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    that could identify the complainant or a witness shall not be published in any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. R.F., 2012
    ONCA 419

DATE: 20120620

DOCKET: C49682

MacPherson, Armstrong and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R. F.

Applicant/Appellant

Nicholas A. Xynnis, for the appellant

Michael Bernstein, for the respondent

Heard: June 15, 2012

On appeal from the conviction entered on March 10, 2008
    and the sentence imposed on May 23, 2008 by Justice Guy P. DiTomaso of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of 2 counts of break and enter, 1 count of
    sexual assault and 2 counts of criminal harassment by DiTomaso J. of the
    Superior Court of Justice on March 10, 2008.  He received a global sentence of
    4 years. He appeals against his convictions only. He also seeks to admit fresh
    evidence.

[2]

He raises 4 grounds of appeal.  Firstly, he submits that the court erred
    in ordering that counsel be appointed to cross-examine the complainant.
    Secondly, the appellant submits that there was an appearance of unfairness
    arising from the respondents role in securing counsel to cross-examine the
    complainant. Thirdly, the appellant submits that his right to counsel was
    compromised by the compensation ordered for the appointed counsel.  Lastly, the
    appellant submits that the verdicts were unreasonable and the trial judge erred
    in his assessment of credibility and reliability.

[3]

We see no merit in these grounds of appeal. The first three grounds are
    raised for the first time on this appeal and could have and should have been
    raised at trial. The charges were laid in January, 2006. Over the course of
    many months, the appellant repeatedly requested adjournments and advised the
    court that he intended to and was in the process of retaining counsel for his
    trial but he never did. As stated by Graham J. of the Superior Court of Justice
    on September 12, 2007, the appellant presented a number of vague and
    unconvincing excuses for not having done so.

[4]

No objection was taken to the respondents application for the
    appointment of counsel to cross-examine the complainant or the evidence filed
    in support or the proposed rate of compensation for counsel. The appellant did
    not express a desire to cross-examine the complainant himself and at trial, the
    appointed counsel cross-examined the complainant without objection. There is no
    allegation of incompetence of the appointed counsel. There was an adequate
    evidentiary basis for the appointment order. In addition to the affidavit filed
    in support of the application, the presiding judge had the indictment which
    included two counts of harassment. The court established the rate of
    compensation to be paid, not the respondent, and there was no appearance of
    unfairness. The trial record does not disclose any compromise of any right to
    counsel.

[5]

As for the fourth ground of appeal, namely that the verdicts were
    unreasonable and the trial judge erred in his assessment of credibility and
    reliability, the trial judge delivered 98 pages of detailed oral reasons.  He
    carefully considered the credibility and reliability of the complainant and
    believed her evidence. He considered the complainants conduct and accepted her
    explanations for why she did what she did and was satisfied that the respondent
    had established the appellants guilt beyond a reasonable doubt in respect of
    all counts. We see no error.

[6]

The appeal is dismissed.

J. C. MacPherson J.A.

Robert
    P. Armstrong J.A.

S.
    E. Pepall J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION:
R. v. Skanthavarothayar, 2012
    ONCA 392

DATE: 20120611

DOCKET: C50038  C50039

Gillese, Pepall and Ducharme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Pratheepen Skanthavarothayar

Jayanthan Palaguru

Appellants

Apple Newton-Smith, for the appellant Skanthavarothayar

and P. Andras Schreck, for the appellant Palaguru

Susan Magotiaux, for the respondent

Heard:  Heard May 23, 2012

On appeal from the convictions entered on September 25,
    2008, by Justice Wailan Low of the Superior Court of Justice and on the
    sentence imposed by Justice Low dated February 20, 2009 for the appellant
    Palaguru.

ENDORSEMENT

[1]

The appellants were among a group
    of attackers who set upon and beat two men sitting in a parked car.
The attack was vicious and
    pre-meditated and intended to intimidate the victim so that he would not
    testify at an upcoming murder trial.
Following
    a trial by judge and jury, each appellant was convicted of several offences.
At the end of oral argument, we informed counsel that
    the appeal would be dismissed with brief reasons to follow. Here now are those
    reasons.

[2]

The appellant Mr. Skanthavarthayar
    was convicted of two counts of assault with a weapon, aggravated assault, and
    attempting to obstruct justice. He was given a global sentence of four years'
    imprisonment, less time served in pre-trial custody, credited on a 2:1 basis.
    His appeal is against conviction only.

[3]

The appellant Mr. Palaguru was
    convicted of assault with a weapon, assault, aggravated assault, attempting to
    obstruct the course of justice, and failing to comply with a condition of
    recognizance. He pleaded guilty to the last charge. For these offences, he too
    received a global sentence of four years' imprisonment less time served in
    pre-trial custody, credited on a 2:1 basis. He appeals against conviction and
    sentence.

[4]

In the appeal against conviction,
    the appellants raise one issue: Did the trial judge err in failing to give an
    adequate
Vetrovec
warning in her charge to the jury?

[5]

The Crown's main witness at trial,
    Lingathasan Suntharamoorthy, gave a full account of the attacks and threats and
    identified the appellants as attackers. However, Mr. Suntharamoorthy had a long
    criminal record that included many violent offences, including manslaughter,
    and a long history of lying to the police. In the course of his testimony, he
    was also frequently inconsistent. Everyone agreed that in his case a
Vetrovec
caution was necessary, to alert the jury that there were good reasons to doubt
    the witness's veracity.

[6]

The
Vetrovec
warning that
    the trial judge gave to the jury was consistent with the model set out in
    Justice Watt's Standard Jury Instructions. However, appellants' counsel submit
    that the trial judge failed to adequately explain to the jury why Mr.
    Suntharamoorthys evidence required their special scrutiny. They also allege
    that the trial judge gave the jury misleading instructions on confirmatory evidence,
    and that, overall, the effect of her
Vetrovec
caution succeeded only in
    undermining the theory of the defence.

[7]

We disagree. In the context of
    this case the
Vetrovec
caution was more than adequate. The jury could
    not have been under any misunderstanding about how they were to approach the
    evidence of Mr. Suntharamoorthy, whom the trial judge repeatedly described as
    unsavoury.

[8]

Nor did the trial judge mislead
    the jury in any way. In saying this, we wish to emphasize that we do not take
    so narrow a view of the principle of materiality enumerated in
R. v. Khela
,
    [2009] 1 S.C.R. 104 as counsel for the appellants have urged upon us.

[9]

When looked at in the context of
    the case as a whole, we consider that the few pieces of confirmatory evidence
    cited by the trial judge were capable of bolstering relevant aspects of Mr.
    Suntharamoorthys account. In other words, they were capable of strengthening
    the jurys belief that Mr. Suntharamoorthy was telling the truth about the
    appellants involvement in the assault upon him. This evidence was therefore
    not misleading.

[10]

While identity was the central
    issue in the trial, there were other material facts in dispute as well.
    Moreover, the trial judge explicitly charged the jury that there was "no
    confirmatory evidence" with respect to the issue of identity, and her
    charge ended with a lengthy, detailed review of the frailties and
    inconsistencies in Mr. Suntharamoorthys testimony, all going to suggest why he
    should not be believed.

[11]

For these reasons, the appeals
    against conviction must therefore be dismissed.

[12]

As to the sentence appeal, the
    appellant Mr. Palaguru submits that the trial judge erred by failing to
    consider mitigating factors, by failing to consider the fact that the appellant
    had been subject to strict bail conditions before trial, and by placing
    too-great emphasis on aggravating factors.

[13]

In the course of the sentencing
    hearing, both Crown and defence counsel referred the trial judge to a
    pre-sentence report on Mr. Palaguru. The pre-sentence report recited some of
    the details of Mr. Palaguru's childhood in Sri Lanka, a time and place marked
    by such fear and violence that the family was forced to flee the country for
    Canada.

[14]

In light of this relevant
    information relating to the circumstances of the offender, we believe that the
    trial judge erred in stating without qualification that there were no
    mitigating factors and in observing that "[the] Pre-sentence Report
    discloses unremarkable antecedents."

