COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Saciragic, 2017 ONCA 91

DATE: 20170202

DOCKET: C58368

Feldman, Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Denis Saciragic

Appellant

Todd B. White and Philip Norton, for the appellant

Brendan Gluckman, for the respondent

Heard: June 10, 2016

On appeal from the conviction entered by Justice Bonnie
    L. Croll of the Superior Court of Justice, sitting with a jury, on December 5,
    2013.

B.W. Miller J.A.:

A.

Overview

[1]

The appellant appeals his conviction for drug trafficking. On a
    pre-trial application, he persuaded the trial judge that an absence of exigent
    circumstances meant that a warrantless search of his apartment was unreasonable
    and infringed his rights under s.8 of the Charter. He was unsuccessful,
    however, in his challenge of a subsequent search of the apartment, authorized
    by a search warrant, which yielded evidence including bricks of cocaine and
    drug packaging material. The appellants application to exclude that evidence under
    s.24(2) of the Charter was dismissed and the appellant was convicted of drug
    trafficking and possession for the purpose of trafficking.

[2]

On appeal, the appellant argues the trial judge erred in not excluding
    the evidence, as well as in her findings relating to the grounds for the
    appellants arrest and subsequent searches and seizures. The appellant asks
    that his convictions be quashed and a new trial ordered.

[3]

For the reasons that follow, it is my view that the trial judge made no
    errors and that the appeal should be dismissed.

B.

Background

[4]

The appellant came to the attention of police through a drug
    investigation initially focused on other parties, and he subsequently became a
    target of surveillance himself. On the third occasion of surveillance, police observed
    him engage in counter-surveillance manoeuvres while driving from his residence
    to the underground garage of an apartment complex at Sherway Gardens Road. They
    were unable to continue surveillance after he entered the garage, but continued
    to follow him when he drove away from the garage 23 minutes later. Police
    observed him pulling up to a waiting Lexus near the loading docks at a HomeSense
    store across from the Sherway Gardens Mall, an isolated area where no other
    vehicles or persons were present.

[5]

The appellant removed a small box from the hatch of his car and handed
    it to the driver of the Lexus. The two drivers exchanged a fist-bump, returned
    to their vehicles, and began driving off. At this point, the police moved in
    and blocked the exit of the Lexus with their unmarked cruiser. The appellant
    swerved around the two cars and drove off quickly. The driver of the Lexus fled
    on foot and was ultimately apprehended and arrested for drug trafficking.
    Police recovered a one kilogram box of cocaine from his trunk, the same box
    police had witnessed the appellant give to the Lexus driver. The appellant temporarily
    evaded police by weaving in and out of traffic. He was caught five minutes
    later, hidden between two parked transport trailers, and was arrested for
    trafficking in cocaine.

[6]

In a search of the appellants vehicle incidental to the arrest, police
    recovered a cell phone, a set of keys beneath the drivers seat, and a key fob
    by the floor pedals.

[7]

Operating on the theory that the appellant operated a stash house at the
    Sherway Gardens apartment complex that he visited immediately prior to the
    meeting behind Sherway Gardens Mall, police attended at the apartment complex. Detective
    Constable Reid met with the property manager in his office. DC Reid asked the property
    manager to identify the key fobs that had been used to access the secure
    parking garage from 11:25-11:40 AM, the time frame in which the appellant had
    entered. He also provided the property manager with a description of the
    appellant.

[8]

The property manager advised DC Reid that the privacy policy of the
    complex did not permit him to show the surveillance video to police without a
    warrant. However, he provided DC Reid with the information that two key fobs had
    been used during the time period specified, one registered to unit 304 and the
    other to unit 1107. He also advised (whether from his own review of the surveillance
    video or from someone elses) that a person matching the appellants
    description had exited the elevator on the 11th floor during the relevant time
    frame, and shortly thereafter returned to take the elevator down to the parking
    garage.

[9]

From this information, DC Reid concluded that the appellants stash
    house was likely unit 1107. Police entered the unit, using one of the keys that
    had been seized from the appellants car, for the purpose of clearing it of
    occupants and preserving evidence. Once inside, police went into the bathroom,
    pulled back the shower curtain, and saw what appeared to be drug packaging in
    the bathtub and smelled a strong odour of cocaine. They also observed a closed
    briefcase behind the bathroom door. Police did not seize the packaging or open
    the briefcase.

[10]

After this warrantless entry, DC Stevenson prepared an Information to
    Obtain (ITO) for a search warrant for unit 1107. The warrant was granted
    later that day. On executing the warrant at unit 1107, the police seized items
    including nine kilograms of cocaine from the briefcase and the drug packaging
    from the bathtub.

[11]

Prior to trial, the appellant brought several applications to exclude evidence
    pursuant to s.9 and s.8 of the Charter.

[12]

The trial judge rejected the appellants argument that there were
    insufficient grounds for the arrest in violation of his s.9 rights, and found
    that the seizure of the keys and fob in the appellants car incidental to
    arrest was lawful. She also concluded that the search of access information
    from the use of the fob did not violate the appellants s.8 rights.

[13]

The trial judge found one breach of s.8: the warrantless entry and
    search of unit 1107 in the absence of exigent circumstances. However, after
    excising certain information from the ITO, she held that the search warrant for
    unit 1107 was not issued contrary to s.8. The trial judge did not order that
    any of the evidence obtained be excluded at trial pursuant to s.24(2). The
    appellant was ultimately convicted by a jury on all counts and sentenced to ten
    years imprisonment.

C.

Issues

[14]

The appellant raises the following issues on appeal:

1.       whether
    the trial judge erred in finding the police had reasonable grounds to arrest
    the appellant;

2.       whether
    the trial judge erred in not finding that the search and seizure of the fob
    data and video surveillance violated s.8;

3.       whether
    the search warrant would not have been issued but for the s.8 violation of the
    warrantless search of unit 1107;

4.       whether
    the trial judge erred in not excluding evidence under s.24(2) of the Charter.

D.

Analysis

(1)

Reasonable grounds for arrest

[15]

A peace officer can, pursuant to s.495(1)(a) of the
Criminal Code
,
    arrest without warrant a person whom the officer believes on reasonable grounds
    has committed an indictable offence.

[16]

The reasonable grounds requirement has two elements. First, the
    arresting officer must subjectively believe there are reasonable grounds to
    make the arrest. Second, there must be an objective basis for that subjective
    belief:
R. v. Storrey
, [1990] 1 S.C.R. 241, at pp. 250-251.

