COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mohenu, 2019 ONCA 291

DATE: 20190411

DOCKET: C64693

Feldman, Fairburn and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shanique Mohenu

Appellant

Breana Vandebeek, for the appellant

Manasvin Goswami, for the respondent

Heard: April 1, 2019

On appeal from the sentence imposed by Justice Jane E.
    Kelly of the Superior Court of Justice on November 28, 2017.

REASONS FOR DECISION

[1]

The appellant was convicted of fraud over $5,000 and attempted fraud
    under $5,000. She appeals her sentence.

[2]

The appellant worked part-time at a large retail
    store. She started work there when she was fifteen years old and continued
    working part-time until her arrest. Just after the appellant turned twenty-one
    years of age, she used her position on the customer service desk to falsify
    returns, defrauding her employer of about $30,000. Her fraudulent conduct
    spanned about 3.5 months.

[3]

The appellant was convicted following a four-day
    judge alone trial. She was sentenced to nine months in custody on the fraud
    over $5,000 count and nine months concurrent on the attempted fraud under
    $5,000 count. A two-year probation order was imposed, along with a restitution
    order in the amount of $28,000.

[4]

The appellant argues that the trial judge made
    three errors in arriving upon the custodial disposition. While we do not accept
    the appellants first argument, we would allow the appeal on the basis of her
    second and third arguments.

[5]

First, the appellant contends that the trial
    judge misconstrued the defence position on sentence. We need not delve into
    this issue in detail. The record supports that the appellant advocated for a conditional
    sentence to be imposed on the attempted fraud under $5,000 count and a
    suspended sentence on the fraud over $5,000 count. She asks this court to
    impose that sentence now. Like the trial judge, we would decline to do so.

[6]

To accede to the defence position and impose a
    conditional sentence on the attempted fraud under $5,000 count and simply suspend
    the passing of sentence on the fraud over $5,000 count, would be to impose
    another version of what this court referred to in
R. v. Bankay,
2010 ONCA 799, at para. 2, as a disguised conditional sentence on
    the fraud over count. Given that the defence acknowledged that a term of
    imprisonment was necessary in this case, it was not open to the appellant in
    seeking a conditional sentence to avoid the operation of s. 742.1(c) of the
Criminal
    Code,
which denies conditional sentences to those
    convicted of offences prosecuted by indictment for which the maximum term of
    imprisonment is 14 years or life. Fraud over $5,000 falls within that category
    of offence: s. 380(1)(a),
Criminal Code.

[7]

Accepting the defence position would have led to
    the absurd situation where, if the appellant had only been convicted of the
    more serious fraud over $5,000 count, she could not have received a conditional
    sentence, but her additional conviction on the less serious attempted fraud
    under $5,000 count would have allowed her to receive a conditional sentence. As
    noted in
R. v. Badhwar,
2011 ONCA 266, at
    para. 45, albeit in the immigration context, the courts should not impose
    sentences designed for the sole purpose of thwarting the will of Parliament:
    Courts ought not to be imposing inadequate or artificial sentences at all, let
    alone for the purpose of circumventing Parliaments will on matters of immigration.

[8]

Accordingly, the trial judge was right not to
    accede to the appellants request.

[9]

Second, the appellant submits that the reasons
    for sentence failed to apply the well-established sentencing principle that where
    incarceration is required to be all or part of an appropriate sentence, a
    youthful first offender should receive the shortest possible sentence of
    incarceration, tailored to meet that offenders circumstances. The appellant
    says that the trial judge essentially ignored the need to emphasize specific
    deterrence and rehabilitation when sentencing youthful first offenders,
    emphasizing instead general deterrence and denunciation as the primary
    sentencing goals. She says that the error is embodied in the following passage
    from the reasons for sentence:

Imposing a proportionate
    sentence is a highly individualized exercise tailored to the gravity of the
    offence, the blameworthiness of the offender and the harm caused by the crime.
    In the case at bar, rehabilitation cannot be ignored. However, the primary
    goals of sentencing in a case such as this must be the denunciation of the
    offenders conduct and the deterrence of both the offender and others [.]

[10]

The respondent argues that the trial judge was
    right to emphasize the principles of denunciation and deterrence, sentencing
    principles widely recognized as controlling in cases of fraud and employee
    theft over $5,000:
R. v. Castro,
2010 ONCA
    718,
102 O.R. (3d) 609,
at para. 30;
R. v.
    Mathur,
2017 ONCA 403, at para. 14. The respondent
    also says that the appellants first-time offender status did not compel a
    departure from those primary sentencing principles, particularly in light of
    the fact that most people who commit frauds on their employers have been placed
    in a position of trust because they do not have criminal records.

[11]

The respondent also contends that, in the
    circumstances of this case, involving a fraud committed over a number of
    months, and a clear breach of trust, the trial judge was right to focus upon the
    common sentencing principles for offences of this nature. The respondent argues
    that the trial judge was alive to the other sentencing objectives, including the
    need to consider the appellants rehabilitation, the need to exercise restraint
    in imposing imprisonment and the young age of the offender.

[12]

While we agree with many of the respondents
    submissions, they do not answer the fundamental issue raised, that the usual
    primary sentencing principles had to be adjusted owing to the appellants
    youthful first offender status. Because the appellant was a non-violent
    youthful first offender, the principles of individual deterrence and
    rehabilitation should have been stressed and the principles of general
    deterrence and denunciation should have played a less dominant role:
R.
    v. Priest
(1996),
30 O.R. (3d) 538 (C.A.)
, at pp. 543-44;
R. v. Tan,
2008
    ONCA 574, at para. 32;
R. v. Nassri,
2015 ONCA
    316,
125 O.R. (3d) 578,
at paras. 30-31;
R.
    v. Thurairajah,
2008 ONCA 91, at paras. 41-42. As noted
    by Doherty J.A. in
Thurairajah,
at para. 41:

Generally
    speaking, sentences imposed on young first offenders will stress individual
    deterrence, where necessary, and rehabilitation. General deterrence will play
    little, if any, role in fashioning the appropriate sentence in this category of
    offender in most cases. Serious crimes of violence, particularly sexual
    assaults, do provide an exception to the general rule described above. While
    all of the principles of sentences remain important, including rehabilitation,
    for serious crimes involving significant personal violence, the objectives of
    denunciation and general deterrence gain prominence. [Citations omitted.]

[13]

The appellant did not commit a serious crime
    involving significant personal violence. Accordingly, individual deterrence and
    rehabilitation should have been stressed by the trial judge when determining
    the appropriate disposition, one that would have resulted in the least amount
    of custody that could be imposed in the circumstances. Indeed, as a youthful
    first-time non-violent offender, the appellant was entitled to the shortest
    possible sentence, albeit one that was proportionate to the gravity of her
    offence:
Tan,
at para. 33;
Nassri,
at para. 31;
R. v. Laine,
2015 ONCA
    519, at para. 85. Unfortunately, the trial judge did not receive the benefit of
    submissions on this point from either counsel.

[14]

Third, and finally, the appellant says that the
    trial judge erred when she treated the appellants decision to proceed to trial
    as an aggravating factor. The appellant points to the trial judges description
    of the following as an aggravating factor: Although Ms. Mohenu expressed
    remorse during sentencing, she proceeded to trial in the face of an
    overwhelming Crown case.

[15]

A lack of remorse is not an aggravating factor.
    Nor is the decision by an accused to put the state to the proof of its case.

[16]

The respondent says that the trial judge did not
    use the decision to have a trial as an aggravating factor. Rather, the respondent
    argues that the impugned comment reflects the trial judges view of the degree
    of sincerity of the appellants expression of remorse.

[17]

Although the trial judges comment may be open
    to different interpretations, the fact remains that it is listed as an
    aggravating factor. Read literally, this comment constitutes an error.

[18]

Although appellate intervention is not called
    for in all cases where there has been an error in principle or failure to
    consider a relevant factor or erroneous consideration of aggravating and
    mitigating factors, intervention is called for where the error has had an
    impact on the sentence imposed:
R. v. Lacasse,
2015 SCC 64, [2015] 3 S.C.R. 1089,
at paras. 43-46. When fixing the proportionate sentence for this youthful
    first-time offender, we are satisfied that the sentence was impacted by
    overemphasizing general deterrence and denunciation such that appellate
    intervention is required. We say this in light of the trial Crowns position
    that a one-year sentence should be imposed. The trial judge agreed, but discounted
    that sentence by three months, not because of rehabilitation prospects or
    youthfulness or because it was the least amount of custody that could be
    imposed in the circumstances, but because the appellant had already suffered
    the loss of her future career aspirations by virtue of obtaining a criminal
    record. Had the proper sentencing principles been taken into account, and in
    light of all of the circumstances of this case, more than a three month
    discount to the trial Crowns proposed sentence would have been given.

