COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Safarzadeh-Markhali, 2014 ONCA 627

DATE: 20140910

DOCKET: C55986 & C55910

Rosenberg, Watt and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

(Appellant on Sentence Appeal)

and

Hamidreza Safarzadeh-Markhali

Appellant

(Respondent on Sentence Appeal)

Roger A. Pinnock, for the Crown

P. Andras Schreck and Andrew Menchynski, for Hamidreza
    Safarzadeh-Markhali

Heard: May 5, 2014

On appeal from the conviction entered by Justice Michael
    Block of the Ontario Court of Justice on July 28, 2011 and the sentence imposed
    on July 25, 2012, with reasons on sentence reported at 2012 ONCJ 494.

Strathy J.A.:

A.

INtroduction

[1]

These appeals stem from Mr. Safarzadeh-Markhalis convictions for drug
    and firearms offences for which he received a six year sentence, before credit
    for pre-sentence custody. He appeals his conviction, alleging the trial judge
    erred in finding that he was not unlawfully detained in breach of his rights
    under s. 9 of the
Canadian Charter of Rights and Freedoms
.

[2]

The Crown requests leave to appeal sentence. It does not challenge the
    appropriateness of the sentence, but seeks to appeal the trial judges finding
    that s. 719(3.1) of the
Criminal Code
, R.S.C. 1985, c. C-46 violates
    the
Charter
and his grant of credit for pre-sentence custody on a 1.5
    to 1 basis.

B.

THE CONVICTION APPEAL

(1)

The facts

[3]

Mr. Safarzadeh-Markhali was driving along a busy street in Pickering,
    Ontario, in the curb lane. Cst. Lewis was driving a marked police car in the passing
    lane, about two car-lengths behind him. Both were travelling about 60
    kilometres an hour. The windows of the police car were open and Cst. Lewis
    claimed he detected a very strong odour of marijuana coming from Mr.
    Safarzadeh-Markhalis car. He pulled up beside the drivers side. He testified
    that he observed the driver, whom he described as an Arabic male, smoking
    something that he held in the thumb-and-forefinger grip associated with
    marijuana. The man immediately removed the cigarette from his mouth, moved it
    down in front of his body, and stared straight ahead.

[4]

Cst. Lewis activated the lights on his cruiser and directed Mr.
    Safarzadeh-Markhali to stop. He smelled an overwhelming odour of freshly burnt
    marijuana on approaching the car. He asked Mr. Safarzadeh-Markhali to get out
    of the car and arrested him for possession of marijuana. Cst. Lewis advised Mr.
    Safarzadeh-Markhali of his right to counsel and he asked to speak with his
    lawyer.

[5]

Cst. Lewis discovered a loaded 22 calibre pistol when he searched Mr.
    Safarzadeh-Markhali.

[6]

Another officer, Cst. Richer, arrived on the scene to assist with the
    search. He testified that when he opened the passenger door of the car, he
    detected an obvious odour of burnt marijuana. He saw Cst. Lewis discover a
    half-burnt and apparently recently-smoked marijuana roach between the seats.

[7]

Mr. Safarzadeh-Markhali was charged with possession of marijuana and
    eight separate firearms-related offences, including possession of a loaded
    prohibited firearm, careless storage of a firearm and possession of a firearm
    while prohibited from doing so.

(2)

The trial judges reasons

[8]

At his trial, Mr. Safarzadeh-Markhali alleged that his rights under ss.
    8, 9 and 10(b) of the
Charter
had been violated and sought exclusion
    of the loaded handgun found in his possession after his arrest. Because the
    Crown decided not to tender certain inculpatory statements Mr.
    Safarzadeh-Markhali made after his arrest, the sole issue was whether he had
    been unlawfully detained in violation of s. 9. It was conceded that if the
    detention was lawful, the search was incidental to the arrest. Mr.
    Safarzadeh-Markhali did not contest the nature of the substance found in the
    roach and he acknowledged that there was no issue he lacked the appropriate
    licences for the firearm.

[9]

The trial judge described the evidence of Cst. Lewis as unsatisfactory
    in several respects. He was uneasy about the officers evidence that he was
    able to trace the marijuana odour to Mr. Safarzadeh-Markhalis car, because
    they were both driving at some speed on a busy road. He also found that the
    officers note-taking was not consistent with proper practice and his
    reluctance to admit his mistakes made him reckless towards his duty to assist the
    truth-finding process. The trial judge was skeptical of the officers
    testimony that he determined Mr. Safarzadeh-Markhali was smoking a marijuana
    joint based on its hand-rolled appearance and the manner in which it was held.
    He thought it unlikely that the officer could identify a hand-rolled cigarette
    while travelling at a speed of 60 kilometers per hour. It was more likely that
    the manner in which the cigarette was smoked alone confirmed the hunch that the
    content was marijuana and not tobacco. He accepted that while the
    thumb-and-index-finger, palm-forward grip described by the officer might not
    be exclusive to marijuana smoking, it was a reasonable sign of it.

[10]

The
    judge observed that while he might have some difficulty with Cst. Lewis
    evidence on its own, it was corroborated by the evidence of Cst. Richer, who
    saw the recently-smoked roach in the car and smelled the strong odour of
    freshly-burnt marijuana.

[11]

The
    trial judge found there was no evidence to suggest that Mr.
    Safarzadeh-Markhalis ethnicity influenced the officers belief that he was
    smoking marijuana. He noted there was no evidence of any practice of
    stereotyping of Arabic-looking males as lawbreakers or marijuana smokers.

[12]

The
    trial judge concluded:

On the evidence as a whole, I find it likely that Constable
    Lewis smelled a burning joint while driving behind the defendant. He
    investigated his hunch that the smell originated from the defendants vehicle
    by pulling up beside it. Lewis then observed him smoking in the manner usually used
    with marijuana joints.

[13]

He
    found the stop was an appropriate exercise of police authority and there was no
Charter
breach associated with the stop, the arrest or the search
    incidental to arrest.

(3)

Analysis

[14]

Mr.
    Safarzadeh-Markhali asserts two errors. First, in considering whether the
    detention was arbitrary, the trial judge erred by relying on the evidence of
    Cst. Richer as after-the-fact justification for Mr. Safarzadeh-Markhalis
    detention and further erred in taking judicial notice of the manner in which he
    was holding the cigarette as characteristic of marijuana smoking.

[15]

Second,
    he says that the trial judge erred in concluding there was no evidence of
    racial profiling.

[16]

I
    do not regard Cst. Richers evidence as impermissible after-the-fact
    justification for the detention, nor did the trial judge use it for that
    purpose. Cst. Richers evidence was corroborative of Cst. Lewis evidence. His
    confirmation of the odour of marijuana in the car and his description of Cst.
    Lewis discovery of what appeared to be a recently-smoked joint, served to
    corroborate Cst. Lewis evidence that: there was a strong odour of
    freshly-smoked marijuana in the vehicle; he had observed Mr.
    Safarzadeh-Markhali smoking something in a manner consistent with marijuana;
    and Mr. Safarzadeh-Markhali had attempted to hide the item when the police
    cruiser pulled up beside him.

[17]

Nor
    did the trial judge base his conclusion on judicial notice. In describing the
    circumstances that led to his decision to stop Mr. Safarzadeh-Markhalis
    vehicle, Cst. Lewis referred not only to his observation of the smell of
    marijuana, but also to the fact that Mr. Safarzadeh-Markhali was smoking; that
    he was holding the object between his right thumb and index finger and smoking
    it from his lips; that he observed a puff of smoke from Mr. Safarzadehs mouth;
    and that when Mr. Safarzadeh-Markhali saw him, he removed the cigarette from
    his mouth, lowered it out of sight and started staring straight ahead. It is
    apparent that the manner in which Mr. Safarzadeh-Markhali was holding the joint
    was simply one of several circumstances that informed the officers decision to
    detain him.

[18]

The
    trial judges conclusions, which were based on his appreciation of all the
    evidence, were available to him. I would not give effect to this ground of
    appeal.

[19]

As
    to the second alleged error, Mr. Safarzadeh-Markhali contends that there are
    two indications of racial profiling. First, Cst. Lewis gave an unconvincing
    explanation for his description of Mr. Safarzadeh-Markhali as Arabic. Second,
    he gave a reason for the detention (that he smelled marijuana coming from the
    vehicle) which the trial judge found to be false.

[20]

In
    the leading case of
R. v. Brown
(2003), 64 O.R. (3d) 161 (C.A.),
    Morden J.A. observed at para. 44 that racial profiling can seldom be proven by
    direct evidence. No officer would admit to being influenced by racial stereotyping
    in exercising his or her discretion to stop a motorist. As a result, racial
    profiling must usually be proven based on inferences from circumstantial
    evidence. The absence of objective grounds for detention, or the fabrication of
    grounds, can lead to an inference that the detention was racially-motivated.

[21]

In
    this case, the officer said that the use of Arabic was simply a descriptor
    indicating that Mr. Safarzadeh-Markhali had lighter-coloured skin and was
    neither white nor black. Mr. Safarzadeh-Markhali submits that in the absence of
    any other descriptors, the use of this single term is evidence of racial
    profiling.

[22]

The
    trial judge found there was no evidence to suggest that Mr.
    Safarzadeh-Markhalis ethnicity influenced the officers belief that he was
    smoking marijuana. Moreover, unlike cases where the absence of evidence to
    justify the detention leads to an inference of racial profiling, the trial
    judge found that the evidence, including Cst. Lewis evidence that he smelled
    marijuana while following the car, gave grounds for detention and did not give
    rise to any inference that it was racially-motivated.

[23]

I
    see no basis on which to interfere with the trial judges conclusion and would
    not give effect to this ground of appeal.

(4)

Conclusion

[24]

For
    these reasons, I would dismiss the conviction appeal.

C.

the sentence appeal

[25]

The
    sentence appeal challenges the trial judges finding that s. 719(3.1) of the
Code
is inconsistent with the
Charter
and of no force and effect in the
    proceeding. The effect of s. 719(3.1), in combination with s. 515(9.1), is that
    a person denied bail primarily because of a previous conviction is ineligible
    for enhanced credit for pre-sentence custody.