[17]

The trial judge identified several factors that Detective Zeleny
    considered in reaching the conclusion that he had reasonable grounds to arrest
    the appellant:

1.       the
    appellant drove in a suspicious manner consistent with counter-surveillance;

2.       the
    appellant drove to a deserted parking area by the loading dock of a shopping
    mall;

3.       the appellant
    met up with a person in a vehicle already parked at that location;

4.       there were no other vehicles in that area;

5.       the
    two drivers engaged in a trunk-to-trunk transaction;

6.       the
    two drivers looked around during the exchange;

7.       the
    size of the box that was exchanged was sufficient to hold a kilogram of
    cocaine;

8.       the two men shook hands and drove off;

9.       the exchange took less than two minutes.

[18]

To these grounds, the trial judge added another: the appellants subsequent
    flight from police.

[19]

The appellant argues that the trial judge erred in concluding that there
    were sufficient grounds for the arrest. He identifies two errors: (1) none of
    the arresting officers relied on the appellants flight from police as a ground
    for arrest; and (2) the trial judge failed to consider the appellants actions
    in the context of his previous innocent commercial behaviour while he was under
    surveillance.

[20]

Neither of these arguments assist the appellant.

[21]

With respect to the first argument, even if we accepted that it was an
    error to take the appellants flight from police as a ground for arrest, it
    would in no way disturb the conclusion that there were reasonable grounds for
    arrest, which were provided in the facts set out above.

[22]

I would also reject the appellants second argument that his prior
    conduct negated whatever reasonable grounds for arrest might otherwise have
    existed. The context of that argument is this. On October 6, 2010, police witnessed
    two open air transactions in which the appellant handed over packages to
    unknown persons. On the second of these, police arrested the recipient of the
    package but released him unconditionally. The appellant makes much of the fact that
    the exchange was a cash payment to purchase a ring from the recipient who was,
    by trade, a jeweler. The appellant argues that the fact that the police
    witnessed him engaging in a legal (though highly suspicious) commercial
    exchange on this occasion should have given them reason to believe that what
    otherwise had all the markings of a drug transaction was also a legal, though
    suspicious, transaction. In other words, the police ought to have viewed the
    appellants activities on March 1, 2011 through the lens of his previous conduct,
    having observed that exchanging commodities for cash in brief, clandestine
    transactions is simply the mode in which the appellant tends to carry out his
    lawful business.

[23]

I would reject this argument. The appellants previous actions  even if
    they can bear the innocent characterization that the appellant attaches to them
     cannot launder his actions on March 1, 2011. The fact that the appellant was
    not charged when engaging in conduct that bore some of the same marks of
    illegality does not render his conduct on March 1, 2011 any less suspicious and
    cannot immunize him from reasonable suspicion on future occasions.

[24]

The trial judge therefore made no error in not adverting to the October
    6, 2010 transaction in concluding both that there were reasonable and probable
    grounds to arrest the appellant and that a reasonable person in the position of
    Detective Zeleny would also conclude that there were reasonable and probable
    grounds for the arrest. There was no violation of the appellants s.9 Charter
    rights.

(2)

Section 8

[25]

The trial judge held that the warrantless entry into unit 1107 was a
    breach of the appellants rights under s.8. However, the appellant argues that
    the trial judge ought to have also found that the police breached his s.8
    rights in obtaining information from the property manager that enabled them to
    ascertain the unit number of his apartment. Given the reasonable expectation of
    privacy in his municipal address, the appellant argues, questioning the
    property manager constituted a warrantless search which violated his rights
    under s.8. Furthermore, the appellant argues that the property manager engaged
    in an unlawful search as agent of the state, committing an additional s.8
    violation. The appellant argues that these infringements of s.8 are significant,
    necessitate a fresh analysis under s.24(2) of the Charter, and ought to result
    in the exclusion of the physical evidence seized from unit 1107.

[26]

For the reasons set out below, I would not give effect to these
    submissions.

[27]

Section 8 of the Charter guarantees the right to be secure against
    unreasonable search or seizure. This right contains internal limits: its scope
    is limited to circumstances in which there is a reasonable expectation of
    privacy:
Hunter v. Southam
, [1984] 2 S.C.R. 145, at p. 159. In the
    circumstances of this appeal, if the appellant had a reasonable expectation of
    privacy in the information provided to the police by the property manager, the
    acquisition of the information by the police constitutes a search for the
    purposes of s.8, even though the information was provided voluntarily:
R.
    v. Ward
, (2012) 112 O.R. (3d) 321 (C.A.), at para. 64.

[28]

The factors that inform the analysis of whether there is a reasonable
    expectation of privacy have been grouped under four broad headings: (1) the
    subject matter of the alleged search; (2) the claimants interest in the
    subject matter; (3) the claimants subjective expectation of privacy in the subject
    matter; and (4) whether this subjective expectation of privacy was objectively
    reasonable, having regard to the totality of the circumstances:
R. v.
    Spencer
, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 18.

[29]

In the informational context, s.8 of the Charter protects a
    biographical core of personal information that tends to reveal intimate
    details of the lifestyle and personal choices of the individual:
R. v.
    Plant
, [1993] 3 S.C.R. 281,
at pp. 292, 293. To determine whether the appellants right to protection
    against unlawful search and seizure is engaged, it is therefore necessary to
    consider the nature of the information that the police obtained and how they
    obtained it.

[30]

With respect to the nature of the information, the police were told: i)
    two key fobs were used during the specified time frame to enter the parking
    garage, associated with units 304 and 1107; and ii) from a review of video
    surveillance, someone matching the appellants description on one occasion
    attended the 11th floor of the apartment complex from the elevator, exited, and
    then later re-entered the elevator. Here, no intimate details of the
    appellants life were revealed by the provision of the information that, on a
    single occasion, the appellant exited and re-entered the elevator at the 11th
    floor. This information did not yield any information about the nature of the
    appellants activities in unit 1107, or even whether he used unit 1107 as a
    residence. Similarly, no intimate or biographical details were revealed by the
    fact that the fob he used when police observed him enter the parking garage was
    assigned to unit 1107.

[31]

Of course, in assessing whether an individual has a reasonable
    expectation of privacy, it is necessary to look not only at the immediate
    information sought by the police (the address corresponding to the fob, the attendance
    on the 11th floor), but the further information that it ultimately reveals:
Spencer
,
    at para 31. In this instance, the ultimate information sought by the police is
    the particular unit the appellant accessed: the appellants municipal address.

[32]

Did the appellant have a reasonable expectation of privacy in his
    municipal address? The appellant did not advance any authority in support of the
    proposition that, categorically, there is a reasonable expectation of privacy
    in ones municipal address. A physical address does not, of itself, reveal
    intimate details about ones personal choices or way of life, and, ordinarily,
    it is publicly available information to which many people have access.

[33]

Neither, on the record before the court, were there particular
    circumstances that would indicate a reasonable expectation of privacy in the
    appellants connection to unit 1107. The appellant made use of an apartment
    unit in a relatively large apartment complex with common areas and video
    surveillance. There was no evidence to suggest a reasonable expectation that
    his comings and goings would not be observed by others or recorded digitally, or
    the fact of these observations divulged to police.