[19]

It now falls to this court to determine the fit
    sentence. The parties agree that if this court decides that intervention is
    called for, the court should take into account the appellants current
    circumstances as reflected in the fresh evidence.

[20]

This was a serious crime involving a breach of
    trust and multiple transactions over a number of months. It was brazen and did
    not stop until the appellant was discovered. The store owner filed a victim
    impact statement underscoring the serious consequences of the appellants
    conduct on the store. Nothing in these reasons should be taken as suggesting
    that the crime was anything other than serious.

[21]

At the same time, the appellant is a youthful
    first offender. When she committed the offences in question, she was living in
    her single mothers home with a younger sibling, contributing to household
    expenses by working part-time. She was also attending McMaster University and
    working toward her B.A. in Sociology, with the goal of eventually working with
    the vulnerable. By the time of sentencing she had successfully obtained her
    degree.

[22]

The appellant was the first person in her family
    to attend university. She had accumulated a significant amount of student debt
    which she was still paying off at the time of sentencing. She acknowledged that
    her crime would preclude her from putting her degree to work with the
    vulnerable. Indeed, she had to forgo some jobs after her conviction because she
    could not pass the criminal record check.

[23]

The impact of her crime on her family was
    serious: when she offered her apology to the court, the appellant specifically
    acknowledged her regret for the harm she had caused to her mother. The
    appellants mother had worked at the same retailer as her daughter for 17
    years. Her mother was also fired when the appellants offence was discovered. The
    mother was required to take lower-paying work.

[24]

At the time of sentencing, the appellant had
    been working full-time at a large hotel chain for some time pending trial. She
    was described by her employer as an exemplary employee. The trial judge
    accepted that the appellant was humiliated and ashamed by her conduct, that her
    conduct had a ruinous impact on her life and that she had strong family
    support.

[25]

The fresh evidence suggests that the appellant has
    continued to work full-time at the same hotel since she was originally
    sentenced in November 2017. She has volunteered at a number of places that have
    provided strong letters of reference. She is also involved in her religious
    community and remains supported by her family.

[26]

The appellant committed a serious crime. But the
    appellant has shown great promise on her path to rehabilitation. Having regard
    to all of the circumstances as they exist today, a fit sentence in this case is
    one that will contribute to maintaining that path. At the same time, the
    seriousness of her crime, the breach of trust and the victim impact cannot be
    ignored. In our view, in light of the appellants current circumstances and
    having regard to all of the relevant sentencing principles, the shortest
    sentence possible is a 90-day intermittent sentence.

[27]

Leave to appeal is granted, the appeal is allowed and the 9-month sentence is varied to a 90-day intermittent sentence to be served from 8:00 p.m. on Friday to 7:00 a.m. on Monday. The time already served by the appellant will be attributed to her intermittent sentence. The probation and restitution orders remain unchanged.

K. Feldman J.A.
Fairburn J.A.
I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. NKansah, 2019 ONCA 290

DATE: 20190411

DOCKET: C63660

Rouleau, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michèle NKansah

Appellant

Tina Yuen, for the appellant

Tanit Gilliam, for the respondent

Heard: March 22, 2019

On appeal from the conviction entered by Justice E. Ria
    Tzimas of the Superior Court of Justice, sitting with a jury, on December 15,
    2016.

Fairburn J.A.:

Overview

[1]

The appellant returned from Jamaica with just under three kilograms of
    cocaine secreted in her suitcase. The sole issue in dispute at trial was
    knowledge: was the jury satisfied beyond a reasonable doubt that the appellant
    knew that she had a controlled substance in her suitcase? The appellant denied
    knowledge of the drugs. The verdict of guilt demonstrates that the jury
    rejected that denial.

[2]

The appellant raises several grounds of appeal. She says that the trial
    Crowns closing address improperly invited the jury to engage in speculation. She
    also argues that the charge to the jury was deficient in three ways:

(a)     it failed to provide the jury with guidance on the
    permissible uses of good character evidence;

(b)     it misdirected the jury on the essential element of
    knowledge; and

(c)      it
    left the jury with an unbalanced view of the case.

[3]

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

The Crowns closing address did not improperly invite the jury
    to speculate

[4]

The appellant points to a few passages in the trial Crowns closing
    address that she says rest on nothing more than speculation. Specifically, the
    appellant objects to the trial Crown having suggested to the jury that the
    appellant was:

(a)     knowingly involved in a criminal enterprise;

(b)     a willing member of a criminal scheme to import
    cocaine into Canada;

(c)      hired as a courier to travel to Jamaica and bring
    back a suitcase full of drugs; and

(d)     motivated
    by financial gain and paid for her efforts.

[5]

The appellant maintains that those suggestions were speculative at best,
    detached from the evidence elicited at trial. She says that her position is
    supported by the fact that the trial Crown initially asked permission to lead
    expert evidence about drug hierarchies and where couriers fall within those
    hierarchies. She argues that the expert evidence application demonstrates that the
    trial Crown appreciated that she needed that evidence to make the impugned
    suggestions in her closing argument. Having later decided not to call the
    expert evidence, the appellant contends that the trial Crown improperly used
    her closing address as a substitute for that evidence. I disagree.

[6]

This was a straightforward importing case involving three witnesses.
    There were only two witnesses for the Crown: the Canadian Border Services Agent
    who initially dealt with the appellant and discovered the cocaine, and the RCMP
    officer who arrested the appellant, searched her suitcase, and interviewed her.

[7]

The RCMP officer provided evidence about the manner in which the three
    kilograms of cocaine had been hidden in the appellants suitcase, secreted within
    layers of foam, tinfoil, and plywood, which were contained between the lining of
    the bag on one side and the exterior of the bag on the other side. The cocaine
    represented almost a third of the weight of the bag.

[8]

The appellant was the third and final witness at trial. Although the
    appellant testified that she sometimes worked temporary jobs for additional
    cash and her daughter contributed to household expenses, it was not in dispute
    that she was living on a highly restricted budget of about $1,300 per month,
    out of which she had to pay $790 in rent. The appellants limited financial
    means stood in stark contrast to the cost of her travel.

[9]

The appellant booked a last-minute trip to Jamaica. She explained that
    the timing of her booking arose from her belief that she would be receiving a
    job offer: she wanted to ensure that she took a vacation and visited family
    while she still had an opportunity to do so. Although there was no information
    about the actual cost of the flight, the appellant agreed that it was more
    expensive than usual because it was a last-minute booking. She also agreed that
    she paid an extra $200 to upgrade her seats and an extra $200 to renew her
    passport on a rushed basis. She also agreed that, while she had family in
    Jamaica, she rented a room in a guesthouse and paid $250 for the week.

[10]

According
    to the appellant, the room she rented was in a home owned by a woman named Hazel,
    who had a nephew named Everton. Hazel asked the appellant to take a bikini and
    some t-shirts back to Canada for Hazels niece. The appellant was to contact
    Hazel once she got back to Canada so that Hazel could connect her with her niece.
    Hazel was never heard from again.

[11]

During
    the defence closing submissions, counsel suggested that Hazel and Everton put
    those drugs in [the appellants] suitcase, which would have been easy for
    them accomplish. Defence counsel posited in his closing address that either
    Hazels niece would surreptitiously retrieve the drugs once the appellant was
    back in Canada, or perhaps Everton would visit the appellant, giving him access
    to the bag. All the while, it was suggested that the appellant would remain in
    the dark about what she had brought into Canada.

[12]

It
    is against that evidentiary backdrop, and the defence position in closing, that
    the trial Crowns impugned closing address must be considered.

[13]

The
    suggestion that the appellant was a courier is not controversial: she conveyed
    the cocaine from Jamaica to Canada. The sole question at trial was whether she
    knew she was a courier of the cocaine. I see no impropriety in the trial Crown referring
    to the appellant as a courier.

[14]

Nor
    do I agree with the appellants submission that the trial Crown stepped into
    speculation when she suggested that the appellant was involved in a criminal importing
    scheme or enterprise. The circumstantial evidence was reasonably capable of
    supporting that inference. If sold at the gram level in the Greater Toronto
    Area, it was agreed that the cocaine would be worth between $238,880 and
    $328,460. The value of the cocaine gave rise to the reasonable inference that
    not just anyone, least of all someone unaware of the bags contents, would have
    been entrusted with the drugs:
R. v. Pannu,
2015 ONCA 677, 127 O.R.
    (3d) 545, at para. 157;
R. v. Bryan,
2013 ONCA 97, at para. 11. This
    suggested that the appellant may well have been working with another or others,
    especially because the evidence demonstrated that she could not have afforded
    that amount of cocaine on her own.

