COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brode, 2012
    ONCA 140

DATE: 20120306

DOCKET: C53296

Rosenberg, MacPherson and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kevin Brode

Appellant

Frank Miller, for the appellant

Scott Latimer, for the respondent

Heard: September 8, 2011

On appeal from the decision of the Summary Conviction
    Appeal Court dated February 3, 2011 by Justice S. Rogin of the Superior Court
    of Justice, dismissing the appeal from the conviction entered on September 2,
    2008 by Justice G. Campbell of the Ontario Court of Justice.

Epstein J.A.:

A.

OVERVIEW

[1]

This appeal involves a particular aspect of the frequently considered
    tension between the individual rights of motorists and the broad societal
    concern over the harm caused by those who drink and drive.  The focus of this
    appeal is the vast number of motorists who daily enter Canada from the United
    States who are required to stop and interact with border services officers
    (BSOs).  The issue involves the ability of certain specifically designated BSOs
    to gather evidence of insobriety of drivers crossing the border into Canada.

[2]

One such driver is the appellant, Kevin Brode, who was convicted by a
    judge of the Ontario Court of Justice of impaired driving. The appellant was
    convicted based on the evidence of two such designated BSOs upon his entry into
    Canada from the United States. This evidence consisted of signs of impairment
    the two designated BSOs observed as the appellant got out of his car at their
    direction and immediately thereafter.  The observations were made after the
    appellant was detained but before he was advised of his rights under s. 10(b)
    of the
Canadian Charter of Rights and Freedoms
.

[3]

The appellants appeal to the Superior Court was dismissed.  He appeals
    to this court pursuant to leave granted in respect of an issue raised for the
    first time before the summary conviction appeal court judge (SCAJ): the
    admissibility of the evidence of the two designated BSOs concerning their
    observations of the appellant.

[4]

Before this court, the appellant seeks leave to argue an additional
    issue: whether the decision of the SCAJ is in conflict with at least one other
    judgment of the Ontario Superior Court; namely,
R. v. Iannotta
, [2009]
    O.J. No. 5181. The alleged conflict necessarily involves the interpretation of
    two previous cases of this court;
R. v. Quenneville
, 2009 ONCA 325,
    [2009] O.J. 1549 and
R. v. Milne
(1996), 107 C.C.C. (3d) 118, both of
    which deal with the admissibility of observations of insobriety made by a peace
    officer while carrying out  authorized duties.

[5]

I would dismiss the appeal.  In my view, while making the observations
    they did of the appellant, the designated BSOs were acting within their
    authority and, on this record, there was no reason to exclude their evidence.

[6]

I am not persuaded that leave to appeal the second issue is required. I
    agree with the submission made by counsel for the appellant in oral argument
    that the legal principles developed in
Milne
,
Quenneville
, and
Iannotta
are intertwined with the issue for which leave was specifically granted. I
    will therefore address them within my analysis of the admissibility of the
    observations of the two designated BSOs.  As my reasons will show, I see no
    conflict arising from these cases.

B.

THE BACKGROUND

(1)

Facts

[7]

On September 8, 2006, the appellant, a Canadian citizen entering Canada
    at Windsor Ontario, stopped his car at a Canadian Customs booth staffed by BSO
    Rohrer.  Pursuant to his authority and duties under the
Customs Act
,
    R.S.C. 1985, c. 1 (2nd Supp,), Rohrer asked the appellant routine questions
    about his citizenship, the length of time he spent outside of Canada, and his place
    of residence.

[8]

During the course of this interaction, Rohrer noticed signs of
    impairment: the appellants speech was slurred, his eyes were a little glossy
    and red, and there was a small, faint smell of alcohol on his breath.
    Rohrer asked the appellant if he had been drinking.  The appellant responded
    that he had consumed three drinks. Based on his view that the appellant was
    intoxicated, Rohrer requested that he turn his car off and hand over the keys. The
    appellant complied.

[9]

Rohrer called for a BSO designated under the
Customs Act
as
    having powers under specific sections of the
Criminal Code
to respond to
    suspected impaired drivers.

[10]

When
    designated BSOs OHearn and Rutherford arrived at the scene,   Rohrer told them
    about his observations of the appellant, including the appellants statement
    about his alcohol consumption. OHearn and Rutherford testified that during
    this time the appellant was putting chewing gum into his mouth.

[11]

The
    appellant was directed to get out of the car.  OHearn testified that the
    appellant stumbled as he left the car, had bloodshot eyes, smelled of alcohol,
    and spoke in a loud and cocky manner.   Based on these observations, OHearn
    formed the opinion that the appellants ability to drive was impaired. The
    appellant again acknowledged  this time to OHearn  that he had been
    drinking.

[12]

OHearn
    testified that at that point he had more than enough indicators to believe that
    [the appellant] was impaired, and therefore arrested him for impaired
    driving.  He cautioned the appellant and advised him of his rights to counsel
    under s. 10(b) of the
Charter
.

[13]

Rutherfords
    evidence about her interaction with and observations of the appellant was much
    the same as OHearns.

[14]

Later,
    at approximately 10:25 p.m., Constable Kerekes of the Windsor Police Services attended
    the customs detention area to take the appellant to the police station.
    Kerekes detected a slight smell of alcohol on the appellant, but formed no
    opinion about his ability to drive.

[15]

On
    his arrival at the station, the appellant initially declined an offer to use the
    telephone to call a lawyer but later changed his mind. A breath test was
    administered before the appellant was able to make contact with a lawyer.

[16]

The
    appellant was charged with impaired operation of a motor vehicle and exceeding
    the blood alcohol maximum, pursuant to ss. 253(a) and (b) of the
Criminal
    Code
, respectively. On the basis of the Crowns acknowledgement that the
    second count could not be made out, the charge of over 80 was dismissed.  The
    appellant was convicted of impaired operation.

(2)

The Legislative Background

[17]

The
Customs Act
regulates the movement of goods and people into and out of
    Canada. To this end, certain provisions require individuals coming into the
    country to present themselves to officers empowered to detain and question
    them, perform searches and examinations, and seize goods.

[18]

Prior
    to 1998, officers at the border had authority to investigate or detain individuals
    only in respect of matters relating to the
Customs Act
. They did not
    have authority to follow up on concerns that individuals with whom they engaged
    while performing their duties might be driving vehicles across the border into
    Canada while their ability to do so was impaired.  This gap in the powers of
    BSOs became a matter of public concern.  Parliament responded through the
    passage of Bill C-18, the impetus of which can be appreciated through the
    following comment of the Parliamentary Secretary to the Minister of National
    Revenue, made at the time of Bill C-18s Second Reading (House of Commons
    Debates, 32 (18 November 1997) at 1115 (Sue Barnes)):

I can think of tales from across Canada of people not being
    able to detain those they suspected of drinking and then later those people
    getting into accidents. The safety of not only our peace officers but of
    Canadians is the number one area we are concerned with in this piece of
    legislation.

[19]

As
    a result of the Bill, s. 163.5 was introduced into the
Customs Act.
Generally, it gives designated BSOs additional powers to respond to drivers
    crossing the border into Canada who are suspected of being impaired.
[1]

[20]

At
    the time of the appellants arrest on September 8, 2006, s. 163.5 of the
Customs
    Act
read as follows:

Powers of designated officers

163.5(1)
In addition to the powers conferred on an
    officer for the enforcement of this Act, a designated officer who is at a
    customs office and is performing the normal duties of an officer or is acting
    in accordance with section 99.1 has, in relation to a criminal offence under
    any other Act of Parliament, the powers and obligations of a peace officer
    under sections 495 to 497 of the
Criminal Code
, and subsections 495(3)
    and 497(3) of that Act apply to the designated officer as if he or she were a
    peace officer
.

Impaired driving offences

(2)
A designated officer who is at a customs office
    and is performing the normal duties of an officer or is acting in accordance
    with section 99.1 has the powers and obligations of a peace officer under
    sections 254 and 256 of the
Criminal Code
and may, on demanding samples
    of a persons blood or breath under subsection 254(3) of that Act, require that
    the person accompany the officer, or a peace officer referred to in paragraph (
c
)
    of the definition peace officer in section 2 of that Act, for the purpose of
    taking the samples.

Power to detain

(3)
A designated officer who arrests a person in
    the exercise of the powers conferred under subsection (1) may detain the person
    until the person can be placed in the custody of a peace officer referred to in
    paragraph (
c
) of the definition peace officer in section 2 of the
Criminal
    Code
.

Limitation on powers

(4)
A designated officer may not use any power
    conferred on the officer for the enforcement of this Act for the sole purpose
    of looking for evidence of a criminal offence under any other Act of
    Parliament.

[21]

As
    can be seen, the powers bestowed upon designated BSOs are limited to those of a
    peace officer under sections 495 to 497 and sections 254 and 256 of the
Criminal
    Code
.

[22]

Sections
    495, 496, and 497 of the
Criminal Code
specify the powers of a peace
    officer to arrest without a warrant, to issue an appearance notice where an
    officer decides not to arrest a person, and to release a person who has been
    arrested without a warrant.

[23]

At
    the time of the appellants arrest, the relevant parts of section 254 of the
Criminal
    Code
provided as follows:

254
...

Testing for presence of alcohol in the blood

(2)
Where a peace officer reasonably suspects that a
    person who is operating a motor vehicle or vessel or operating or assisting in
    the operation of an aircraft or of railway equipment or who has the care or
    control of a motor vehicle, vessel or aircraft or of railway equipment, whether
    it is in motion or not, has alcohol in the persons body, the peace officer
    may, by demand made to that person, require the person to provide forthwith
    such a sample of breath as in the opinion of the peace officer is necessary to enable
    a proper analysis of the breath to be made by means of an approved screening
    device and, where necessary, to accompany the peace officer for the purpose of
    enabling such a sample of breath to be taken.