[15]

Still, in our view, the trial
    judge did not err in finding on the facts of this case that the predominant
    principles and purposes of sentence were those of denunciation and specific and
    general deterrence. There was ample evidence to support the trial judges
    finding that the appellant's attack upon the victim was a cowardly, vicious,
    and pre-meditated act, designed to dissuade the victim from testifying in a
    murder trial. It was thus open to the trial judge to conclude on the facts of
    this case, including a lengthy criminal record disclosing 13 convictions going
    back to 2000, that there were no mitigating factors sufficient to cause her to
    ameliorate the appellant's sentence.

[16]

In his written submissions the
    appellant also contends that the trial judge's failure to consider his
    restrictive bail conditions constitutes an error in principle. Although this
    ground of appeal was not advanced in oral argument, we wish to address it
    briefly here. While it is true that a trial judge faced with an offender who
    has spent time on bail under house arrest should adopt a flexible approach, . .
    . the amount of credit and the manner in which it is to be taken into account
    as a mitigating factor is a matter for the trial judge.
R. v. Downes
,
    [2006] O.J. No. 555 (C.A.) at para. 36. Here, in this case, the trial judge was
    aware of the appellant's restrictive bail, and equally aware that he had
    breached his bail conditions three times.

[17]

In our view, the global sentence
    of four years' imprisonment was a fit one in all the circumstances, in the
    sense that it was not clearly unreasonable. The sentence recognizes the
    fundamental principle of sentencing, proportionality, as set out in s.718.1 of
    the
Criminal Code
. It also honours the principle of parity in that it is
    similar to the sentence imposed on Mr. Skanthavarothayar for similar offences
    committed in similar circumstances. We would not therefore intervene to vary
    the sentence. Accordingly, the appeal against sentence is also dismissed.

E.E. Gillese J.A.

S.E. Pepall, J.A.

E. Ducharme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Steele, 2012 ONCA 383

DATE: 20120607

DOCKET: C52303

Rosenberg, Armstrong and LaForme JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Xavier Steele

Appellant

Michael Dineen, for the appellant

Scott Latimer, for the respondent

Heard: March 19, 2012

On appeal from the conviction entered by Justice Croll of
    the Superior Court of Justice on March 12, 2010.

Rosenberg J.A.:

[1]

The appellant appeals from his convictions for robbery, use of an
    imitation firearm and obstruction of a peace officer on the sole ground that
    the application judge, Marrocco J., erred in dismissing his application for a
    stay of proceedings based on a breach of the right to trial within a reasonable
    time as guaranteed by s. 11(b) of the
Canadian Charter of Rights and
    Freedoms
. The appellants trial took place almost three years after he was
    charged. For the following reasons, I would allow the appeal, set aside the
    convictions and stay the proceedings. In my view, the application judge erred
    in his characterization of the delay due to the states failure to make timely
    disclosure, erred in failing to consider inferred prejudice from the delay, and
    used the wrong test for whether to grant a stay of proceedings.

THE FACTS

[2]

The charges against the appellant arose out of the robbery of a video games
    store. It was alleged that the appellant and two accomplices robbed the store.
    One of the accomplices allegedly wielded a replica firearm. The appellant was
    arrested on April 5, 2007. Following the unsuccessful application before
    Marrocco J. for a stay of proceedings, the appellant and one of his
    accomplices, Remone Rodney, were convicted by Croll J. on March 12, 2010. The
    appellant was sentenced on June 30, 2010 to 22 months and 10 days imprisonment
    and 18 months probation.

THE DELAY

The Disclosure Problem

[3]

As indicated, the appellant was arrested on April 5, 2007. His bail
    hearing was eventually held on April 13, at which time he was released on
    conditions with house arrest terms. He was required to be at home unless in the
    presence of his mother or a surety or for work purposes. The appellant made
    eight further court appearances while waiting for disclosure. Initial
    disclosure was apparently delivered to Crown counsel in mid-October 2007. Crown
    counsel needed time to vet the disclosure before it was provided to the
    appellant. The case was adjourned to November 1, 2007 so that the appellants case
    could be joined up with that of his co-accused. On November 1, initial
    disclosure was made to counsel for the co-accused. The appellants counsel was
    unable to attend on that date. The case was adjourned to November 29. Counsel
    for the appellant stated that she had not yet been able to pick up disclosure.
    The transcript of that appearance indicates that counsel had experienced
    difficulty in picking up the disclosure. The case was adjourned to December 20,
    then to January 10, 2008, and then again to February 7 while counsel reviewed
    disclosure.

[4]

In the meantime, counsel for the appellant wrote to Crown counsel to
    point out that the appellants statement to the police, the stores
    surveillance tapes, a witness statement and notes from six police officers were
    missing from the disclosure. The case was adjourned to March 6, 2008. By that
    time the DVD of the appellants statement was available. Although the other
    disclosure was still outstanding, counsel asked to set a date for a judicial
    pre-trial. The judicial pre-trial was set for April 8, 2008. By that time some
    more disclosure was made. The remaining disclosure was not completed until July
    2008.

The Preliminary Inquiry

[5]

Following the judicial pre-trial on April 8, 2008, the preliminary
    inquiry was set for June 22 to 25, 2009. However, the appellant continued to
    appear in court to attempt to obtain the remaining disclosure. At one point, on
    July 25, 2008, the presiding judge suggested that earlier dates for the
    preliminary inquiry might be available. The case was adjourned to August 8,
    2008, in order to follow up on this possibility. On August 8, the trial
    co-ordinator confirmed that there were no earlier dates.

[6]

According to the Agreed Statement of Facts filed on the application, the
    appellant appeared on several occasions in May and June 2009 because of a
    retainer issue between Legal Aid Ontario and the appellant. At one point,
    counsel made an application to be removed from the record or, in the
    alternative, have the court make an appointment of counsel. The issue was
    resolved when, following an order from a judge of the Ontario Court of Justice,
    Legal Aid Ontario reinstated the appellants legal aid coverage. According to
    the Agreed Statement of Facts, counsel agreed that transcripts of the
    appearances in May and June 2009 were not required for argument of the s. 11(b)
    application.

[7]

The appellant and his co-accused were ordered to stand trial on June 25,
    2009.

The Appearances in the Superior
    Court of Justice

[8]

The appellant first appeared in the Superior Court of Justice on July
    30, 2009, at which time his bail conditions were varied from house arrest to a
    curfew from 9:00 p.m. to 6:00 a.m. After several remands, the trial was set for
    March 1, 2010, which was the first available trial date. The s. 11(b)
    application was heard and dismissed on February 26, 2010. In the Agreed
    Statement of Facts, counsel agreed that the various transcripts of proceedings
    in the Superior Court of Justice were not required. Before the application
    judge, Crown counsel, not Mr. Latimer, agreed that the delay from September 22,
    2009 to March 1, 2010 was institutional delay.

Evidence of Actual Prejudice

[9]

The appellant filed an affidavit and was cross-examined by Crown
    counsel. He was 20 years of age at the time of his arrest. Although he abided
    by the terms of his bail, he was stopped by the police three times and
    threatened with arrest for breaching the house arrest conditions, until the
    police checked with his sureties who confirmed that he was out for work
    purposes. He became afraid of leaving the house and dropped out of his college
    program. He lost his employment, in part because he missed many days to attend
    court. His house arrest also interfered with his relationship with his friends
    and extended family.

THE REASONS OF THE APPLICATION
    JUDGE

[10]

The application judge attributed the period from April 5, 2007 to
    November 1, 2007 (7 months) as the intake period, given that the Crown was
    required to provide substantial disclosure. He then looked at the delay caused
    by problems with disclosure. He attributed only January 6, 2008 to March 6,
    2008 as delay caused by the Crown due to disclosure problems. The earlier
    period from November 2007 to January 2008 was neutral. The period from March 6,
    2008 to April 8, 2008 to schedule the judicial pre-trial was reasonable and
    neutral. The period from June 25, 2009 to September 22, 2009 was a reasonable
    intake period in the Superior Court. The period from September 22, 2009 to March
    1, 2010, plus 28 days for the trial itself, was institutional delay. Counsel
    for the appellant properly concedes that the application judge erred in
    categorizing the 28 days for the trial as institutional delay. Deducting this
    amount, the application judge attributed 22 months to institutional or Crown
    delay.

