. She gave evidence
    that her first impression was that the appellant was very attractive, Hispanic
    looking, with dark hair. L.H. remembered the appellant as being from Mexico or
    Colombia. He told her a lot about his lifestyle, which was very interesting to
    her. She recalled that he was married.

[8]

L.H. said that the appellant had started touching her breasts and her
    pubic area, over her clothes. She felt uncomfortable and squirmed, but he said
    that it was necessary. She recalled this happening in an examination room, on
    the same floor as her room. She gave evidence that the interns would escort the
    patients to the examination room. No one else was in the room with her and the appellant.
    She said that the breast touching also happened in her hospital bed.

[9]

L.H. said that during her first hospital stay, the appellant touched her
    breasts five or six times. Sometimes her breasts were touched under her
    clothes, but she could not say whether that occurred during the first
    admission. She said that she did not have any health issues with her breasts
    and that none of her other physicians touched her breasts.

[10]

L.H. gave evidence that during her first hospital admission, the appellant
    touched her pubic area with his fingers and his hand. She said that this
    happened mainly in the examination room when no one else was present. She also
    said that the appellant inserted his fingers inside her vagina, causing her to
    feel afraid and uncomfortable. No other physician touched her in the area of
    her vagina and she had no health issues respecting her vagina. L.H. gave
    evidence that during her second admission to HSC, she continued to see the appellant
    and this type of touching continued.

[11]

With respect to examinations of patients, the appellant gave evidence
    that these usually occurred in the patients own bed. Curtains were wrapped
    around the beds for privacy. In some circumstances, examinations would occur in
    the examination rooms, which were equipped with the instruments commonly used
    during examinations. There were no such instruments in the patients rooms.
    When taken to an examination room, the patient was accompanied by a nurse, who
    always remained in the room to assist. The appellant explained that all
    physical examinations or any notable observations during rounds should have
    been recorded on the patients chart.

[12]

The appellant denied that he ever took L.H. into an examination room alone
    or the interns room, as she alleged. He further denied that he ever performed
    an internal examination of the vaginal area of any patient at the HSC while he
    was a pediatric resident, or ever in his career as a pediatrician. He explained
    that those types of exams would only be done by a specialist.

[13]

In addition to the allegations of improper touching, there was one
    specific incident that L.H. recounted. L.H. said that, in the middle of the
    night, when she was sleeping in her bed on the ward, the appellant woke her
    saying that he had to examine her right away. She did not recall anyone else
    being around at the time. She gave evidence that the appellant started
    examining her pubic area with his hand. She claimed that he put his leg over her
    legs or hips. He pressed his forehead against hers very hard. He was breathing
    heavily and his hands were on her breasts. She thinks that at one point he
    pulled her hand towards him, but she pulled her hand back. She gave evidence that
    this went on for five or ten minutes, before a nurse came into the room and
    said what is going on in here? The appellant told the nurse to get some kind
    of scope, and the nurse left. The appellant then fixed himself up and left
    the room. After a short time, the nurse rushed back into the room and asked
    where did he go? L.H. did not say anything to the nurse in response, nor did
    the nurse ask her what had been going on. Instead, according to L.H., the nurse
    simply turned around and left.

[14]

L.H. never disclosed any complaints to anyone during her initial stay at
    the hospital or between her first and second stay. However, she did say that
    during her second stay, she had one conversation with her roommate, B.R. She
    could no longer recall the details of the conversation but did remember that
    they discussed the fact that the appellant was too personal with them.

(ii)      L.C.

[15]

L.C. and her older sister were patients of the appellant.  They would
    attend at his office for regular examinations.

[16]

L.C. recalled regularly going to see the appellant for medical visits as
    she had health issues from the time that she was very young.  As a result of a
    persistent cough, she was referred by the appellant to an allergist, who
    confirmed that she had allergies.  The treatment prescribed was regular
    injections.  L.C.s mother gave evidence that she recalled telling the appellant
    that it was difficult for them to attend his office every week, as they would
    have to take multiple forms of public transit. L.C.s mother told the appellant
    that she would have to get another doctor to administer the injections. The appellant
    then offered to attend at their home on Saturdays, advising that it would be on
    his way as he did house calls for other patients who were not able to get to
    his office.

[17]

At trial, the appellant said that he remembered L.C. and he remembered
    making house calls to administer injections, although he no longer had her
    medical records to refresh his memory. The appellant said that when he learned
    that it would be difficult for L.C. and her mother to attend his office each
    week, and that they lived not far from him, he offered to attend at their home.
    The appellant said that it was a common practice for him to make house calls on
    a Saturday and that he did so until the year 2000.

[18]

At some point during these house calls, L.C.s mother started working
    part-time. Furthermore, L.C.s father was often working or out volunteering for
    their church on Saturdays. L.C.s sister would either go with their father or
    she would be in the basement when the appellant came to their home.
    Consequently, L.C. was often alone with the appellant.