[15]

Moreover,
    the appellants own theory supported the suggestion of group activity. During
    the defence closing address, the appellant submitted that she had unknowingly
    fallen victim to Hazel and Evertons criminal importing scheme. The trial Crown
    did not engage in improper speculation when she essentially agreed that there
    was an importing scheme at work, differing only on the issue of whether the
    appellant was a knowing member of that scheme.

[16]

As
    for the suggestion that the Crown stepped into the realm of speculation by
    suggesting that the appellant was remunerated for her efforts, that too was an
    available inference arising from the circumstantial evidence elicited at trial.

[17]

There
    was solid evidence relating to the appellants limited financial means. While
    caution must be exercised in relation to evidence of impecuniosity that may
    support a motive to commit a financially-motivated crime because it can lead to
    improper propensity reasoning  reasoning that, because an offender is poor,
    she may be more likely to commit a crime for financial gain  that is not what
    occurred here:
R. v. Mensah
(2003), 170 O.A.C. 244, leave to appeal
    refd, [2003] S.C.C.A. No. 207, at para. 8;
R. v. Burnett,
2018 ONCA
    790, at paras. 105, 116-17;
R. v. Phillips,
2008 ONCA 726, at paras.
    50-51.

[18]

The
    appellants highly restrictive monthly budget alone gave rise to a reasonable inference
    that she was not in a position to afford her trip to Jamaica on her own: the expensive
    last-minute and upgraded flight, the expensive late renewal of the passport,
    and the rental accommodation. Based on that evidence, it was open for the jury
    to infer that, at a minimum, the trip to Jamaica had been paid for or
    contributed to by another. Such a payment could be construed as a form of
    compensation.

[19]

The jury
    also knew the value of the cocaine on the street in the Greater Toronto Area. That
    cocaine could not get to market unless it got across the border. Given the risk
    of detection and the exposure to criminal penalties for importing, it is a
    common sense inference that those who bring cocaine into the country do not do
    so as a favour to others, but for remuneration. The proposition that the
    appellant knew she was carrying cocaine and would have been remunerated for her
    efforts arose from the evidence and common sense.

[20]

I do
    not agree with the appellants argument that the Crown closing effectively accomplished
    what the Crown chose not to pursue by way of expert evidence. The scope of the proposed
    expert opinion evidence extended well beyond the impugned suggestions in the
    Crown closing address: it included reference to methods of concealing drugs, drug
    importation hierarchies, and roles within a drug conspiracy, including the
    specific roles of organizers, overseers, couriers and receivers. The fact that
    the trial Crown ultimately chose not to lead that evidence did not remove the
    Crowns ability to call upon the jurors to draw common sense inferences from
    the evidence they had seen and heard.

[21]

I would
    make two final observations regarding the appellants suggestion that the Crown
    closing invited the jury to engage in inappropriate speculation. First, even if
    that were so, the trial judge instructed the jury that they could only decide
    the case based on the evidence that they had seen and heard. The jury was further
    instructed that the closing addresses by counsel did not constitute evidence.
    Second, defence counsel did not object to the Crowns closing remarks. The
    failure to object at trial merely underscores the appropriateness of those
    remarks and their support in the evidence.

The alleged failure to provide instructions on the use of the good
    character evidence

[22]

The
    appellant relied heavily upon good character evidence. She testified about
    having been raised by a pastor, participating in multiple charitable
    activities, and having a pro-social background. Among other things, she
    testified that she had held a job in the past, had a 23-year-old daughter and
    was attending McGill University to upgrade her education in business. She said
    that she frequently volunteered as a youth mentor and tutor in Montreal, and was
    studying to be a counsellor qualified to work with people who have special
    needs, substance abuse issues, and with the elderly.

[23]

The
    appellant maintained that she would never do anything to risk her good reputation
    or future earning potential. Specifically, she testified that she would not
    risk her ability to obtain a police record check, something she needed for much
    of her volunteer work.

[24]

It was not in dispute at trial, nor is it in dispute on appeal,
    that the defence elicited good character evidence that was relevant both to the
    appellants credibility and to whether, because of her character traits, the
    appellant was less likely to have committed the offence. When an accused puts
    her character in issue, the trier of fact should be charged on both purposes to
    which the evidence can be put:
R. v. Elmosri
(1985)
, 23 C.C.C. (3d) 503 (Ont. C.A.),
    at pp. 506-7;
R. v. Potts,
2018 ONCA 294, at paras. 59-61.

[25]

The trial
    judge did not provide the jury with a specific free-standing instruction detailing
    how the jurors could use the good character evidence. The appellant says that
    the failure to provide that instruction left the jury without any understanding
    of how to use the evidence. The appellant argues that the error was compounded
    by the trial Crowns closing submissions, which she says suggested that the
    good character evidence was not really evidence and was not relevant to the
    jurys deliberations.

[26]

Considering
    counsels closing submissions and the trial judges charge as a whole, I am
    satisfied that the jury was left with an accurate picture of how they could use
    the good character evidence. I will first address the trial Crowns closing
    remarks and then move on to consider the charge.

[27]

The appellant
    objects to the trial Crown having told the jury that the case was not about
    [the appellants] character, that it was not about whether the appellant was a
    good person, and that [i]n most cases, [character] is not relevant. One of
    the impugned passages reads as follows:

This case is not about [the appellants] character. That is,
    its not about whether or not [the appellant] is a good person. Its not about
    the things she did in her life before or after June 28
th
, 2015. As
    Im certain you know in your own lives, good people make mistakes. So-called
    bad people sometimes come through and do good things unexpectedly. The point is
    that human behaviour is hard to predict. Sometimes people take risks, which, in
    retrospect, they ought not have taken. That is why, generally speaking, a criminal
    trial is not about character.

[28]

The appellant
    argues that those comments essentially encouraged the jury to ignore as
    irrelevant the good character evidence, compounding the problem arising from
    the trial judges failure to address the proper use of that evidence.  I
    disagree with this characterization of the trial Crowns closing remarks.

[29]

The trial
    Crowns closing was directly responsive to the appellants position that,
    because of her antecedents, she would not have knowingly imported cocaine. The
    Crown was entitled to meet that defence argument and advocate against it. The
    trial Crown did not tell the jurors to disregard the character evidence;
    rather, she told the jurors to focus on the evidence that she said should
    satisfy them beyond a reasonable doubt that the appellant knew what was in her
    bag. For instance, the trial Crown suggested the following:

[A] lot of what has been submitted to you by [defence counsel]
    has been about [the appellants] character.  He asks you quite simply to
    believe that [the appellant] is not the type of person to commit this crime.
    And Im going to submit to you, please focus on the evidence. Contrary to what
    has been put to you, this is a strong Crown case. I ask you not to be taken in
    by a smooth presentation and a smooth story which I suggest has been designed
    to garner your sympathy.

[The appellant] asks you to believe that because of the type of
    person she is, she would not knowingly import the drugs. That is a risk that
    she would not take. But I suggest to you that this is a red herring. And I ask
    you to focus on the evidence. The answers are there for you in the evidence.

[30]

There
    was nothing wrong with suggesting to the jury that the trial was not about
    character. The trial was not about the appellants character. It was about
    whether the appellant knew that she had cocaine in her bag when she arrived in
    Canada. While the defence was encouraging the jury to find that knowingly
    bringing cocaine into Canada was inconsistent with the appellants character,
    the Crown response was that, in spite of that character, the evidence pointed
    toward the appellant being knowingly involved. That was an available position
    for the Crown to advance. Read contextually, the jury would have understood the
    Crowns closing submissions to be suggesting that, despite the evidence
    supporting the appellants good character traits, the evidence also supported
    the fact that she knowingly imported cocaine.

[31]

This
    leaves the issue of whether the charge to the jury was deficient on the character
    point. I conclude that it was not.