[11]

The
    application judge dealt with prejudice in the following manner. He noted that
    the appellant appeared numerous times in the Ontario Court of Justice but this
    was due to retainer problems. Had there not been such problems, the appellant
    could have appeared by designation. These retainer problems were not the fault
    of the Crown. As well, the appellant did not attempt to change his bail
    conditions until he was ordered to stand trial. The appellants right to a fair
    trial was not prejudiced by the delay. As to security of the person, the
    application judge simply noted that the appellant had been stopped by the
    police three times. He considered that restrictions on seeing friends and
    family were imposed by his own family, not the courts, and could not be
    attributed to the Crown.

[12]

The
    application judge concluded by stating that in balancing all the factors he had
    to bear in mind that a stay of proceedings is an extraordinary remedy. There
    was a genuine public interest in having serious charges tried on their merits.
    Balancing all of these factors, it was not appropriate to stay the charges.

ANALYSIS

[13]

The
    appellant submits that the application judge erred in three respects:

·

He overestimated the intake period in the Ontario Court of
    Justice;

·

He failed to give any weight to inferred prejudice from the
    delay; and

·

He applied the wrong test for when to grant a stay of
    proceedings.

The Intake Period and Institutional Delay

[14]

The
    application judge held that an appropriate intake period was from April 2007 to
    November 2007, a period of seven months. The appellant disputes this
    attribution and submits that less than two months should be considered delay
    due to intake, with the balance as Crown delay. The application judge
    considered the further period from November 2007 to April 2008 as partly
    attributable to Crown delay due to disclosure problems (two months), with the
    other three months as inherent (neutral) delay. The appellant does not quarrel with
    the application judges attribution of this delay. The application judge
    categorized the period from April 2008 to June 2009, when the preliminary
    inquiry began, as institutional delay. The appellant agrees with this. On
    appeal, Crown counsel submits that some of this 14 months should be considered
    neutral as part of the inherent time requirements of the case.

[15]

I
    agree with the appellant that the trial judge erred in his categorization of
    the time in the Ontario Court of Justice. In effect, the application judge
    attributed ten months to either intake or inherent time requirements of the
    case. However, the record shows that most of this delay was due to police/Crown
    failure to make prompt disclosure to the appellant and his co-accused. Even accepting
    that the case had some complexity given that there were two accused, ten months
    for intake is unreasonable. This delay is almost wholly explained by the delay
    in making disclosure, yet the application judge only attributed two months of
    the period from April 2007 to April 2008, when a date was finally set for the
    preliminary inquiry, to Crown delay. The record shows an inattention to
    disclosure requirements right up to April 2008, with significant pieces of
    disclosure such as the DVD of the appellants statement to police, the video
    tape from the surveillance and the notes from several officers remaining
    outstanding until then. Other officers notes, as well as a witness statement,
    remained outstanding until July 2008. On the other hand, appellants counsel
    made prompt and repeated requests for disclosure and finally agreed to conduct
    the judicial pre-trial and set the dates for the preliminary inquiry in April
    2008, notwithstanding that some of the disclosure remained outstanding. The
    disclosure that remained outstanding for most of this period was not insignificant
    or peripheral; it represented an important part of the Crowns case.

[16]

There
    is no fixed or usual period of intake: see
R. v. Morin
, [1992] 1 S.C.R.
    771, at pp. 792-93. However, in this case, there was no need for an extended
    intake period. The appellant had retained counsel within days of his arrest on
    April 5, 2007 and that counsel represented him on his bail hearing held on
    April 13, 2007. The appellant attended court on May 4 and 25, 2007, but no
    disclosure was forthcoming. Counsel made a written request for disclosure on
    May 31, 2007. The record contains three more letters thereafter from counsel
    seeking disclosure. After initial disclosure was made there were further
    letters seeking specific items missing from the disclosure. There was usually
    no response to defence counsels letters. Counsel also informed the presiding judicial
    officer at various adjournments that disclosure was missing. Other than the
    submission that the case involved substantial disclosure, there is no
    explanation on the record for the very lengthy delay in making disclosure for
    what would seem to be a straightforward case: the robbery of a video games
    store.

[17]

Given
    that state of the record, it was unreasonable to attribute most of the time to
    intake or neutral time and only two months to Crown delay. Most of it was Crown
    delay and should have been so categorized. Of the 12 months from April 2007 to
    April 2008, I would categorize only five months as neutral or part of the
    inherent time requirements of the case. The balance of seven months together
    with the institutional delay from April 2008 to June 2009 represents 21 months
    of either institutional or Crown delay in the Ontario Court of Justice, a
    period far exceeding what is reasonable for this kind of case.

[18]

However,
    for the first time on appeal, Crown counsel submits that some of the 14 months
    from April 2008 (when the date for the preliminary inquiry was set) to June
    2009 (when the preliminary inquiry began) should be categorized as neutral. He
    submits that this is not all institutional delay because during this time there
    were problems with the appellants legal aid status that had to be resolved. As
    well, counsel at trial failed to establish that the appellant was ready to
    conduct the preliminary inquiry at any time during this 14-month period, and
    the delay was solely because the court was unable to accommodate an earlier
    date for the preliminary inquiry. The Crown relied on this courts decision in
R.
    v. Tran
, 2012 ONCA 18, 287 O.A.C. 94.

[19]

In
Tran
this court made several important points at paragraphs 31 to 40
    of the reasons. First, the court is not bound by an erroneous concession by
    Crown counsel in allocating periods of delay. Second, defence counsel should
    put on the record their first available dates to conduct the judicial pre-trial
    and the preliminary inquiry or trial, as the case may be. If counsel does not
    do this, it may be impossible to determine how the delay should be allocated.
    Especially where there is more than one counsel involved, it should not be
    assumed that counsel can clear their calendars and co-ordinate their schedules
    so as to be ready within a few months of the judicial pre-trial. Further, the
    time necessary for counsel to prepare for the preliminary inquiry or trial must
    be taken into consideration as part of the inherent time requirements of the
    case. In setting down these guidelines, this court found persuasive the reasons
    of Code J. in
R. v. Lahiry
, 2011
    ONSC 6780, 109 O.R. (3d) 187,
at paras. 25-37. As Code J. noted at para.
    26, systemic or institutional delay only starts to run when the parties are
    ready for trial but the system cannot accommodate them.

[20]

In
    accordance with
Tran
, time must be allowed for defence counsel to
    prepare. The record discloses defence counsel indicated that she required
    approximately five weeks from when she obtained the first box of disclosure to
    prepare for the judicial pre-trial. There was also a delay by defence counsel
    in collecting the initial disclosure, apparently because of a breakdown in
    communications. Allowing eight weeks for preparation as neutral or part of the
    inherent requirements of the case is reasonable. Any further delay is
    attributable not to time to prepare, but to continuing problems with disclosure
    that prevented counsel from completing the statement of issues for the
    preliminary inquiry and proceeding with the judicial pre-trial. Eventually
    counsel proceeded with the judicial pre-trial and set the date for the
    preliminary inquiry, even though some disclosure was still outstanding.