[26]

Section
    719(3.1) was introduced by the
Truth in Sentencing Act
, S.C. 2009, c.
    29 (
TISA
). That statute replaced s. 719(3) of the
Code
with
    the following:

(3) In determining the sentence to be imposed on a person
    convicted of an offence, a court may take into account any time spent in
    custody by the person as a result of the offence but the court shall limit any
    credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify
    it, the maximum is one and one-half days for each day spent in custody
unless
    the reason for detaining the person in custody was stated in the record under
    subsection 515(9.1) or the person was detained in custody under subsection
    524(4) or (8)
.

(3.2) The court shall give reasons for any credit granted
    and shall cause those reasons to be stated in the record.

(3.3) The court shall cause to be stated in the record and
    on the warrant of committal the offence, the amount of time spent in custody,
    the term of imprisonment that would have been imposed before any credit was
    granted, the amount of time credited, if any, and the sentence imposed.

(3.4) Failure to comply with subsection (3.2) or (3.3)
    does not affect the validity of the sentence imposed by the court. [Emphasis
    Added.]
[1]

[27]

The
TISA
also amended s. 515 of the
Code
, which is contained in
    the group of sections in Part XVI dealing with judicial interim release. The
    new section, s. 515(9.1), stipulates that where bail is denied primarily
    because of a previous conviction of the accused, the presiding justice must
    state that reason, in writing, in the record. The effect of s. 719(3.1) is that
    where such an endorsement has been made, credit for pre-sentence custody is
    limited to 1:1, as provided in s. 719(3), as opposed to 1.5:1, permitted under
    s. 719(3.1).

[28]

Before
    discussing s. 719(3.1) in more detail, I will describe Mr.
    Safarzadeh-Markhalis bail hearing and the trial judges reasons on his
Charter
application and sentencing.

(1)     The bail hearing

[29]

Mr.
    Safarzadeh-Markhali was arrested on November 3, 2010. He appeared before a
    justice of the peace for a bail hearing on November 15, 2010. Due to the nature
    of the charges, he was responsible for showing cause for his release.

[30]

Some
    evidence was presented at the hearing, but before it had been completed, Mr.
    Safarzadeh-Markhali consented to his detention, presumably because he realized
    he was unlikely to obtain bail.

[31]

After
    hearing submissions on whether the information should be endorsed pursuant to
    s. 515(9.1), the justice of the peace made the endorsement. His reasons were
    brief:

Okay. After listening to both the submissions in regards to
    515(9.1) and given the criminal record that is one before the court, certainly
    the court is going to endorse the information in regards to 515(9.1) for the
    purpose that detention to the court even though he's already agreed to a
    consent order to consent to his own detention. It's not necessarily the fact
    that he has consented that the court has to look at by not endorsing the
    515(9.1). We're looking at what is put towards the court in regards to the
    previous convictions. Certainly the court is of the position that once you
    endorse it, given its requirement under the
Criminal Code
.

[32]

Mr.
    Safarzadeh-Markhali therefore remained in custody pending his trial. As a
    result of the endorsement, the time he spent in pre-sentence custody would be
    eligible for credit on sentencing at a ratio of only 1:1.

(2)     The trial judges reasons

[33]

Mr.
    Safarzadeh-Markhali was tried on June 14 and 17, 2011 and convicted on July 28,
    2011. Sentencing was scheduled for December 9, 2011. On December 1, 2011, defence
    counsel, who had not represented Mr. Safarzadeh-Markhali at the bail hearing,
    learned of the s. 515(9.1) endorsement and brought an application asserting
    that s. 719(3.1) violated s. 7 of the
Charter
.

[34]

Argument
    on the
Charter
application was heard April 24, 2012. The judge
    rendered his decisions on both the
Charter
application and sentence on
    July 25, 2012.

[35]

The
    trial judge found that Mr. Safarzadeh-Markhalis liberty interest had been
    violated by s. 719(3.1). He found the limitation of credit for pre-sentence
    custody to 1:1 was of no force and effect in this proceeding.

[36]

The
    trial judge found that the intent of the
TISA
was to address
    perceptions that accused persons in custody were manipulating enhanced credit
    to achieve shorter sentences than might otherwise be imposed, and that the
    sentencing process was not transparent regarding credit for pre-sentence
    custody.

[37]

The
    trial judges primary concern was that the legislation had the effect of
    removing a vital part of sentencing  the determination of credit for
    pre-sentence custody  from the trial judge and putting it in the hands of the
    justice of the peace. Unlike a trial judge at a sentencing hearing, the justice
    of the peace would have little information about the character of the offender
    and the nature of the offence and would have no information about the
    offenders ultimate diligence in achieving a speedy passage through the
    criminal justice system (para. 28). The provision had the effect of putting
    the least-informed justice in a position where they can fetter the discretion
    of the trial judge on sentence (para. 19).

[38]

The
    trial judge found that the provision had a disproportionate effect on equally-placed
    offenders. An identically-placed accused who was detained in custody pending
    trial, but for whom there was no endorsement, or an accused who was released on
    bail, would benefit from statutory remission, either directly or through the
    receipt of 1.5:1 credit; whereas an accused who was denied bail and received
    only 1:1 credit would not benefit from remission on the portion of his/her
    sentence served prior to sentencing.

[39]

The
    trial judge also found that the provision had the effect of doubly penalizing a
    person like Mr. Safarzadeh-Markhali for his previous convictions  once by
    taking away any recognition of the significance of pre-sentence custody and
    again in the actual sentencing, where his prior record and breaches of firearms
    prohibitions would be regarded as aggravating factors. The provision also had
    the effect of reducing the burden on the Crown to prove aggravating factors
    beyond a reasonable doubt.

[40]

The
    trial judge concluded:

The impugned portion of s. 719(3.1) has a disproportionate
    effect on equally placed offenders, injects into sentencing a lower burden of
    proof for aggravating factors, has no rational connection to the stated aims of
    the legislation and has the oblique purpose of increasing sentences in a manner
    outside the sentencing process.

The inescapable conclusion is that the liberty interest of the
    subject, a constitutionally protected right under s. 7 of the
Charter
,
    is violated by the impugned portion of s. 719(3.1). The appropriate remedy is
    to apply the remedy suggested in
Smickle
,
2012 ONSC
    602
. Pursuant to the provisions of s. 52 (1) of the
Constitution
    Act 1982
, I find that the portions of s. 719(3.1) which strip the
    determination of credit for pre-sentence custody from the trial court are
    inconsistent with the
Charter
and are of no force and effect in this
    proceeding.

[41]

In
    addressing the appropriate sentence, the trial judge noted that Mr.
    Safarzadeh-Markhalis record dated back to 2002, and included convictions for
    uttering threats, assault, aggravated assault, possession of a restricted
    firearm, possession of marijuana and possession of marijuana and cocaine for
    the purpose of trafficking. He was subject to a lifetime firearms prohibition
    under s. 109 of the
Code
. He had not been deterred from criminal
    conduct by the significant reformatory sentences he had previously received.

[42]

Mr.
    Safarzadeh-Markhali was 29 years old. He had come to Canada from Iran as a
    teenager. His father deserted the family shortly after they arrived. His
    younger sister died in a traffic accident and he had some psychiatric issues
    stemming from his family challenges (para 35).

[43]

The
    trial judge concluded that the primary sentencing objectives in Mr.
    Safarzadeh-Markhalis case were general deterrence and protection of the
    public. A significant penitentiary sentence was required to deter others. Two
    of the counts were for flagrant breaches of lifetime firearms prohibitions
    and there was a five year minimum sentence for a second conviction for
    possession of a loaded prohibited firearm.

[44]

The
    trial judge found that a global sentence of six years would be appropriate.

[45]

The
    trial judge noted that one purpose of s. 719(3.1) was to preclude enhanced
    credit in circumstances where persons in custody were manipulating the system
    by obtaining shorter sentences than might otherwise be imposed. In his view,
    the corollary was that persons who establish they had been diligent in bringing
    their cases to trial should be able to discharge the burden of establishing
    circumstances justifying enhanced credit.  Mr. Safarzadeh-Markhali had served
    20 months and 22 days of pre-sentence custody. The trial judge concluded that
    due to the persistent diligence of counsel in bringing the matter to trial,
    it was appropriate to award credit at 1.5:1, with the result that Mr.
    Safarzadeh-Markhali was entitled to credit of 31 months for pre-sentence
    custody.

(3)     The positions of the
    parties on the sentence appeal

[46]

The
    Crown submits the trial judge did not conduct a full analysis under s. 7 and s.
    1 of the
Charter
. He failed to apply the tests in
R. v. White
,
    [1999] 2 S.C.R. 417 to determine whether there had been a violation of s. 7 and
    in
R. v. Oakes
, [1986] 1 S.C.R. 103 to determine whether any breach
    was justified under s. 1.

[47]

The
    Crown asserts the trial judge erred in finding that s. 719(3.1) violates s. 7
    of the
Charter
. The Crown submits that, assuming, without conceding,
    that the provision affects Mr. Safarzadeh-Markhalis liberty interest,
    proportionality is not a principle of fundamental justice and s. 7 can only be
    violated if the conduct is grossly and excessively disproportionate, which it
    says is not the case here.

[48]

If
    the provision does breach s. 7, the Crown submits it does so in a manner
    demonstrably justified in a free and democratic society and it is therefore
    saved by s. 1.

[49]

Mr.
    Safarzadeh-Markhali submits the impugned provision engages his liberty interest
    and violates the principles of fundamental justice, discussed below. He says
    the Crown has not discharged its burden under s. 1.

(4)     Analysis

(a)

The Truth in Sentencing Act

[50]

The
Bail Reform Act
, S.C. 1970-71-72, c. 37 amended the
Criminal Code
to give judges discretion to take pre-sentence custody into account in
    sentencing.

[51]

In
    the application of the legislation, courts recognized that it is unfair to
    treat a day in custody prior to sentencing as equivalent to a day in custody
    after sentencing. There are two reasons. First, time in a remand centre
    awaiting trial does not count towards parole eligibility, earned remission or
    statutory release. Second, conditions on remand are often harsh, overcrowded
    and dangerous and rehabilitation programs are unavailable:
R. v.  Rezaie
(1996), 31 O.R. (3d) 713 (C.A.), at p. 721;
R. v. Summers
, 2014 SCC
    26, at para. 2;
R. v. Carvery
, 2012 NSCA 107, at paras. 15-19, affd
    2014 SCC 27.

[52]

As
    a result, sentencing judges generally granted enhanced credit of two days for
    every day in pre-sentence custody, or even more in exceptional cases:
Summers
,
    at para. 3;
R. v. Wust
, 2000 SCC 18, at para. 45.