[34]

In summary, I would hold that the trial judge made no error on the facts
    before her in concluding that the appellant had no reasonable expectation of
    privacy in the fob data, the fact that the appellant attended at the 11th floor,
    or the ultimate information that the police were able to conclude from this
    data: the appellants use of unit 1107.

[35]

The appellants further argument is that the trial judge erred in not
    concluding that the property manager acted as an agent of the state in
    obtaining the fob and viewing the surveillance video, and the property managers
    acts therefore violated the appellants s.8 rights.

[36]

The trial judge found that the police knew they were unable to obtain
    the appellants address from the property manager without a warrant, and that
    they were also told that they were unable to view the surveillance video
    without a warrant. The appellant argues that the police sought to circumvent
    the warrant requirement by having the property manager do indirectly what they
    themselves could not do directly. Accordingly, the appellant argues, by
    providing the fob information and confirmation from the video surveillance that
    the appellant exited the elevator at the 11th floor, the property manager was
    acting as a state agent. As a state agent, the property managers actions would
    be held to the same standard as the police, and constituted a warrantless
    search and breach of s.8.

[37]

I do not agree with the appellants submissions.

[38]

First, I do not accept that the property manager, in responding to
    police inquiries, was acting as a state agent. Adapting the test given in
R.
    v. Broyles
, [1991] 3 S.C.R. 595, at p. 608, one asks whether the dealings
    as between the property manager and the appellant would have been different but
    for the intervention of the police. The fob data and the surveillance video
    were both recorded in the ordinary course, and not at the behest of police. The
    only difference is in the property managers viewing of the video and fob data,
    which he may otherwise have had no reason to do. This act of retrieval in
    response to a narrow and specific request from the police does not, on this
    record, make the property manager a state agent:
Ward
, at para. 96;
R.
    v. Webster
, 2015 BCCA 286, 326 C.C.C.
    (3d) 228,
at paras. 70-71, leave to appeal refused, [2015] S.C.C.A.
    No. 376.

(3)

Issuance of the search warrant

[39]

The trial judge made no error in finding that, even after excising the
    ITO of the information obtained from the initial warrantless search of the
    unit, there was a basis on which the warrant could have been issued: as the
    trial judge noted, minutes before trafficking a kilogram of cocaine in a trunk-to-trunk
    exchange in a remote area of a parking lot, it was probable that the appellant
    briefly attended at this apartment unit. These facts amounted to reasonable
    grounds to believe that there was evidence in the unit related to the
    commission of an offence.

[40]

In argument, the appellant also asserted, for the first time, that
    police use of the key (obtained in the search incidental to arrest of the
    appellant) to unlock the unit door was a further infringement of s.8 as it
    confirmed that unit 1107 was under the appellants control. The appellant
    argues that any reference to use of the key ought to have been excised from the
    ITO.

[41]

Again, this argument is of no assistance. Some, but not all, references
    to the key were excised from the ITO, and it was an error not to excise them
    all. Nevertheless, evidence of the use of the key to open the door of unit 1107
    was not needed to tie the appellant to that unit: the fob data and video
    surveillance information was sufficient and the warrant could have been issued
    without any reference to the key. Any reference to the key was therefore superfluous.

(4)

Section 24(2)

[42]

The appellant has not identified any errors with respect to the trial
    judges s.24(2) analysis. The trial judge properly applied the relevant test
    given in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, noting that
    unit 1107 was not the appellants principal residence, that the police were
    inside the unit for less than five minutes, and the purpose of the entry was to
    clear the premises of occupants and not to search for evidence. There is no
    basis upon which we could interfere with the trial judges finding that the
    administration of justice is served by the admission of the nine kilograms of
    cocaine into evidence.

[43]

The appellant argues that multiple additional breaches of s.8 and s.9
    aggravate the s.8 breach that the trial judge found, and necessitate a fresh
    s.24(2) analysis. However, as I would not give effect to any of the appellants
    arguments with respect to s.8 or s.9, there is no basis on which to undertake this
    analysis.

E.

Disposition

[44]

I would dismiss the appeal.

Released: KNF FEB 2 2017

B.W. Miller J.A.

I agree. K. Feldman
    J.A.

I agree. M.L.
    Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sheahan, 2017 ONCA 159

DATE: 20170223

DOCKET: C60415

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

BETWEEN

Her Majesty the Queen

Applicant (Appellant)

and

James Sheahan

Respondent

Davin Michael Garg, for the appellant

Eric Granger and Lawrence Greenspon, for the respondent

Heard and released orally:  February 10, 2017

On appeal from the order of Justice Brian W. Abrams of
    the Superior Court of Justice, dated April 7, 2015.

ENDORSEMENT

[1]

The respondent was convicted of operating a motor
    vehicle with a concentration of alcohol in his blood exceeding 80 mg of alcohol
    in 100 ml of blood, contrary to s. 253(1)(b) of the
Criminal Code
.  He was sentenced to 30
    days custody to be served intermittently, in addition to 12 months probation
    and a one-year driving prohibition.

[2]

The respondent appealed, and the Summary Conviction
    Appeal Court Judge (the SCACJ) found that the respondent had pointed to
    evidence that cast a doubt that the instrument utilized to conduct the blood-alcohol
    test was reliable, set his conviction aside, and ordered a new trial.

[3]

The Crown seeks leave to appeal.

[4]

It argues that the SCACJ erred by clearly misapplying the standard of
    appellate review and exceeding his appellate jurisdiction. We agree. It is
    unnecessary for us to address the further ground of appeal argued by the
    appellant.

[5]

For the reasons that follow, leave to appeal is granted, the appeal is
    allowed, the order directing a new trial is set aside, and the conviction
    entered at trial and the sentence imposed are restored.

Background

[6]

Police stopped the respondent after he was
    observed driving at 132 kilometres per hour in an 80 kilometres per hour posted
    zone. He failed a roadside breath test and was arrested, charged and brought to
    the police detachment, where he was transferred to a qualified breath
    technician.

[7]

The breath technician received notice that he would be
    required to take breath samples. He turned an approved instrument (an Intoxilyzer)
    on at 11:14 a.m. and, at 11:20 a.m., he conducted a calibration check. It came
    back low at 85, while the target is 90 to 110. He observed that this may occur
    when the instrument is not sufficiently warmed up. He re-did the calibration
    test at 11:22 a.m., and it came back within an acceptable range.  At 11:26
    a.m., he did a self-test. It correctly indicated that he had zero alcohol in
    his body. The technician testified that he was satisfied that the instrument
    was working properly.

[8]

He took two breath samples from the respondent. The first, taken at
    11:41 a.m., showed a blood-alcohol concentration of 225 mg of alcohol in 100 ml
    of blood. The second, taken 23 minutes later, showed a concentration of 218 mg
    of alcohol in 100 ml of blood.