[21]

I
    would not accede to Crown counsels submission that this court should revisit
    trial Crown counsels concession that the entire period from April 8, 2008 to
    June 22, 2009 should be categorized as institutional delay. Mr. Latimers
    submission is principally anchored in the fact that defence counsel at trial
    never put her first available dates for the preliminary inquiry on the record.
    However, we do not have the entire record because counsel agreed to proceed on
    the application by way of an agreed statement of facts. What is known is that
    the transcript of April 8, 2008 indicates that counsel informed the presiding
    judge that they had obtained the first available dates for the preliminary
    inquiry and that 11(b) is an obvious concern. Further, at court appearances
    in late July and early August 2008, at the request of the presiding judge,
    attempts were made to obtain an earlier date for the preliminary inquiry. The
    transcript of August 8, 2008 shows counsel for the co-accused informing the
    presiding judge that there were no earlier dates. Crown counsel did not
    dispute this statement. There is nothing on the record to show that the lack of
    earlier dates was due to the unavailability of counsel, as opposed to a lack of
    institutional resources.

[22]

As
    to the continuing retainer problems that the appellant was having because of
    difficulties with legal aid, again, counsel at trial agreed to proceed by way
    of an agreed statement of facts rather than obtain the transcripts relating to
    this issue. What the record does reveal is that defence counsel remained on the
    record throughout and that the legal aid issues were not causing delay. As
    counsel said on April 8, 2008:

I have been appearing on the record, I am still appearing on
    the record. Whether or not I get retained, I am still on the record and I am
    prepared to set the date today whether or not I am retained. I just want to
    make that clear, and the matter has not been slowed down at all because of my
    lack of retainer.

[23]

In
    my view, given this state of the record, it is not open to Crown counsel to ask
    for the first time on appeal that the April 2008 to June 2009 period not be
    characterized as institutional delay. On this record the respondent Crown has
    not shown that trial Crown counsel made an erroneous concession in agreeing
    that this entire period was institutional delay.

[24]

To
    summarize, of the period from the arrest on April 5, 2007 to July 30, 2009,
    when the appellant first appeared in the Superior Court of Justice, 21 months
    is attributable to institutional or Crown delay. The remaining seven months are
    either intake, time to prepare or the inherent time requirements of the case
    and are neutral.

[25]

Of
    the time in the Superior Court of Justice from July 30, 2009 to March 1, 2010
    (the date for the trial to begin), approximately five months is institutional
    delay. There was no contest before the application judge that March 1, 2010 was
    the first available date for the trial.

[26]

Thus,
    26 months of the almost three years to bring the appellant to trial are
    properly characterized as institutional or Crown delay.

Prejudice

[27]

The
    trial judge placed minimal weight on actual prejudice. He noted that the
    appellant did not attempt to vary his strict bail conditions until he was
    ordered to stand trial and that the repeated court appearances were because the
    appellant had not provided a designation to have counsel appear on his behalf.
    These findings were available on this record.

[28]

Where
    the application judge erred, in my view, was in failing to consider the
    inferred prejudice from the delay. As the Supreme Court of Canada said in
R.
    v. Godin
, 2009 SCC 26, [2009] 2 S.C.R. 3, at paras. 31 and 34:

The question of prejudice cannot be considered separately from
    the length of the delay. As Sopinka J. wrote in
Morin
, at p. 801,
even
    in the absence of specific evidence of prejudice, prejudice may be inferred
    from the length of the delay. The longer the delay the more likely that such an
    inference will be drawn
. Here, the delay exceeded the ordinary guidelines
    by a year or more, even though the case was straightforward.

....

The majority of the Court [of] Appeal acknowledged that these
    charges had been hanging over the appellants head for a long time.
It was
    reasonable, in my view, to infer as the trial judge did that the prolonged
    exposure to criminal proceedings resulting from the delay gave rise to some
    prejudice
. The majority of the Court of Appeal appears to have given no
    weight to this consideration. [Emphasis added.]

[29]

While
    the application judge dealt with actual prejudice, he erred in failing to give
    any weight to inferred prejudice.

The Remedy

[30]

In
    balancing the factors, the application judge stated that a stay of proceedings
    is an extraordinary remedy. In
R. v. Thomson
, 2009 ONCA 771, 248
    C.C.C. (3d) 477, at para. 5, although the trial judge found a lengthy
    unexplained delay, he refused to stay the proceedings because a stay is a
    drastic remedy that should be confined to the clearest of cases. He also
    stated that the court must be satisfied that a fair hearing can no longer be
    had in light of the delay. As this court explained at para. 9 of
Thomson
,
    that was an erroneous approach because a stay of proceedings is the minimal
    remedy for a breach of the right to trial within a reasonable time. It is not
    the remedy of last resort reserved for the clearest of cases.

[31]

The
    proper test was identified by this court in
Thomson
, at para. 25,
by reference to McLachlin
    J.s concurring reasons in
Morin
at p. 810: In the final analysis the
    judge, before staying charges, must be satisfied that the interest of the
    accused and society in a prompt trial outweighs the interest of society in
    bringing the accused to trial. As Arbour J.A. pointed out in
R. v. Bennett
(1991), 3 O.R. (3d) 193 (C.A.) at 206, at common law and under the
Charter
,
    outside the s. 11(b) context a stay of proceedings is a discretionary remedy to
    be granted sparingly. But for a s. 11(b) violation a stay of proceedings is the
    minimum remedy. As Lamer J. explained in
R. v. Rahey
, [1987] 1 S.C.R.
    588 at 614: After the passage of an unreasonable period of time, no trial, not
    even the fairest possible trial, is permissible.

[32]

The
    application judges reasons balancing the various factors are as follows:

In balancing all of the factors, I should also bear in mind
    that a stay of proceedings is an extraordinary remedy. There is a genuine
    public interest in having serious charges tried on their merits. In my view,
    when all of these factors are balanced, it is not appropriate to stay the
    charges and I decline to do so.

[33]

Thus,
    the application judge did not make the error of reserving a stay of proceedings
    to the clearest of cases. But it was an error to describe the stay as an
    extraordinary remedy. Further, because he failed to take into account inferred
    prejudice, his balancing was unreasonably skewed in favour of the genuine public
    interest in a trial on the merits.

Conclusion

[34]

In
Morin
at p. 799, the court suggested a period of institutional delay
    in the Ontario Court of Justice of 8 to 10 months, and 6 to 8 months after
    committal for trial. In this case there is a combined institutional and Crown
    delay in the Ontario Court of Justice and the Superior Court of Justice of 26
    months, a period in excess of the upper end of the acceptable institutional
    delay (18 months). Balancing the various factors, especially the fact that a
    significant portion of the delay is attributable to the Crown because of
    disclosure problems, the delay was unreasonable. The seriousness of the offence
    and the interest in a trial on the merits do not outweigh the other factors,
    including the inferred prejudice to the appellant from the 35 months it took to
    bring him to trial.

[35]

In
Godin
, there was a delay of 30 months to bring the accused to trial on
    serious offences including sexual assault, unlawful confinement and death
    threats. Virtually all the delay was attributable to the Crown or institutional
    delay. Justice Cromwell described this delay as striking and, in words that
    also apply to this case, he said at para. 41:

Of course, there is a strong societal interest in having
    serious charges tried on their merits. However, the progress of this case was
    delayed to such a degree that the appellants constitutional right to be tried
    within a reasonable time was violated.

[36]

In
    this case it took 35 months to bring the appellant to trial and virtually all
    of that delay, as in
Godin
, is attributable to the Crown or
    institutional delay. Given the length of the delay and the explanation for it,
    a stay of proceedings is the only appropriate remedy.

DISPOSITION

[37]

Accordingly, I would allow the appeal, set aside the convictions, and
    enter a stay of the proceedings.

Signed:        M. Rosenberg J.A.

I agree Robert P. Armstrong
    J.A.

I agree H.S. LaForme J.A.

Released: MR JUNE 7, 2012


COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Stephen, 2012
    ONCA 411

DATE: 20120615

DOCKET: C52970

MacPherson, Armstrong and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Richard Stephen

Respondent

James K. Stewart, for the appellant

Lois I. Pineau, for the respondent

Heard and released orally: June 14, 2012

On appeal from the order of Justice Janet Wilson of the
    Superior Court of Justice, dated November 22, 2010, granting a stay of the
    criminal proceedings against the respondent.