Samples of breath or blood where reasonable belief of
    commission of offence

(3)
Where a peace officer believes on reasonable
    and probable grounds that a person is committing, or at any time within the
    preceding three hours has committed, as a result of the consumption of alcohol,
    an offence under section 253 [impaired operation of a motor vehicle], the peace
    officer may, by demand made to that person forthwith or as soon as practicable,
    require that person to provide then or as soon thereafter as is practicable

(
a
) such samples of the persons breath as in
    the opinion of a qualified technician, or

(
b
) where the peace officer has reasonable and
    probable grounds to believe that, by reason of any physical condition of the
    person,

(i) the person may be
    incapable of providing a sample of his breath, or

(ii) it would be
    impracticable to obtain a sample of the persons breath,

such samples of the persons blood,
    under the conditions referred to in subsection (4), as in the opinion of the
    qualified medical practitioner or qualified technician taking the samples are
    necessary to enable proper analysis to be made in order to determine the
    concentration, if any, of alcohol in the persons blood, and to accompany the
    peace officer for the purpose of enabling such samples to be taken.

[24]

Section
    256 of the
Criminal Code
addresses warrants to obtain blood samples and
    is not at issue in this appeal.

[25]

On
    the basis of its wording at the time, the effect of s. 163.5 of the
Customs
    Act
can be summarized as follows.  In relation to any criminal offence
    under any Act of Parliament, a designated BSO under the
Customs Act
has
    the powers and obligations of a peace officer under ss. 495-497 of the
Criminal
    Code
to arrest without a warrant a person where there are reasonable and
    probable grounds to believe he or she has committed an indictable offence or is
    about to commit such an offence.  A designated BSO may also, where he or she
    has reasonable grounds to suspect impaired operation of a motor vehicle, make
    demands for samples of a person's breath, or in some circumstances samples of a
    persons blood. The designated BSO may also require that a person accompany him
    or her for the purpose of taking samples, and may detain that person until they
    can be placed in the custody of a peace officer.

[26]

There
    is a limitation on these powers: a designated BSO may not use any power
    conferred for the enforcement of the
Customs Act
for the sole purpose of
    looking for evidence of a criminal offence under any other Act of Parliament.

(3)

Prior Judicial Proceedings

(a)

The Trial

[27]

At
    trial, the appellant defended the charges against him on the basis that his
    rights under s. 10(b) of the
Charter
had been breached and that the Crown
    was unable to demonstrate beyond a reasonable doubt that he was impaired while
    in the care or control of his car at the time he crossed the border into
    Canada.

[28]

In
    support of the
Charter
argument, the appellant submitted that the Crown
    had not provided him with adequate time to speak to counsel before
    administering the breath test.  The breath sample was therefore conscripted
    evidence.  Campbell J. rejected this argument on the basis that the evidence
    demonstrated that the appellant was not diligent in asserting his s. 10(b)
    rights and therefore the holding off requirement was not engaged.

[29]

After
    dismissing the
Charter
argument, the trial judge found that the evidence
    of impairment was sufficient and convicted the appellant of impaired driving.

(b)

The Summary Conviction Appeal

[30]

Before the summary conviction appeal court, the appellant argued that
    all of the significant evidence upon which the trial judge relied to support
    the conviction related to observations made by the designated BSOs between the
    time he was directed to get out of the car and the time when his s. 10(b)
    rights were given (the impugned evidence).  This evidence included observations
    of the appellants stumbling as he got out of his car, his bloodshot eyes, the
    odour of alcohol, and his speaking in a loud and cocky manner. The appellant
    argued that at the time these observations were made, the designated BSOs were engaged
    in conduct designed to gather evidence of impairment against him.  Relying on
    the Supreme Courts decision in
R. v. Orbanski
,

2005 SCC 37,
    [2005] 2 S.C.R. 3, the appellant argued that only  evidence flowing from observations
    the designated BSOs made of him while carrying out authorized duties, is
    available as evidence of impairment.  Since designated BSOs have no authority
    to investigate or gather evidence of impairment, the observations they made were
    not admissible to prove impairment.

[31]

In
    a brief endorsement, Rogin J. concluded that the impugned evidence was
    comprised of general observations the designated BSOs made while carrying out
    authorized duties.  He held that the decisions in
Milne
and
Quenneville
therefore governed.  Since there was no reason to exclude the evidence, the
    appeal was dismissed.

(c)

The Application for Leave
    to Appeal to this Court

[32]

In his endorsement of June 20, 2011, Blair J.A. described the issue the
    appellant raised in his application for leave to appeal to this court as a
    narrow point of law regarding the ability of BSOs to gather evidence of
    insobriety at border crossings into Ontario.  He identified this as an issue
    that applied to many situations and therefore touched the administration of
    justice as a whole, and granted leave.

C.

ISSUES

[33]

In
    the order of Blair J.A., the appellant was granted leave to appeal the grounds
    set out in his notice of appeal:

1.

The SCAJ erred in finding that evidence of observations of insobriety
    the designated BSOs made after the appellant was directed to get out of his
    care  are admissible to prove impairment absent compliance with s. 10(b) of the
Charter
.

2.

The SCAJ erred in finding that designated BSOs investigating suspected
    impaired drivers have the same roadside screening powers as police officers
    investigating the same conduct within Canada.

3.

The SCAJ erred in finding that observations made of the conduct of
    suspected impaired drivers was not compelled incriminatory evidence and thus
    inadmissible.

[34]

While
    the appellant expressed the grounds in this fashion, in my view, the issue is best
    summarized by Blair J.A. in his endorsement - "the ability of BSOs to
    gather evidence of insobriety at border crossings". As previously noted,
    the appellant's contention that the decision of the SCAJ raises a possible
    conflict in the jurisprudence in this area is addressed within my analysis of
    this issue.

D.

ANALYSIS

[35]

The
    appellant advances two main points.

[36]

First,
    he submits that the impugned evidence could only be admissible against him as
    evidence of impairment if the observations were made in the course of conduct
    in which the designated BSOs were authorized to engage.  Designated BSOs have
    no authorized investigative powers at common law or by operation of statute.
    It follows, argues the appellant, that at the time they made the observations
    that formed the basis of the impugned evidence, the designated BSOs were
    engaged in unauthorized conduct and the evidence is therefore not available to
    prove impairment.

[37]

Second,
    the appellant contends that even if the designated BSOs had the authority to
    take steps to gather indicia of insobriety, the record supports the finding
    that their request that he get out of his car was itself for the purpose of
    screening for sobriety.  That is, the designated BSOs intended that the actual
    act of the appellants getting out of the vehicle would be a sobriety test. The
    appellant submits that because the evidence available as a result of that direction
     the BSOs testimony that he stumbled as he got out of the car   could not
    have been obtained but for his participation, and was obtained prior to his
    being advised of his s. 10(b) rights, its use would tend to render the trial
    process unfair.  The evidence is therefore inadmissible. I will refer to this
    as the
Milne
 issue.

[38]

As
    a factor that should inform the analysis, the appellant submits that designated
    BSOs are in a unique position.  The
Customs Act
gives them powers that
    would be constitutionally impermissible if exercised over individuals already in
    Canada. Sections 11, 153.1, and 160(1) of the Act make it an offence for those
    seeking entry into Canada to fail to answer truthfully any questions asked by a
    BSO in the performance of his or her duties or otherwise to interfere with or
    prevent a BSO from exercising his or her authority under the Act. This includes
    the authority designated BSOs have under s. 163.5. The point the appellant
    advances is that since individuals crossing the border into Canada can, by
    virtue of other provisions in the
Customs Act,
be compelled to provide
    self-incriminating evidence, the protection against self-incrimination
    militates even more strongly against the use of certain evidence in the context
    of border crossings.

(1)

The authority of designated BSOs to gather evidence

[39]

The
    appellant submits that designated BSOs have only the powers that peace officers
    expressly have under ss. 254 and 256 of the
Criminal Code,
Outside of
    this narrow scope, they do not have other powers of peace officers.  They do
    not have the powers of police officers.  As a result, their powers do not include
    the ability to take steps to gather indicators of insobriety before making a
    demand for a breath or blood sample. Their powers are limited to making
    observations based on their interaction with people in the normal discourse
    involving Customs matters.  If these observations give rise to a concern that
    an individual driving a car into Canada may be impaired, designated BSOs may
    demand that he or she provide a breath sample and may exercise arrest and
    detention powers under ss. 495 to 497 of the
Criminal Code.
.

[40]

The
    interpretation of s.163.5 of the
Customs Act,
is central to the
    determination of the powers of designated BSOs.

[41]

The
    fundamental principles of statutory interpretation direct that the words of a
    statute be read in their entire context and in their grammatical and ordinary
    sense harmoniously with the scheme of the Act, the object of the Act, and the
    intention of the legislature: see
Rizzo & Rizzo Shoes Ltd. (Re)
,
    [1998] 1 S.C.R. 27, at para. 21; see also
Bell Expressive Limited Partnership
    v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at para.26.

[42]

As
    it was worded at the relevant time, s. 163.5 of the Act did not expressly give designated
    BSOs the power to take steps to gather evidence of insobriety. However, in my
    view, such power can be found in the ancillary powers doctrine, grounded in the
    common law and codified in s. 31(2) of the
Interpretation Act
, R.S.C.
    1985, c. I-21:

31(2) Where power is given to a person, officer or functionary
    to do or enforce any act or thing, all such powers as are necessary to enable
    the person, officer or functionary to do or enforce the doing of the act or
    thing are deemed to be also given.

[43]

The
    appellant argues that designated BSOs are not peace officers, as defined by s. 2 of
    the
Criminal Code,
and  have neither the common law powers of police
    officers nor any implied power other than that set out in the
Customs Act.

[44]

I
    agree that BSOs do not share the general duty of police officers to prevent
    crime and protect life and property. Consequently, they do not have the
    complete set of ancillary powers of police officers that flow from that general
    duty. However, in my view, the common law investigative powers recognized in
R.
    v. Waterfield
, [1963] 3 All E.R. 659 (C.C.A.), for police officers apply to
    designated BSOs exercising their authority under s. 163.5 of the
Customs
    Act.