[53]

The
TISA
reflected Parliaments concern that sentences were too lenient,
    that allowances for pre-sentence custody were overly generous and that the
    method of calculating sentences was opaque and failed to explain how credit was
    being given for time spent in custody prior to sentence: see
Summers,
at paras. 52, 53;
Carvery
(NSCA), at para. 83.

[54]

Another
    concern was that some accused persons were gaming the system, by deliberately
    prolonging their time in pre-sentence custody, in order to increase the credit
    they received, thereby reducing the overall length of the custodial part of
    their sentences. As a result, the remand population was increasing, putting
    pressure on provincial and territorial jails.
[2]
With credit for pre-sentence custody limited to 1.5:1, or even more so 1:1,
    there would be no incentive for an accused to prolong the time spent in
    pre-sentence custody.

[55]

Another
    objective of the legislation, which the impugned provision specifically
    reflects, was to enhance public safety by keeping repeat offenders and those
    who violated their bail conditions in custody for longer periods, thereby
    punishing them for their conduct and making rehabilitative programs available
    to them while in jail.
[3]

(b)

Judicial interpretation of the
TISA  R. v. Summers

[56]

The
    issue in
Summers
was whether the loss of eligibility for parole and
    early release for the time spent in pre-sentence detention can continue to
    justify enhanced credit under s. 719(3.1). This court upheld the trial judges
    decision that it can. Justice Cronk, giving the judgment of the court, held
    that the circumstances need not be exceptional and can include lost eligibility
    for early release and parole, if those would likely have been available to the
    accused. On the other hand, an accused who deliberately delays the proceedings
    may not be entitled to credit beyond 1:1. Nor would an accused who was unlikely
    to receive early parole or remission.

[57]

The
    Supreme Court of Canada dismissed the appeal, substantially agreeing with the
    decision of this court and with the Nova Scotia Court of Appeal in
Carvery
,
    the companion case. The appeal was decided on the basis of statutory
    interpretation and it was not necessary to determine whether the legislation
    complied with the
Charter
.

[58]

Nevertheless,
    Karakatsanis J. added that it is necessary to interpret s. 719(3.1) in a manner
    consistent with the principles and fundamental purposes of sentencing set out
    in s. 718 of the
Code
and as part of a coherent, consistent and
    harmonious statutory scheme. She noted, in particular, the requirements that a
    sentence be proportionate to the gravity of the offence and the degree of
    responsibility of the offender (s. 718.1) and that it take into account the
    parity principle  that it should be similar to sentences imposed on similar
    offenders for similar offences committed in similar circumstances (s. 718.2).

[59]

Justice
    Karakatsanis agreed with this court and with the Nova Scotia Court of Appeal in
Carvery
that an interpretation of ss. 719(3) and (3.1) that does not
    account for the loss of eligibility for early release and parole while in
    pre-sentence custody would be incompatible with the parity principle. Offenders
    who do not receive bail would receive longer sentences than otherwise identical
    offenders who are granted bail. She stated at para. 63 that, a rule that
    creates structural differences in sentences, based on criteria irrelevant to
    sentencing, is inconsistent with the principle of parity.

[60]

Justice
    Karakatsanis also endorsed this courts treatment of the proportionality
    principle. She said, at paras. 65 and 66,

[I]t is difficult to see how sentences can reliably be
    "proportionate to the gravity of the offence and the degree of
    responsibility of the offender" (s. 718.1) when the length of
    incarceration is also a product of the offender's ability to obtain bail, which
    is frequently dependent on totally different criteria.

Judicial interim release requires the judge to be confident
    that, amongst other things, the accused will neither flee nor reoffend while on
    bail. When an accused is able to deposit money, or be released to family and
    friends acting as sureties (who often pledge money themselves), this can help
    provide the court with such assurance. Unfortunately, those without either a
    support network of family and friends or financial means cannot provide these
    assurances. Consequently, as the intervener the John Howard Society submitted,
    this means that vulnerable and impoverished offenders are less able to access
    bail.

[61]

She
    added at para. 67:

For example, Aboriginal people are more likely to be denied
    bail, and make up a disproportionate share of the population in remand custody.
    A system that results in consistently longer, harsher sentences for vulnerable
    members of society, not based on the wrongfulness of their conduct but because
    of their isolation and inability to pay, can hardly be said to be assigning
    sentences in line with the principles of parity and proportionality. Accounting
    for loss of early release eligibility through enhanced credit responds to this
    concern. [Footnote omitted.]

(c)

Section 7 of the
Charter

[62]

Section
    7 of the
Charter
states:

Everyone has the right to life, liberty and security of the
    person and the right not to be deprived thereof except in accordance with the
    principles of fundamental justice.

[63]

The
    s. 7 analysis asks two questions: (a) Does the impugned law result in a real or
    imminent deprivation of life, liberty or security of the person, or a
    combination thereof? (b) If so, does the deprivation accord with the principles
    of fundamental justice? See
White
, at para. 38;
Canada (Attorney
    General) v. Bedford
, 2013 SCC 72, at paras. 58 and 93. The second question
    requires a determination whether a principle of fundamental justice is engaged
    and whether the deprivation was in accordance with that principle.

[64]

The
    applicant bears the onus of establishing a s. 7 violation on the balance of
    probabilities.

[65]

If
    a violation of s. 7 is established, the analysis moves to s. 1. The burden then
    shifts to the Crown to prove, in accordance with
Oakes
, that: (a) the
    legislation has a pressing and substantial objective; (b) the legislation is
    rationally connected to the objective; (c) the legislation impairs the
Charter
right as little as possible to achieve that objective; and (d) the deleterious
    effects of the legislation are proportionate to the results.

[66]

While
    the Crown does not concede that the impugned provision engages a protected
    interest, a convicted persons liberty interest is clearly affected by a
    statutory provision that has the effect of increasing the proportion of his or
    her sentence to be served in jail: see
R. v. Malmo-Levine
, 2003 SCC 7,
    [2003] 3 S.C.R. 571, at paras. 84, 89;
Rezaie
, at p. 721.

[67]

The
    analysis therefore turns to the identification of the applicable principle(s)
    of fundamental justice and whether the deprivation of liberty is in accordance
    with those principles. Although the trial judge found that Mr.
    Safarzadeh-Markhalis liberty interest had been breached, he did not expressly
    undertake an analysis of the principles of fundamental justice before
    concluding that the impugned provision was of no force and effect.

[68]

In
Canadian Foundation for Children, Youth and the Law v. Canada (Attorney
    General)
, 2004 SCC 4, [2004] 1 S.C.R. 76, at para. 8, McLachlin C.J.
    described three characteristics of a principle of fundamental justice. I
    summarize those as follows:

(a)

it
    must be a legal principle;

(b)

there
    must be sufficient consensus that the principle is vital or fundamental to our
    societal notion of justice; and

(c)

the
    principle must be capable of being identified with precision and applied to
    situations in a manner that yields predictable results.

A principle of fundamental justice must be identified
    with sufficient precision to yield a manageable standard against which to
    measure deprivations of life, liberty or security of the person:
R. v.
    D.B.
, 2008 SCC 25, [2008] 2 S.C.R. 3, at para. 46.

[69]

The
    Chief Justice described the principles of fundamental justice in
Bedford
,
    at para. 94, as the minimum requirements that a law that negatively impacts on
    a persons life, liberty, or security of the person must meet. She summarized
    the concept at para. 105:

The overarching lesson that emerges from the case law is that
    laws run afoul of our basic values when the means by which the state seeks to
    attain its objective is fundamentally flawed, in the sense of being arbitrary,
    overbroad, or having effects that are grossly disproportionate to the
    legislative goal. To deprive citizens of life, liberty, or security of the
    person by laws that violate these norms is not in accordance with the
    principles of fundamental justice.

[70]

The
    principles are grounded in Canadas legal traditions and understandings of how
    the state must deal with its citizens. They are regarded as essential to the
    administration of justice:
Canadian Foundation for Children, Youth and the
    Law
, at para. 8.

[71]

While
    a laws arbitrariness, overbreadth or gross disproportionality are frequently
    regarded as violations of the principles of fundamental justice, it is clear that
    these are instances, rather than limits, of the principles of fundamental
    justice. Courts have found that the principles of fundamental justice include:

·

prohibition of the interrogation of a youthful prisoner without
    access to counsel:
Canada (Prime Minister) v. Khadr
, 2010 SCC 3,
    [2010] 1 S.C.R. 44;

·

procedural fairness:
Canada (Citizenship and Immigration) v.
    Harkat
, 2014 SCC 37;
Charkaoui v. Canada (Citizenship and Immigration)
,
    2007 SCC 9, [2007] 1 S.C.R. 350;

·

the concept that only voluntary conduct should attract criminal
    liability
: R. v. Ruzic
, 2001 SCC 24, [2001] 1 S.C.R. 687;
R. v.
    Ryan
, 2013 SCC 3, [2013] 1 S.C.R. 14;

·

the principle that no one may be convicted or punished for an act
    or omission that is not clearly prohibited by law:
R. v. Levkovic
,
    2013 SCC 25, [2013] 2 S.C.R. 204;
Canadian Foundation for Children, Youth
    and the Law
; and

·

the presumption that children have diminished moral
    blameworthiness and culpability when they commit an offence:
R. v. D.B
.

[72]

Mr.
    Safarzadeh-Markhali asserts that the impugned provision offends four principles
    of fundamental justice: (a) the principle of proportionality in sentencing; (b)
    the principle that a sentence cannot be grossly disproportionate to the
    offence; (c) the principle of trial fairness, including the requirement that
    aggravating factors on sentence be proved beyond a reasonable doubt; and (d)
    the principle requiring a rational connection between the objects of a law and
    its effect  i.e., that the law must not be arbitrary.

[73]

In
    my view, the principle of proportionality in sentencing  a principle expressed
    in the
Code
itself and rooted in Canadas legal tradition  is a
    principle of fundamental justice. That principle is understood and endorsed by
    all Canadians and is applied in our courts on a daily basis. It was described
    as a principle of fundamental justice by LeBel J. in
R. v. Ipeelee
,
    2012 SCC 13, at para. 36. He added, at para. 37:

The fundamental principle of sentencing (i.e., proportionality)
    is intimately tied to the fundamental purpose of sentencing -- the maintenance
    of a just, peaceful and safe society through the imposition of just sanctions.
    Whatever weight a judge may wish to accord to the various objectives and other
    principles listed in the Code, the resulting sentence must respect the
    fundamental principle of proportionality. Proportionality is the
sine qua
    non
of a just sanction. First, the principle ensures that a sentence
    reflects the gravity of the offence. This is closely tied to the objective of
    denunciation. It promotes justice for victims and ensures public confidence in
    the justice system.