[19]

The main issue with respect to L.C. involved a particular incident.  L.C.
    gave evidence that on one occasion while the appellant was drawing up the
    injection, he casually asked how old she was.  She claimed that this made her
    nervous, and she believed that she must have muttered something but was not
    sure if she told him her age.  L.C. gave evidence that the appellant then asked
    so are you starting to develop? She freaked out and did not know what to
    say. She believed that she told him that she did not know. The appellant
    administered the injection, after which L.C. continued to be very nervous. She
    claimed that the appellant put his stuff away, came in front of her, and said
    lets see how developed you are. He started to lift up her t-shirt, and she
    believed that she took over holding it up. According to L.C., the appellant
    then said lets feel how developed you are. She alleged that the appellant
    then started touching her entire right breast with both of his hands, though
    she did not recall his touching the nipple. The appellant denied touching
    L.C.s breast or performing any such examination.

Analysis

(i)       L.H.

[20]

The trial judge rejected the appellants denials regarding the
    activities relating to L.H.  She accepted L.H.s evidence respecting what had
    happened and she found the appellant guilty of all of the charges relating to his
    inappropriate touching of L.H.

[21]

In reaching her conclusions, however, the trial judge made certain
    findings that are problematic.

[22]

First, on the evidence regarding the appellants signing of the
    discharge report, the trial judge said, at para. 55:

The fact that Dr. Sanchez signed a detailed 3-page discharge
    report for L.H. in January, 1965, albeit on behalf of Dr. Singer, suggests that
    he was more involved in her care than he was willing to admit.

[23]

The trial judge did not have any basis to make this conclusion.  The
    appellant said that he merely signed the report on behalf of the responsible
    physician.  Crown counsel did not challenge the appellants evidence on this
    point, nor was there any evidence contradicting the appellant on it.  Indeed,
    counsel for the respondent on the appeal conceded that there is nothing unusual
    in one professional signing a document on behalf of another professional.

[24]

Second, in concluding that she believed the evidence of L.H., the trial
    judge said, at para. 50:

There was no tendency in her evidence to exaggerate or to
    amplify her evidence as she went along. There was no apparent motive to lie.

[25]

It is recognized that whether a person does or does not have a motive to
    lie is not generally a reliable basis upon which to assess credibility.  Certainly
    the absence of any apparent motive to lie is an unreliable marker of
    credibility.  There are simply too many reasons why a person might not tell the
    truth, most of which will be unknown except to the person her/himself, to use
    it as a foundation to enhance the witness credibility.  Consequently, it is generally
    an unhelpful factor in assessing credibility:
R. v. L. (L.)
(2009), 96
    O.R. (3d) 412 (C.A.), 2009 ONCA 413, at para. 44.

[26]

Third, the trial judge found that L.H.s evidence was enhanced by the
    fact that she raised the abuse, albeit in a vague way, with her friend at the
    time (at para. 50) and yet failed to mention the fact that the friend was not
    called to confirm that had occurred.  It is difficult to see how that
    uncorroborated evidence could provide enhancement for L.H.s credibility.

[27]

Fourth, the trial judge also rejected defence submissions about the
    importance of the absence of corroboration, commenting, None is required.
    Given the way the alleged crimes were committed where the only persons present
    were doctor and patient, the potential for corroboration does not arise. While
    the trial judge is correct that corroboration is not necessary in such cases,
    she was not correct that the alleged crimes were committed where the only
    persons present were doctor and patient. On L.H.s own version of events, a
    nurse walked in during the most serious of the assaults she described. There
    were other areas of potential corroboration as well, such as records confirming
    contact between the appellant and L.H. that never materialized. The trial judge
    inaccurately dispensed with the potential for corroboration, presenting the
    risk that she may not have given sufficient consideration to the undeniable
    fact that L.H.s allegations stood alone.

[28]

The appellant also took issue with the trial judges rejection of his
    submission that it was implausible that a nurse would not have confronted the
    appellant or reported the assault after walking in during the sexual assault
    L.H. described. Specifically, the appellant is critical of the trial judges
    conclusions, without evidence, about deference and the hierarchical environment
    in hospitals in 1965. I need not decide whether the trial judge was in error in
    reasoning as she did. It was the appellant who invited the trial judge to find
    the nurses reported reaction in 1965 to be implausible, yet he did not lead any
    evidence relating to the likely response of a nurse at the time.  If the
    appellant is correct and evidence is required to ground the relevant inference,
    given that there was no evidence on this point, the trial judge could not
    properly have acted on the appellants invitation to draw an inference of
    implausibility. Any error she may have committed in this regard cannot
    contribute to a miscarriage of justice.

[29]

On this point, I should mention that the appellant sought to introduce
    fresh evidence consisting of affidavits from two doctors on the subject of the
    culture and hierarchy at the HSC at the relevant time.  I would not admit the
    fresh evidence.  It does not satisfy the requirements set out in
R. v.
    Palmer
, [1980] 1 S.C.R. 759.  In particular, the evidence was, with due
    diligence, available at the time of trial and it was not potentially decisive
    of the result.