[45]

It
    is clear that through the s. 163.5 amendments to the
Customs Act
, Parliament
    intended to confer authority on BSOs, so far as constitutionally permitted, to prevent
    the impaired operation of motor vehicles at entry points into Canada - a duty
    indistinguishable from that held by police officers to prevent the impaired
    operation of motor vehicles within Canada.  It follows, in my view, that the
    power to gather evidence of insobriety is necessary to enable designated BSOs
    to comply with the important obligations associated with responding to the
    significant threat of harm posed by motorists suspected of being impaired as
    they drive their vehicles into Canada.  In the limited circumstances of their
    authority under the
Customs Act,
insofar as designated BSOs have the
    same obligations as police officers, so too should they have the same ancillary
    investigative powers.

[46]

This
    conclusion is further supported by the illogical outcome that would ensue if the
    restrictive interpretation suggested by the appellant were to ensue.  Without
    the power to gather evidence of sobriety many individuals would unnecessarily be
    subjected to breath or blood sample demands in circumstances where less
    intrusive and less costly investigative steps may prove that initial concerns
    regarding potential impairment were not warranted.

[47]

In
    my opinion, therefore, s. 31(2) of the
Interpretation Act
is a full
    answer to the appellants contention that the ancillary powers doctrine cannot
    be applied to designated BSOs because they are not police officers.

[48]

It
    follows that at the time of the appellants detention, the designated BSOs,
    acting pursuant to their s. 163.5(3) authority to fulfill their duties and
    obligations under ss. 254, 256 and 495-497 of the
Criminal Code,
had the
    same inferred ancillary investigative powers as police officers who detain a
    motorist under s. 48(1) of the
Highway Traffic Act
, R.S.O. 1990, c. H.8.
[2]

[49]

The
    limits of the authority designated BSOs have to investigate suspected impaired
    driving can be determined by reference to both the general common law test for
    ancillary powers and the particular powers that peace officers investigating
    instances of impaired driving within Canada have been found to possess.

[50]

Generally
    speaking, the common law ancillary powers doctrine establishes that where the
    conduct of a police officer is
prima facie
unlawful interference with a
    persons liberty, the court must consider whether the conduct (a) falls within
    the general scope of any duty imposed by statute or recognized at common law
    and (b) involves an unjustifiable use of powers associated with the duty: see
Waterfield
;
R. v. Dedman
(1985), 20 C.C.C. (3d) 97 (S.C.C), at pp. 119-122; see also
R. v. Monney
(1997), 120 C.C.C. (3d) (Ont. C.A.), at para. 83, reversed on unrelated grounds [1999] 1 S.C.R. 652.

[51]

The
    ancillary powers of police officers to investigate impaired driving have been specifically
    considered by this court in
R. v. Saunders
(1988), 41 C.C.C. (3d) 532,
    and in
R. v. Smith
(1996), 105 C.C.C. (3d) 58.

[52]

In
Saunders
, Cory J., writing for the court, held, at p. 539, that an officer
    can take reasonable steps to determine whether there is evidence to justify
    making a demand under s. 238 [now s. 254] of the
Criminal Code
.

[53]

In
Smith
, Doherty J.A. addressed the scope of such reasonable steps and
    clarified, at p. 73, that while an exhaustive list of appropriate procedures
    cannot be provided, a procedure cannot be reasonable within the meaning of s.
    48 [of the
Highway Traffic Act, infra
] unless it can be performed at the
    site of the detention, with dispatch, with no danger to the safety of the
    detainee and with minimal inconvenience to the detainee. On the facts of that
    case, a standing sobriety test met the requirements and was a reasonable step
    performed to determine whether an officer had reasonable and probable grounds
    to believe that the individual was impaired and could be subjected to a breath
    sample demand.

[54]

I
    therefore conclude that in the circumstances of this case, OHearn and
    Rutherford had the power to take reasonable steps in order to determine whether
    grounds existed for a s. 254 demand.  Here, the step taken was to direct the
    appellant to get out of his vehicle in order to gather additional indicators of
    his sobriety.  According to the considerations set out in
Smith
, the
    step was reasonable.

[55]

Given
    my conclusion that the powers of designated BSOs extend to gathering evidence, I
    see no reason to depart from the well-established constitutional framework established
    in
Saunders
and subsequent authorities, in which, pursuant to s. 1 of
    the
Charter,
reasonable investigative steps may take place absent s.
    10(b) compliance.

[56]

I
    would therefore not give effect to this ground of appeal.

(2)

The
Milne
issue: was the request that the appellant get
    out of the vehicle itself a sobriety test?

[57]

In
Milne
, as here, the appellant was charged with impaired driving.  The
    police first observed him while he was in his car.  Evidence of impairment was
    noted.  A police officer asked the appellant to get out of his car.  Upon
    compliance, the appellant was subjected to various sobriety tests.  Following
    the failed tests, the appellant was arrested, cautioned and a formal demand for
    breath samples was made.  The readings indicated a blood-alcohol level in
    excess of the limit.  The appellant was convicted of impaired driving.

[58]

His
    summary conviction appeal was dismissed.

[59]

The
    appellant was successful on appeal to this court on the basis that the evidence
    in issue was obtained from his compelled direct participation in the sobriety
    tests.  Moldaver J.A., speaking for the court, held, at pp. 133-134, that
    admitting the observations made as a result of the appellants compelled
    participation in the tests  designed to firm up mere suspicion of impairment
    would render the trial unfair on the basis that the motorist had been
    conscripted against himself:

In view of my conclusion that the tests authorized by s. 48(1)
    of the HTA were not meant to provide the police with a means of gathering
    self-incriminatory evidence to be used against the motorist at trial, and my
    further view that s. 48(1) would not survive s. 1 Charter scrutiny if that were
    its purpose, I am satisfied that
the admission at trial of the co-ordination
    test results to prove impairment on a charge of impaired driving would render
    the trial unfair
.

The unfairness arises in part from the fact that the motorist
    has been conscripted against himself or herself when, at the behest of the
    police, he or she is required to undertake co-ordination tests designed to
    establish or disprove impairment. The use of that evidence, which could not
    have been obtained but for the participation of the motorist in its
    construction, would tend to render the trial process unfair. Moreover, the use
    of the test results to prove impairment at trial constitutes an impermissible
    broadening of the scope and purpose of the testing procedures contemplated by
    s. 48(1) of the HTA. Since the tests were not meant to provide the police with
    a means of gathering evidence to incriminate the motorist at trial, surely it
    would render the trial unfair if the state could use them for that purpose. [Emphasis
    added.]

[60]

However,
    Moldaver J.A. also clarified, at p. 132, that the prohibition on the use of
    conscripted evidence does not apply to general observations made by an officer
    in the course of his or her duties outside the scope of the compelled activity:

I wish to make it clear that this conclusion applies only to
    evidence obtained from compelled direct participation by the motorist in
    roadside tests authorized by s. 48(1) of the
HTA
, specifically designed
    to determine impairment or a blood-alcohol level exceeding 80 mg. I am not
    referring to observations the officer might make of the driver while carrying
    out other authorized duties. Thus, by way of example, an officer may observe
    signs of impairment in a driver, such as a strong odour of alcohol, blood-shot
    and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the
    driver exiting the vehicle, or other similar signs. These observations would be
    admissible at trial to prove impairment....

This distinction accords with the principles outlined by Lamer
    J. (as he then was) in R. v. Ross (1989), 46 C.C.C. (3d) 129 at p. 140, [1989]
    1 S.C.R. 3, 67 C.R. (3d) 209. In a case turning on identification, Lamer J. (as
    he then was) drew a distinction between physical evidence resulting from mere
    observation, and physical evidence "that could not have been obtained but
    for the participation of the accused in the construction of the evidence for
    the purposes of the trial", such as the line-up evidence in question.

[61]

This
    approach was affirmed by the Supreme Court of Canada in
Orbanski
, at
    paras. 58-49.

[62]

This
    court returned to the issue more recently in
Quenneville
:

The line drawn in
Milne
as to the limitation on the use
    of evidence acquired at the roadside, is evidence obtained through the
    compelled direct participation in sobriety trials.  The observations made as [the
    detained driver] exited his vehicle, even in response to a direction from the
    officer, is not compelled direct participation in the roadside tests so as to
    attract the limitation on use. [Citations omitted.]

[63]

The
    appellants position can be expressed as follows: if a designated BSO asks a
    person to get out of the car with the intention of using his or her compliance
    as a sobriety test itself, the observations made cannot be used as proof of
    impairment. For support, the appellant relies on Hill J.s reasons in
Iannotta
,
    at paras. 57-58:

In the ordinary case, a direction from a police officer to exit
    his or her car, in the context of a roadway stop, does not necessarily, or
    perhaps even probably, mean that the direction to the detainee was intended by
    the constable to use the very sequence of conduct of exiting and standing
    beside the vehicle as the sobriety test.

However, the facts of the present case are uniquely different
    given Const. Ruttans testimony, and entirely distinguishable from those in
Quenneville
.
    The trial court, accordingly, erred in using the evidence of the appellants
    unsteadiness on his feet as substantive evidence of impairment.

[64]

The
    foundation of the appellants

argument is that, like in
Iannotta
,
    the record supports the finding that by requiring the appellant to get out of
    the car, the designated BSOs mandated him to take a disguised sobriety test.
    It follows, argues the appellant, that pursuant to the
Milne
line of
    authority, any evidence gathered in taking that step was conscriptive in nature
    and inadmissible to prove impairment.

[65]

I
    would not give effect to this argument as this case, on its facts, is
    fundamentally distinguishable from
Iannotta.

[66]

In
Iannotta,
there was clear evidence of conscriptive motive: the
    investigating officer testified that his request that the accused get out of
    his vehicle was intended as a sobriety test.

[67]

The
    evidence upon which the appellant relies to establish the proposed disguised
    sobriety test is the testimony of Rutherford, who, in cross-examination stated
    that we [he and OHearn] proceeded to ask [the appellant] to step out of the
    vehicle and question him to gather indicators if there were going to be more
    indicators, and Officer Rohrer gave us his indicators and it was Officer
    OHearn and I who wouldve built more indicators on  upon asking [the
    appellant] to step out of the vehicle.