Second, the principle of proportionality ensures that a
    sentence does not exceed what is appropriate, given the moral blameworthiness
    of the offender. In this sense, the principle serves a limiting or restraining
    function and ensures justice for the offender. In the Canadian criminal justice
    system, a just sanction is one that reflects both perspectives on
    proportionality and does not elevate one at the expense of the other.

See also
R. v. Anderson
, 2014 SCC 41, at para.
    21.

[74]

Canadians
    understand that a sentence must be fair, in all its aspects. The punishment
    must fit the offence and must fit the offender. The concept of a just
    sanction is enshrined in the
Code
.  Section 718 declares that the
    purpose of sentencing is to contribute to respect for the law and the
    maintenance of a just, peaceful and safe society by imposing just sanctions
    that have one or more of several objectives, including the traditional
    objectives of denunciation, deterrence and rehabilitation.

[75]

The
    principle of proportionality is also set out in the
Code
, under the
    heading, Fundamental Principle:

Fundamental Principle

718.1. A sentence must be proportionate to the gravity of the
    offence and the degree of responsibility of the offender.

[76]

In
Sentencing
, 8th ed. (Markham: LexisNexis, 2012), at p. 30, Clayton C.
    Ruby states that [o]ur basic notion of fairness demands that every sentence be
    primarily and essentially appropriate to the offence committed, having regard
    to the nature of the crime and the particular circumstances in which it was committed.
    Proportionality is fundamentally connected to the general principle of
    criminal liability, which holds that the criminal sanction may be imposed only
    on those actors who possess a morally culpable state of mind.

[77]

The
    proportionality principle is informed by other sentencing principles in the
Code
,
    notably the parity principle in s. 718.2(b), which states that a sentence
    should be similar to sentences imposed on similar offenders for similar
    offences committed in similar circumstances.

[78]

In
R. v. Arcand
, 2010 ABCA 363, at para. 61, the majority described the
    parity principle as an indispensable element of the proportionality principle.
    It added that to diminish or ignore the importance of parity in sentencing is
    to effectively undercut the proportionality principle mandated by Parliament.

[79]

Proportionality
    fits the test under
Canadian Foundation for Children, Youth and the Law
for
    a principle of fundamental justice.

[80]

Indeed,
    the proportionality principle is routinely applied in sentencing for the very
    purpose of obtaining just and predictable results. It is integral to a just
    sentence and to public confidence in the sentencing process.

[81]

The
    Crown relies on
Malmo-Levine
in support of the proposition that the
    applicable standard is gross disproportionality, whether the punishment is
    challenged under s. 12 or s. 7. In that case, the Supreme Court observed, at
    para. 160:

To find that gross and excessive disproportionality of
    punishment is required under s. 12 but a lesser degree of proportionality suffices
    under s. 7 would render incoherent the scheme of interconnected "legal
    rights" set out in ss. 7 to 14 of the
Charter
by attributing
    contradictory standards to ss. 12 and 7 in relation to the same subject matter.
    Such a result, in our view, would be unacceptable.

[82]

I
    agree with Mr. Safarzadeh-Markhali that
Malmo-Levine
is
    distinguishable, because it dealt with the constitutionality of a
punishment
.
    I accept his submission that the principle of proportionality governs the
    sentencing
process
, while the standard of gross disproportionality
    applies to the
result
. An offender is entitled to a
process
directed at crafting a just sentence.

[83]

Proportionality
    is not to be confused with unfettered discretion. Parliament is entitled to
    enumerate considerations relevant to the determination of a proportionate
    sentence. The principles in s. 718.2, for example, are directed at determining
    the gravity of the offence and the degree of responsibility of the offender.
    These include: the parity principle, which I have already discussed; the
    principle that a sentence should be increased or reduced with reference to the
    aggravating or mitigating circumstances of the offence and the offender; the
    totality principle; and the requirement that the sentencing judge give specific
    consideration to the circumstances of aboriginal offenders.

[84]

As
    the Supreme Court observed in
Ipeelee
, at para. 37, the objectives of
    sentencing enumerated in the
Code
are also intimately bound up with
    the principle of proportionality. Parliament may provide, as it has in ss.
    718.01 and 718.02, that certain of these objectives may be more or less
    relevant depending on the offence. Parliament is also entitled to enact
    mandatory minimum sentences. If challenged under ss. 7 or 12 of the
Charter
,
    these fall to be reviewed on a standard of gross disproportionality.

[85]

However,
    the principle of proportionality prevents Parliament from making sentencing
    contingent on factors unrelated to the determination of a fit sentence. In this
    sense, the principle of proportionality is closely associated with the
    established principle that a law that violates life, liberty or security of the
    person cannot be arbitrary.

[86]

The
    principle of proportionality in sentencing is therefore distinct from the
    principle that the means used to achieve a legislative goal must be
    proportionate to the effects. Both are principles of fundamental justice and
    both can come into play in the same circumstances, including this case. Mr.
    Safarzadeh-Markhali argues both that s. 719(3.1) prevents sentencing judges
    from considering proportionality when giving credit for pre-sentence custody,
    and that the provision results in significantly longer sentences for repeat
    offenders who receive the endorsement.

[87]

I
    therefore turn to the third question  whether the deprivation of Mr.
    Safarzadeh-Markhalis liberty by the extension of the custodial portion of his
    sentence was in accordance with the principle of proportionality.

[88]

The
    motion judge found that the impugned provision had a disproportionate effect on
    equally-placed offenders. The Crown submits s. 719(3.1) does not draw a
    distinction between equally-situated offenders. Rather, it targets offenders
    with lengthy criminal histories, who will seldom be similarly situated with
    other offenders. Its effects are not grossly disproportionate because credit at
    a rate of 1:1 is still available to offenders who receive the endorsement.

[89]

In
Summers
, Karakatsanis J. noted at paras. 61 and 65 that the imposition
    of a longer sentence because the offender was unable to obtain bail can offend
    both the proportionality principle and the parity principle. See also the
    observations of the Nova Scotia Court of Appeal in
Carvery
, at paras.
    72-77.

[90]

In
    this case, the impugned provision offends the proportionality principle, and
    the parity principle which is a vital part of it, by subjecting identically
    placed offenders to different periods of incarceration, depending on whether
    they are able to obtain bail, for reasons that are irrelevant to sentencing. It
    also produces effects that are grossly disproportionate.

[91]

This
    is readily illustrated by the following examples, which I draw from Mr.
    Safarzadeh-Markhalis own circumstances and the examples given by his counsel.

[92]

Take
    the case of three identically-placed accused who commit exactly the same offences
    and have the same criminal record. Each is convicted and receives a sentence of
    six years in jail. One is released on bail, while two are denied bail. One of
    the two denied bail is subject to an endorsement under s. 515(9.1):

Accused X
has strong ties to the community and his
    sureties are substantial.  He is granted bail and released.

Accused Y
(i.e., Mr. Safarzadeh-Markhali) is denied
    bail and detained in custody primarily on account of his record and the justice
    makes the endorsement under s. 515(9.1). He spends 18 months in pre-trial
    custody. He is convicted and receives the maximum 1:1 credit permitted by s.
    719(3.1) as a result of the endorsement.

Accused Z
does not apply for bail, or is denied bail,
    but no endorsement is made. He receives 1.5:1 credit.

[93]

The
    consequences are illustrated by the following table:

Accused

(Credit Ratio)

Credit
          Given for 18 months pre-sentence custody

(months)

Sentence in addition to pre-sentence custody

(months)

Sentence served (including parole and warrant expiry)

(months)

Overall time in custody

(months)

X (Bail)

0

72

24-48

24-48

Y
          Mr. Safarzadeh-Markhali  (No bail, endorsement)

(1:1)

18

54

18-36

36-54

Z (No bail, no
          endorsement)

(1.5:1)

27

45

15-30

33-48

[94]

The
    result in these examples is that Mr. Safarzadeh-Markhali, and others similarly
    situated, could serve up to an additional 12 months in custody due to their
    inability to obtain bail. The greater the time spent in pre-sentence custody,
    the greater the disparity will be. These examples refute the Crowns submission
    that the impugned provision does not distinguish between equally placed
    offenders.

[95]

One
    effect of s. 719(3.1) will be that the most vulnerable members of society  the
    poor, those without a support network and Aboriginal people  may be reluctant
    to exercise their bail rights out of concern that the denial of bail will
    result in a s. 515(9.1) endorsement and a greater proportion of their sentence
    being served in custody.

[96]

In
    my view, s. 719(3.1) is a structural impediment to the determination of a
    proportionate sentence and therefore to a just sentence. It skews the
    sentencing process, by making the outcome of the bail process a determinant of
    the length of the custodial portion of the sentence. But the bail process, and
    the considerations that go into granting or denying bail, are markedly
    different from the sentencing process. As Cronk J.A. observed in this courts
    decision in
Summers
, at para. 103, the test for bail and the
    determination of a fit sentence are conceptually and functionally different.
    The granting of bail involves a host of considerations relating to the
    likelihood the offender will attend court, whether he or she will re-offend
    while on bail, and whether detention is necessary to maintain confidence in the
    administration of justice. These considerations are not at play in a sentencing
    hearing. Moreover, the decision whether to grant bail to an accused person with
    previous convictions is a nuanced one, which may involve the balancing of that
    circumstance against others, such as the offenders ties to the community and
    the adequacy of his or her sureties. See e.g.
R. v. Janes
, 2011 NSCA
    10. These are not necessarily factors in a sentencing hearing.

[97]

Whether
    or not an offender was released on bail is entirely irrelevant to the
    determination of a fit sentence. An offender denied bail is entitled to the
    same sentence as an equally placed offender who has been released on bail.

[98]

By
    preventing this result, s. 719(3.1) interferes with parity, which is an
    essential ingredient of proportionality. While parity is not a straitjacket
    requiring equal sentences, it does require that any differences between
    sentences for similar offences in similar circumstances be rationally
    explicable:
Sentencing
, at pp. 36-38. To return to the observation of
    Karakatsanis J. in
Summers
, by creating structural differences in
    sentencing based on irrelevant criteria, the impugned provision is inconsistent
    with parity.