[9]

The trial judge wrote the following:

When asked whether there was any apparent cause for the
    calibration check to be outside the range, the officer explained that in his
    experience, and based on his training, there is a space of air called headspace
    that can take longer to warm up. This may cause a calibration check to come in
    low. This explanation is also in the manual at pages 7-17.

the manual stipulates that the [alcohol standard solution in
    the instrument] should be changed if the calibration check is outside the
    required range without apparent cause.  In his view, he did know the cause,
    namely the cooler headspace, and following further testing, the calibration
    came within the range, thus obviating the need to change it, in his view.

[10]

The trial judge determined that the respondent
    had not raised a doubt as to the proper functioning or operation of the
    instrument, and therefore had not displaced the presumption under s. 258(1)(c)
    of the
Code
that the
    level of alcohol in the respondents blood at the time when the analyses were
    made and the offence was committed was the lowest of the concentrations
    determined by the analyses.

[11]

On appeal, the SCACJ concluded that the breath
    technician did not know the cause of the low calibration check and that his
    belief as to the role played by the cooler headspace was mere speculation,
    which was not in any way substantiated by the training manual. Accordingly,
    since he did not know the apparent cause why the calibration check was outside
    the normal range, his evidence raised a doubt that the instrument was not
    properly operated.

Analysis

[12]

Absent an error of law or a miscarriage of
    justice, the test to be applied by a Summary Conviction Appeal Court is whether
    the findings of the trial judge are unreasonable or cannot be supported by the
    evidence. A Summary Conviction Appeal Court Judge is not entitled to substitute
    his or her own view of the evidence for that of the trial judge. A trial
    judges factual findings are entitled to deference, absent palpable and
    overriding error.

[13]

Respectfully, while the SCACJ alluded to the
    standard of review in his reasons, he clearly erred by failing to adhere to
    this standard of review and substituting his own view of the evidence. The
    trial judge committed no legal error. Her finding that the respondent had not
    raised a doubt as to the proper functioning or operation of the instrument was
    entitled to deference, absent palpable and overriding error. In our view, the
    trial judge made no such error. Rather, she correctly concluded that the
    respondent had not raised a doubt as to the proper functioning or operation of
    the instrument.

[14]

The manual instructs that the simulator must be
    operated at a temperature of 34 degrees, plus or minus .2 degrees Celsius, and
    the evidence of the breath technician was that the room temperature was around
    22 degrees when he turned the simulator on.

[15]

Contrary to the SCACJs findings, the manual
    specifically instructs qualified breath technicians that a cause for a low
    calibration result is cold headspace and if the ambient temperature in the
    room where the simulator is being used is cold, multiple calibration checks may
    be required to fully warm the simulator tubing and equilibrate the headspace
    and solution, and that the first calibration check result in these situations
    may be lower than 90 mg/100ml while this process occurs. These portions of the
    manual confirmed that the breath technicians manner of proceeding was based on
    his training, as he had testified.

[16]

The SCACJ failed to consider the technicians acceptance in
    cross-examination of the term speculation in the context of all the evidence
    that qualified that evidence and nullified its effect. That word inaccurately
    describes what  the breath technician clearly explained in his testimony,
    namely that, based on his experience and training, the apparent cause for the
    calibration check registering outside the range was that the headspace had not
    yet warmed up.

[17]

We
    reject the respondents argument that leave to appeal should be denied because
    of delay on the part of the Crown in perfecting its appeal.  As the respondent notes,
    the Crown commenced its application for leave to appeal by notice dated May 5,
    2015, but the respondent was not served with the appellants materials to
    perfect the appeal until August 15, 2016.  While there was delay, the
    respondent was aware of the Crowns intention to proceed and the Crown has
    provided a reasonable explanation for the delay.

[18]

If
    necessary, a warrant for the respondents arrest may be issued.

Alexandra
    Hoy A.C.J.O.

Doherty J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Short, 2017 ONCA 153

DATE: 20170221

DOCKET: M47273 (C57652)

MacPherson J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Roger Craig Short

Applicant/Appellant

Susan Chapman and Michael Dineen, for the applicant

Megan Stephens, for the respondent

Heard: February 16, 2017

ENDORSEMENT

[1]

On February 27, 2013, the applicant was convicted by a jury, presided
    over by Donohue J. of the Superior Court of Justice in Sarnia, of the first
    degree murder of his wife, Barbara Short. It was the second trial on this
    charge; the first trial ended with a hung jury.

[2]

The applicant filed a notice of appeal and brought an application for
    judicial interim release pending appeal. The application was dismissed by
    LaForme J.A. on March 6, 2014.

[3]

The relevant provision of the
Criminal Code
, R.S.C. 1985, c.
    C-46, is s. 679(3) which requires an applicant to establish three criteria:

a)       the appeal  is not frivolous;

b)       he will surrender himself into custody in           accordance
    with the terms of the order; and

c)       his detention is not necessary in the public           interest.

[4]

At the initial bail hearing, the Crown conceded the first and second of
    these criteria. LaForme J.A. denied bail on the basis of the third criterion,
    public interest. He concluded, at para. 29:

Mr. Short has been found guilty of murdering his wife by a jury
    of 12. This offence is arguably the most serious in Canada. While some of his
    grounds of appeal are more than simply arguable, they are nevertheless not
    sufficiently strong such that I can say, based on this record, they are likely
    to succeed on appeal. Release, in my view, would not be in the public interest.

[5]

Three years later, the applicant makes a second application for judicial
    interim release pending appeal. Once again, the Crown concedes the first and
    second criteria. The Crown says that the new grounds of appeal and the fresh
    evidence make the appeal arguable, but not so strong as to raise a serious
    concern about the accuracy of the verdict. The Crown acknowledges that the
    proposed release plan  the applicant, age 56 with no prior criminal record,
    will reside in the home of Russell (a former police officer) and Gaelene Bain in
    Dorchester, Ontario  is an appropriate plan.

[6]

Once again, the Crown opposes bail on the public interest criterion. The
    Crown says that many of the grounds of appeal raised in the applicants factum
    on the appeal proper were before LaForme J.A. in almost the same form and
    detail as they are now presented. In addition, the Crown contends that the
    proposed new grounds of appeal have not been shown to be sufficiently strong
    that they are likely to succeed.

[7]

The applicant does not challenge the merits of LaForme J.A.s bail
    decision in 2014. His position is that a combination of new grounds of appeal,
    compelling fresh evidence, and the passage of time constitutes a material
    change of circumstances justifying a fresh application.