[68]

In
    my view, this evidence does not support a finding that the officers required
    the appellant to get out of his car for the purpose of using his actions while
    exiting the car as a sobriety test. The evidence is more indicative of the
    officers requesting that the appellant get out of the car so that once he was
    outside they could question him and gather indicators of insobriety.

(3)

What is the import of the authority granted to BSOs under ss.
    11, 153.1 and 160(1) of
Customs Act
?

[69]

As
    the appellant points out, there are differences between the legal rights of individuals
    detained and questioned by peace officers within Canada, and the legal rights
    of those detained by BSOs at a border crossing. It is, pursuant to ss. 11 and
    160(1) of the
Customs Act
, an offence to fail to answer truthfully any
    question posed by a BSO who is exercising his or her lawful authority.
    Similarly, it is an offence to interfere with, molest, hinder, or prevent a BSO
    in exercising his or her authority: see ss. 153.1 and 160(1) of the
Customs
    Act
.

[70]

These
    differences, however, are of no consequence to the issues raised in this
    appeal. As discussed above, the impugned evidence is comprised of general
    observations made while the designated BSOs were engaged in authorized
    activities.
Milne
and
Quenneville
clearly hold that such
    observations are admissible to prove impairment.

[71]

I
    am not saying that the differences between the legal rights of individuals
    detained and questioned as part of an impaired driving investigation at the
    border and those detained for the same purpose within Canada will never be a
    relevant consideration in considering the admissibility of evidence of
    impairment.  There may be circumstances in which the offence provisions of the
Customs
    Act
may affect the admissibility of such evidence.  However, no such
    circumstances arise in this case.

E.

Conclusion and disposition

[72]

I
    conclude that the BSOs who interacted with the appellant as he entered Canada
    on September 8, 2006 took investigative measures that were within the scope of
    the authority provided to them by Parliament to fill a necessary gap that
    previously existed in addressing the harm caused by impaired drivers crossing
    the border into Canada.  The evidence of insobriety they were able to provide
    at trial in support of the charge of impaired driving was obtained as a result
    of reasonable steps taken and not as a result of the appellants being
    compelled directly against himself, within the meaning of
Milne
,
Orbanski
,
    or
Quenneville
, and was therefore admissible on the issue of impairment.

[73]

For
    these reasons, I would dismiss the appeal.

Released: JCM                       G.J. Epstein J.A.

JCM                                                I
    agree M.C. MacPherson J.A.

I agree M.
    Rosenberg J.A.

[1]
Section 163.5 was the subject of minor amendments in 2001, and again in 2008,
    primarily to account for changes to s. 254 of the
Criminal Code.
Notably,
    s. 254 was amended in 2008 to provide officers with the express power to demand
    the performance of physical coordination tests: see 2001, c. 25, s. 84; 2008,
    c. 6, s. 59.

[2]
It is of note that both s. 163.5 of the
Customs Act
and s. 48(1) of the
Highway
    Traffic Act
lack express reference to related investigative powers.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Christink, 2012 ONCA 141

DATE:  20120306

DOCKET: C52142

Simmons, Armstrong
    JJ.A. and Then R.S.J. (
ad hoc
)

BETWEEN

Her Majesty The Queen

Appellant

and

Isaac Steven
    Christink

Respondent

Gregory J. Tweney, for the appellant

R. Craig Bottomley, for the respondent

Heard and released orally: February 24, 2012

On appeal from sentence imposed by Justice R. M. Thompson
    of the Superior Court of Justice on April 26, 2010, with reasons reported at
    2010 ONSC 2396.

ENDORSEMENT

[1]

The respondent was convicted of two counts of dangerous driving
    causing death. The circumstances of the offences involved the respondent
    driving a late model sports car at a speed of more than twice the legal limit
    at night
and failing to slow down in the face of warning
    signs. As a result, the 32-year-old respondent was unable to negotiate a curve
    in the road and the car he was driving smashed into a guardrail while
    travelling backwards. Two of the respondents young friends, fellow army
    privates, were thrown from the rear of the respondents vehicle and tragically
    died. Immediately prior to the accident, the respondent had boasted to his friends
    that his vehicle could achieve a speed of 240 k.p.h.

[2]

The respondent was sentenced to a conditional sentence of two
    years less a day on each count, to be served concurrently, and was also
    prohibited from driving for a period of five years.

[3]

We agree with the Crown's submission that, in the
    particular circumstances of this case, a conditional sentence failed to satisfy
    the sentencing principles of proportionality, denunciation and deterrence.

[4]

The circumstances of the offences indicate that, at a minimum,
    the respondent engaged in intentionally reckless behaviour. Further, the
    appellant had a prior record for driving with a blood alcohol level in excess
    of the legal limit as well as five prior speeding infractions. In addition, in
    preparation for the sentencing hearing, the respondent prepared material that
    patently misrepresented his hours of employment, apparently for the purpose of
    persuading the trial judge to give him a conditional sentence. At a minimum,
    this latter conduct should have militated against giving any mitigating effect
    to the respondent's personal circumstances. On the facts of this case, the only
    real mitigating factor was the respondent's sincere expression of remorse.

[5]

We recognize the high degree of deference owed to a
    sentencing judge. However, in this case, in our view, the sentencing judge
    erred in principle by failing to identify what factors, if any, led him to
    conclude that a conditional sentence could adequately address the sentencing
    factors of proportionality, denunciation and deterrence. Given the intentional
    nature of the respondent's behaviour, the respondent's prior record, the tragic
    consequences of this event, and the absence of any mitigating factors apart
    from remorse, a conditional sentence simply is not proportionate to respondent's
    level of moral blameworthiness; nor is a conditional sentence adequate to
    address the need for denunciation and deterrence. Simply put, the conditional sentence
    imposed is unfit.

[6]

Similarly, on the facts of this case, the five-year driving
    prohibition fails to adequately address the respondent's prior driving record,
    the need to protect the public and the need for specific deterrence.

[7]

In the result, leave to appeal sentence is granted, the
    conditional sentence is set aside and a sentence of imprisonment is imposed
    equivalent to the time remaining under the conditional sentence (101 days).
    The driving prohibition is increased to seven years. The respondent shall surrender
    on or before February 29, 2012, failing which a warrant may issue.

Signed: Janet Simmons
    J.A.

Robert Armstrong
    J.A.

Edward Then RSJ
    (ad hoc)


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Christink, 2012 ONCA 142

DATE: 20120306

DOCKET: C51901

Simmons, Armstrong JJ.A. and Then R.S.J. (
ad
    hoc
)

BETWEEN

Her Majesty The Queen

Respondent

and

Isaac Steven Christink

Appellant

R. Craig Bottomley, for the appellant

Gregory J. Tweney, for the respondent

Heard and released orally: February 24, 2012

On appeal from the conviction entered by Justice R.M. Thompson
    of the Superior Court of Justice, sitting without a jury, on January 21, 2010, with
    reasons reported at 2010 ONSC 364.

ENDORSEMENT

[1]

The facts in this case are briefly set out in the endorsement
    disposing of the sentence appeal.

[2]

Even if the trial judge did not disabuse himself of the fact that,
    while taking a view of the road where the accident occurred, he was able to
    safely negotiate the curve in issue at the posted speed limit of 70 k.p.h., we
    are not satisfied that failing to do so amounted to reversible error. The
    evidence the trial judge accepted indicated the appellant was driving at more
    than twice the posted speed limit. In this context, the fact that the trial
    judge could negotiate the curve at the speed limit was irrelevant to the
    question of whether the appellants driving was dangerous.

[3]

The trial judge found the appellants driving was dangerous because
    of at least four factors: excessive speed, oversteering, darkness and the
    appellants failure to slow down in the face of the warning signs on the road
    side. In all the circumstances, the trial judge was entitled to reach the
    conclusion that the appellants driving was dangerous.

[4]

Moreover, in light of the factors the trial judge relied on, the
    failure of the trial judge to comment specifically on the accuracy of Constable
    Armstrongs calculation of the critical curve speed is of no moment. The fact
    that it may have been theoretically possible for someone to negotiate the curve
    at 206 k.p.h. does not mean that the appellants manner of driving did not
    constitute a marked departure from the conduct of a reasonable person.

[5]

Reading the trial judges reasons as a whole, it is apparent that
    he was satisfied, based on a number of factors, that the front seat passenger
    was able to assess the approximate speed at which the appellant was travelling.
    The passengers evidence that he had a partial view of the speedometer was but
    one of these factors. Considered in this context, and considering
as well
the circumstances under which the passengers
    statement was given to the police, it is apparent why the trial judge gave little
    weight to the inconsistency between the passengers evidence at trial and his
    statement to the police.

[6]

Based on the foregoing reasons, the conviction appeal is dismissed.

Signed: Janet Simmons
    J.A.

Robert Armstrong
    J.A.

Edward Then RSJ
    (ad hoc)


WARNING

THIS IS AN
    APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT
    TO:

110.
    (1)
Subject to this section, no person shall publish the
    name of a young person, or any other information related to a young person, if
    it would identify the young person as a young person dealt with under this Act.

111.
    (1)
Subject to this section, no person shall publish the
    name of a child or young person, or any other information related to a child or
    a young person, if it would identify the child or young person as having been a
    victim of, or as having appeared as a witness in connection with, an offence
    committed or alleged to have been committed by a young person.

138.
    (1)
Every person who contravenes subsection 110(1)
    (identity of offender not to be published), 111(1) (identity of victim or
    witness not to be published), 118(1) (no access to records unless authorized)
    or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure)
    of this Act, or subsection 38(1) (identity not to be published), (1.12) (no
    subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15)
    (information to be kept separate), 45(2) (destruction of records) or 46(1)
    (prohibition against disclosure) of the
Young Offenders Act
, chapter Y-1
    of the Revised Statutes of Canada, 1985,

(a)     is
    guilty of an indictable offence and liable to imprisonment for a term not
    exceeding two years; or

(b)     is
    guilty of an offence punishable on summary conviction.