[99]

As
    mentioned above, Parliament may enumerate mitigating and aggravating factors
    relevant to the determination of a fit sentence. The Crown submits that
    Parliament has merely exercised its discretion to limit the application of a
    mitigating factor by removing certain assumptions about pre-sentence custody in
    relation to repeat offenders: that there is no programming available to the
    offender while in remand; that if there were, the offender would avail him or
    herself of it; and that the accused is an appropriate candidate for early
    release.

[100]

Again, this argument
    ignores the distinction drawn between repeat offenders who receive the
    endorsement under s. 515(9.1) and those who do not. It is arbitrary to remove
    these assumptions in relation to a subset of repeat offenders based on an
    irrelevant distinction. The absence of programming will impact equally on all
    repeat offenders detained in custody, regardless of the reason. There is no
    reason to think that offenders who do not receive the endorsement are more
    likely to avail themselves of whatever programming exists. While those released
    on bail may ultimately prove to be better candidates for parole, one cannot
    make the same distinction between repeat offenders denied bail because of a
    prior conviction and repeat offenders detained for other reasons. Moreover, offenders
    who receive the endorsement are unlikely to find conditions in remand any less
    harsh than those who do not.

[101]

This is not to
    say that the legislative purpose of s. 719(3.1)  increasing the custodial
    terms of repeat offenders  is not an appropriate objective. Nor is it to say
    that it cannot be achieved in accordance with the principles of fundamental
    justice. Unfortunately, however, like many attempts to replace the scalpel of
    discretion with a broadsword, its application misses the mark and results in
    unfairness, discrimination and ultimately unjust sentences. Instead of ensuring
    that repeat offenders serve a greater portion of their custodial sentences, the
    law targets only those denied bail due to their previous convictions.

[102]

As I find the
    impugned provision breaches s. 7, I must consider whether it is saved by s. 1.

(d)

Section 1 of the
Charter

[103]

Section 1 of the
Charter
states:

The
Canadian Charter of Rights and Freedoms
guarantees
    the rights and freedoms set out in it subject only to such reasonable limits
    prescribed by law as can be demonstrably justified in a free and democratic
    society.

[104]

In
R. v.
    Oakes
, Dickson C.J., who gave the majority judgment, described s. 1 as a
    stringent standard, which must be understood having regard to the
    constitutionally-guaranteed rights and freedoms in the
Charter
and the
    values and principles of a free and democratic society, which are their
    genesis. The onus of proof, on a civil standard, rests on the person invoking
    s. 1, who must bring himself/herself within the exceptional criteria that
    justify the right being limited.

[105]

The Chief
    Justice explained a test for the section 1 analysis, which can be summarized as
    follows:

(a)

the
    objective of the impugned law must be of sufficient importance to warrant
    overriding a constitutionally protected right or freedom;

(b)

the
    means chosen must be reasonable and demonstrably justified  this is a form of
    proportionality test which will vary in the circumstances, but requires a
    balancing of the interests of society with the interests of individuals and
    groups and has three components:

(i)

the measures must be rationally connected to the objective, designed to
    achieve the objective and not arbitrary, unfair or based on irrational
    considerations;

(ii)

the means chosen should impair the
Charter
right or freedom as
    little as possible; and

(iii)

there must be proportionality or balance between the benefits of the
    measure and its deleterious effects.

(at paras. 69 and 70).

[106]

In
Bedford
,
    at para. 125, McLachlin C.J. pointed out that s. 1 and s. 7 ask different
    questions. While s. 7 is concerned with the narrower question of whether the
    impugned law infringes individual rights in such a way that the negative
    effect is grossly disproportionate to the law's purpose, the question under s.
    1 is different. The issue there is,

[W]hether the negative impact of a law on the rights of
    individuals is proportionate to the pressing and substantial goal of the law in
    furthering the public interest. The question of justification on the basis of
    an overarching public goal is at the heart of s. 1, but it plays no part in the
    s. 7 analysis.

[107]

She added, at
    para. 126:

As a consequence of the different questions they address, s. 7
    and s. 1 work in different ways. Under s. 1, the government bears the burden of
    showing that a law that breaches an individual's rights can be justified having
    regard to the government's goal. Because the question is whether the broader
    public interest justifies the infringement of individual rights, the law's goal
    must be pressing and substantial. The "rational connection" branch of
    the s. 1 analysis asks whether the law was a rational means for the legislature
    to pursue its objective. "Minimal impairment" asks whether the
    legislature could have designed a law that infringes rights to a lesser extent;
    it considers the legislature's reasonable alternatives. At the final stage of
    the s. 1 analysis, the court is required to weigh the negative impact of the
    law on people's rights against the beneficial impact of the law in terms of
    achieving its goal for the greater public good. The impacts are judged both
    qualitatively and quantitatively. Unlike individual claimants, the Crown is
    well placed to call the social science and expert evidence required to justify
    the law's impact in terms of society as a whole.

[108]

I turn then to
    the features of the s. 1 analysis.

Pressing and substantial
    objective

[109]

The Crown
    submits that the primary objective of s. 719(3.1) is public safety. It makes
    recidivist groups  repeat offenders and those who were released on bail and
    later incarcerated due to a breach of their release conditions  ineligible for
    enhanced credit. Enhanced credit, the Crown submits, frequently results in
    members of these recidivist groups serving time served or short sentences,
    thereby depriving them of access to rehabilitative programs, and increasing the
    danger to the public.

[110]

I am prepared to
    accept that the objectives of s. 719(3.1) are pressing and substantial: to
    prevent manipulation of credit for pre-sentence custody and to enhance public
    safety by increasing the likelihood that repeat offenders, and those who breach
    the conditions of their bail, will serve part of their sentence in
    post-sentence custody with access to the rehabilitative programs that would be unavailable
    in remand centers.

[111]

I turn to the
    question whether the means chosen to effect these objectives are reasonable and
    demonstrably justified under the three headings identified in
Oakes
.

Rational connection

[112]

The Crown
    submits that the provision is rationally connected to the objectives referred
    to above.

[113]

I would not find
    a rational connection. To show a rational connection, the government must show
    a causal connection between the
infringement
and the benefit sought on
    the basis of reason or logic (emphasis added):
RJR-MacDonald Inc. v.
    Canada (Attorney General)
, [1995] 3 S.C.R. 199, at para. 153;
Alberta
    v. Hutterian Brethren of Wilson Colony
, 2009 SCC 37, [2009] 2 S.C.R. 567,
    at para. 48.

[114]

Here, Mr.
    Safarzedeh-Markhalis s. 7 right is infringed by an arbitrary distinction
    between offenders with criminal records depending on whether they seek bail or
    not and whether, if denied bail, they receive an endorsement under s. 515(9.1).
    The effect is that an accused with a serious criminal record may opt not to
    seek bail, thereby preserving the ability to obtain enhanced credit: see
R.
    v. Nadli
, 2014 NWTSC 47 at para. 119. Thus, the legislation may promote
    the very manipulation the
TISA
was designed to prevent. It may also
    undermine the accuseds constitutional right to bail.

Minimal impairment

[115]

The Crown says
    that s. 719(3.1) minimally impairs the
Charter
right, because credit
    at 1:1 is always a possibility. Moreover, it only affects an offender if the
    sentencing judge determines that the offender requires both a custodial
    sentence and a sentence longer than the time spent in remand.

[116]

The standard for
    minimal impairment is deferential because [t]he tailoring process seldom
    admits of perfection. The law need only fall within a range of reasonable
    alternatives:
RJR-MacDonald
at para. 160. In particular, the courts
    must accord a measure of deference to the legislature on complex social
    issues:
Hutterian Brethren
at para. 53.

[117]

I do not view
    the issue of credit for pre-sentence custody as a particularly complex social
    issue. Nor can I conclude that the means chosen by Parliament fall within a
    range of reasonable alternatives. The means chosen  an
ex ante
determination of an important aspect of the offenders sentence based on the
    outcome of a bail hearing  result in harsher sentences for offenders who spend
    excessive time in pre-sentence custody due to circumstances beyond their
    control, when compared with those who deliberately prolong their time in
    custody but, for any one of several reasons, do not receive an endorsement
    under s. 515(9.1) of the
Code
. Repeat offenders who would benefit from
    rehabilitative programs, but do not seek bail, or who consent to their
    detention, or whose records are not endorsed, or who obtain bail, may receive
    either enhanced credit or statutory remission.

[118]

By removing
    discretion from the sentencing judge and basing credit on a determination of
    the bail justice  whose function is wholly unrelated to sentencing
    Parliament has not minimally impaired the
Charter
right.

[119]

There is a range
    of reasonable alternatives by which Parliament could achieve its objectives. I
    do not agree, however, with Mr. Safarzadeh-Markhalis submission that it could
    be done by capping credit across the board at 1.5:1, as this would not ensure
    that recidivists who require rehabilitation will serve longer custodial terms
    than those who are not repeat offenders.

[120]

It is
    unnecessary to delineate the precise content of a legislative provision that
    would fall within the range of reasonable alternatives that would minimally
    impair the
Charter
right. Simply by way of example, however, it would
    be possible to provide that in considering whether to grant credit in excess of
    1:1 in any particular case, a court must consider: (a) the offenders criminal
    record; (b) the availability of rehabilitative programs and the desirability of
    giving the offender access to such programs; and (c) whether the offender was
    responsible for prolonging the time spent in pre-sentence custody.

Proportionality between negative
    impact and beneficial effects

[121]

The final stage
    of the Oakes test involves a broader assessment of whether the benefits of the
    impugned law are worth the cost of the rights limitation, with reference to
    the values underlying the
Charter
:
Hutterian Brethren
, at
    para. 77. The Crown submits that the benefits of the provision outweigh any
    deleterious effects. Offenders who have a propensity to reoffend are more
    likely to receive access to rehabilitative programs. If the provision results
    in gross disproportionality in individual cases, those offenders may appeal
    their sentences.

[122]

The provision
    will undoubtedly keep some repeat offenders in custody longer. This may give
    those offenders greater access to rehabilitative programs. However, for
    rehabilitation and the other sentencing objectives to achieve their goals, both
    the offender and the public must have confidence in the fairness of the
    sentencing process and in the results. In my view, public confidence in the
    criminal justice system would be undermined by an artificial distinction that
    results in longer jail terms for some offenders. The benefits of the impugned
    law, which are at best unevenly distributed, cannot justify the limitation on
Charter
rights.