ENDORSEMENT

[1]

This is a Crown appeal from the order of J. Wilson J. in which she
    granted a stay of the criminal proceedings against the respondent for breach of
    his right to be tried within a reasonable time pursuant to s. 11(b) of the
Canadian
    Charter of Rights and Freedoms
. The order stayed proceedings in the
    Superior Court on two counts of armed robbery and two counts of robbery while
    armed with an imitation firearm.

[2]

The respondent was originally charged with two counts of armed robbery
    on June 15, 2006.  This case was not complex.  He first appeared in provincial
    court in Scarborough on June 16, 2006. It took 52-1/2 months to bring him to
    trial. Most of the time was taken up in the Ontario Court of Justice. From the
    date of his first appearance in the provincial court to his committal for trial
    on March 13, 2009 some 33 months had elapsed.

[3]

The time taken in the Superior Court is not an issue. However, the
    delays in the provincial court are unacceptable and offended the guidelines in
R.
    v. Morin
,

[1992]
    1 S.C.R. 771.  The appellant conceded that there were 19 months and 16 days of
    institutional delay and the respondent submitted that there were between 21 and
    24 months of institutional delay.

[4]

Counsel for the Crown has raised a number of issues concerning the
    application judges analysis of the reasons for delay and her finding that the
    respondent suffered actual prejudice.

[5]

The Crowns main argument is that the trial judge erred in her
    conclusion that the Crown Attorney should have been more proactive in dealing
    with the dilatory conduct of defence counsel.

[6]

The respondent was represented by two different counsel whom he
    discharged at various stages of the proceedings. He subsequently acted for
    himself until the argument of the s. 11(b) motion when he had the assistance of
amicus curiae
. There is little doubt that both defence counsel,
    particularly the first defence counsel, contributed to a significant part of
    the delay by reason of their failure to move the case ahead on a number of
    occasions. The first counsel failed to appear in court several times, resulting
    in the case being adjourned. A fair reading of the record indicates that on
    many occasions the Crown Attorney in the provincial court was completely
    frustrated by the lack of progress in this case and the delays resulting from
    the inattentiveness of defence counsel.

[7]

The application judge attributed some of the responsibility for defence
    counsels delay to the failure of the Crown to take a more aggressive stance to
    move the case forward. While we agree that the ultimate responsibility to move
    the case forward rests with the Crown, we are not persuaded that the Crown
    should be required to take responsibility for the failings of defence counsel.
    Defence counsel are the agents of their clients and it is they who must accept responsibility
    for their counsels conduct.

[8]

In any event, the delay in this case in the provincial court was simply
    far too long and unreasonable.

[9]

In respect of the application judges finding of actual prejudice,
    counsel for the Crown submits that the evidence did not support her conclusion.
    We see no basis to interfere. Even if she fell into error in respect of her
    findings of actual prejudice, this is a case in which prejudice can be inferred
    by reason of the unconscionable delay.

[10]

The
    appeal is therefore dismissed.

J.C.
    MacPherson J.A.

Robert
    P. Armstrong J.A.

Sarah
    Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Wilson, 2012
    ONCA 396

DATE: 20120608

DOCKET: C51344

Doherty, Feldman and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicole Wilson

Applicant (Appellant)

Susan Jane von Achten, for the applicant (appellant)

D. Calderwood, for the respondent

Heard:  June 7, 2012

On appeal from the conviction entered on November 4, 2009
    and the sentence imposed on November 4, 2009 by Justice Douglas of the Ontario
    Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant was convicted on her guilty pleas on three charges of
    fraud.

[2]

She appeals the conviction seeking to withdraw the guilty pleas.

[3]

An appellant carries a heavy burden when seeking to withdraw guilty
    pleas on appeal.

[4]

Nothing in the transcripts of the guilty pleas (entered twice) affords
    any support for the motion to withdraw the pleas.

[5]

The appellants affidavit offers no basis upon which we could find that
    she has a potential defence.  Her alleged duress, while no doubt capable of
    explaining and mitigating her conduct, could not provide a defence of duress as
    defined in s. 17 of the
Criminal Code
.

[6]

We see no reason to interfere with the convictions.  The appeal is
    dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wong, 2012 ONCA 432

DATE: 20120622

DOCKET: C53130

Weiler, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Sai Wong

Appellant

Edward F. Hung, for the appellant

Alexander Hrybinsky, for the respondent

Heard: May 1, 2012

On appeal from the conviction entered on December 6, 2010
    and the sentence imposed on December 22, 2010 by Justice Joseph F. Kenkel of
    the Ontario Court of Justice, sitting without a jury.

Weiler J.A.:

NATURE OF APPEAL

[1]

The appellant was convicted
[1]
of the following offences:

(1)     Trafficking in a substance
    contrary to s. 5(3) of the
Controlled Drugs and Substances Act
(
CDSA
)

(2)     Possession of a substance contrary
    to s. 4(1) of the
CDSA

(3)     Possession for the purpose of
    trafficking (3 counts) contrary to s. 5(3) of the
CDSA

(4)     Careless storage of a firearm
    contrary to s. 86(3) of the
Criminal Code

(5)     Possession of a firearm without a
    licence contrary to s. 91(3) of the
Criminal Code

(6)     Possession of a firearm knowing
    its possession is unauthorized contrary to s. 92(3) of the
Criminal Code

(7)     Possession of a loaded firearm
    contrary to s. 95(1) of the
Criminal Code

[2]

I propose to deal first with the issues relating to the convictions for offences
    (3)  (6).  The primary issue in relation to these convictions is the validity
    of the search warrant and the manner in which the trial judge dealt with the
    evidence obtained from its execution at trial. In my opinion these issues have
    no merit and I deal with them summarily.

[3]

Secondly, I will address the issue relating to offence (7). The
    appellant argues that possession of an unloaded prohibited firearm or
    restricted firearm together with readily accessible ammunition that is capable
    of being discharged in the firearm (the offence made out on the facts) is not included
    in the offence of possession of a loaded prohibited firearm or restricted
    firearm (the offence charged). Both offences are found in s. 95(1) of the
Code
.
    I agree with the appellant and I would allow the appeal in relation to this conviction
    on that basis, set aside the conviction and order that an acquittal be entered.

[4]

Finally, I will deal with whether the convictions for the first two
    offences - trafficking in ketamine on June 24, 2009 and being in possession of
    ketamine for the purpose of trafficking on June 25, 2009 - were unreasonable. Having
    regard to the whole of the evidence, I conclude that there was ample evidence
    to support the trial judges findings of guilt.

[5]

The appellant has also appealed his global sentence of three years
    imprisonment. However, because a person who commits an offence in s. 95(1) is
    subject to a minimum term of imprisonment of three years, the sentence appeal was
    adjourned to await this courts decision as to whether the finding of guilt
    pursuant to s. 95(1) would be maintained.

FACTS

[6]

In April 2009, York Regional Police received information from an
    anonymous source that the appellant resided at 3 Westchester Crescent in
    Markham and stored drugs that he was dealing, at that location.  The source
    also indicated that the appellant sold drugs around the Pacific Mall and that
    he used three mobile phones.

[7]

Det. Ibbott conducted a background check of the appellant. The police
    information system showed that the appellant had outstanding charges of possession
    of burglary tools and possession of ecstasy for the purpose of trafficking. This
    information was included in Det. Ibbotts affidavit of June 25, 2009,
    supporting the application for a search warrant. In reality, the appellant had
    no outstanding charges.  Unbeknownst to the Det., the charges had been
    withdrawn by the Crown on June 5, 2009.

[8]

Acting on the information obtained, Det. Ibbott and fellow officers
    commenced surveillance of 3 Westchester Crescent. They made observations of the
    appellant on three separate occasions.

[9]

On May 15, 2009, Cst. Salhia observed the appellant driving a vehicle on
    Westchester Crescent towards a shopping plaza. The appellant parked near a
    convenience store and an unknown male entered the vehicle and, within five
    minutes, got out.