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. D.A., 2012
    ONCA 200

DATE: 20120327

DOCKET: C51605

Goudge, MacPherson and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.A. (A young person)

Appellant

Mark Sandler and Jonathan Shime, for the appellant

Joanne Stuart, for the respondent

Heard: February 27, 2012

On appeal from the conviction entered on December 1, 2009
    by Justice M.F. Khoorshed of the Ontario Court of Justice.

MacPherson J.A.:

A.

INTRODUCTION

[1]

The appellant D.A. was one of three youths found guilty of extortion by
    Justice Khoorshed of the Ontario Court of Justice.  The appellant was sentenced
    to probation for a period of one year and 100 hours of community service.  He
    appeals his finding of guilt.  His sentence was stayed by order of Weiler J.A.
    of this court pending the determination of this appeal.

[2]

At the conclusion of the hearing, the court announced that the appeal
    was allowed, with reasons to follow.  These are the reasons.

B.

FACTS

(1)

The parties and events

[3]

The appellant was found guilty pursuant to the
Youth Criminal
    Justice Act
,
S.C. 2002, c.
    1, of extorting money, contrary to s. 346 of the
Criminal Code
, from his
    classmate B.H. in 2007 when they were in grades seven and eight.

[4]

The complainant was shy and unpopular.  In a misguided attempt to
    attract attention and make friends, he invented a story that he came from a
    rich family and began giving away money in various amounts to classmates.

[5]

The money that the complainant used to gain popularity with classmates
    initially came from his personal savings.  When that money ran out, the
    complainant stole money from a box in his mothers closet containing $4000.
    This money belonged to his uncle and was being held by his mother for
    safekeeping.  Although the complainant admitted that he willingly provided some
    of this money to other classmates to keep up his charade of coming from a rich
    family, the majority of the money went to the appellant and his two associates.

[6]

The appellant and the two co-accused were charged with one count of
    extortion spanning the time period May 1 to October 10, 2007.  During the
    trial, the Crowns case focused on five aspects of this period.  The Crown
    alleged that:

(1)

the appellant and his associates
    threatened the complainant into bringing hundreds of dollars on a grade seven
    class trip to the zoo in May 2007 and took a portion of that money;

(2)

they regularly threatened the
    complainant at school after the zoo trip until the end of grade seven into
    giving them money;

(3)

in the summer between grades seven
    and eight, the appellant and his two associates came, uninvited, to the
    complainants house and stole the complainants iPod;

(4)

the appellant and his two associates
    regularly threatened the complainant at school in the fall of grade eight into
    giving them money; and

(5)

several days before the police got
    involved, the appellant and his associates called the complainant and, in a
    conversation allegedly overheard by the complainants mother, threatened to
    beat him up if he did not give them money.

[7]

The trial lasted ten days.  The Crown called six witnesses, including
    the complainant, his mother, and several classmates who corroborated aspects of
    the complainants evidence relating to the opportunity, location, frequency and
    manner in which the appellant and his associates threatened the complainant, as
    well as the complainants demeanour during the relevant period.

[8]

The defence called 12 witnesses, including other classmates who had not seen
    any bullying.  Some defence witnesses, who included teachers, testified about
    the good character of the three accused.

[9]

The appellant and the co-accused did not testify.

(2)

The judgment

[10]

The
    trial judge delivered reasons for judgment totalling 25 pages.  The first 24
    pages purported to summarize, witness by witness, the trial evidence and the
    Crown and defence positions.  Then the trial judge turned to his analysis,
    which he set out in about half a page:

These are all the arguments.  I cannot possibly look at every
    single argument but I have summarized the arguments.  I have come to one simple
    conclusion.  The behaviour pattern demonstrated by [the complainant] is that of
    a scared boy.  The effects on his education and health are the bi-products of
    that scare.  The story may have changed a bit or may have been reduced or
    exaggerated a bit but the scare, the fear that he demonstrated cannot be
    acting.  In the sense cannot be artificially created by a boy his age.  The
    parents, the other witnesses, the actual students who saw the force being
    utilized against him, those factors, in spite of the fact that the three
    accused were the most popular boys, there is no question [the complainant] was
    unpopular and not liked.  In spite of that there are some students who have
    come and supported his version.  I have come to the conclusion beyond a
    reasonable doubt that this extortion did take place and all three are found
    guilty.

C.

ANALYSIS

[11]

The
    trial judge acknowledged at the outset of his reasons that the case was a
    complicated one, requiring careful consideration of the evidence.  With
    respect, what followed completely failed his own litmus test.  His half page of
    analysis was anchored in his belief of the complainant based on his behaviour
    pattern, being that of a scared boy, coupled with the fact some classmates
    (unnamed) had supported the complainants story (without explaining how they
    did so).  There was no analysis of the internal contradictions in the Crown
    evidence or how the trial judge reconciled the many inconsistencies between the
    Crown and defence evidence.  While a trial judge is not obligated to refer to
    all of the evidence or to exhaustively explain his reasoning process, the
    combination of unacknowledged evidence supporting the defence position and an
    almost complete paucity of analysis compel the conclusion that the trial judge
    failed to consider the whole of the evidence in deciding the case: see
R. v.
    Gostick
(1999), 137 C.C.C. (3d) 53 (Ont. C.A.), at paras. 13, 14, and 18-19.

[12]

I
    can illustrate this conclusion with a couple of striking examples.

[13]

First,
    the trial judge concluded that this extortion did take place.  The Crown led
    evidence about five possible extortions.  The trial judge did not say which of
    these grounded his finding of guilt, notwithstanding the serious questions
    raised by the defence about these five incidents.  For example, there was much
    evidence that the zoo incident did not amount to an extortion: the complainant
    testified that he had given money away voluntarily on that trip, many other
    witnesses confirmed that the complainant was giving away money, and no one saw
    anyone forcibly take money from the complainant.  Similarly, there was strong
    conflicting evidence about the alleged iPod theft.  In these circumstances, the
    trial judge had a duty to state clearly the conduct that, in his view, amounted
    to the extortion.

[14]

Second,
    the fifth possible extortion set out above was grounded in an alleged telephone
    conversation between the three accused and the complainant, with confirmation
    coming from the complainants mothers testimony that she overheard the
    conversation.  However, the complainant said nothing in his statement to police
    about this telephone call or any conversation with his mother about it.
    Moreover, the complainant did not mention this call in his
    examination-in-chief.

[15]

Similarly,
    the complainants mother mentioned this call, for the first time, when she went
    to the police in mid-trial, after her son had been testifying for two days.
    She did not mention this incident to the police when she gave a statement in
    October 2007 and only raised it in a second, mid-trial statement to police in
    January 2009.

[16]

The
    trial judge dealt with none of this context surrounding the alleged telephone
    call.  All he said was that the testimony of [t]he parents supported the
    complainants evidence.  In light of the obvious problems concerning the timing
    of the reporting of the telephone conversation by both the complainant and his
    mother, the trial judge had a duty to provide some analysis to support his
    general and laconic conclusion.

[17]

In
    the end, we know from the trial judges reasons only who he thought had
    committed the crime of extortion: the appellant and his two co-accused.  We do
    not know the what, when, where or why of the criminal conduct.  In any criminal
    trial, but especially one involving a young offender, this is not good enough.
    Given this error and its magnitude, it is not necessary to deal with the other
    arguments raised by the appellant.

D.

DISPOSITION

[18]

The
    appeal is allowed and a new trial is ordered.

Released: March 27, 2012 (S.T.G.)

J.C. MacPherson J.A.

I agree S.T. Goudge J.A.

I agree R.G. Juriansz J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Dorsey, 2012
    ONCA 185

DATE:  20120323

DOCKET:  C50631

OConnor A.C.J.O., MacPherson J.A. and OConnor
    J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Dorsey

Appellant

Brian Snell and Zachary Kerbel, for the appellant

Deborah Krick, for the respondent

Heard:  January 25, 2012

On appeal from the convictions entered on November 1, 2007
    by Justice Gloria Epstein of the Superior Court of Justice, sitting with a
    jury.

By the Court:

INTRODUCTION

[1]

On November 1, 2007, the appellant, Christopher Dorsey, was convicted by
    a jury of sexual assault, sexual assault with a weapon, sexual assault
    causing bodily harm and unlawful confinement.  These offences involved three
    different complainants, L.B., M.B. and M.N.  He was acquitted on similar counts
    against two other complainants, C.B. and B.M.  Counts relating to a sixth
    complainant, D.T., were severed.  The appellant was declared a long-term
    offender and given a three year and four month prison sentence to be followed
    by 10 years of supervision.

[2]

He appeals his convictions on two grounds, arguing that:

a)

the trial judge erred
    in her instructions to the jury on its use of similar fact evidence, and

b)

the trial judge erred
    by admitting the evidence of a complainant to be put to the jury as similar
    fact evidence after allowing the counts relating to that complainant to be
    severed.

[3]

A third ground, that the trial judge erred respecting a
Vetrovec
instruction, was not argued and therefore was not considered by this court.

[4]

For the reasons that follow, we would allow the appeal and order a new
    trial.

OVERVIEW

[5]

All six complainants, who did not know each other, were crack cocaine users,
    prostitutes or both.  The appellant was a heavy crack cocaine user.  All the
    complainants gave evidence of attacks allegedly by the appellant that were the
    subject of the similar fact application.

[6]

Between March 2003 and August 2004, the appellant met with each of the
    complainants either at the Newsboys Boxing Gym or in his apartment, and had
    sexual relations with them in return for crack cocaine.  However, according to
    all of the complainants, after often long periods of smoking crack cocaine and
    engaging in various sex acts, the appellants demeanour changed radically.
    While demanding further sex with them, he would become angry and threatening
    and then physically abusive.  The incidents usually lasted several hours and
    ended when the women eventually managed to escape, or when he threw them out.
    On one occasion, with the complainant whose counts were severed, he allegedly
    locked her in the gym for several hours while he left the premises to find more
    drugs.

THE FACTS

[7]

A summary of the alleged attacks on the six complainants is as follows.