[8]

The public interest criterion requires an appellate court to balance two
    separate interests: reviewability of convictions leading to imprisonment and
    enforceability of judgments: see
R. v. Farinacci
(1993), 109 D.L.R.
    (4th) 97 (Ont. C.A.);
R. v. Manasseri
, 2013 ONCA 647, [2013] O.J. No 6177.

[9]

I acknowledge that judicial interim release pending appeal for a person
    convicted of murder is rare: see
R. v. Baltovich
(2000), 144 C.C.C.
    (3d) 233 (Ont. C.A.); and
Manasseri
.

[10]

However, in my view, this is a rare murder case in which, at this
    juncture, the interests of reviewability outweigh the interests of enforcement.

[11]

First, one of the new grounds of appeal relates to the trial judges
    decision at the second trial not to remove defence counsel from the record.
    This decision was made about five weeks before trial. Defence counsel asserted
    that his client had discontinued payment for his services and that he could not
    ethically represent his client. The trial judge refused to allow the accused to
    speak on this issue. And he ruled that [defence counsels] difficulties relate
    to payment of his accounts and not to an ethical dilemma.

[12]

I do not say that either of these rulings was clearly wrong. However,
    the decision of the Supreme Court of Canada in
R. v. Cunningham
, 2010
    SCC 10, [2010] S.C.R. 331, raises a serious issue about the ethical dilemma
    component of the ruling. In
Cunningham
, Rothstein J. said, at para.
    49, that [i]f withdrawal is sought for an ethical reason, then the court must
    grant withdrawal (citation omitted). It may be that if an ethical dilemma is
    advanced as a colourable basis for withdrawing for non-payment of legal fees, a
    trial judge could refuse to allow counsels withdrawal. However, in para. 48,
    Rothstein J. also said:

However, in either the case of ethical reasons or non-payment
    of fees, the court must accept counsels answer at face value and not enquire
    further so as to avoid trenching on potential issues of solicitor-client
    privilege.

In any event, the new
Cunningham
issue
    presents as a serious appeal issue.

[13]

Second, there is now a very extensive fresh evidence record about a
    potential third party suspect. This was a live issue, though barely, at trial.
    At the initial bail hearing, the focus on this issue was on the trial judges
    ruling. Today, the picture is vastly different. The applicant has engaged a
    respected private investigator and there is a great deal of information about a
    potential third party suspect. There may well be, as the Crown asserts,
    problems with the admissibility of some of that evidence (e.g. hearsay). That
    said, whereas at the time of the trial a third party suspect defence appeared
    as farfetched, that is no longer a fair characterization.

[14]

Third, and crucially, against the backdrop of the first two points
    above, the applicant has been incarcerated for four years and his appeal has
    not been heard. I do not blame the applicant or the Crown for this state of
    affairs. However, I do say that this is an important factor in justifying bail
    at this juncture: see
Baltovich
, at paras. 41-42;
R. v. Pabani
(1991), 10 C.R. (4th) 381 (Ont. C.A.), at para. 10. The applicant is 56 years
    old. He had no criminal record before the conviction. His release plan  living
    with a former police officer  is unassailable.

[15]

Fourth, this appeal, even with all the fresh evidence material, can be
    heard in the near future. With the consent of counsel, I will case manage the
    appeal and it is scheduled for hearing on August 30 and 31, 2017.

[16]

Accordingly, the application is granted. The applicant is released
    pending his appeal in accordance with the terms set out in the draft order.

J.C. MacPherson J.A.


COUR DAPPEL DE LONTARIO

RÉFÉRENCE: R. c. Simard, 2017 ONCA 149

DATE: 20170221

DOSSIER: C60014

Les juges Sharpe, Rouleau et
    Benotto

ENTRE

Sa Majesté la Reine

Intimée

et

Nicolas Simard

Appelant

DOSSIER: C60234

ET ENTRE

Sa Majesté la Reine

Intimée

et

Sébastien Lépine

Appelant

Christine Mainville, pour les appelants
    Nicolas Simard et Sébastien Lépine

Vanita Goela, pour lintimée

Date de laudience : le
    31 janvier 2017

En appel de la condamnation prononcée le
    29 octobre 2014 et de la peine imposée le 22 janvier 2015 par le juge Gilles
    Renaud de la Cour de justice de lOntario.

Le juge Rouleau :

[1]

Les appelants ont plaidé coupables à une
    accusation de production de marijuana en vertu de larticle 7(2)(b) de la
Loi
    réglementant certaines drogues et autres substances
et le juge a imposé la
    peine minimale obligatoire de neuf mois. La peine minimale simposait en raison
    de trois facteurs aggravants dont, notamment, le fait que la production était
    « à des fins de trafic » et quil y a eu utilisation de « biens
    immeubles appartenant à autrui » lors de la perpétration de linfraction.
    Des ordonnances accessoires relatives aux armes à feu et au prélèvement dADN
    furent également imposées.

[2]

Les appelants font appel. Ils allèguent quen
    raison de lassistance non effective de leur avocat et de difficultés
    langagières, leur plaidoyer nétait pas informé.

[3]

Ils maintiennent entre autre quils nont jamais
    été avisés quen raison des facteurs aggravants invoqués par la poursuite, une
    peine minimale obligatoire de neuf mois et les ordonnances accessoires
    relatives aux armes à feu et aux prélèvements dADN seraient imposées. De plus,
    ils affirment que sans en connaître le contenu et sans être informés de son
    impact, le sommaire préparé par la police a été présenté au juge pour établir
    les faits sous-tendant les plaidoyers. Les appelants étaient donc tenus davoir
    admis les faits contenus dans ce sommaire policier. Le sommaire était
    uniquement en anglais et, à linsu des appelants, contenait des aveux qui
    serviraient à établir des facteurs aggravants pour la fin de limposition de la
    peine. La preuve non contredite des appelants est à leffet que, sils avaient
    été au courant de ces faits, ils nauraient pas plaidé coupables.

[4]

À mon avis lappel doit être accueilli.

[5]

Lors de la plaidoirie, le bref policier dans
    lequel les policiers ont résumé leur version des faits a été présenté au juge
    pour établir les faits sous-tendant les plaidoyers. Le bref policier était rédigé
    en anglais et na jamais été partagé avec les appelants. Seul un sommaire oral
    incomplet a été relaté aux appelants par leur avocat. Le bref na pas été lu à
    haute voix en cour et même un résumé pour le compte des appelants est absent.
    Ainsi les appelants nont pas su quels étaient les aveux contenus dans le bref
    policier, ni que certains de ces aveux serviraient à établir des facteurs
    aggravants menant à limposition dune peine minimale obligatoire de neuf mois.