[10]

The
    appellants vehicle left the parking lot and police followed it to another
    shopping plaza. There, the appellant entered a cinema. He met with two unknown
    males and entered the washroom. Approximately six minutes later, the parties left
    the washroom. The appellant returned to his vehicle.

[11]

The
    police then followed the appellants vehicle to a Shoppers Drug Mart. The
    appellant met with an unknown male for 10 minutes inside the store. The pair walked
    out of the store and got into the appellants vehicle where they remained for
    12 minutes before the unknown male left and went back into the store. The
    appellant left in his vehicle.

[12]

The
    police continued following the appellants vehicle to a residence in Toronto. There,
    an unknown female entered his vehicle. Three minutes later she went back into
    the residence and the appellant drove away.

[13]

On
    May 28, 2009, the police surveillance team observed the appellant and an
    unknown male leave his residence and enter a vehicle. They left the residence
    and quickly returned to be joined by two other unknown males. The police followed
    the vehicle to a nearby residential area where an unknown female entered the
    vehicle for five minutes and then left. No further observations were made that
    day.

[14]

Finally,
    on June 24, 2009, police observed a vehicle arriving at the appellants
    residence. The driver went to the door of the residence and then returned to
    the vehicle with the appellant. The police followed the vehicle to a shopping
    plaza. Moments later a Mercedes parked beside it. The appellant got in the back
    seat of the Mercedes where he remained for approximately 5 minutes before
    returning to the vehicle he came in and driving away.

[15]

Police
    believed that the appellant had sold drugs to the persons in the Mercedes and
    decided to continue to observe that vehicle. They saw two males making snorting
    actions consistent with drug use and arrested both of them for possession of
    ketamine shortly thereafter.

[16]

On
    completion of the surveillance, Det. Ibbott formed the belief that the
    appellant was a drug trafficker. He based his belief on his experience (22
    years as a police officer,10 of which were with the Drugs and Vice Unit),
    observations made of the appellant on the three days of surveillance, the supporting
    information from the anonymous informant, and the actions of the people in the
    Mercedes on June 24, 2009. He also believed that the appellant kept the drugs
    at his residence as, in his experience, drug traffickers keep their stash close
    by and a residence is considered a safe location to keep drugs in bulk.

[17]

On
    June 25, 2009, Det. Ibbott ordered the appellants arrest for trafficking in
    relation to the observations of June 24 involving the Mercedes. Later that
    evening, he also applied for a warrant under the
Controlled Drugs and
    Substances Act
(
CDSA)
S.C.1996, c.19, to search 3 Westchester
    Crescent.

[18]

The
CDSA
warrant listed two offences for which evidence was sought: trafficking
    on June 24, 2009; and possession for the purpose of trafficking on June 25,
    2009. According to Det. Ibbott, the basis for charging the appellant with the
    possession for the purpose of trafficking offence on June 25, 2009 was not the
    appellants activities on June 25, 2009, but rather the result of the
    surveillance prior to that date.

[19]

The
CDSA
warrant was executed on June 26, 2009 by Cst. Salhia and three
    other officers. The search produced 35.8 grams of ketamine, 4 grams of cocaine,
    $1,850 in Canadian currency, $57 in U.S. currency, scales, and packaging
    material. A sawed-off .22 calibre rifle and ammunition were also found inside a
    tennis racquet case in a bedroom believed to be the appellants.

[20]

Det.
    Ibbott testified at trial that the ammunition was in the tennis racquet case
    and not loaded in the rifle. Although Det. Ibbott had been informed by Cst.
    Salhia that the rifle was not loaded, he nevertheless laid a further information
    charging the appellant with possession of a loaded firearm.

The Trial Judges DECISION

[21]

The
    Crown elected to proceed by indictment on all charges. The appellant consented
    to the firearm and drug charges being tried together. At the outset of the
    trial, both parties asked the court to determine whether the Crown had proved
    possession of the seized items beyond a reasonable doubt before dealing with
    the other issues.

[22]

On
    October 4, 2010, the trial judge found that the surveillance evidence, along
    with documents and clothing located inside the residence, proved that the
    appellant lived there. The trial judge observed that the appellant and his
    brother each occupied one of the two bedrooms in the basement level of the
    home.  The appellants brother told the police whose bedroom was whose but did
    the Crown did not call him to give this evidence at trial. The trial judge
    found the brothers statements to the police were hearsay and not admissible as
    evidence. However, considering all of the remaining circumstantial evidence,
    the trial judge held that there was only one reasonable inference: the
    appellant occupied the bedroom searched.

[23]

The
    trial judge relied on the following evidence to link the appellant to the
    bedroom where the contraband items were located: cellular telephone bills in
    the appellants name, the appellants student identification, and the style of
    clothing found which was consistent with the appellants manner of dress but
    not his brothers. Photos indicated that the other bedroom contained items
    belonging to the appellants brother. On the totality of the evidence, the
    trial judge held that the Crown had proven beyond a reasonable doubt that the
    appellant resided at the address in question and was in possession of the items
    seized from the bedroom.

[24]

On
    December 6, 2010, the trial judge delivered his ruling on the appellants
    application under ss. 8 and 24 of the
Charter
to include the evidence
    obtained from the search.  The reasonableness of the search turned on the
    information to obtain which formed the basis for the issuance of the search
    warrant.  The trial judge concluded that there was sufficient evidence to
    support the assertion in the information to obtain that the appellant was
    trafficking in ketamine and that he resided at the address in question.

[25]

The
    trial judge based his conclusion as to the reasonableness of the search on the content
    of the information to obtain after he had excised the information relating to
    the informant and the erroneous information concerning the appellants outstanding
    charges. The trial judge found that there was also sufficient evidence to show
    that the drugs would likely be found at the appellants home. He held that
    there was no breach of s. 8 of the
Charter.
And, applying the analysis
    in
R. v. Grant,
[2009] 2 S.C.R. 353, 2009 SCC 32, he further held that
    even if there were a breach of s. 8, the evidence was admissible under s.
    24(2).

[26]

The
    trial judge then dealt with the charge of possession of a loaded prohibited
    firearm. He found that the evidence at trial showed that the prohibited firearm
    was unloaded with ammunition in the same case. He held that s. 95 of the
Criminal
    Code
created two modes of committing the same offence. Further, the second
    mode of committing the offence in s. 95 was included in the first because
    anyone possessing a loaded prohibited firearm would also at that same moment
    be in possession of a prohibited firearm with readily accessible ammunition
    capable of being fired in the weapon.

[27]

Lastly,
    the trial judge dealt with the issue of whether the ammunition was capable of
    being discharged in the firearm. He found that, although the ammunition seized
    was inadvertently destroyed prior to testing, the Crown had established beyond
    a reasonable doubt that the ammunition was functional and capable of being
    fired from the weapon. In so doing, he relied on the evidence of Cst. Brouwer,
    a firearms and ballistics expert, who based his opinion on his examination of
    the firearm and photographs of the ammunition.

[28]

Considering
    all of the evidence, the trial judge held that the Crown had proven the alleged
    offences beyond a reasonable doubt and found the appellant guilty on all counts.

ISSUES

(1)

Did the trial judge err in ruling that the search warrant was legally
    obtained and that the search was therefore reasonable?

[29]

The
    appellant submits that the search warrant was not legally obtained because the
    information in the information to obtain was insufficient for the following
    reasons:

·

The lack of proven reliability of the informant (conceded by the
    Crown);

·

Det. Ibbotts mistaken belief expressed in the information to
    obtain that there were outstanding charges;

·

Inconsistent information as to the area code of the appellants
    cell phone; and

·

The inclusion of the baseless offence of possession for the
    purpose of trafficking on June 25, 2009.

Further, the appellant argues that Det. Ibbott lacked
    credibility and this should have been reflected in the trial judges assessment
    of the detectives reasonable belief that drugs would be found at the
    appellants home.