[8]

In April, 2003, L.B. met the appellant when he was living at the Avenue
    Road Hotel on Pears Avenue in Toronto. She went to his apartment and smoked
    crack cocaine and then agreed to allow him to perform oral sex on her. He
    became argumentative and demanded that L.B. perform oral sex on him.  He then
    brandished a knife, held it to L.B.s neck, and threatened to kill her and
    throw her off the balcony.  He would not let her leave the apartment.  He
    forced her to continue giving him oral sex.  After leaving the apartment, L.B.
    contacted a rape crisis centre.  She reported her experience to the police on
    June 7, 2004.  The appellant was found guilty of sexual assault of L.B. with a
    weapon.

[9]

In July of 2003, M.B. met the appellant at the Avenue Road Hotel. They
    went to his room to smoke crack cocaine.  She asked how much she owed him and
    he told her he was not in the business of selling crack.  He demanded that she
    give him oral sex and threatened to break her jaw.  She performed oral sex for
    a lengthy period of time.  He then sodomized her.  He would not let her leave
    the apartment. She escaped into the hallway naked and ran to her friends
    apartment.  M.B. contacted the police after hearing about the appellant in the
    media.  She gave a statement to police on July 18, 2004.  The appellant was
    found guilty of sexual assault of M.B.

[10]

In
    March 2004, M.N. went to the Newsboys Boxing Gym at Greenwood Avenue and Queen
    Street to buy drugs.  She met the appellant there, did drugs and stayed there
    alone with him.  After the drugs ran out, he began to touch her and pulled her into
    the bedroom portion of the gym.  He grabbed her by the hair.  He digitally
    penetrated her and grabbed her breasts.  He told her that he had a gun and that
    he would shoot her if she moved.  He left the building and M.N. remained locked
    in the gym.  When he returned, the appellant dragged her up the stairs and
    pushed her out the door onto the street.  She provided a statement on August
    11, 2004.  The appellant was found guilty of sexual assault causing bodily harm
    and unlawful confinement of M.N.

[11]

During
    the summer of 2003, C.B. was working as a prostitute.  She met the appellant
    and accompanied him to the Avenue Road Hotel to smoke crack cocaine.  The appellant
    allegedly ordered C.B. to get on her knees.  He pulled down his pants and
    forced his penis into her mouth.  He punched her in the face and on the side of
    the head.  He threatened her with a knife. She ran away.  Several months later
    C.B. met the appellant again.  A similar incident allegedly occurred; he pulled
    his pants down and put his penis in her face.  He slapped her.  She yelled and
    eventually left.  C.B. contacted the police after reading an article in a
    newspaper about the appellant.  She provided a statement to the police on June
    10, 2004.  The appellant was found not guilty of the two counts related to C.B.

[12]

On
    May 25, 2004, B.M. was allegedly approached by a male about a date with the appellant.
     B.M. had been with the appellant before and knew that he wanted oral sex in
    exchange for crack. B.M. went to the Newsboys Boxing Gym.  She alleged they
    smoked crack together and she performed oral sex on him. The appellant became
    angry and violent.  He grabbed her by the hair and held her head, forcing her
    to continue to perform oral sex.  He threw her on the bed, ripped her pants off
    and forced himself into her vagina.  Over the next several days, he allegedly held
    her there and repeatedly forced her to have sex with him.  He threatened to
    skin her alive and slice her up.  B.M. managed to escape when a man came to the
    door.  She ran to her friends house.  She told her friends what had happened
    and they took her to the hospital.  The hospital contacted the police and B.M.
    gave a statement to them that same night.  The appellant was found not guilty
    on the two counts relating to B.M.

[13]

D.T.
    allegedly went to the gym with two women in April 2004.  They left and D.T.
    stayed to smoke crack with the appellant.  She alleged that he became angry and
    left the gym, locking her in it.  When he returned, they both smoked more
    drugs, and then he demanded that she remove her clothes.  She complied out of
    fear.  He then began performing oral sex on her.  When he was finished he left
    and locked her in the basement again.  She called her husband using her cell
    phone.  Her husband called the police.  The Fire Department rescued D.T. from
    the gym and took her to the hospital.  The appellant was arrested that same
    evening just outside of the boxing club.  The four counts relating to D.T. were
    severed from this trial.

The Similar Fact Application/Collusion Issue

[14]

The
    granting of the similar fact application and the trial judges instruction as
    to how the jury could use the evidence was important to the outcome of the
    trial.  The issue of possible collusion between complainants in a sexual
    assault case is often a key concern of a trial judge hearing a similar fact
    application.  In this case the appellant raised the spectre of inadvertent or unintentional
    collusion.

Reasons
    of the Trial Judge

[15]

The
    trial judge granted the similar fact application, citing the criteria for admission
    as set out in

R. v. Handy
, [2002] 2 S.C.R. 908.  She undertook
    a careful analysis of the factors to be considered when assessing the probative
    value of the evidence and both the moral and reasoning prejudicial effects of
    it.  She correctly noted that a high degree of probative value is required for
    admission.  She then considered the possibility of collusion.  At paras. 63
    through 67 of her Ruling #6, allowing the admission of the similar fact
    evidence, she said:

The defence is responsible to show that there is an air of
    reality to the claim of collusion.  It is then up to the Crown to prove on a
    balance of probabilities that there was no collusion.
Mere opportunity and
    motive is not enough to taint the evidence.  See: Shearing, supra, para. 44.

Ms. Morrow did not, either in her oral or written submissions
    seriously press the possibility of collusion other than to argue that media
    reports concerning Mr. Dorsey provided the various witnesses with an
    opportunity to concoct.

The Crown contends that there is no air of reality to collusion
    among the complainants.  All six witnesses were unknown to each other, four of
    whom reported after seeing news coverage.  The complainants have never met nor
    know the details of the events others have described.

The Crown further argues that viewing media coverage does not
    fall within the concept of collusion as collusion is based on evidence that the
    witnesses actually communicated with each other with a view to fabricating the
    evidence.  I disagree.
Handy
makes it clear (at para. 111) that the
    issue is concoction or collaboration.  The opportunity to concoct can be based
    on media coverage.  See also:
R. v. Hughes
,
1998 Carswell BC
    1747.

However, based on the evidence about the nature and content
    of the media reports and the testimony of the witnesses who said they were
    aware of them, I am not persuaded there is any air of reality to any claim of
    collusion.  I say this due to the limited nature of the information contained
    in the reports and the vagueness of the evidence about the witnesses awareness
    of the reports, particularly the timing of the awareness in relation to when
    the various alleged assaults were reported to the media
.
[Emphasis
    added.]

[16]

After
    the appellant raised the possibility of collusion in her closing submissions to
    the jury, the trial judge told the jurors, both shortly after defence counsel
    had completed her address and the next day in her charge to the jury, that they
    were not to consider the possibility of collusion and that it should not affect
    their assessment of the similar fact evidence.

[17]

After
    defence counsels address, the trial judge said:

You will recall the detailed submissions in which defence
    counsel pointed out that Ms. [B] was the last of the witnesses who testified at
    this trial to complain to police, and that her report to the police included
    many elements that were similar to those elements contained in the reports of
    the other women.

This summary ended with a statement to the effect that you
    should be wary of an account that may be, and I quote from the submissions,
    peppered with easily accessible information.

This easily accessible information, according to the
    submissions of defence counsel, came from media reports and/or the
    communication network within the drug subculture.

Members of the jury, I wish to make it clear to you there
    is no evidence before you to support the submissions in this respect, and that
    you should disregard entirely any suggestion that the evidence of M.B. or the
    evidence of any other complainant should be discounted, due to the possibility
    that the evidence may have been affected by the media reports or through
    communication with others in the drug subculture.

I am giving you these instructions primarily with reference to
    M.B.s evidence, because the collusion submissions were advanced very strongly
    in respect of the allegations she has made, but these instructions apply to any
    other complainant concerning whom that argument was advanced.  [Emphasis
    added.]

[18]

In
    her charge to the jury, the trial judge said:

Based on the test that the Supreme Court of Canada has
    established for the existence of collusion or concoction, I instruct you  and
    I said this to you yesterday  that
there is no evidence of collusion or
    concoction in this case that should concern you in assessing what import, if
    any, you place on any similarities you find there to be in the descriptions of
    events that the women have provided to you.
[Emphasis added.]

Appellants
    Position

[19]

In
    her closing address to the jury, defence counsel made it clear that she was not
    suggesting there was evidence of the complainants actively talking to each
    other about their experiences.  She did not argue the women directly
    collaborated or colluded amongst themselves to coordinate their stories.  She
    characterized what might have happened as collusion on a different level where
    we talk about the amount of information that was available to the women.  The
    type of collusion that may have arisen in this case was the possibility that
    the complainants, in sharing their experiences with others, after having heard
    rumours on the street and having seen and read television and newspaper reports
    about the appellant allegedly preying on women, intentionally or inadvertently
    modified or exaggerated their testimony to make it more convincing.

[20]

The
    defence pointed out that there had been a police press conference followed by television
    and print press coverage of some of the alleged sexual assaults.  Some of the
    particulars of the assaults were made public.  For example, a
Toronto Sun
article alleged the appellant locks up sex-trade workers and sexually assaults
    them and that one woman was able to call police by cell phone when she was
    left alone and that the appellant allegedly contacts women through a third
    party, invites them to a meeting, then things turn bad and the women are forced
    to perform sex acts.  L.B., one of the complainants with respect to whom a
    conviction was registered, said she heard on the street that a lot of women
    who did not come forward, were assaulted by the appellant.  M.N. said she had
    heard stories on the street about various things that may have happened to
    other women.  She also said that he has done this to many people  lots of
    people have told me.

[21]

At
    trial, the defence argued that the evidence from the complainants gave at least
    an air of reality to the form of collusion that could have occurred.  Thus, the
    jurors should have been instructed that they could consider the possibility
    that the womens evidence was not a product only of their independent memories
    but that it could have been tainted by other sources.  The defence argued that
    their memories could have been influenced by their drug addictions and their
    lifestyles.  The jury should have been instructed on the possibility that their
    recollections may have been tainted by news reports, rumours and gossip on the
    street and within the drug culture.