[30]

Although individually none of the failings I have identified might prove
    fatal to the trial judges credibility findings, collectively they raise serious
    concerns regarding the validity of the reasons upon which the trial judge
    accepted the evidence of L.H., especially given her treatment of the appellants
    evidence.  They are based, at least in part, on a misapprehension of the
    evidence that undermines the validity of the convictions.  As Doherty J.A. said
    in
R. v. Morrissey
(1995), 22 O.R. (3d) 514, at p. 541:

Where a trial judge is mistaken as to the substance of material
    parts of the evidence and those errors play an essential part in the reasoning
    process resulting in a conviction then, in my view, the accused's conviction is
    not based exclusively on the evidence and is not a "true" verdict.  This
    is so even if the evidence, as actually adduced at trial, was capable of
    supporting a conviction.

[31]

In the light of these concerns, I am of the view that the convictions
    with respect to L.H. cannot stand.

(ii)      L.C.

[32]

The conviction as it relates to the incident with L.C. raises a
    different issue.  In this instance, there was a single event that was alleged
    to have occurred in L.C.s home during one of the weekly house calls that the
    appellant made to administer the allergy injection to L.C.

[33]

In reaching her conclusion with respect to this offence, the trial judge
    said that the appellants evidence that he agreed to make weekly house calls
    with no ulterior purpose was not credible (at para. 128).  Yet the appellant
    was not contradicted at trial that, at the time, he regularly made house calls
    for a number of patients.  Given his practice, all of those patients would have
    been children.  There was simply no evidentiary foundation for the trial
    judges conclusion that the appellants willingness to make house calls to give
    injections to L.C. was the result of an ulterior motive.

[34]

More significantly, however, is that the trial judge made the following
    finding, at para. 128:

His evidence of the number of housecalls[
sic
] he
    regularly made in his practice was not credible. I find that he exaggerated
    this evidence in an attempt to make it look less unusual that he would offer to
    make housecalls[
sic
] to L.C. in a non-emergency situation and on a
    weekly basis.

[35]

This finding repeats the error regarding the uncontradicted evidence
    that the appellant routinely made house calls.  Given that fact, there was no need
    for the appellant to have to make any effort to make the house calls look less
    unusual.  More troubling, however, is that the trial judge uses that fact to
    elevate her finding into a planned orchestration of events by the appellant to
    gain access to L.C. for the purpose of molesting her.

[36]

Indeed, the trial judge said, at para. 137:

I find that Dr. Sanchez offered to make housecalls[
sic
] to
    L.C.'s home with the ulterior motive, if the opportunity arose, of molesting
    L.C.

[37]

In effect, the trial judge appears to have drawn an inference of guilt
    from her disbelief of the appellants evidence. It is an error of law to do so
    absent independent evidence that the accused person concocted a lie for the
    purpose of evading responsibility:
R. v. OConnor
,
(2002), 62
    O.R. (3d) 263 (C.A.);
R. v. Wood
, (1989), 33 O.A.C. 260, leave to
    appeal refused 40 O.A.C. 240 (note);
R. v. Sandhu

(1989), 35
    O.A.C. 118.

[38]

I would also note on this point that the trial judge again used the lack
    of a motive to lie to enhance the credibility of both L.C. and her mother.

[39]

The trial judge could have rejected the appellants evidence, including
    his evidence about the frequency of house calls, and accepted the evidence of
    L.C. on a proper basis.  However, once again, the trial judge cannot do so on a
    foundation that is entirely inconsistent with the evidence.  Nor was it proper
    for the trial judge to attribute a motive to the appellant that arises from a
    misunderstanding or misstatement of the evidence.

[40]

Given these errors, I am of the view that the conviction with respect to
    L.C. also cannot stand.

[41]

In light of that conclusion, I do not need to address the fresh evidence
    that the appellant sought to adduce from the appellants two stepsons regarding
    his practice of making house calls during the relevant timeframe.

Conclusion

[42]

I would allow the appeal and set aside the three convictions.  I would
    order a new trial on those three counts.  In the light of that conclusion, it
    is not necessary to consider the sentence appeal.  Nevertheless, I want to recognize
    that counsel for the respondent quite fairly agreed that the sentence ought to
    be converted into a conditional sentence in the light of the appellants age
    and medical condition.  On that basis, counsel for the respondent did not
    contest the admission of the fresh evidence that the appellant sought to adduce
    relating to his medical condition.

[43]

I assume that those same considerations may factor into the respondents
    determination of whether a new trial is in the public interest.

Released: GE Dec 18 2017

I.V.B. Nordheimer
    J.A.

I agree. Gloria
    Epstein J.A.

I agree. David M.
    Paciocco J.A.