[30]

In
    considering the sufficiency of the information to obtain, the trial judge excluded
    the items listed above from his consideration.  The trial judge was entitled to
    otherwise accept the evidence of Det. Ibbott. He was in the best position to determine
    the officers credibility and I have no basis on which to interfere with his
    assessment. On the totality of the evidence, there were reasonable grounds to
    believe that the appellant resided at the address in question and kept drugs
    there.

[31]

The
    trial judge only had to be satisfied that there was an evidentiary basis on
    which the warrant could have been issued: see
R. v. Garofoli
, [1990] 2
    S.C.R. 1421. On reviewing the search warrant, the trial judge assessed the
    evidence in its entirety severing off anything that was inaccurate or
    unreliable.  He did not err in his conclusion that the warrant was legal and
    that there was no violation of the appellants right to be free from unreasonable
    search and seizure pursuant to s. 8 of the
Charter.

[32]

In
    the circumstances it is not necessary to consider the trial judges ruling on
    s. 24(2) of the
Charter
.

(2)

Did the trial judge err in ruling that the appellant occupied the
    bedroom where the firearm and drugs were found and that he was therefore in
    possession of them?

[33]

The
    appellant relied on his factum for this ground of appeal. In it he argues that
    inasmuch as the police officers failed to list the items identifying which room
    belonged to the appellant in their notes and the Crown failed to call the
    appellants brother or any other family members to establish that the room where
    the contraband items were found was the appellants, there is no evidence that
    the room was his.  The appellant further submits that the trial judge erred in not
    accepting the evidence of Det. Thompson that only the appellants room was
    searched.

[34]

The
    issue of note-taking by police was considered and rejected by the trial judge.
    While the police officers did not list the items identifying which room
    belonged to the appellant in their notes, they did take photographs of the
    rooms. The photographs showed items that indicated whose bedroom was whose, thus
    confirming the officers evidence.

[35]

Further,
    there was no basis for drawing an adverse inference based on the Crowns
    failure to call the appellants family members as witnesses. The decision to
    call witnesses is a matter of Crown discretion: see
R. v. Cook
, [1997]
    1 S.C.R. 1113. And, as I have noted above, the testimony of family members as
    to whose room was whose was not required.

[36]

Insofar
    as the trial judge omitted to refer to the evidence of Det. Thompson, a trial
    judge is not required to refer to every piece of evidence in giving his reasons:
    see
R. v. R.E.M.
, [2008] 3 S.C.R. 3, 2008 SCC 51, at paras. 19-20. Moreover,
    Det. Thompsons evidence was contradicted by the objective evidence of the
    photographs.

[37]

There
    was ample evidence to support the trial judges conclusion that the appellant
    occupied the bedroom where the firearm and drugs were found and that he was in
    possession of them.

(3)

Did the trial judge err in finding that the destroyed ammunition was
    capable of being discharged by the firearm seized?

[38]

The
    appellant submits that Cst. Brouwers evidence raised a reasonable doubt as to
    whether the ammunition could be discharged by the seized firearm. He could not,
    with any certainty, have ascertained the discharge capability of the ammunition
    from the photographs. Test firing of the actual ammunition was required. The
    trial judge erred in finding that the destroyed ammunition was capable of being
    discharged by the seized firearm.

[39]

The
    appellants argument is a complaint about the factual findings of the trial
    judge and amounts to a claim of unreasonable verdict on this conviction. The
    trial judge was aware of, and noted, the destruction of the ammunition and
    magazine. After referring to Cst. Brouwers evidence that the cartridges were
    consistent with the type of ammunition for the firearm, he took into
    consideration Cst. Brouwers inability to rule out the possibility that the
    cartridges were not capable of being discharged from the firearm. However, he
    adopted Cst. Brouwers opinion and expressly stated six reasons for finding
    that the ammunition was capable of being discharged:

(a)     Dummy cartridges typically have a
    hole drilled in them or are marked in some way. These had no such marking.

(b)     The officer had never seen a dummy
    cartridge for this type of rifle in 43 years of experience.

(c)     The cartridges appeared to be
    factory made, which is inconsistent with a special dummy cartridge for gunsmith
    work.

(d)     There is no apparent reason for
    having more than one dummy cartridge.

(e)     There is no evidence the appellant
    was a gunsmith or weapons trainer who would have legitimate need of a dummy
    cartridge. The presence of a sawed off rifle makes it certain he was not a
    gunsmith or weapons trainer.

(f)      The location of the ammunition,
    in a tennis bag with the sawed off rifle, in a room where drugs were found
    makes it plain the weapon was kept as a tool of the drug trade.

[40]

The
    trial judges finding was not unreasonable; it was well supported by the
    evidence.

(4)

Did the trial judge err in law in ruling that possession of an unloaded
    firearm with accessible ammunition capable of being discharged by the firearm
    is included in the offence of possession of a loaded firearm? Did he err in
    convicting the appellant of possession of a loaded firearm?

[41]

The
    trial judge found that a person who possesses a loaded firearm necessarily
    possesses an unloaded firearm with usable ammunition at hand. Possessing an
    unloaded firearm together with usable ammunition, as the appellant did, was
    therefore included in the offence of possessing a loaded firearm.

[42]

In
    this case, the information particularized the offence as possession of a
    loaded prohibited firearm, namely a rifle, contrary to section 95, subsection
    (2) of the Criminal Code. As I have indicated, the evidence showed that the
    firearm was not in fact loaded but that the ammunition was found alongside it
    in the same tennis racquet case. At trial, the Crown chose not to seek an
    amendment of the information to conform to the evidence.

[43]

For
    ease of reference I have reproduced the relevant portions of sections 95(1) and
    (2) of the
Criminal Code
below:

(1) [E]very person
    commits an offence who, in any place, possesses a loaded prohibited firearm or
    restricted firearm, or an unloaded prohibited firearm or restricted firearm
    together with readily accessible ammunition that is capable of being discharged
    in the firearm, unless the person is the holder of

(a) an authorization
    or a licence under which the person may possess the firearm in that place; and

(b) the registration certificate
    for the firearm

(2) Every person who
    commits an offence under subsection (1)

(a) is guilty of an
    indictable offence and liable to imprisonment for a term not exceeding 10 years
    and to a minimum punishment of imprisonment for a term of

(i) in the
    case of a first offence three years.

[44]

Knowledge
    of whether the firearm is prohibited or restricted is not an essential element
    of the offence:
R. v. Williams
, 2009 ONCA 342, 95 O.R. (3d) 660, at
    para. 21.

[45]

The
    appellants position is that the trial judge erred in holding that the second
    part of s. 95(1) of the
Criminal Code
is an included offence in the
    first part. The elements of both offences are not the same. The second part of
    s. 95(1) is not an included offence but rather a separate one. Thus, there is
    no evidence that the appellant committed the offence of possession of a loaded
    firearm.
[2]

[46]

The
    respondent submits that, as a matter of logic and common sense, if a prohibited
    firearm is loaded with ammunition then that person possesses a firearm
    together with readily accessible ammunition. Section 95(1) describes two ways
    of committing one offence. It is an offence to possess a loaded prohibited
    firearm
or
an unloaded prohibited firearm with readily accessible
    ammunition. Both modes of committing the offence are found within the same
    subsection of the
Criminal Code
with the latter mode being an included
    offence in the first.

[47]

I
    begin by noting that the respondents submission, that s. 95(1) creates one
    offence with two modes of commission, is contrary to this courts
obiter
in
Williams,
at fn. 3, which held that s. 95 creates two offences -
    possession of a loaded firearm being the first offence and possession of an
    unloaded firearm with readily accessible ammunition being the second. In
    dealing with the respondents submission I will refer to s. 95 as creating two
    offences. That point aside, the respondents submission is flawed in two
    respects.