[6]

Lors du plaidoyer de culpabilité, le juge a
    demandé quelle serait la fourchette des peines qui sappliquerait. Le procureur
    de la Couronne a répondu en anglais que « the range, nine, it was the
    mandatory minimum, Your Honour ». Les deux appelants sont francophones. Un
    comprend peu langlais et lautre nest pas très à laise en anglais. Selon
    leur témoignage, que jaccepte, il appert quils nont pas compris de cet
    échange entre le juge et le Ministère Public quune peine minimale obligatoire
    de neuf mois serait imposée. Selon les appelants, linterprète qui était
    présent naurait pas bien traduit ce qui se déroulait en anglais. Sur ce point,
    je remarque quil ny a rien au dossier qui explique pourquoi la poursuite dans
    cette affaire qui, de toute évidence était une procédure en français,
    sadressait au juge en anglais ni pourquoi le juge répondait périodiquement en
    anglais.

[7]

Quelques mois après avoir plaidé coupable, les
    appelants sont revenus devant le juge pour la détermination de la peine. À
    cette audience, la poursuite a relaté, en anglais, certains faits contenus dans
    le bref policier qui avait été déposé auprès du juge. Selon la poursuite, ces
    faits démontraient la présence de facteurs aggravants dont celui que la
    production était à des fins de trafic.

[8]

Dans le bref policier, le policier aurait
    indiqué que, lors de son arrestation, un des appelants aurait avoué que
    « Yes I was planting marijuana but what am I supposed to do? The
    government takes all my money in taxes. » Selon la poursuite ceci
    démontrait que la production était pour fins de trafic en vertu du sous alinéa
    7(2)b)(ii) de la loi.

[9]

Selon la nouvelle preuve déposée en appel, les
    appelants maintiennent que leur avocat ne leur a jamais demandé sils avaient
    fait cet énoncé à la police et, plus important encore, ce quils entendaient
    par cet énoncé. Sil lavait fait, M. Simard aurait expliqué que ce
    commentaire signifiait quil était trop pauvre pour acheter de la marijuana et
    donc il devait en faire pousser pour consommation personnelle. En dautres termes,
    les appelants nauraient jamais avoué que la production était pour fins de
    trafic et ceci surtout sils avaient été informés que cest cet aveu qui crée
    lobligation dimposer une peine minimale obligatoire de neuf mois.

[10]

Ainsi, en labsence dobjection ou de contredit,
    le juge a accepté la représentation du Ministère Public que les aveux établissaient
    la présence de facteurs aggravants dont la production pour fins de trafic et a
    imposé la peine minimale obligatoire de neuf mois ainsi que les ordonnances
    accessoires.

[11]

Suite à la lecture de la nouvelle preuve, y
    compris le contre-interrogatoire de lavocat des appelants au procès, il mest
    apparent que, non seulement lavocat des appelants na pas discuté de la
    question de savoir si la production était pour consommation personnelle et non
    pour la vente, il nétait même pas au courant de limpact quaurait ce facteur
    sur la peine.

[12]

En appel, lintimée maintient quune lecture du
    dossier démontre que les appelants étaient bel et bien au courant de la peine
    minimale obligatoire. Elle indique que lors de la comparution pour limposition
    de la peine, il y a eu mention quil sagissait dune peine de neuf mois. À cet
    égard jaccepte les représentations des appelants à leffet que cette mention
    nétait pas suffisante pour que les appelants comprennent la portée des aveux
    quils étaient tenus davoir faits et de la peine qui en découlerait. De toute
    évidence, les appelants demeuraient confus. Ce nest que par la suite, lors de
    leur incarcération, quils ont appris que la peine imposée était de neuf mois.
    Ne sachant aucunement comment ceci leur était arrivé, ils ont immédiatement
    fait appel. Par la suite, ils ont déposé de la nouvelle preuve, y compris leurs
    affidavits confirmant que ce nest quaprès leur incarcération quils sont
    devenus conscients de la durée de la peine.

[13]

Aussi, ce nest quau cours des procédures en
    appel quils ont été informés de limportance des aveux quils étaient tenus
    davoir faits. Tout au cours de leur interaction avec leur avocat, ils nont
    jamais été informés que, sils plaidaient coupable et avouaient ce qui était
    contenu dans le bref policier, le juge imposerait une peine minimale de neuf
    mois. Ce quils avaient compris est quils nauraient quune « peine
    minimale » dans le sens où ce serait une petite peine qui ne serait pas
    très élevée.

[14]

Il mappert donc que les plaidoyers de
    culpabilité des appelants nétaient pas informés en raison de leur déficit
    linguistique et de lassistance non effective de leur avocat. Jai conclu ainsi
    conscient du fait quil y a présomption de compétence dun avocat. En lespèce,
    par contre, il est clair que lavocat des appelants ne les a pas informés des
    facteurs aggravants qui étaient plaidés par la poursuite et de limpact que ces
    facteurs auraient sur la peine. De plus, il ne les a pas informés des faits
    contenus dans les aveux déposés auprès du juge ni que ceux-ci serviraient à
    établir les facteurs aggravants. Leur avocat avait une obligation de les
    informer de ceci et devait sassurer que les appelants comprenaient les
    conséquences de leurs aveux notamment quune peine minimale obligatoire de neuf
    mois en découlerait. De toute évidence ceci na pas été fait et les appelants
    ont donc établi quil ny a pas eu dassistance effective de lavocat.

[15]

Malheureusement, rien de ceci na été expliqué
    aux appelants par le juge. À mon avis, le juge aurait dû procéder à une enquête
    sur le caractère volontaire du plaidoyer, surtout étant donné que le bref
    policier était en anglais, pas la langue des procédures, et na jamais été lu à
    haute voix en cour.

[16]

Jaccepte aussi que les appelants ont souffert
    dun préjudice puisquils nauraient pas plaidé coupables sils avaient eu
    connaissance des faits pertinents et des conséquences sur limposition de la
    peine davouer les faits contenus dans le bref policier. Voir
R. v. Henry
,
    2011 ONCA 289, aux par. 26 à 27 et 36 à 37, ainsi que
R. v. Rulli
,
    2011 ONCA 18, aux par. 1 et 2.

[17]

Les appelants ont aussi avancé plusieurs moyens
    dappel additionnels. Parmi ceux-ci, ils maintiennent quils avaient,
    potentiellement, des défenses viables aux accusations, mais que leur avocat na
    jamais enquêté à ce sujet et ne les a pas informés à ce sujet. Vu ma conclusion
    que lappel doit être accueilli, il nest pas nécessaire de traiter de cet
    argument et des autres moyens dappels présentés.

[18]

Pour ces motifs, jaccueillerais lappel. Les
    appelants ont déjà purgé la partie carcérale de leur peine. Dans les
    circonstances, jai conclu que la condamnation devrait être mise de côté et quun
    nouveau procès devrait être ordonné, ainsi quun arrêt des procédures.