D.

Conclusion and order

[123]

For these
    reasons, I would dismiss the appeal as to conviction. I would grant leave to
    appeal the sentence but would dismiss the sentence appeal.

[124]

The words the
    reason for detaining the person in custody was stated in the record under
    subsection 515(9.1) or in s. 719(3.1) of the
Code
violate s. 7 of the
Charter
and are not saved by s. 1. Those words are declared to be of
    no force and effect pursuant to s. 52(1) of the
Constitution Act, 1982
.
    Accordingly, the Crowns appeal is dismissed. The validity of the references to
    ss. 524(4) and (8) in s. 719(3.1) is not before us and it is not appropriate to
    make any declaration in relation to their validity.

G.R. Strathy J.A

I agree M. Rosenberg
    J.A.

I agree David Watt
    J.A.

Released: September 10, 2014

[1]
The references in s. 719(3.1) to ss. 524(4) and (8), which are not applicable
    in this case, have the effect of limiting credit to 1:1 for offenders who are
    detained in custody because they violated the terms of their release or
    re-offended while on bail.

[2]
Comments by the Minister of Justice during the second reading of the Bill,
Official Report of Debates (Hansard)
,
    40th Parl., 2nd Sess., No. 41 (20 April 2009), at 1205-1225, 1230-1235.

[3]
See testimony of the Minister of Justice before the House Standing Committee on
    Justice and Human Rights,
Evidence of the
    Standing Committee on Justice and Human Rights
, 40th Parl., 2nd Sess.,
    (6 May 2009) at 1630.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tang, 2014 ONCA 632

DATE: 20140911

DOCKET: C56745

Gillese J.A.

BETWEEN

Her Majesty the Queen

Responding Party

and

Weizhen Tang

Applicant

Weizhen Tang, appearing in person

Michael Lacy, appearing as duty counsel

John Pearson, for the responding party

Heard: September 10, 2014

On application for an order pursuant to s. 684 of the
Criminal
    Code
, on the appeal from the conviction entered on October 30, 2012 and
    the sentence imposed on February 1, 2013 by Justice Alfred J. OMarra of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The Applicant brings a further s. 684 application, seeking the
    appointment of counsel for his appeal against conviction and sentence.  For the
    reasons that follow, I would make the order but limit it to the appointment of
    counsel for only the sentence appeal.

BACKGROUND IN BRIEF

[2]

Following a trial by judge and jury, the Applicant was convicted of
    fraud over $5,000.  The fraud involved an investment fund managed by the
    Applicant which he called the Overseas Chines Fund.  He raised over $50
    million between January of 2006 and February of 2009.  Of that money, $26
    million was returned to investors.  He was sentenced to imprisonment for 6
    years and fined almost $2.9 million in lieu of forfeiture, with 5 years
    imprisonment consecutive in default.

[3]

The Applicant appealed against conviction and sentence.  He applied for
    legal aid to fund his appeal but was refused.  He has exhausted all appeals
    from that decision.

[4]

He brought an application before MacPherson J.A. for bail.  In the
    course of deciding that application, MacPherson J.A. concluded that, on the
    material before the court at that time, the Applicant had failed to satisfy the
    court that his appeal had any merit.

[5]

The Applicant applied for a review of MacPherson J.A.s order.  Justice
    Rosenberg considered the matter and concluded that there was not sufficient
    merit to warrant the appointment of counsel.

[6]

When the Applicants appeal was next spoken to, duty counsel identified certain
    potential grounds of appeal in respect of both the conviction and the sentence
    appeal.  The Applicant submitted that there were additional documents that he
    needed in order to proceed with his conviction appeal.  These documents related
    to the
Rowbotham

application that he had unsuccessfully made in
    the proceedings below.  Justice Nordheimer heard the Applicants
Rowbotham

application, and dismissed it on the basis that the Applicants evidence
    with respect to his financial means to retain counsel was inconsistent and
    unsatisfactory.  Justice Nordheimer further found that the Applicant was able
    to adequately conduct his defence without the aid of counsel and that legal representation
    was not essential to a fair trial.

[7]

Based on the submissions of duty counsel and the Applicant, the court
    ordered the Crown to produce further materials.  The court also asked duty
    counsel to review the material and assist the Applicant in revisiting the issue
    of a s. 684 application, if the circumstances warranted.

[8]

The Applicant, with the assistance of duty counsel, then brought this
    fresh application for an order pursuant to s. 684.  The court is indebted to
    duty counsel for his assistance with this matter.

ANALYSIS

[9]

Section 684 provides that a judge of the court of appeal may assign
    counsel to act on behalf of an accused where, in the opinion of the judge,

it appears desirable in the interests of justice that the
    accused should have legal assistance and where it appears that the accused has
    not sufficient means to obtain that assistance.

[10]

For
    the purposes of this application, but for no other purpose, the Crown does not
    take issue with the second requirement in s. 684, namely, that the Applicant
    has not sufficient means to obtain legal assistance for his appeals.

[11]

Duty
    counsel, on behalf of the Applicant, submits that there are two arguable grounds
    of appeal in respect of the conviction appeal.  The first ground relates to
    Nordheimer J.s dismissal of the Applicants
Rowbotham

application.
    The second relates to the evidence of the Ontario Securities Commission
    investigator whose evidence at trial was admitted on the basis that he was a
    forensic accounting expert.

[12]

The
    interests of justice requirement in s. 684 begins with an inquiry into the
    merits of the appeal:  see
R. v. Johnson

[2013] O.J. No. 4851
    (C.A.), at para. 16.  Like my colleagues who have reviewed the merits of the
    conviction appeal for the purposes of bail and the previous s. 684 application,
    I do not find sufficient merit in the conviction appeal to meet the interests
    of justice requirement.  In this regard, I would highlight three points.  First,
    the Applicant testified at trial and admitted the
actus reus

of
    many of the allegations, although he denied that he had criminal intent.
    Second, the decision on the
Rowbotham

application was a
    discretionary one and based on the articulation of the correct legal principles.
    Third, the experts evidence related largely to the flows of money in and out
    of the Applicants accounts.  Much of this information was similar to that
    which the Applicant himself gave to the investors at a meeting.

[13]

However,
    the ground of appeal raised in relation to the sentence appeal raises an
    arguable issue, as the Crown fairly conceded.  The issue relates to the
    imposition of a fine in lieu of forfeiture.  This issue presents challenging
    legal questions and the Applicant will need the assistance of counsel in order
    to argue it effectively.

[14]

Accordingly,
    the interests of justice warrant the appointment of counsel for the sentence
    appeal.

DISPOSITION

[15]

An
    order shall go granting the application in part and appointing counsel pursuant
    to s. 684 of the
Criminal Code
to act on behalf of the Applicant in
    respect of his sentence appeal.  I would ask that Duty Counsel and/or Legal Aid
    Ontario provide the Applicant with a list of the names of counsel who would be
    prepared to take such an appointment.

E.E.
    Gillese J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Tyrell, 2014 ONCA 617

DATE: 20140903

DOCKET: C57930

Doherty, Rouleau and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Levar Tyrell

Appellant

Levar Tyrell, in person

Matthew Gourlay, appearing as duty counsel

John Neander, for the respondent

Heard:  June 9, 2014

On appeal from the convictions entered by Justice Julie
    A. Thorburn of the Superior Court of Justice, sitting with a jury, on September
    20, 2013.

Doherty J.A.:

I

overview

[1]

The appellant was convicted by a jury of possession of a loaded prohibited
    firearm.  He appeals his convictions.
[1]
He was self-represented on the appeal, but fortunately, had the able assistance
    of Mr. Gourlay, who appeared as duty counsel.  The appellant chose to rely on
    Mr. Gourlays submissions.

[2]

Mr. Gourlay advanced three arguments.  In the first, he challenged the
    trial judges ruling that despite the considerable delay in bringing the
    appellant to trial, there had been no infringement of the appellants rights
    under s. 11(b) of the
Charter
.  The second and third arguments alleged
    errors in the trial judges instructions to the jury.  Mr. Gourlay alleged that
    the trial judge wrongly told the jury that the knowledge component of constructive
    possession could be satisfied if the appellant ought to have known of the
    presence of the gun.  He also argued that the trial judge erred in leaving
    wilful blindness as to the presence of the weapon as a basis for liability
    absent proof that the appellant also had control over the weapon.

[3]

The court did not require Mr. Neander, Crown counsel, to respond to the
    s. 11(b) argument.  I see no error in the trial judges reasons and do not
    propose to address the s. 11(b) issue any further in these reasons.

[4]

The court did require argument from the Crown on the alleged errors in trial
    judges instructions.  I think the trial judge made both errors alleged.  The
    proviso cannot be applied.  I would order a new trial.

II

facts

[5]

The police executed a search warrant at the residence of Tonisha McPhee
    in the early morning of May 4, 2010.  When the police entered Ms. McPhees
    residence, she and the appellant were asleep in the master bedroom.  Omar
    Grizzle, the appellants cousin and a close friend, was asleep on the couch in
    the living room.  Two small children were sleeping in a second bedroom.

[6]

The search of the residence turned up two identical, fully operational,
    loaded nine millimetre semi-automatic handguns.  One handgun was found in a
    suitcase buried under some bedding in a corner of the childrens bedroom.  A
    wallet containing Mr. Grizzles identification was found in the suitcase.  The second
    gun was found on the shelf of a linen closet beside the bathroom near the
    master bedroom.  According to the officer who found the gun, it was in plain
    view when he opened the closet door. There were no fingerprints on either gun.

[7]

The appellant is the father of Ms. McPhees two children.  They had been
    involved in a relationship but, according to Ms. McPhee, that relationship had
    soured in the fall of 2009 because the appellant was seeing other women.  Ms.
    McPhee testified that she moved into her apartment in December 2009.  Her
    mother, who intensely disliked the appellant, insisted that he not be allowed
    to come and go freely at her daughters apartment.  Ms. McPhee was adamant that
    the appellant did not live at the apartment and, except for a few articles of
    clothing, did not leave any of his belongings there.  She testified that he
    visited his children from time to time and on occasion would stay overnight.
    When he stayed overnight, he slept with Ms. McPhee.