(a)

The meaning of the
    term loaded

[48]

The
    first problem with the respondents argument is that it ignores the wording of s.
    95(1). The second offence described in s. 95(1) does not simply require the
    firearm be together with readily accessible ammunition as stated by the trial
    judge and as asserted by the respondent; it
also
requires that the
    firearm be
unloaded
. It is a basic principle of statutory
    interpretation that Parliament does not speak in vain:
Attorney General of
    Quebec v. Carriè
res Ste-Thé
rè
se Lté
e
,

[1985] 1 S.C.R. 831, at p. 838.

[49]

The
    term unloaded has a distinct meaning: it is the opposite of the term loaded
    in the first part. Although the term loaded is not defined in s. 95 or
    anywhere else in the
Code
,  regulations
[3]
to the
Firearms Act,
S.C.
    1995, c. 39 contain a definition of the term unloaded which reads:

unloaded, in respect of
    a firearm, means that any propellant, projectile or cartridge that can be
    discharged from the firearm is not contained in the breach or firing chamber of
    the firearm nor in the cartridge magazine attached to or inserted into the firearm.

[50]

By
    virtue of the federal
Interpretation Act
, R.S.C.
    1985, c. I-21, s. 15(2)(b), w
here an enactment contains an
    interpretation section or provision, it shall be read and construed as
    being applicable to all other enactments relating to the same subject-matter
    unless a contrary intention appears. The
Interpretation Act
defines
    the term enactment as an Act [of Parliament] or regulation or any portion of
    an Act or regulation. Therefore, the regulations to the
Firearms Act
are enactments and the definition of unloaded contained in those regulations
    applies to s. 95(1) of the
Criminal Code
. Both enactments, though
    concerned with different aspects, deal with the same subject matter  gun
    control. Further, there is nothing in the
Code
to suggest that this
    definition is inappropriate or contraindicated. Indeed, the definition accords
    with the ordinary meaning one would ascribe to the word unloaded, and by
    extension, loaded when used to refer to a firearm.

(b)

Not an included
    offence

[51]

The
    second respect in which the respondents submission is flawed, is that it
    presumes that a person who is guilty of the first offence will also be guilty
    of the second. It is important to note at the outset the definition of an
    included offence. An offence is included if its elements are embraced in the
    offence charged (as described in the enactment creating it or as charged in the
    count) or if it is expressly stated to be an included offence in the
Criminal
    Code
itself:
R. v. G.R.
, 2005 SCC 45, at para. 25, [2005] 2 S.C.R.
    371. This definition is derived from s. 662 of the
Criminal Code
,
    which authorizes convictions for included offences in only three categories.
    The category with which we are concerned here is the second category - offences
    included in the enactment creating the offence charged.

[52]

Offences
    falling into this category become included if they must necessarily be
    committed
en route
to committing the offence charged. In other words,
    all of the essential elements of the offence must be part of the offence charged:
    see
G.R.
, at paras. 30-31. For example, in order to commit an
    aggravated assault, one must necessarily commit an assault. The respondent
    acknowledges this to be the case.

[53]

However,
    it will not always be true that a person who possesses a loaded firearm has
    necessarily possessed an unloaded firearm together with usable ammunition. For
    example, a person, X, unlawfully possessing a loaded gun will not necessarily
    be the same person who possessed the unloaded gun with readily accessible
    ammunition. Another person, Y, may have been in possession of the gun, lawful
    or otherwise, with readily accessible ammunition, and loaded the gun. X may
    come along and steal Ys loaded gun. Y may give X the gun in loaded condition. Y
    may even lose the loaded gun and X may find it. In each of these circumstances,
    the person guilty of unlawful possession of a loaded firearm does not
    necessarily commit the offence of possession of an unloaded firearm with
    readily accessible ammunition.

(c)

Right to make full
    answer and defence

[54]

My
    conclusion, that the offence of possession of an unloaded firearm with readily
    accessible ammunition is not an included offence of possession of a loaded
    firearm, accords with the principle underlying included offences articulated by
    the majority in
G.R.
: see also
R. v. Simpson (No. 2)
(1981),
    58 C.C.C. (2d) 122 (Ont. C.A.) at p. 133
.
In
G.R
, the Supreme
    Court of Canada observed that since the same set of facts may give rise to
    different charges, it is a fundamental principle of a fair trial that an
    accused know the charge or charges he or she must meet:
G.R.
, at
    paras. 26-27.

[55]

It
    is what the Crown alleges, not what the accused already knows, that is
    important because an accused can only be called upon to meet the charge put
    forward by the prosecution:
G.R.
,

at paras. 26-27. Here, the
    Crown alleged that the gun was loaded. The wording of the count did not include
    particulars to put the appellant on notice that he was also in jeopardy of a conviction
    for possession of an unloaded weapon with ammunition close by.

[56]

The
    principle that an accused must know the case he or she has to meet, also
    underlies the requirement that it is an error to convict when, as here, the
    Crown particularizes the mode of commission of the offence in the indictment
    but fails to prove it as charged and does not seek to amend the indictment to
    accord with the evidence: see
R. v. Saunders,
[1990] 1 S.C.R. 1020.
    Thus, even if the offence of possession of an unloaded firearm with ammunition close
    by were an included offence, the trial judge erred in finding the appellant
    guilty because the Crown particularized possession of a loaded firearm and failed
    to prove it.

[57]

Accordingly,
    I would allow the appeal on this count, set aside the conviction for possession
    of a loaded prohibited firearm and substitute an acquittal.

(5)

Did the trial judge err in finding that the appellant trafficked in
    ketamine on June 24, 2009 and was in possession of ketamine for the purpose of
    trafficking on June 25, 2009?

[58]

The
    appellant submits that the trial judge erred in finding that the appellant
    trafficked in ketamine on June 24, 2009.  The appellant was not arrested on
    that date, no ketamine was found, and there was no confirmation from the
    alleged purchaser that the appellant sold him ketamine. In addition, there was
    no evidence that the appellant was in possession of ketamine for the purpose of
    trafficking on June 25, 2009.

[59]

The
    basis for the conviction on these two counts is not dealt with in the trial
    judges reasons for judgment. I would, however, dismiss the appellants
    argument because there is a strong basis in the overall evidence for these
    convictions including:

(a)     the evidence from several days of surveillance,
    including June 24th and June 25th, 2009, consistent with drug trafficking
    activity;

(b)     the arrest of persons on both
    dates immediately after brief meetings with the accused where they were found
    in possession of ketamine in plastic baggies; and

(c)     the search of the appellants
    apartment the next day which yielded various drugs including ketamine in
    baggies in a box under the appellants bed. The scales and the sawed off
    shotgun and ammunition would support the conclusion that possession of the
    ketamine was for the purpose of trafficking.

Conclusion respecting the conviction appeal

[60]

For
    the reasons I have given, I would allow the appeal with respect to the
    conviction for possession of a loaded firearm contrary to s. 95(1) of the
Criminal
    Code
and set aside that conviction.  In all other respects I would dismiss
    the appeal as to conviction.

Released: June 22, 2012

KMW                                                                K.M.
    Weiler J.A.

I
    agree David Watt J.A.

I
    agree Gloria Epstein J.A.

[1]
The appellant was also convicted of failing to comply with his recognizance and
    sentenced to 30 days imprisonment concurrent with his other sentences. None of
    the grounds of appeal relate to that conviction.

[2]
In making his submissions, the appellant asserts he was convicted pursuant to
    s. 95(1)(a) of the
Criminal Code
; he was not.  There is no reference
    to s. 95(1)(a) in the indictment. The information refers to s. 95(2) which is
    the penalty provision. Nor is there any reference to s. 95(1)(a) in the trial
    judges decision. The appellant was convicted pursuant to s. 95(1).

[3]

See:
Storage, Display and Transportation of
    Firearms and Other Weapons by Businesses Regulations
,
    S.O.R./98-210, s. 1 unloaded;
Storage, Display, Transportation and
    Handling of Firearms by Individuals Regulations
,
    S.O.R./98/209, s. 1 unloaded; and the not yet in force (C.I.F. date = Nov.
    30, 2012)
Gun Shows Regulations
,
    S.O.R./98-211, s. 1 unloaded.