[32]

Reviewing
    the adequacy of a charge on appeal requires this court to take into account the
    context of the trial as a whole, including the closing submissions of counsel:
R.
    v. Daley,
2007 SCC 53,
[2007]
    3 S.C.R. 523, at para. 58. The charge was delivered immediately after
    counsels closing addresses. The defence had clearly brought home to the jury the
    defence position that the appellant was an honest witness and was not the type
    of person who would have committed the offence. As set out in the passages
    above, even the trial Crown twice repeated the appellants position regarding
    her good character and how it informed the issue of knowledge. Those closing
    submissions, made immediately before the charge and on the same day the jurys deliberations
    started, would have informed the jurys understanding of their task.

[33]

In
    addition, counsel were given the opportunity to provide input on the contents
    of the charge. Defence counsel did not ask for a specific instruction on
    character. Counsel were also provided with the opportunity to review the draft
    charge to the jury, and to raise any objections following delivery of the
    charge. No objections were voiced.

[34]

Counsel
    are expected to assist the trial judge and identify what in their opinion is
    problematic with the judges instructions to the jury:
Daley,
at
    para. 58. Counsels failure to object to the jury charge is a factor for
    the reviewing court to consider because it can demonstrate the seriousness of
    any alleged problem:
Daley,
at para. 58. I find that the silence on
    the good character instruction demonstrates that the appellant was satisfied at
    trial that the operative legal principles had been adequately conveyed to the
    jury:
R. v. Jacquard,
[1997] 1 S.C.R. 314, at pp. 338-39.

[35]

The
    question is whether, against the backdrop of the entire charge and entire
    trial, the trier of fact was in a position to decide the case in accordance
    with the law and evidence:
R. v. Calnen
, 2019 SCC 6, at para. 6;
R.
    v. Jaw
, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32. As Bastarache J.
    wrote in
R. v.

Daley
, at para. 30:

The cardinal rule is that it is the general sense which the
    words used must have conveyed, in all probability, to the mind of the jury that
    matters, and not whether a particular formula was recited by the judge. The
    particular words used, or the sequence followed, is a matter within the
    discretion of the trial judge and will depend on the particular circumstances
    of the case.

[36]

A
    functional approach to this jury charge reveals its adequacy. The trial judge
    instructed the jury that the sole issue for them to resolve was whether the
    appellant knew that her suitcase contained a controlled substance. The jury was
    instructed that the issue of knowledge was to be decided on all of the
    evidence. The jury would have understood that the good character evidence was
    included in that direction.

[37]

The
    trial judges summary of the evidence included specific references to the good
    character evidence. The trial judge concluded the six-page single-spaced
    summary of the appellants evidence by restating her position:

She explained why she would never look for easy money, and
    outlined all the various jobs and efforts she has undertaken over the years to
    support herself and improve her education.

She also shared her views on what she called the filth of
    cocaine, and gave you some insight into the youth she said she engages with,
    and her understanding of the ills of cocaine.

Ultimately, [the appellant] told you that she did not know
    about any drugs in her suitcase, that she would not have taken such a risk and
    jeopardize her name, her future earnings and future police security
    clearances.

[38]

This
    instruction would have reinforced for the jury the defence position, that the
    appellant would not have committed the offence because of who she is and what
    she stands for.

[39]

Further,
    the trial judge read out a summary of each of the parties positions close to
    the end of the charge. The parties had provided those summaries to the trial
    judge for inclusion in her charge. The defence summary again referred to the
    appellants unchallenged good character.

[40]

In
    the context of this single-issue case, the trial judges failure to give a
    specific good character instruction had no impact on the jurys understanding
    of their task. The overall effect of the charge was to equip the jury with the
    necessary tools to decide the case:
Daley,
at para. 31;
Jacquard,
at
    para. 62. Considered as a whole, and against the closing addresses, the jury would
    have understood the permissible uses of the good character evidence.

The alleged misdirection on knowledge

[41]

The
    appellant raises three broad complaints regarding the trial judges
    instructions on the issue of knowledge: first, the appellant says that the
    trial judge failed to properly relate the evidence to the issue of knowledge; second,
    she says that the trial judge wrongly invited the jury to use a rejection of
    her evidence as affirmative evidence of guilt; and third, she says that in
    reviewing the trial Crowns position, the trial judge failed to provide any
    counterpoints to that position. I deal with each argument in turn.

(a)

The trial judge did
    not fail to relate the evidence to the issue of knowledge

[42]

The
    trial judge appropriately explained to the jury that the sole issue for their
    determination was whether the appellant knew she had a controlled substance in
    her bag, referring to that issue as the crux of the case. The appellant acknowledges
    that the trial judge provided a legally compliant instruction on the essential
    element of knowledge, but contends that she failed to assist the jury by
    explaining what parts of the evidence were relevant to their determination of knowledge.
    Instead of focussing on the evidence that informed knowledge, the appellant
    says that the trial judge erroneously opted to review all of the evidence at
    once. I disagree.

[43]

Although
    a witness-by-witness recitation of the evidence will fall short of providing a
    jury with sufficient assistance in some cases, this is not universally so.
    Trial judges are granted wide latitude in determining how to structure their
    charges:
R. v. Speers,
2017 ONCA 333, 347 C.C.C. (3d) 401, at para. 30.

[44]

In this
    short, three-witness, one-issue case, there was no need for the trial judge to
    parse the evidence. The Crowns position was that, as a matter of common sense,
    the entire evidentiary landscape pointed toward the appellants knowing
    participation in drug importation. In these circumstances, the trial judge made
    a sensible decision to provide a review of all three witnesses evidence right
    after explaining how the jury should approach the issue of knowledge. I would defer
    to the trial judges choice in that regard.

(b)

The trial judge did
    not invite the jury to use a rejection of the appellants evidence as positive
    evidence of guilt

[45]

The
    appellants second complaint is that the trial judge wrongly invited the jury to
    use a rejection of the appellants evidence as affirmative evidence of guilt. I
    disagree.

[46]

The
    impugned comments are taken out of context. They fell within the part of the
    charge where the trial judge was summarizing the Crowns position on proof of
    knowledge, part of which involved explaining to the jury why the Crown was
    urging them to reject the appellants denial of knowledge. For instance, in one
    of the impugned comments, the trial Crown suggested to the jury that the
    appellants explanation about how she was set up by Hazel and Everton relied
    upon impossibly convenient coincidences. There was nothing wrong with the
    charge reviewing those aspects of the Crown position, as they were relevant to
    the issue of knowledge. Importantly, the trial judge did not go on to suggest
    that a rejection of the appellants evidence could constitute affirmative
    evidence of guilt.

[47]

Finally,
    I again observe that there was no objection to either the Crown closing or the
    charge to the jury on these points.

(c)

The charge contained
    all of the necessary counterpoints to the Crowns position

[48]

The
    appellants third complaint is that the trial judge failed to provide any
    counterpoints to the Crowns position on knowledge. The appellant proffers
    several examples of this alleged shortcoming. For instance, the appellant says
    that it was improper for the trial judge to point to the excess weight of the
    cocaine and packaging in the appellants bag as a fact that potentially
    informed knowledge, without immediately countering that suggestion with the
    appellants explanation for why she may not have noticed the additional weight
    in the bag.

[49]

Again,
    the appellants claim does not survive a contextual review. The passages
    complained of all fall within a part of the charge that was clearly summarizing
    the Crowns position on proof of knowledge. At other points in the charge,
    the necessary counterpoints were reviewed and provided. In addition, the jury
    was instructed to consider all of the evidence in deciding the case, and the
    jury had just heard the closing addresses summarizing the appellants version
    of events.

[50]

The
    appellant also maintains that the trial judge did not provide a balanced charge
    respecting the Crowns reliance on the appellants demeanour at the airport. Both
    the Crown and the defence relied upon demeanour evidence. In fact, the defence tried
    to use the fact that the appellant did not appear nervous when dealing with the
    customs officer, and exhibited genuine surprise when told that there was
    cocaine in her bag, as factors pointing away from knowledge. The trial judge
    provided a balanced charge that properly reflected both parties positions on
    demeanour.

[51]

Finally,
    the appellant objects to the trial judge having told the jury that: [Crown
    counsel] put to you that it would be unreasonable to believe that a drug
    supplier would send drugs worth over $300,000 to Canada with no secure way of
    retrieving them from [the appellant]. The appellant says that the trial judge
    should have explained to the jury that the value of the cocaine in Jamaica was
    much less and, therefore, the monetary risk to the supplier was potentially
    less than what the Crown suggested. I disagree. The jury knew the value of the
    cocaine in Jamaica, as it was filed as part of an agreed statement of fact that
    constituted an exhibit available to the jurors during deliberations. As well, whether
    considered in terms of value in Jamaica or Canada, the cocaine was valuable
    cargo.