[8]

The appellant testified that he was not in a relationship with Ms.
    McPhee in May of 2010.  He indicated that he did not live at her apartment,
    although he visited his children there occasionally.  According to the
    appellant, he had stayed at Ms. McPhees apartment overnight only once in the several
    months before the search.  He acknowledged that he had stayed overnight and was
    sleeping in the master bedroom when the police arrived on May 4, 2010.  The
    appellant denied any knowledge of the existence of either handgun found in the
    apartment.

[9]

Ms. McPhee testified that she had no knowledge of the gun found in the
    suitcase in her childrens bedroom.  She did, however, know about the gun in
    the closet.  She had found it about a week before the search was executed.  Ms.
    McPhee placed it behind some articles on the shelf.  She believed that the gun
    belonged to her cousin, Glenton Gibson.  He had a key to her apartment and
    often stayed overnight.  Ms. McPhee testified that she called her cousin and
    told him to get his stuff out of her house.  She did not use the word gun,
    but she believed that Mr. Gibson knew what she meant.  Mr. Gibson died before
    the appellants trial.

[10]

Ms.
    McPhee pled guilty to possession of the gun found in the closet.  At her
    sentencing, Ms. McPhee acknowledged that she and the appellant were involved in
    a relationship at the time of the search.  In her testimony at the appellants
    trial, she insisted they were not in a relationship at that time and were not
    getting along very well.  She explained the apparent inconsistency by
    indicating that when she entered her plea she was concerned about securing her own
    release and not the details of what was said at her sentencing.

[11]

Mr.
    Grizzle was charged only with the possession of the gun found in the suitcase
    (count 1).  He was convicted on that charge.  The appellant was charged with
    possession of both guns.  He was acquitted on count 1, but convicted on the
    charge relating to the gun in the closet (count 2).

III

the charge to the jury

[12]

Possession
    was the only live issue at trial.  In the course of her instructions and before
    defining possession for the jury, the trial judge outlined the positions of the
    parties as they related to both weapons.  On the charge relating to the gun in the
    suitcase (count 1), she described the Crown position as follows:

the Crown position is that
he [the appellant] knew or
    ought to have known, or was wilfully blind as to the existence of the gun in
    the suitcase.
[Emphasis added.]

[13]

On
    the charge relating to the gun in the closet (count 2), the Crown contended
    first that the appellant had personal possession of that firearm and had placed
    it in the closet.  The trial judge went on to describe the Crowns alternative
    theory in these terms:

In the alternative,
he knew or ought to have known that the
    firearm was in plain view in the apartment
or was wilfully blind as to its
    existence and chose to do nothing to get rid of it.  [Emphasis added.]

[14]

After
    outlining the positions of the parties, the trial judge turned to the
    instruction on the meaning of possession.  She first defined personal
    possession:

Proof of personal possession requires proof that the accused
    had physical custody of the object, knowing what it was, and intended to
    exercise control over it.

[15]

She
    next defined constructive possession:

Constructive possession requires proof that the accused:

·

Knew what the object was.

·

Knew it was in the possession or custody of another person or in
    that place.

·

Consented to it being in the other persons possession or being
    in that place.

·

Intended to exercise control over it.  Passive
[2]
acquiescence or indifference to that fact is not sufficient.

[16]

After
    explaining the concepts of personal possession and constructive possession, the
    trial judge returned to the positions of the parties.  In describing the
    Crowns case against the appellant on count 1 which involved the gun in the suitcase,
    the trial judge repeated her earlier instruction:

The Crown takes the position that Mr. Tyrell knew or ought
    to have known about the existence of the firearm found in the suitcase
as
    Mr. Tyrell and Mr. Grizzle were close relatives and friends and they knew one
    another well.  [Emphasis added.]

[17]

In
    respect of count 2, the charge involving the gun in the closet, the trial judge
    said:

Crown counsel must prove that Levar Tyrell was in possession of
    the loaded firearm.  Remember that possession requires a person to have
    knowledge of and control over the item, and that possession may be personal
    possession or constructive possession.

[18]

The
    trial judge next introduced the concept of wilful blindness, which she
    expressly limited to the charge relating to the gun in the closet (count 2).
    She said the following:

a person may be wilfully blind.  In other words become aware
    of the need to find out more, but decides [
sic
] not to because he does
    not want to know the truth.  In order to determine whether Levar Tyrell was
    wilfully blind, you must be satisfied beyond a reasonable doubt that he
    suspected there was a loaded firearm in the apartment, realized its
    probability, but chose not to make any inquiries because he did not want to
    know the truth.  In other words, he deliberately failed to inquire even though
    he knew there was reason to do so.

[19]

In
    reiterating the Crowns position on the charge involving the gun in the closet
    (count 2), the trial judge repeated her earlier instruction:

In the alternative
he [the appellant] knew or ought to have
    known that the firearm in plain view in the apartment
was there or was
    wilfully blind as to its existence and chose to do nothing to get rid of it.
    [Emphasis added.]

[20]

The
    final instruction to the jury on the count involving the gun in the closet (count
    2) presented two possible routes to conviction, the first, based on a finding
    of possession and, the second, on a finding of wilful blindness:

If you are satisfied beyond a reasonable doubt that Levar
    Tyrell possessed the loaded firearm found on the third shelf in the hall
    closet, or
that Mr. Tyrell suspected there was a loaded firearm on the
    shelf in the hall closet in the apartment, realized its probability, but chose
    not to make [inquiries] because he did not want to know the truth, you must
    find him guilty of possession of a loaded firearm with magazine.
[Emphasis
    added.]

[21]

After
    completing her oral instructions and determining that counsel had no objections
    to them, the trial judge gave the jury a written copy of the instructions.  Sometime
    later, the trial judge received a question from the jury.  The question read:

Judge, in the paragraph on constructive possession after point
    D it is stated that passive acquiescence or indifference to the fact is not
    sufficient page 48 of your notes.  Our question:  Sufficient for what? And
    does this mean that if you do nothing about it you are guilty of constructive
    possession or is knowing but doing nothing about it not enough to convict?

[22]

The
    paragraph from the trial judges instructions referred to in the jurys
    question is set out above at para. 15.  Counsel and the trial judge agreed that
    the question was directed at the elements of constructive possession and, in
    particular, the distinction between the knowledge requirement and the control
    requirement.  The trial judge proposed to reiterate the four-point definition
    provided in her initial instructions and emphasize that both knowledge and
    control were required for personal possession and constructive possession.
    Counsel agreed with the suggested approach.

[23]

The
    trial judge recalled the jury and provided the following additional
    instruction:

Constructive possession just like personal possession requires
    elements of both knowledge and control and so the person has to have knowledge
    of what the object was.  In other words, that it was a firearm; knowledge that
    it was in the possession of somebody else or some other place; consent to it
    being in that other persons possession or place; and fourth, intent to
    exercise some control over it.  And its this element of control that would be
    missing in a passive acquiescence or indifference.

IV

arguments

[24]

Mr. Gourlay submits that the instructions set out above reveal two fatal
    errors.  First, he contends that the charge, read as a whole, would have led
    the jury to understand that it could convict based not only on a finding that
    the appellant knew that the gun was in the closet, but also on a finding that
    he ought to have known.  Mr. Gourlay submits that only actual knowledge will
    suffice to establish the knowledge component of possession.

[25]

Second,
    Mr. Gourlay submits that the trial judge wrongly told the jury that it could
    convict the appellant if he was wilfully blind as to the presence of the loaded
    gun in the closet.  Mr. Gourlay does not argue that the instruction mis-describes
    the wilful blindness doctrine.  He submits, however, that the instruction left
    the jury free to convict the appellant on the charge relating to the gun in the
    closet (count 2) based exclusively on a finding that the appellant was wilfully
    blind as to the presence of the gun in the closet.  He argues that even if the
    appellant was wilfully blind as to the presence of the gun in the closet, he
    could be convicted of possessing the gun only if the jury was satisfied that
    the appellant had some measure of control over the gun.  Put simply, Mr.
    Gourlay submits that the trial judges instruction effectively eliminated the
    control component of constructive possession should the jury conclude that the
    appellant was wilfully blind as to the presence of the gun in the closet.

[26]

Mr.
    Neander responds that the trial judge correctly defined possession in her
    initial instructions.  He refers to the extracts from the charge set out above
    in paras. 14, 15 and 17.  He also points out that the trial judge reiterated
    and, to some extent, clarified those instructions in her response to the jurys
    question (see,
supra
, para. 23).

[27]

Mr.
    Neander submits that the initial instructions on the legal elements of
    possession and the response to the jurys question were correct in law and made
    it clear to the jury that knowledge of the presence of the firearm was an
    essential element of both personal and constructive possession.  Mr. Neander
    points out that the four references to what the appellant ought to have known
    all appear in the part of the trial judges instructions outlining the position
    of the Crown.  He submits that the jury would have taken the legal meaning of the
    knowledge requirement for possession from the part of the trial judges instructions
    in which she specifically dealt with the applicable legal principles and not
    from the part of her instructions in which she summarized the positions of the
    parties, including the Crown.

[28]

On
    the wilful blindness argument, Mr. Neander submits that, read as a whole, the
    charge made it clear that the concept of wilful blindness related to the
    knowledge component of constructive possession and did not diminish or replace
    the other requirements of constructive possession.

V

analysis

(a)

The knowledge instruction

[29]

The crime of possession of a prohibited loaded firearm is a
mens rea
offence requiring knowledge that one is in possession of a loaded firearm:
R.
    v. MacDonald
, 2014 SCC 3, [2014] 1 S.C.R. (3d) 37, at paras. 53-55.  In
    this case, the Crown relied on both personal possession and constructive
    possession.  Each requires knowledge of the thing said to be possessed.  In
R.
    v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 16-17, the court
    described knowledge as it relates to possession in these terms:

On an allegation of personal possession, the requirement of knowledge
    comprises two elements: the accused must be aware that he or she has physical
    custody of the thing in question, and must be aware as well of what that thing
    is.

Constructive possession is established where the accused did
    not have physical custody of the object in question, but did have it in the
    actual possession or custody of another person or in any place, whether or
    not that place belongs to or is occupied by him, for the use or benefit of
    himself or another person   Constructive possession is thus complete where
    the accused: (1) has knowledge of the character of the object, (2) knowingly
    puts or keeps the object in a particular place, whether or not that place
    belongs to him, and (3) intends to have the object in the particular place for
    his use or benefit or that of another person.  [Emphasis omitted.]