[22]

In
    this appeal, the appellant argues that the trial judges failure to leave the
    possibility of inadvertent collusion with the jury was an error.  The jury
    should have had the opportunity to consider and weigh collusion as a factor.
    This omission had the effect of depriving the appellant of a fair trial.

Respondents
    Position

[23]

The
    Crown argued at trial that there was no air of reality to any claim of
    collusion because the claimants neither knew each other, nor did they know the
    details of the alleged assaults others had experienced.  Further, because D.T.,
    the complainant whose counts were severed, had been rescued by police in the appellants
    boxing gym and because she had immediately given a statement to the police,
    there was no opportunity for her evidence to have been tainted by press reports
    or street gossip.

[24]

The
    respondent argues that the significant similarities between and among the womens
    evidence, given that they did not know each other and could not have colluded
    with each other, could not be explained by coincidence.  Therefore, their
    evidence should be considered reliable.

The Law

[25]

In
Handy
,
supra
, Binnie J., at paras. 110-112, sets out the
    principles governing collusion and potential collusion in the context of a
    similar fact application:

Collusion is a factor, yes, but more than that it is a
crucial
    factor because the existence of collusion rebuts the premise on which
    admissibility [of similar fact evidence] depends.

If the evidence [of collusion] amounts to no more than
    opportunity, it will usually best be left to the jury.

The Court in
Arp
,

supra
,
concluded that the test for the admission of similar fact evidence is based on
    probability rather than reasonable doubt.
Accordingly where, as here, there
    is some evidence of actual collusion, or at least an "air of reality"
    to the allegations, the Crown is required to satisfy the trial judge, on a
    balance of probabilities, that the evidence of similar facts is not tainted
    with collusion.
That much would gain admission. It would then be for the
    jury to make the ultimate determination of its worth.  [Emphasis added.]

[26]

Where
    the similar fact test is met, that is, the probative value of the evidence
    outweighs its legally prejudicial effect, but there is also evidence of actual
    collusion among the complainants whose testimony constitutes the similar fact
    evidence, the Crown must show, on a balance of probabilities, that the evidence
    of similar fact is not tainted by collusion.  If the Crown is unable to satisfy
    this onus, and the judge finds actual collusion among complainants, he must
    exercise his gatekeeper function and deny the similar fact application.
    However, where the evidence shows only the opportunity for collusion or collaboration
    possibly tainting the evidence, then the matter should be left to the jury.
    The jury must consider the effect of the possible collusion when deciding the
    weight to be given to the similar fact evidence.  At para. 111 of
Handy
(above), Binnie J. says, if the evidence [of collusion] amounts to no more
    than opportunity, it will usually be left to the jury.

[27]

In
R. v. Shearing
(2002), 165 C.C.C. (3
rd
) 225 (S.C.C.), at
    para 44, Binnie J. says:

Here, there is some evidence of opportunity for collusion or
    collaboration and motive, but nothing sufficiently persuasive to trigger the
    trial judges gatekeeper function.  There is no reason here to interfere with
    the trial judges decision to let the collusion issue go to the jury.  He
    instructed the jury to consider all of the circumstances which affect the
    reliability of that evidence including the possibility of collusion or
    collaboration between the complainants.  He defined collusion as the
    possibility that the complainants in sharing their stories with one another,
    intentionally or accidentally allowed themselves to change or modify their
    stories in order that their testimony would seem more similar or more
    convincing.
It was for the jury to make the ultimate determination whether
    the evidence was reliable despite the opportunity for collaboration or that
    less weight or no weight should be given to evidence which may have been
    influenced by the sharing of information.

[Emphasis added.]

[28]

In
R. v. F.(J.)
(2003), 177 C.C.C. (3
rd
) 1 (O.C.A.), at para
    86, Feldman J.A. says:

The Supreme Court has recently addressed the seriousness of the
    possibility that evidence has been tainted by collusion in the context of the
    treatment of similar fact evidence. In the cases of
R. v. Handy

(2002),
    164 C.C.C. (3d) 481
and
R. v. Shearing

(2002),
    165 C.C.C. (3d) 225
,
the court held that before admitting
    similar fact evidence, the trial judge must be satisfied of its reliability and
    exclude it if not satisfied on a balance of probabilities that the evidence is
    not tainted by collusion. Once admitted, the jury must still be warned to
    assess the evidence carefully and to consider whether it can be considered
    reliable given the possibility of deliberate or accidental tainting by
    collusion among the witnesses.

[Emphasis
    added.]

Analysis

[29]

Here,
    it is clear that there was at least some evidence of possible inadvertent collusion,
    perhaps not enough to deny the similar fact application, but sufficient to
    raise concerns that the opportunity for tainting of the evidence existed.  Put
    another way, there was at least an air of reality to the possibility of
    inadvertent collusion.  As discussed in
Shearing
, the trial judge
    should have left it with the jury to decide the effect that possible collusion
    may have had on the weight to be assigned to the evidence of the complainants.

[30]

In
    this case, the opportunity for the jury to assess the weight of evidence, given
    the possibility for collusion, was specifically taken from them.  In our view,
    the trial judge erred in instructing the jury, after the defence address, that
    there was no air of reality to the theory that evidence may have been affected
    by the media reports or through communication with others in the drug
    subculture.  Similarly, in her charge, she erred in instructing the jury that
    the test set down by the Supreme Court of Canada for collusion or concoction
    had not been met and further that there is no evidence of collusion or
    concoction in this case that should concern you in assessing what import, if
    any, you place on the similarities you find there to be in the descriptions of
    events the women have provided to you.  The reference to the Supreme Court of
    Canada test added an aura of authority to the trial judges admonition.  In our
    view, she erred in taking the issue from the jury.

[31]

At
    trial, the issue of potential collusion or tainting, even inadvertently, was an
    important element in the defence case, as counsel told the jury in her closing
    address.  Taking from the jury any consideration whatsoever of this issue,
    especially in a case where the balance of the evidence was not overwhelming,
    given that the appellant was found not guilty of two of the five complainants
    counts, amounted to reversible error.

The Severance/Admission of Evidence
    Issue

[32]

At
    the outset of the trial, the judge permitted the severance of the counts
    respecting D.T.  Having done so, she then permitted the Crown to call D.T. as a
    witness to give similar fact evidence.  Her rulings in this regard raise the
    question of whether or not the combined effect of allowing both applications
    violated the appellants right to silence.

Reasons of the Trial Judge

[33]

During
    the pre-trial motions the defence applied to sever the counts on the indictment
    relating to the allegations of D.T., M.B. and B.M.  The appellant indicated
    that his defence to the D.T. counts was that she had consented to the sexual
    activity.  He therefore wished to testify with respect to only that issue as it
    related to the D.T. counts.  He indicated he did not wish to give evidence
    respecting his defence to the other complainants counts.

[34]

The
    trial judge allowed the severance of the D.T. counts only.  In ruling #3, at
    paragraphs 66 to 69, she said:

I now turn to the D.T. counts.

First, I agree with the defence that while there are
    similarities between the alleged circumstances of the D.T. assault and the
    other alleged assaults, there are also factors that set the D.T. counts
    somewhat apart.

However, this slightly diminished probative value alone would
    not be sufficient to warrant the D.T. counts being severed.
The primary
    factor that has influenced the exercise of my discretion to sever the D.T.
    counts is Mr. Dorseys stated intention to testify on his own behalf in relation
    to those counts and the timing, significance and apparent legitimacy of that
    intention.

I am satisfied that Mr. Dorsey has met his burden of
    demonstrating that the interests of justice require that the D.T. counts be
    severed from the rest of the indictment. While the consequences of this
    conclusion give rise to administrative inconvenience and additional cost, these
    considerations do not take precedence over Mr. Dorseys interests or his
    constitutional rights. [Emphasis added.]

[35]

Following
    the severance application, the Crown applied to admit D.T.s allegations as
    similar fact evidence to support the credibility of the other five
    complainants.  The trial judge, in allowing the application, in Ruling #4, said
    at paras. 63 and 64:

As I have said, the potential probative value is high. The risk
    of moral prejudice is low because Mr. Dorsey already faces allegations made by
    5 separate complainants, the details of which are factually similar and the
    severity of the conduct alleged is of a similar degree of seriousness. One more
    complainant will not affect the trier of fact in an improper way. Furthermore,
    the risk of reasoning prejudice is also low where the case involves 5
    complainants. This evidence will not distract the trier of fact from coming to
    their conclusion.

The Crown has satisfied me that, on balance, the probative
    value of the proposed evidence would be greater than any prejudicial effect.

Appellants Position

[36]

The
    Appellant argues that in having granted the severance and then allowing the
    similar fact application, including D.T.s evidence, placed the appellant in
    the untenable position of testifying only regarding D.T.s severed counts and
    none of the others. The jury would have been at least curious, if not dubious
    about his sincerity, as to why he was testifying on the counts on which he
    could not be convicted but not on the counts on which he could be found guilty.

[37]

The
    trial judge was alive to the conundrum the appellant faced.  At the conclusion
    of the Crowns case she said:

If, however, he decides to testify only because the jury has
    heard what D.T. has to say, and thats the only reason he decides to testify,
    then in those  and thats all he wants to talk about  then in those
    circumstances, it seems to me one possibility in relation to making sure that
    he is not adversely affected by my similar fact ruling, in a way that
Ive
    tried to protect him with my severance ruling, is to allow him to testify only
    in relation to D.T., not allow the Crown to cross-examine him beyond that, and
    simply give proper instructions to the jury.
[Emphasis added.]

However, the appellant argues that the trial judges
    proposed solution did not correct the problem of which she was admittedly
    aware.

Respondents Position

[38]

The
    respondent argues that the trial judges reasons for granting the similar fact
    application discloses no error and the appellants right to a fair trial was
    not impaired by the ruling.