The jury was not left with an unfair view of the case

[52]

The appellant submits that
    the Crown closing and charge left the jury with the impression that the defence
    case should be held to a higher standard of scrutiny than that of the
    prosecution. The appellant says that the trial Crown essentially suggested that
    it was up to the appellant to account for every loose detail in the case and
    that the trial judge should have corrected that misimpression. I disagree.

[53]

First, the defence did not
    object to the Crowns closing submissions. Nor do I see any basis upon which a credible
    objection could be made. The Crown was merely advocating for the position that
    the appellants version of events did not accord with what the Crown said was common
    sense. In particular, the Crown argued that the cocaine was a valuable asset
    and, whoever owned it, they would not have entrusted it to the whim of a person
    who had no idea what she was carrying. What if she lost her bag? What if she
    decided to dispose of it? What if she discovered that it contained cocaine and
    reported it to the authorities?

[54]

Second,
    the appellants assertion that the defence was held to a higher standard is
    unsustainable. The trial judge provided a thorough and correct explanation regarding
    the burden and standard of proof; properly instructed the jury on
R. v. Villaroman
, 2016 SCC 333, [2016] 1 S.C.R. 1000,

outlining how to approach the circumstantial evidence that touched on the
    issue of knowledge; and twice set out a correct instruction on
R. v. W.(D.)
, [1991] 1 S.C.R. 742
.

[55]

The
    trial judge also provided a balanced review of the evidence. In fact, the
    defence evidence received a review twice as long as that of the Crown.

[56]

The
    charge was balanced and fair.

Conclusion

[57]

I
    would dismiss the appeal.

Released: BM Apr 11, 2019

Fairburn J.A.
I agree. Paul Rouleau J.A.
I agree. B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nicholson, 2019 ONCA 320

DATE: 20190423

DOCKET: C65877

Juriansz, Watt and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jonathan Nicholson

Respondent

Jessica Zita, for the appellant

Susan Reid, for the respondent

Heard: April 17, 2019

On appeal from the sentence imposed on July 27, 2018 by
    Justice Robert P. Main of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant
    appeals from the sentence imposed after he pled guilty to charges of break and
    enter (x 2), assault police with intent to resist arrest, possession of stolen
    property over $5,000, breach of probation, possession of counterfeit mark, and
    mischief to property under $5,000. All offences except the mischief to property,
    which was committed on February 12, 2018, were committed on December 18, 2017.

[2]

During the
    sentencing submissions, both counsel reminded the sentencing judge that at a
    judicial pre-trial held with respect to the December offences only, the judge
    had indicated that something around the range of two and one-half years would
    be a fair position. Neither counsel suggested to the sentencing judge that he
    (the judge) had said he
would
impose
    a sentence of 30 months for those offences.

[3]

As was clear from
    the outset of the sentencing proceedings, counsel were not advancing a joint
    submission on sentence. Each made submissions. Neither sought a sentence of 30
    months for the December offences or the offences as a whole. The Crown sought a
    global sentence of 45 months, the defence one of 18 months to 2 years.

[4]

In his reasons,
    the sentencing judge referred to defence counsels reminder about what had
    occurred at the pre-trial. The judge reviewed his notes of the pre-trial. After
    the Crown had advanced a proposed range of sentence, the judge described his
    response:

I made a reflection on what I thought appropriately could
    reflect adequate denunciation for this behaviour.

[5]

On appeal, the
    appellant submits that the sentencing judges departure from the range he had indicated
    at the pre-trial was unfair. He requests that his sentence for the December
    offences be reduced to 30 months.

[6]

We would not give
    effect to the submission. There is no evidence to support the assertion of
    counsel that the appellant entered his pleas of guilty relying on the judges
    remarks at the pre-trial. The appellant has not moved to set aside his guilty
    plea and he has not alleged ineffective representation by counsel.

[7]

The appellant
    relies on
R. v.
    OQuinn

(2002), 59 O.R. (3d) 321 (C.A.), 159
    O.A.C 186, but this case is quite different. At the pre-trial in
OQuinn
, the judge had stated in
    unequivocal terms that on a guilty plea he
would
impose a certain sentence. He was not reminded of what he
    had said at the pre-trial, and the greater sentence he imposed was for the
    offences discussed at the pre-trial. None of these features are present in this
    case.

[8]

The appellant
    does not submit that the sentence imposed is otherwise unfit for the
    seriousness of the offences and the circumstances of the offender, particularly
    his extremely lengthy criminal record.

[9]

Leave to appeal
    sentence is granted. The victim fine surcharges imposed on the appellant are
    set aside, with the agreement of the Crown. The appeal is otherwise dismissed.

R. G.
    Juriansz J.A.

David Watt
    J.A.

A.
    Harvison Young J.A.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. O.K., 2019 ONCA 325

DATE: 20190424

DOCKET: C63810

Juriansz, Watt and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

O.K.

Appellant

J. Randall Barrs, for the appellant

Sarah Shaikh, for the respondent

Heard and released orally: April 16, 2019

On appeal from the conviction entered on May 4, 2018 by
    Justice Todd Ducharme of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals his conviction for sexual assault.

[2]

In oral argument counsel did not advance the grounds in his factum, but
    advanced the argument, not in his factum, that the verdict was unreasonable
    because the appellant had an honest but mistaken belief the complainant
    consented to the sexual activity. The trial judge rejected this argument when
    it was advanced at trial. He found the complainants obvious intoxication
    vitiated any consent. He found, given the complainants obvious intoxicated
    state, the appellants decision to engage in sexual activity was either
    reckless or wilfully blind, making honest but mistaken belief not available to
    him.

[3]

The appellant strenuously attacks the finding of fact that the
    complainant was obviously intoxicated. The finding, however, was open to the
    trial judge as there was much evidence to support it.

[4]

The trial judge added that silence, passivity or ambiguous conduct does
    not constitute consent to sexual activity. He noted the appellant did not claim
    that he had asked the complainant for her consent, or that she gave her consent,
    and that the complainants turning around in the bathtub in the manner that she
    described could not be said to constitute consent to vaginal penetration. We
    agree with these observations.

[5]

The appeal is dismissed.

R.G. Juriansz J.A.

David Watt J.A.

A. Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ochrym, 2019 ONCA 272

DATE: 20190408

DOCKET: C65798

Feldman, Trotter and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Terrell Ochrym

Appellant

Jessica Zita and Mitchell Huberman, for the appellant

Eric Whitford, for the respondent

Heard and released orally: April 5, 2019

On appeal from the sentence imposed on May 8, 2018 by
    Justice Graham Wakefield of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellants sentence appeal is based on the submission that the
    sentencing judge erred by imposing consecutive sentences on the drive while disqualified
    and possession for the purpose charges, when there was originally at the pre-trial
    a joint submission that included as a term that the sentences be concurrent.
    There was also an issue regarding the changing positions of the sentencing
    Crown.

[2]

In our view, a close reading of the record discloses some uncertainty
    and lack of clarity regarding the sentencing judges intention whether to make
    the sentences consecutive or concurrent. Crown counsel on the appeal has fairly
    conceded that the record is unclear on the issue and that the court may view it
    as such.

[3]

We have concluded that we are not able to resolve the lack of clarity in
    the record on the issue of the sentencing judges intent for consecutive or
    concurrent sentences.

[4]

In the circumstances, the appeal is allowed and the sentence that was recorded
    is reduced to reflect concurrent sentences.

[5]

Counsel have agreed that the sentence of incarceration should have been
    556 days, which reflected time served plus one day, for possession for the
    purpose of trafficking, concurrent to the two years for the drive while
    disqualified, which would have left at the time of sentencing, 174 days to
    serve, plus three years probation on the terms outlined by the trial judge,
    together with a driving prohibition of 10 years, a lifetime firearms
    prohibition and a DNA order. Those terms remain in place together with any
    other orders that the sentencing judge made at the time except for the victim
    fine surcharge.

K. Feldman J.A.

G.T. Trotter J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Paul, 2019 ONCA 304

DATE: 20190415

DOCKET: C60674

Feldman, Benotto and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Samuel Paul

Appellant

Michael Dineen, duty counsel

Andreea Baiasu, for the respondent

Heard and released orally: April 11, 2019

On appeal from the sentence imposed on January 29, 2015 by
    Justice McMahon of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

It appears that in calculating the credit for pre-sentence custody, the
    sentencing judge and trial counsel made a mathematical error which resulted in
    credit of 13 months rather 13.3 months. Mr. Dineen submits that the sentence
    should therefore be reduced by 15 days.