Rendu le : « R.J.S. » 21
    février 2017

« Paul
    Rouleau j.c.a. »

« Je
    souscris Robert J. Sharpe j.c.a. »

« Je
    souscris M.L. Benotto j.c.a. »


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Staples, 2017 ONCA 138

DATE: 20170215

DOCKET: M47386 (C59710)

Laskin J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Staples

Applicant

Michael Lacy and Marco Sciarra, for the applicant

Susan Magotiaux, for the respondent

Heard: January 25, 2017

Laskin J.A.:

A.

Introduction

[1]

In 1998 Mark Staples father and sister were murdered. Their bodies were
    found in his fathers truck in a parking lot near Pearson International Airport
    in Mississauga. Twelve years later, in 2010, Staples was arrested and charged
    with their murders. In 2014, he was tried and convicted of two counts of first
    degree murder. He filed a notice of appeal through this courts inmate appeal program.

[2]

In April 2016, Staples applied under s. 684(1) of the
Criminal Code
to have counsel appointed to argue his appeal. After reserving her decision, on
    May 11, 2016, Gillese J.A. dismissed Staples application: see
R v. Staples
,
    2016 ONCA 362, 352 O.A.C. 392. He now asks me to reconsider her dismissal and
    to appoint counsel. Alternatively, he asks that I appoint
amicus curiae
.
    He submits that there are material changes in circumstances since Gillese J.A.
    dismissed his application. He argues that in the light of these material
    changes, I should reconsider her dismissal and grant his s. 684 application.

[3]

The Crown opposes the application. Counsel argues that there are no
    material changes in circumstances that would justify reconsidering Gillese
    J.A.s decision. The Crown does not, however, oppose the appointment of
amicus
,
    as the Crown recognizes that the court may want the assistance of counsel to
    fairly decide this first degree murder appeal.

B.

Section 684
    applications and requests for reconsideration

(1)

Section 684 applications

[4]

Section 684(1) of the
Criminal Code
provides:

A court of appeal or a judge of that
    court may, at any time, assign counsel to act on behalf of an accused who is a
    party to an appeal or to proceedings preliminary or incidental to an appeal
    where, in the opinion of the court or judge, it appears desirable in the interests
    of justice that the accused should have legal assistance and where it appears
    that the accused has not sufficient means to obtain that assistance.

[5]

To obtain an order appointing counsel under s. 684, an applicant must
    meet two criteria. The applicant must show:

1.

It appears desirable in the interests of justice that the accused should
    have legal assistance; and

2.

It appears that the accused has not sufficient means to obtain that
    assistance.

[6]

The first criterion  the interests of justice criterion  ordinarily
    focuses on the appeal itself. The applicant must show an arguable appeal and an
    inability to present the appeal effectively without the help of counsel. Or,
    the court itself may be of the view it cannot fairly decide the appeal without
    the help of counsel. See
R. v. Bernardo
(1997)
, 105 O.A.C. 244; and
R. v. Josipovic
, (25
    January 2017), Toronto, M47138 (C62030) & M47342 (C62112) (Ont. C.A.).

[7]

However, though the usual focus of the interests of justice inquiry is
    on the applicants ability to present the appeal without counsel, the phrase is
    flexible enough to encompass other societal interests that may arise in any
    particular s. 684 application: see
R. v. Stevenson
, 2013 ONCA 645,
    2013 CarswellOnt 18859, at para. 9.

[8]

The second criterion  the financial eligibility criterion  looks at
    whether the applicant has the current financial means to retain a lawyer. That
    the applicant has been refused legal aid  as Staples was  is not
    determinative because a s. 684 application is not a judicial review of a legal
    aid decision to deny funding:
R. v. Le
, 2016 ONCA 798, 2016
    CarswellOnt 16563.

(2)

Gillese J.A.s decision

[9]

As I read my colleagues reasons, though she suggested Staples may not
    meet the financial eligibility criterion, she dismissed his application
    principally because he did not meet the interests of justice criterion. In
    doing so, she did not say anything about the merits of his appeal or whether Staples
    could effectively argue his appeal without counsel. She focused on the wider
    interests that the interests of justice criterion may encompass.

[10]

Gillese J.A. noted that Staples had been denied legal aid funding, but
    her focus was on the reason for the denial. At para. 4 of her endorsement, she
    summarized her conclusion. She dismissed Staples application because he has
    not been clear and transparent in disclosing his financial circumstances or in
    the conduct of his personal financial affairs. She accepted the Crowns position
    that Staples could not claim he had exhausted his efforts to obtain legal aid
    when legal aids refusal of funding was because of Staples own incomplete
    financial disclosure. To grant the application would be contrary to the
    interests of justice  as to do so would enable the Applicant to abuse the
    process by which criminal appeals are publicly funded: at para. 37.

[11]

In dismissing the s. 684 application, Gillese J.A. pointed to three
    areas where Staples had not been forthcoming about his finances:

1.

Staples had not disclosed the full extent of his financial affairs to
    Legal Aid or provided Legal Aid with all relevant documents;

2.

Staples failed to disclose the foreclosure proceeding on his property to
    the Attorney General, contrary to the terms of a funding agreement in place for
    the funding of his defence costs at trial. Further, the foreclosure proceeding
    itself may not have been at arms-length and may have shielded of $100,000 of
    equity in the property, as the foreclosure was initiated by Staples good
    friend and lawyer, Paul Mazza, who had put a second mortgage on the property to
    recover unpaid legal fees;

3.

Staples was not forthcoming with Legal Aid about his relationship with
    Ms. Bradt or her finances, even though he had at one time called her his common
    law spouse.

[12]

It is in these three areas, especially the first two, that Staples has
    filed additional information to show a material change in circumstances.

(3)

Reconsideration requests

[13]

Both counsel agree that I have jurisdiction to reconsider my colleagues
    decision if Staples, who has the burden, can show a material change in circumstances.
    A material change in circumstances is additional information that could lead
    the judge hearing the application to alter the assessment of one or more of the
    statutory factors set out in [s. 684(1)]: see
R. v. Baltovich
, 2000
    CanLII 5680 (Ont. C.A.).

[14]

In other words, a request for reconsideration is not a review. Staples
    must accept that Gillese J.A.s decision, when made, was correct. He must
    provide information or evidence that was not before Gillese J.A., which may
    call into question the assessment of at least one criteria for the appointment
    of counsel under s. 684(1) of the
Code
. If Staples can demonstrate a
    material change in circumstances, he must then show that he meets both criteria
    under s. 684(1).

[15]

In summary, an application for reconsideration of a refusal to appoint
    counsel under s. 684(1) is a two-step proceeding. Staples must show both:

·

A material change in circumstances; and

·

The two criteria in s. 684(1) have been met.

[16]

For the reasons that follow, I am satisfied that Staples has met both
    steps. Therefore, I will appoint counsel to represent him on his appeal. As the
    background facts are admirably summarized in Gillese J.A.s endorsement, I will
    refer only to those facts necessary to my decision.