[39]

The
    respondent asserts that a similar fact application is not the same as a
    severance application, and that the tests for granting each are different.  The
    granting of one application does not automatically bring a similar ruling in
    the other.  It is acceptable that the outcomes may differ.  The trial judge
    provided detailed reasons on the similar fact application decision, and applied
    relevant law.  There was a discussion of the similarities between the evidence
    of D.T. and the other complainants.  The potential risk of prejudice was low
    and the probative value was high.

[40]

The
    respondent also submits that the Crown deliberately omitted calling evidence
    that would bolster the strength of the D.T. evidence.  He elected not to call
    DNA evidence, nor evidence of other witnesses that would have corroborated the
    D.T. story.  Therefore, the defence had no need to give evidence in response to
    the testimony of D.T.  At the conclusion of the Crowns case, the defence could
    have brought another application, but did not do so.  This was an indication
    that the appellant wished to testify on all charges at trial.

The Law

[41]

In
R. v. Hebert
,
[1990] 2
    S.C.R. 151
,
the
    Supreme Court of Canada expanded the rules, rights and privileges derived from
    the principle against self-incrimination by finding that the right to silence
    is included within s. 7 of the
Charter
.

[42]

The
    connection of the right to silence to the principle against self-incrimination
    is clear in the reasons of McLachlin J., as she then was, at para. 47:

The measure of the right to silence may be postulated to reside
    in the notion that a person whose liberty is placed in jeopardy by the criminal
    process cannot be required to give evidence against himself or herself [i.e.,
    the principle against self-incrimination], but rather has the right to choose
    whether to speak or to remain silent.

[43]

Thus, the right to silence is
    rooted in the privilege against self-incrimination. Section 11(c) of the
Charter
precludes a person from being compelled to testify at
    trial.

[44]

In
R. v. Amway Corp.
, [1989] 1 S.C.R. 21, at para. 35, Sopinka J. wrote
    that the purpose of s. 11(c) is: to protect the individual against the affront
    to dignity and privacy inherent in a practice which enables the prosecution to
    force the person charged to supply the evidence out of his or her own mouth.

[45]

In
R. v. Last
, 2009 SCC 45, [2009] 3 S.C.R. 146, the trial judge dismissed Mr. Lasts
    application to sever the counts of two complainants.  He was convicted on all
    counts.  This court dismissed his appeal.  The Supreme Court of Canada set out
    the factors a trial court must take into account when considering a severance
    application.  While the court in
Last
was dealing with only a severance application, its comments on one of
    the eleven factors to be considered are applicable to this case.  Where the
    accused expresses his intention to testify on one count but not others,
    Deschamps J, writing for the court, said at paras. 25 and 26:

In assessing the accuseds testimonial intention on a severance
    application the underlying concern is for the accuseds ability to control his
    defence, and, more specifically,
his right to decide whether or not to
    testify with respect to each of the counts unimpaired by inappropriate
    constraints.

Both the Crown and the defence submit that the accuseds
    intention should be objectively justifiable. This requirement is, indeed, a
    threshold. The accuseds expression should have both a subjective and an
    objective component. However, while a formulaic expression of a subjective
    intention is not sufficient in and of itself to discharge the accuseds burden
    to have the counts severed, the trial judge should not substitute his or her
    own view for that of the accused and determine that the accused should testify
    or not. Rather, the trial judge must simply satisfy him- or herself that the
    circumstances objectively establish a rationale for testifying on some counts but
    not others. The burden on the accused is to provide the trial judge with
    sufficient information to convey that, objectively, there is substance to his
    testimonial intention.  The information could consist of the type of potential
    defences open to the accused or the nature of his testimony:
Cross
, at
    p. 421.
However, the accused is not bound by his stated intention; he
    remains free to control his defence, as the case unfolds, in a manner he deems
    appropriate.
[Emphasis added.]

Analysis

[46]

An
    accuseds right to remain silent is an anchor in protecting his
Charter

rights.  In this case, the appellant submits that he was coerced into the
    box to testify by the trial judges decision to allow the severance of the
    D.T. counts, and then to later allow the similar fact evidence application
    regarding D.T.s evidence.

[47]

There
    is merit to the appellants position.   By deciding to sever the D.T. counts,
    the trial judge properly allowed the appellant to control his own defence.
    However, by then allowing the similar fact application regarding the D.T.
    evidence, the trial judge, in effect, nullified the protection she had
    previously concluded was necessary when severing the counts.

[48]

The
    two rulings conflicted with each other.  The similar fact ruling likely had the
    unintended, yet unfortunate, effect of at least influencing the appellant to
    testify on all counts, if not leaving him no choice but to do so.  This
    violated the principles described in
Last
, and removed from the appellant
    his ability to control his own defence, thereby violating his ss. 7 and 11(c)
Charter
rights.
The appellants counsel expressed the appellants
    surprise and frustration that the inevitable result of the two rulings was
    that he felt he had to testify on all counts.  His counsel then advised the
    court that the appellant reluctantly had decided to give evidence in response
    to all counts he faced.   While the result was no doubt unintended, it
    nevertheless resulted in infringing the appellants right to a fair trial.

[49]

Once
    both applications were granted, the trial judge suggested that she would allow
    the appellant to testify in relation to D.T.s alleged consent to the sexual
    conduct and limit the respondents cross-examination to that issue.  She also
    suggested giving a limiting instruction to the jury.  She said she would
    allow him to testify only in relation to D.T., not allow the Crown to
    cross-examine him beyond that, and simply give proper instructions to the
    jury.  However, in our view, the trial judges proposed solution did not
    assist the situation.  The prospect of the appellant testifying on only the
    counts relating to D.T. was not satisfactory.  It would raise serious questions
    in the jurys mind about why the appellant did not testify on the other
    charges.  A limiting charge may only have emphasized or highlighted the fact
    that the appellant had not denied the counts of the other complainants.  The
    jury may have been left wondering why he had not done so.

[50]

In
    reaching this conclusion, we should not be taken to say that in cases where an
    accused seeks a severance on the basis that he or she wishes to testify on only
    some of the counts, a court should always grant severance.  As pointed out by
    the Supreme Court in
Last
, there are a number of factors to be taken
    into consideration in making a decision to sever.  The difficulty in this case
    is that the trial judge made the severance order primarily on the basis of the
    need to allow the appellant to testify on only the D.T. charges.  Having
    reached that conclusion, it was an error, in our view, to then make the similar
    fact ruling that had the effect of denying the appellant the protection the
    trial judge had previously determined was necessary.

[51]

It
    should be noted that the admission of D.T.s evidence probably added no more
    than a minimal benefit to the administration of justice.  While one can only
    speculate on the effect her evidence may have had on the verdicts the jury
    reached, it is noted there were five other complainants giving similar
    evidence.  When weighing the potential probative value of D.T.s evidence
    against the prejudice to the appellant, once her counts were severed, her
    evidence should not have been permitted before the jury.

CONCLUSION

[52]

The
    appeal is allowed and a new trial ordered.

D. OConnor A.C.J.O.

J.C. MacPherson J.A.

OConnor J. (
ad hoc
)

RELEASED: DOC  MAR 23 2012


WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110.
    (1)
Subject to this section, no person shall publish the
    name of a young person, or any other information related to a young person, if
    it would identify the young person as a young person dealt with under this Act.

111.
    (1)
Subject to this section, no person shall publish the
    name of a child or young person, or any other information related to a child or
    a young person, if it would identify the child or young person as having been a
    victim of, or as having appeared as a witness in connection with, an offence
    committed or alleged to have been committed by a young person.

138.
    (1)
Every person who contravenes subsection 110(1)
    (identity of offender not to be published), 111(1) (identity of victim or
    witness not to be published), 118(1) (no access to records unless authorized)
    or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure)
    of this Act, or subsection 38(1) (identity not to be published), (1.12) (no
    subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15)
    (information to be kept separate), 45(2) (destruction of records) or 46(1)
    (prohibition against disclosure) of the
Young Offenders Act
, chapter Y-1
    of the Revised Statutes of Canada, 1985,

(a)       is guilty of an indictable offence and liable to
    imprisonment for a term not exceeding two years; or

(b)       is guilty of an offence punishable on summary conviction.

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. G.I., 2012 ONCA 188

DATE: 20120326

DOCKET: C52907

Rosenberg, Armstrong and Blair JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

G. I.

Appellant

Apple Newton-Smith, for the
    appellant

David Lepofsky, for the respondent

Heard and endorsed:  March 21, 2012

On appeal from the conviction entered on August 30, 2010
    and the sentence imposed on October 18, 2010 by Justice Gerald S. Lapkin of the
    Ontario Court of Justice (Youth Court), sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The trial judge did not misapprehend the circumstantial evidence
    that served to identify the appellant as one of the perpetrators. The
    appellants clothing, his appearance and the appearance of the other two did
    match that of the 3 youths coming out of and then going back into the subway
    station during the time period which bracketed the time when the victim left
    the station and was robbed.

[2]

Accordingly, the appeal from conviction is dismissed.

[3]

We are also of the view that the sentence appeal must be
    dismissed. The trial judge made no error in principle. He was obviously not
    bound by the recommendation of the probation officer and it was for him to
    decide what weight to put on the appellants poor behaviour while in pre-trial
    custody.

[4]

Accordingly, while leave to appeal sentence is granted, the
    appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Goncalves, 2012
    ONCA 139

DATE: 20120302

DOCKET: C53708

MacPherson, Armstrong and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Henrique Goncalves

Respondent

Brendan Gluckman, for the appellant

Amit Thakore, for the respondent

Heard: March 2, 2012

On appeal from the sentence imposed on April 28, 2011 by
    Justice Frances P. Kiteley of the Superior Court of Justice, sitting without a
    jury.

APPEAL
    BOOK ENDORSEMENT

[1]

The appellants principal submission is that the trial judges
    conclusion that the appellant was a street level seller who was an addict was
    completely unsupported by the evidence.

[2]

In our view, substantial deference must be accorded to a
    sentencing judge, and especially to her factual conclusions.  Although we
    acknowledge that there was a good deal of evidence to support a conclusion that
    the appellant was a higher-level supplier, we cannot say that the trial judges
    conclusion is entirely unsupported by the evidence.

[3]

The appeal is dismissed.