[2]

Crown counsel agrees with the mathematical result but submits that no
    correction should be made based on the discretion of the trial judge and the
    small change involved.

[3]

In our view, given that all agree that a mathematical error was made in
    calculating the 1.5/1 credit for pre-sentence custody which was the clear
    intention of the sentencing judge, it is appropriate for this court to reduce
    the sentence by 15 days.

[4]

Leave to appeal sentence is therefore granted and the sentence appeal is
    allowed to the extent of reducing the sentence by 15 days.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pham, 2019 ONCA 338

DATE: 20190426

DOCKET: C62833

Rouleau, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tuan Duc Pham

Appellant

Mindy Caterina, for the appellant

Aaron Shachter and Jeremy Streeter, for the respondent

Heard: March 18, 2019

On appeal from the conviction entered by Justice Graeme
    Mew of the Superior Court of Justice on September 7, 2016, with reasons reported
    at 2016 ONSC 5614.

Fairburn J.A.:

Overview

[1]

A fire broke out in an industrial complex unit.
    While video cameras captured at least three people quickly leaving the unit shortly
    before fire trucks arrived, their identities could not be determined. The first
    responders found a bucket of chemicals on fire in a methamphetamine lab on the mezzanine
    level of the unit. The finished product found in the lab would have been worth approximately
    $52,200-$78,300 if sold at the gram level.

[2]

The appellant was tried for producing
    methamphetamine and possessing it for the purpose of trafficking. The Crowns
    case was entirely circumstantial. It turned on two key pieces of evidence connecting
    the appellant to the scene, and on the inferences that could be drawn from that
    evidence.

[3]

First, the appellants fingerprint was found on
    a pop can seized from the seating area on the first floor of the unit. Second,
    a cell phone that the trial judge concluded belonged to the appellant was found
    on a desk located by the door of the methamphetamine lab on the mezzanine
    level. The cell phones battery was at least two thirds charged at the time of
    seizure. The phone contained incriminating evidence, including evidence
    connecting it to methamphetamine production and the clandestine lab itself.

[4]

The trial judge found the appellant guilty on
    both counts by taking into consideration the following facts: (a) the appellants
    fingerprint on the pop can, which placed him in the unit at some point in time;
    (b) that it was obvious that something was being done with chemicals in
    the industrial unit; (c) the proximity of the appellants phone to the drug
    production equipment; (d) the fact that the phone had been used around an hour
    before the fire broke out; (e) the items on the mezzanine level, including buckets
    of chemicals, flasks, compressed gas cylinders and finished methamphetamine; and
    (g) the contents of the phone, including (i) a photo of a hydrogen chloride
    cylinder, containing a chemical used in the production of methamphetamine, that
    the trial judge found matched a cylinder found in the lab, (ii) a note that
    read Cga330 single stage ss regulator usd350, referring to a regulator used
    for controlling the flow of gas from cylinders, and (iii) photos depicting
    involvement in the workings of a laboratory and other drug production
    equipment.

[5]

The appellant alleges the trial judge made three
    broad errors by:

(a)     improperly relying upon a charging document, bad
    character evidence, a recognizance of bail, and hearsay evidence to link the
    appellant to the phone;

(b)     misapprehending the evidence; and

(c)     arriving
    upon an unreasonable verdict on the possession for the purposes of trafficking
    count or, alternatively, providing insufficient reasons for convicting on that
    count.
[1]

[6]

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

(a)

The Alleged Errors in Linking the Appellant to
    the Phone

Overview

[7]

There is no dispute that the phone found in the
    methamphetamine lab constituted a critical piece of evidence for the
    prosecution. It could only help the Crowns case, however, if it was the
    appellants phone. The trial judge found that the only reasonable conclusion available
    based on the contents of the phone was that it was the appellants phone.

[8]

The appellant argues under the first broad
    ground of appeal that the trial judge committed errors in coming to that
    conclusion. I will first review the evidence the trial judge relied on to find
    as a fact that the phone belonged to the appellant and then explain why I do
    not agree that the alleged errors were committed.

Facts Linking the
    Appellant to the Phone

[9]

A video was taken of the inside of the
    methamphetamine lab. It shows a rudimentary-looking lab, containing various
    items strewn around the mezzanine floor, including buckets of chemicals, pipes,
    vents, wiring, gas cylinders, rubber gloves, gas masks, and finished
    methamphetamine. It would have been obvious to anyone who had been on the
    mezzanine floor, including to the person who placed the phone on the desk, that
    they were in a chemical drug lab. As the trial judge concluded, [a]ll that was
    going on [in the unit] was drug production.

[10]

The phones placement on the desk, close to a
    package of cigarettes, was consistent with the person or persons who were
    producing methamphetamine in the lab having put their personal items onto the
    desk while they worked. There were also rubber gloves on the desk and a gas
    mask in the desk drawer.

[11]

Given that the phone had been used about an hour
    before the fire was reported, and still held at least two thirds of its battery
    charge, it was open to the trier of fact to infer that the phone had been
    placed on the desk close in time to the fire. The phone users presence in the
    lab proximate to the chemical fire was compelling circumstantial evidence of
    production and possession. The contents of the phone added to that
    circumstantial picture. Most powerfully, the phone contained a picture of a hydrogen
    chloride cylinder found in the lab and a reference to a regulator needed for that
    type of cylinder.

[12]

Accordingly, no one disputes that linking the
    appellant to the phone was essential to the prosecutions case.

[13]

To establish the requisite link, the Crown
    relied upon a number of things found on the phone, including video clips
    appearing to feature the appellant and his children. The phone was also associated
    with an email address containing the appellants name
. The appellant does
    not object to the trial judges use of that evidence to link him to the phone.
    Rather, he objects to the trial judges reliance upon certified court documents
    as additional evidence linking him to the phone.

[14]

The Crown filed two certified court documents at
    trial: (a) an Information from the Brockville court, charging Duc Tuan Pham
    with two unrelated drug offences; and (b) the appellants recognizance of bail.
    The trial Crown argued that when the contents of those documents were compared
    with the contents of the phone, it provided further proof that the phone
    belonged to the appellant.

[15]

The Brockville
Information charged a Duc
    Tuan Pham with unrelated criminal matters. The address of Duc Tuan Pham,
    contained on the face of the Information, matched the address of the phones subscriber.
    In addition, diary entries on the phone corresponded to court dates noted on
    the Information. For instance, the Brockville
Information
    showed that the matter was spoken to on June 7, 2013, which corresponded to a note
    in the phones calendar that read June 7. Broxkville ct. The Information also
    showed that on July 12, 2013, the matter was listed to be spoken to in
    Brockville. On the next court date, the matter was listed for a judicial
    pre-trial. This corresponded to a note on the phone that read July 12 set date
    for pretrail [
sic
].

[16]

As for the certified recognizance of bail, it
    included a condition permitting the appellant to be outside of his residence for
    certain purposes when in the company of his children, whose names were listed
    on the face of the recognizance. Some of the children had uncommon first names.
    Those names corresponded with messages on the phone, including messages like: Hi
    daddy! Its Machine! Just kidding! Its [name]!; Hi Daddy! [name] is being
    mean to me  [a]nd it is [name]. These are just examples of the messages on
    the phone. The phones calendar also contained appointments for birthdays that
    were associated with the names on the recognizance.

[17]

The trial judge relied upon the Brockville
    Information and recognizance, in addition to the appellants family videos on
    the phone and the email address containing the appellants name that was associated
    with the phone, to conclude that the phone located in the methamphetamine lab
    belonged to the appellant.

[18]

The appellant advances four objections to the
    way in which the trial judge came to that conclusion. First, he argues that it
    was not open to the trial judge to rely upon the Brockville Information until
    he first found beyond a reasonable doubt that the Information related to the
    appellant. Second, he argues that the Brockville Information was presumptively
    inadmissible as bad character evidence, and that the Crown failed to properly
    seek its admission on a
voir dire
. Third, he
    argues that the trial judge erroneously relied upon the contents of both certified
    court documents for a hearsay purpose. Fourth, he argues that the principle
    against self-incrimination was offended by reliance on the certified
    recognizance of bail.

[19]

I will now explain why I do not agree that these
    alleged errors were committed.