[30]

Proof
    of knowledge, or of its close cousin, wilful blindness, demands a subjective
    inquiry.  The question is what did the accused know and not what ought he to
    have known:  see
R. v. Beaver
, [1957] S.C.R. 531, at pp. 538, 541-42.
    Generally speaking, the doctrine of constructive or imputed knowledge based on
    what a person ought to have known has no place in the criminal law:
R.
    v. F. W. Woolworth Co. Ltd.
(1974), 18 C.C.C. (2d) 23 (Ont. C.A.), at p.
    30:

[31]

The
    trial judge, when instructing on the legal elements of possession, both actual
    and constructive, referred to the appellants knowledge of the thing
    possessed.  Her language described an inquiry into the state of mind of the
    appellant.  However, on four separate occasions the trial judge reminded the
    jury that it was the Crowns contention that the jury could convict based on
    what the appellant ought to have known about the presence of the guns in the
    apartment.  I cannot accept the Crowns submission that the jury would, on its
    own initiative, perceive the difference between the Crowns position and the
    law as explained to them by the trial judge and disregard those parts of the
    Crowns position that were inconsistent with the instructions on the applicable
    legal principles.  In the absence of any instruction, I do not think that a jury
    would necessary understand that a finding of knowledge based on what the
    appellant ought to have known in the circumstances was inconsistent with the
    legal concept of knowledge as explained to the jury by the trial judge.

[32]

The
    jury should not have been concerned in any way with what the appellant ought
    to have known and references to that concept should not have found their way
    either into the position of the Crown or the trial judges instructions.  However,
    having repeated the Crowns argument four times in her instructions, the trial
    judge had to make it clear to the jury that it could not make a finding of
    knowledge based on an assessment of what the appellant ought to have known
    about the presence of either of the guns.  The trial judge had to make it clear
    that, subject to a wilful blindness instruction, proof of knowledge required
    proof of what the appellant actually knew.  Absent a correcting instruction, a
    jury would reasonably assume that the Crowns position repeatedly put to them
    by the trial judge was legally tenable and properly available for consideration
    by the jury.

[33]

The
    repeated references to what the appellant ought to have known, and the
    absence of any instruction that what the appellant ought to have known could
    not support a finding of knowledge, taken together constitute misdirection and
    an error in law.

(b)

The wilful blindness instruction

[34]

In her initial instructions as to the constituent elements of
    possession, the trial judge distinguished between knowledge of the thing said
    to be possessed and control over that thing.  She repeated and, to some extent,
    emphasized that distinction in her response to the jurys question.

[35]

Unfortunately,
    the distinction between the knowledge and control elements of possession disappeared
    when the trial judge introduced the concept of wilful blindness which she
    restricted to the charge relating to the gun in the closet (count 2), the count
    on which the appellant was convicted.  In reference to the appellants
    potential liability on that count, the trial judge expressly told the jury that
    it could convict based exclusively on a finding of wilful blindness.  For
    convenience, I will repeat that instruction:

If you are satisfied beyond a reasonable doubt that Levar
    Tyrell possessed the loaded firearm found on the third shelf in the hall
    closet,
or
that Mr. Tyrell suspected there was a loaded firearm on the
    shelf in the hall closet in the apartment, realized its probability, but chose
    not to make inquiries because he did not want to know the truth, you must find
    him guilty of possession of a loaded firearm with magazine.  [Emphasis added.]

[36]

Neither
    knowledge nor wilful blindness alone can in law establish possession.  The
    Crown must also prove a measure of control over the thing said to be possessed:
R. v. Chalk
, 2007 ONCA 815, 227 C.C.C. (3d) 141, at para. 19.  Absent
    proof of control, the appellant could not properly be found in possession of
    the weapon in the closet, even if he knew that the weapon was in the closet,
    much less if he was wilfully blind to that fact.

[37]

The
    instruction set out above (para. 35) can only be read as a direction to the
    jury that it could convict the appellant of possession of the gun in the closet
    (count 2) either by virtue of his possession of the gun or because he was wilfully
    blind as to the presence of the firearm in the closet.  Liability based
    exclusively on a finding of wilful blindness was wrongly left with the jury as
    a legal alternative to liability based on a finding of possession.  The other
    prerequisites to a finding of possession, especially control of the thing said
    to be possessed, must be proved even if the knowledge requirement is satisfied
    by proof of wilful blindness.

[38]

Although
    the trial judge considered providing a further instruction on wilful blindness
    in response to the jurys question, she concluded, correctly in my view, that
    the question did not involve wilful blindness.  The trial judges response,
    however, left uncorrected the erroneous instructions on wilful blindness in her
    initial charge.

[39]

The
    wilful blindness instruction allowed for a conviction on the charge of
    possessing the gun in the closet (count 2) without any regard to whether the
    appellant had any control over that weapon.  The instruction amounts to an
    error in law.

(c)

Can the proviso be applied?

[40]

In considering the application of the curative proviso, the court looks
    to the seriousness of the error and the strength of the Crowns case.  Both
    legal errors are serious.  They go to the heart of the definition of
    possession, the only issue in dispute at the trial.  Furthermore, the jury
    acquitted on count 1 but convicted on count 2.  The wilful blindness
    instruction related only to count 2.  The verdicts lend some credence to the claim
    that the jury may have convicted the appellant on the charge of possessing the
    gun in the closet based on the erroneous wilful blindness instruction.

[41]

The seriousness of the errors is enough to rule out the application of
    the proviso.  I would add, however, that the case against the appellant was not
    overwhelming.  I would not apply the proviso.

VI

Conclusion

[42]

I
    would quash the convictions and order a new trial on the charges relating to
    the alleged possession of the gun found in the closet.  The acquittals on the
    charges relating to the gun found in the suitcase stand.

RELEASED:  DD  SEP 03 2014

Doherty J.A.

I agree Paul Rouleau
    J.A.

I agree G.J. Epstein
    J.A.

[1]
The appellant appeals three convictions all arising out of his possession of
    the loaded prohibited firearm.  It would appear from the endorsements on the
    indictments that the parties agreed that the jury would decide the possession
    charge and, depending on its verdict, the trial judge would convict or acquit
    on the related charges set out in a companion indictment.

[2]
The transcript contains the words as of and not the word passive.  However,
    based on the written copy of the instructions and the jurys question, it is
    clear that the word should be passive.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Winterton, 2014 ONCA 653

DATE: 20140924

DOCKET: C58257

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Winterton

Appellant

Paolo Giancaterino, for the appellant

Kevin Rawluk, for the respondent

Heard: September 22, 2014

On appeal from the sentence imposed on January 15, 2014 by
    Justice N. Jane Wilson of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

We see no error in principle in the sentence imposed.  The trial judge
    did take into account the appellants changed circumstances.  She also,
    however, took into account the appellants record, the nature of the offences
    and the fact that the appellant had absconded.

[2]

The trial judge ultimately determined that a balancing of those
    factors required a short, sharp period of incarceration.  She made no error in
    coming to that conclusion.

[3]

We agree with Crown counsels
    submission that the fact that a different trial judge imposed a conditional
    sentence on similar charges, also committed before the appellant absconded,
    does not mean that the sentence imposed by the trial judge was unfit.
    Different judges can properly impose different sentences in the same circumstances.
    The propriety of the sentence imposed by the other trial judge is, of course,
    not before us.

[4]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wright, 2014 ONCA 675

DATE: 20140930

DOCKET: C58695

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Craig Wright

Respondent

Deborah Krick, for the appellant

Brad Burgess, for the respondent

Heard: September 26, 2014

On leave to appeal from the sentence imposed on March 27,
    2014 by Justice J. Christopher Corkery of the Superior Court of Justice,
    sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

Having regard to the gravity of the specific charges, the number of convictions,
    the respondents criminal record which demonstrates both a propensity for
    violence and a disregard for judicial orders (the appellant was on probation at
    the time of these offences), the respondents abject failure to accept the
    criminality of his conduct and the amendments to the
Criminal Code
in
    2008 which signal an added determination by Parliament to deter and punish
    those who would engage in acts of cruelty to animals, we think the sentence was
    manifestly inadequate.

[2]

In our view, further incarceration was required. We would impose a
    sentence of nine months. Given the appellant credit for three months
    presentence, he has six months to serve.

[3]

We would vary the 447.1(1)(a) order to include a prohibition
    against residing with any animal or bird.


COURT OF APPEAL FOR ONTARIO

CITATION: Toronto-Dominion Bank v. Tang, 2014 ONCA 657

DATE: 20140924

DOCKET: M43829 (C57683)

Juriansz, LaForme and Lauwers JJ.A.

BETWEEN

The Toronto-Dominion Bank

Plaintiff (Respondent)

and

Weizhen Tang
and
    Hong Xiao

Defendants (
Applicant
)

Weizhen Tang, acting in person

Jeffrey Kukla, for the respondent

Heard and released orally: September 17, 2014

On a motion to review the order of Justice E.A. Cronk of
    the Court of Appeal for Ontario, dated May 20, 2014.

ENDORSEMENT

[1]

The Registrar dismissed Mr. Tangs appeal due to delay on December 4,
    2013. That dismissal was set aside by Rouleau J.A., who granted Mr. Tang an
    extension of time until March 13, 2014 to perfect his appeal. He failed to do
    so and his appeal was again dismissed by the Registrar on March 14, 2014. Mr.
    Tang then brought a motion seeking an extension of time to review the order of
    Rouleau J.A., which came before Cronk J.A. on May 16, 2014.

[2]

During the hearing of the motion before Cronk J.A., it became apparent
    that Mr. Tang was actually seeking a further extension of time to perfect his
    appeal. Cronk J.A. dealt with the motion on that basis. She dismissed the
    motion because of the delays in the appeal process and because the appeal was
    without any discernable merit.

[3]

Today, Mr. Tang seeks a further adjournment. He requests that we stay
    the appeal until the appeal of his criminal conviction is determined, at which
    time he anticipates he will have the funds to retain a lawyer. He also requests
    a variety of other relief that is beyond the bounds of the motion before us.

[4]

The decision of Cronk J.A. is a discretionary one. A discretionary
    decision cannot be set aside unless the judge made an overriding error or reached
    her decision based on the application of a wrong principle. Neither type of
    error is present here.

[5]

The motion is dismissed.

[6]

Costs are fixed in favour of the respondent on a full indemnity scale,
    as provided in the charge, in the amount of $6,538.72, all inclusive.

R.G. Juriansz J.A.

H.S. LaForme J.A.

P.
    Lauwers J.A.