The Brockville Information and Standard of Proof

[20]

The appellant argues that the Brockville
    Information could not be used to establish ownership of the phone until the Crown
    proved beyond a reasonable doubt that the appellant was the same person as the person
    reflected on the face of the Information. In advancing this argument, the appellant
    draws an analogy to a prosecution for failing to comply with an appearance
    notice. The appellant notes that this position is consistent with the position
    he took at trial, where defence counsel said that if the Crown was going to
    suggest that Duc Tuan Pham and the appellant were one and the same, the Crown
    would have to prove that. In this court, the appellant says that the applicable
    standard of proof was beyond a reasonable doubt and that the Crown failed to
    meet this burden. I disagree.

[21]

The appellant was not being prosecuted for
    failing to appear. If he were, then the Crown would be required to prove the
    essential elements of that offence beyond a reasonable doubt, including that
    the accused is the same person as the person identified in the appearance
    notice:
R. v. St. Pierre,
2016 ONCA 173, at
    para. 9. Here, the appellant was being prosecuted for drug offences. The Crown
    was required to prove the elements of those offences beyond a reasonable doubt,
    not to prove each individual relevant fact beyond a reasonable doubt.

[22]

Triers of fact are not to examine facts
    piecemeal, applying a standard of proof to each one:
R. v. Miller
(1991),
5 O.R. (3d) 678 (C.A.)
, at p. 701;
R.
    v. Morin,
[1988] 2 S.C.R. 345, at p. 359;
R.
    v. Rodgerson
,

2015 SCC 38, [2015] 2 S.C.R. 760, at para. 23. Except in rare
    situations, like those in which the Crowns entire burden is carried by a
    single fact, it is an error to proceed in that fashion:
R. v. White,
[1998] 2 S.C.R. 72, at pp. 105-6. Pieces of evidence must
    not be considered in isolation, but cumulatively in an effort to decide
    whether, on the evidence as a whole, guilt is established beyond a reasonable
    doubt. It is the cumulative effect of that evidence that matters. As noted by
    Watt J.A. in
R. v. Smith,
2016 ONCA 25, 333
    C.C.C. (3d) 534, at para. 82, each item of evidence must be considered relative
    to the other items of evidence and against the evidence as a whole.

[23]

There is no dispute in this case that the
    certified Brockville Information was admissible pursuant to s. 23 of the
Canada
    Evidence Act
, R.S.C., 1985, c. C-5
.
The Information was relevant to whether the phone belonged to the
    appellant. While I accept the appellants position that the Brockville
    Information would not have been useful in answering that question unless the
    Information related to the appellant, I do not accept that the trial judge was required
    to first satisfy himself beyond a reasonable doubt that the Brockville
    Information related to the appellant.

[24]

The appellant points to
R. v.
    Portillo
(2003)
,
174
    O.A.C 226 (C.A.), as the sole authority in support of his position that the
    Crown had to prove beyond a reasonable doubt that the Brockville Information related
    to him before it could be compared with the contents of the phone.
Portillo
does not support that position.

[25]

Although
Portillo
stands for the proposition that in some circumstances, a factual
    inference needed to give evidence relevance will only be available where
    another factual inference is first made, there is no suggestion in
Portillo
that the first factual inference must be proved beyond a
    reasonable doubt:
Portillo,
at paras. 31-35. The
    trier of fact must simply consider the cumulative effect of all of the evidence
    to determine whether the first inference can be drawn.

[26]

The circumstantial evidence in this case amply
    supported the finding that the Brockville Information related to the appellant.
    Although the Crown was using the Information to assist in establishing that the
    phone was the appellants, the contents of the phone also assisted in showing
    that the Brockville Information related to the appellant. For instance, the phone
    that contained the notes corresponding to the Brockville Information also
    contained a video of the appellant and was connected to the email address with
    the name tuanpham in it.

[27]

Moreover, the fact that the subscriber to the
    phone shared an exact address with the person on the Brockville Information who
    shared the appellants name (albeit with the first two names in reverse order)
    was evidence that the phone was at least connected to the Brockville Information,
    and the Information to the phone.  The phones notes also corresponded to the
    dates on the Information, providing more evidence that the phone was connected
    to the Brockville Information and the Brockville Information to the phone, and
    both the Information and the phone to the appellant. There was ample evidence
    that the Brockville Information related to the appellant.

The Brockville Information as Bad Character Evidence

[28]

Although it was not advanced in oral argument,
    the appellant maintained in his written submissions that the charging document
    constituted bad character evidence and was presumptively inadmissible. Although
    the unrelated charges constituted bad character evidence that undoubtedly would
    have been subjected to an admissibility
voir dire
had this been a jury trial, the Information contained clearly
    relevant and highly probative evidence.

[29]

The lack of objection to the documents
    admission reflects a common sense acknowledgement that, in this judge-alone
    trial, the trier of fact was more than capable of avoiding any prohibited
    propensity reasoning. The reasons for judgment reflect that he was successful
    in that regard and no suggestion is made to the contrary. The evidence was not
    used for an improper purpose.

The
Hearsay
Slip

[30]

I now turn to the appellants point that the
    trial judge erred by relying upon both the Brockville Information and the
    recognizance for the truth of their contents, violating the hearsay rule.

[31]

Although the documents were admissible under s.
    23 of the
Canada Evidence Act,
that provision
    does not render the documents admissible for the truth of their contents:
R.
    v. Caesar,
2016 ONCA 599, at para. 40. Although the
    record is somewhat muddy, it seems that Crown counsel did not intend to have
    the trial judge rely upon the documents for that purpose. As the trial Crown
    said in his closing submissions: [t]hese documents are not being tendered for
    the truth of their contents. Despite that submission, the trial Crown slipped up
    in his closing submissions when he referred to the names of the appellants
    children as if they were the actual names of those children. Of course, those
    names would only be known if the names on the face of the recognizance were
    considered for the truth of their contents.

[32]

The appellant says that the trial judge used both
    the Information and the recognizance for a hearsay purpose. I do not agree that
    there was any significant use of the documents for such a purpose.

[33]

First, the trial judges comparison of the
    address on the Brockville Information with the phone subscribers address did
    not offend the hearsay rule. The trial judge did not conclude that the
    appellant lived at that address because it said so on the Brockville
    Information. Rather, he relied upon the fact that the two addresses were the
    same. The informations evidentiary value came from its comparative value, and
    not from the truth of whether the appellant actually lived at the address.

[34]

Second, the trial judges conclusion that the court
    dates noted in the phone corresponded with the dates on the Brockville
    Information also did not engage the hearsay rule. The trial judge was not using
    the dates to find that the court appearances actually happened. Again, the
    value of the evidence lay in its comparative value and not in the truth of its
    contents.

[35]

The trial judge made only one small hearsay-related
    slip in his reasons, when he concluded that the text messages on the phone referred
    to individuals with the same first names as Mr. Phams children. It appears
    that the trial judge took the childrens names to actually be those included on
    the face of the recognizance in coming to this conclusion. The respondent
    fairly concedes that the trial judges phrasing of the above finding reflects
    his use of the contents of the recognizance for a hearsay purpose.

[36]

This was a harmless error:
R. v. Khan,
2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 29-30;
R.
    v. Van,
2009 SCC 22, [2009] 1 S.C.R. 716, at para. 35;
R.
    v. Sekhon,
2014 SCC 15,
[2014] 1 S.C.R. 272,
at para. 53. The appellants childrens names did not matter to the
    end result. What mattered was that the person using the phone was communicating
    with people of the same names as those listed as children on the recognizance
    of a person with the appellants name.

[37]

The fact that the evidence placing the phone in
    the appellants possession was overwhelming adds to the harmless nature of the
    error. The video of the appellant and the email address alone were sufficient
    to give rise to an inference that this was the appellants phone. The
    additional evidence only served to strengthen that already available inference.

Self-Incrimination

[38]

The appellant says that the use of the
    recognizance also breached the principle against self-incrimination. The
    appellants position on this point has evolved substantially over time.

[39]

The appellant initially objected to the
    introduction of the recognizance at trial. Counsel said that she had never had
    a Crown attempt to use a bail document before to prove its case, and that it
    was like conscripting an accused against himself by using its own process as a
    statement. Counsel agreed that the document be admitted so as not to delay
    matters, but suggested that she may argue admissibility the next day. The trial
    continued. The matter was only revisited during closing submissions, when
    counsel instead took the position that the self-incrimination concern went to
    weight and not admissibility.

[40]

In written submissions on appeal, the appellant
    took the position that the use of the recognizance breached his s. 13
Charter
right against self-incrimination. The appellant argued
    that admitting any statement made by an accused in a bail proceeding offends
    the principle against self-incrimination.

[41]

During oral submissions on appeal, the appellant
    acknowledged that s. 13 cannot ground his claim since the Crown did not use his
    prior testimony:
R. v. Nedelcu
, 2012 SCC 59,
    [2012] 3 S.C.R. 311, at para. 75.

Instead, during oral submissions, the appellants position changed
    to one rooted in s. 7 of the
Charter
and the
    protection against self-incrimination
.
Both
R.
    v. White
, [1999] 2 S.C.R. 417,

and
R. v. Fitzpatrick
,
[1995] 4 S.C.R. 154,
were mentioned in
    oral submissions. The appellant fairly acknowledged that this argument was not
    raised at trial or prior to oral submissions.

[42]

The respondent argued that this court should not
    entertain the newly raised constitutional issue. I agree.

[43]

Admissibility was conceded at trial.
    Accordingly, there is no record upon which this court can assess the issue; it
    should not be determined in the absence of such a record. Not only would this
    court lack the benefit of considered reasons by the trial judge, we are not
    even aware of the facts upon which the recognizance is based. We do not know whether
    the bail was contested or on consent. It would be inappropriate to consider the
    issue now.

[44]

Moreover, this legal issue only touches upon the
    information gleaned from the recognizance. In light of all of the evidence
    informing the trial judges conclusion that it was the appellants phone, the
    same finding would have been inevitable even removing the recognizance from evidence.
    The childrens names were one small piece in the circumstantial picture
    pointing toward the appellant as the owner of the phone.

(b)

The Alleged Misapprehension of Evidence

[45]

The appellant next argues that the trial judge
    misapprehended evidence relating to pictures saved on the phone.

[46]

As previously described, the trial judge
    concluded that one of the pictures in the phone was of the exact hydrogen
    chloride cylinder found in the methamphetamine lab. The appellant does not
    object to that finding.

[47]

The trial judge also found that there were
    [o]ther photographs on the phone [that] show involvement in the workings of a
    laboratory. Later in his reasons, the trial judge described those photos as
    depicting other drug production equipment. The appellant says that this
    finding constitutes a misapprehension of evidence.

[48]

The appellant contends that there was no basis
    to conclude that those photographs, depicting wiring, valves and ducting, were of
    drug production equipment. There was no
viva voce
evidence to this effect and no expert evidence was led on this point.
    In the absence of any evidence interpreting the photographs, the appellant says
    that it is simply not possible to say that they depicted drug production
    equipment.

[49]

Although the respondent acknowledges that there
    was no evidence elicited about the content of those photos and exactly what
    they depicted, he argues that the photos must be considered in context,
    including against the video of the drug lab. Among other things, that video
    depicts the methamphetamine lab as containing wiring, valves and ducting and
    the trial judges comments must be seen in that context.

[50]

The trial judge watched the video in court and
    had it available to him as an exhibit. It was an addendum to the parties
    Agreed Statement of Facts. Although no one testified about whether the pictures
    actually showed drug production equipment, the trial judge knew from the
    video that vents and wiring and valves were used in a methamphetamine lab.
    While those items may also have other more benign uses, they can be used in
    methamphetamine labs. Although, standing on its own, the suggestion that the
    photos were of other drug production equipment was an overstatement, I take
    the trial judges comment to mean that the photos were of items that could be
    used in the production of methamphetamine, which corresponds with the activity
    taking place in the lab where the fire broke out. Accordingly, I see no
    misapprehension of the evidence or inappropriate speculation.

(c)

The Alleged Unreasonable Verdict and
    Insufficient Reasons Respecting the Possession for the Purpose Count

[51]

Finally, the appellant argues that the
    conviction on the possession for the purpose of trafficking count was
    unreasonable. If not, he argues that the trial judges reasons are insufficient
    to permit appellate review. I disagree.

[52]

A verdict is unreasonable only where a properly
    instructed jury, acting judicially could not have come to the verdict:
R.
    v. Mendez,
2018 ONCA 354, at para. 20. That is not this
    case.

[53]

Once the trial judge concluded that the
    appellant was guilty of producing methamphetamine, a verdict that the appellant
    does not challenge as unreasonable, the trial judge moved on to consider the
    possession for the purpose of trafficking count. The parties agreed that
    whoever possessed the methamphetamine in its final form would have done so for
    purposes of trafficking. Therefore, by the time that the appellant was found
    guilty of production, the real issue for determination on the possession for
    the purpose of trafficking count was whether the appellant had sufficient control
    over the finished substance.

[54]

After reviewing all of the evidence, and making
    specific factual findings, the trial judge concluded as follows:

No reasonable inference of an innocent purpose
    for Mr. Phams presence on the premises can be drawn from these primary facts.
    All that was going on there was drug production.

The only rational inference that can be drawn
    from the primary facts is that Mr. Pham was involved in producing
    methamphetamine on the premises. He was there at or very shortly before the
    fire which resulted from the production of methamphetamine. His phone contained
    information firmly linking him to methamphetamine production.

It follows that
    he had a measure of control over the methamphetamine found at the unit and,
    consequently possession of it.

[55]

The appellant argues that there was insufficient
    evidence of control to support the conviction on the trafficking count, as
    the role that the appellant played in drug production was unknown. I disagree.

[56]

In the circumstances of this case, involving a
    small methamphetamine lab that contained the finished product in an amount that
    the parties agreed could only be possessed for purposes of trafficking, control
    by the appellant was an available common sense inference. After finding that
    the appellant was involved in actually producing the methamphetamine, that he
    was present in the lab at the time that the fire broke out or shortly before,
    and that the fire resulted from the production of the drug, it was open to the
    trial judge to conclude that the appellant had some measure of control over the
    finished product. As he said, that control follow[ed] from the facts he
    found.

[57]

Accordingly, the verdict on the possession for
    the purpose of trafficking count was not unreasonable. Moreover, read as a
    whole, the trial judges reasons explain what was decided and why:
R.
    v. R.E.M.
,

2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 17-18. His path to
    conviction was clearly discernable and he was not required to go further.

Conclusion

[58]

I would dismiss the appeal.

Released: MF Apr 26 2019

Fairburn J.A.
I agree. Paul Rouleau J.A.
I agree. B.W. Miller J.A.

[1]

The appellant abandoned the argument he advanced
    in his written materials based upon
R. v. Villaroman
, 2016 SCC 33,
    [2016] 1 S.C.R. 1000.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.K., 2019 ONCA 337

DATE: 20190425

DOCKET: C64236

Juriansz, Watt and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.K.

Respondent

Michael Dineen, for the appellant

Jennifer A.Y. Trehearne, for the respondent

Heard and released orally: April 18, 2019

On appeal from the conviction entered on May 15, 2017 by
    Justice Thomas Lofchik of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant
    appeals his conviction of one count of sexual interference following a short
    trial by jury.

[2]

The main thrust
    of the defence was that the complainant fabricated the complaint because of
    pressure from his father to make the complaint. In fact, the complainant did
    disclose the alleged abuse to his mother immediately following his father yelling
    at him to admit he had been abused.

[3]

The appellant
    attacks the trial judge's instruction to the jury that "[t]he timing of
    the disclosure signifies nothing."

[4]

Inclusion of this
    sentence in the charge was ill-advised in the context of this case. However, we
    are satisfied the jury would not have been misled when the impugned sentence is
    considered  in light of the charge as a whole and closing addresses of
    counsel. Considering the sentence in context, it is clear the trial judge was
    referring to the delay between incidents alleged and the disclosure, and not
    the circumstances in which disclosure was made.

[5]

The entire
    paragraph containing the impugned sentence makes this clear:

The timing of the disclosure signifies nothing. Not all
    children immediately disclose sexual abuse and the timing of the disclosure
    depends upon the circumstances of the particular victim. Theres no predictable
    rule as to how people who are victims of trauma such as sexual assault will
    behave. In assessing the credibility of the complainant, the timing of the
    complaint is simply one circumstance to consider in the factual mosaic of a
    particular case. A delay in disclosure standing alone will never give rise to
    an adverse inference against the credibility of a complainant. The reasons for
    delay are many. They may include embarrassment, fear, guilt, or a lack of
    understanding and knowledge.

[6]

The defence
    position was clearly outlined in the charge and the trial judge reviewed the
    evidence supporting it.

[7]

We would not give
    effect to this ground of appeal.

[8]

The appellant
    also argues the charge was unbalanced. We are not persuaded this is so.

[9]

Lastly, with
    consent of the Crown, the victim fine surcharge is set aside.

[10]

The appeal from
    conviction is dismissed.

R.G.
    Juriansz J.A.

David Watt
    J.A.

Harvison
    Young J.A.