C.

There
    has been a material change in circumstances since the application before
    Gillese J.A.

[17]

On the material filed before me, circumstances have materially changed
    in at least three ways since the application before Gillese J.A.

[18]

First, this courts duty counsel inmate appeal program has unequivocally
    said it cannot assist Staples on his appeal. Gillese J.A. did not refer to the
    possible assistance from the program, which suggests that whether it would
    assist or not was undecided when she heard the application.

[19]

Second, the evidence that Staples filed on this application addresses
    Gillese J.A.s concern about incomplete financial disclosure to Legal Aid.
    Although Staples is now in custody, one of his lawyers, Marco Sciarra,
    diligently accumulated and provided to Legal Aid the missing documents it had
    originally sought. These documents include Staples 2013 income tax return, his
    2014 T4 slip, and the Notice of Foreclosure for his house. It now can no longer
    be said that Staples has not been transparent about his financial circumstances
    with Legal Aid.

[20]

Third, the new material in the record before me fully addresses Gillese
    J.A.s concerns about the foreclosure proceeding. She had three concerns: the
    foreclosure may not have been an arms-length transaction; it may have been used
    to shield $100,000 in equity for Staples benefit; and Staples failed to notify
    the Attorney General about the foreclosure, contrary to his funding agreement.

[21]

Paul Mazza, a senior lawyer in Hamilton, filed an affidavit on the
    application before me and was cross-examined on his affidavit. Mazza was
    friends with the Staples family, especially the applicants father, and he
    acted for Staples when Staples was arrested in 2010. In his evidence, Mazza
    explained the background of the foreclosure proceeding and why he instituted
    it. His evidence was not contradicted.

[22]

Mazzas evidence shows that the foreclosure proceeding was an arms-length
    transaction. In 2006, Staples purchased the property in question, a house at 96
    Creighton Road in Dundas, Ontario, for $329,000. It was subject to a mortgage
    in favour of the Royal Bank of Canada for approximately $321,000.

[23]

After Staples was arrested in 2010, Mazza and his office did a
    considerable amount of legal work for him. Initially, and pending the result of
    the preliminary inquiry, Mazza agreed to defer payment of his legal fees. After
    Staples was committed for trial, Mazza told Staples he would need to secure his
    fees by a second mortgage on Staples home. Staples agreed. Mazza placed a
    $75,000 non-interest bearing second mortgage on 96 Creighton Road. The amount
    of the mortgage reflected Mazzas legal fees. The amount has never been
    challenged.

[24]

After Staples was convicted and was placed in custody, Mazza told him he
    intended to foreclose on the property to protect his fees. Staples did not
    dispute the foreclosure proceeding, and had no basis to do so. Mazza took title
    to 96 Creighton Road, again subject to the banks first mortgage.

[25]

At the end of his cross-examination on his affidavit, Mazza directly
    addressed Gillese J.A.s concern that the foreclosure proceeding may not have
    been an arms-length transaction. That suggestion was

in his word, outrageous. He testified:

Q.      Well, I guess the last thing, to the extent that the
    suggestion still gets made, that this was not an arms-length transaction, or
    that you purposely engaged in conduct with a view to shielding this money for
    use in legal proceedings for Mr. Staples appeal. Whats your response to that?

A.       Thats completely outrageous. I want to go on record
    to say, this $75,000 is my money for the work that I have done, representing
    this gentleman. This is not for anybody else and Im quite happy upon receiving
    that cheque, and they can take over the property.

Q.      Well, would you give us the property, so we can use it
    for funding his criminal defence? Im being serious, his criminal appeal. Would
    you sign over the property, including your $75,000 interest?

A.       Including my money? Give up my money?

Q.      Yes.

A.       No.

[26]

On the basis of Mazzas unchallenged evidence, the foreclosure
    proceeding appears to have been an arms-length transaction instituted solely to
    protect his legal fees.

[27]

The evidence before me also casts doubt on the suggestion that before
    the foreclosure Staples had any equity in house, let alone equity of $100,000.
    As of December 2012
[1]
,
    approximately $273,000 was still owing on the Royal Bank first mortgage. And
    the amount of Mazzas second mortgage was $75,000. Total mortgage financing was
    thus approximately $348,000.

[28]

The suggestion that Staples still had equity of $100,000 in the property
    rests largely on an undated  but apparently a 2013  evaluation by a real
    estate agent, which said the median sale price at 96 Creighton Road was
    $430,000. I give this valuation virtually no weight. It is not a certified
    appraisal. It is a one-half page statement, which simply lists, without any
    analysis at all, comparable sales in the area. Because it valued the property
    in 2013, it does not take account of the stigma attached to the property
    resulting from Staples conviction. Nor does it take account of the
    deterioration of the property after Staples was incarcerated, to which Mazza
    attested. If there was any equity in the property before the foreclosure it was
    far less than $100,000. And any equity was extinguished by the foreclosure, now
    shown to be at arms-length.

[29]

Finally, the material before me addresses Gillese J.A.s other concern about
    the foreclosure proceeding: Staples failed to tell the Attorney General about
    it, contrary to his funding agreement. The background to her concern is as
    follows.

[30]

Staples had brought a
Rowbotham
[2]
application for state-funded counsel for his defence at trial. He withdrew that
    application and instead entered into a funding agreement with the Attorney
    General. Under the funding agreement, the Attorney General agreed to pay for
    Staples defence, but on conditions. One condition was that he would pay the
    Attorney General $25,000 upfront and a further $2,000 a month. He complied with
    that condition. Another condition was that he agreed to put a third mortgage on
    96 Creighton Road in favour of the Attorney General for $300,000. As it turned
    out, he could not do so, as he could not get insurance for the third mortgage.

[31]

Another condition  the one in issue on the application  was that
    Staples had to notify the Attorney General of any change to his financial
    circumstances. A change would include a foreclosure proceeding against his
    property.

[32]

When Mazza started his foreclosure proceeding, Staples did not notify
    the Attorney General. His failure to do so was perhaps understandable, as he
    was in custody at the time. Mazza, who was aware of the conditions of the
    funding agreement, also did not notify the Attorney General about his
    foreclosure proceeding. His evidence before me shows that his failure to do so
    was inadvertent, not deliberate. And, most importantly, it caused no prejudice
    to the Attorney General. After the foreclosure, Mazza went to the Attorney General
    and offered to put it in the position it would have been in if it had known
    about the foreclosure beforehand, or even if it had a third mortgage on the
    property. He offered to let the Attorney General take over the property  by a
    quit claim deed  as long as the Attorney General paid his legal fees of
    $75,000. The Attorney General declined the offer.

[33]

In summary, the evidence before me alters the key circumstances that led
    Gillese J.A. to deny Staples s. 684 application: his failure to make full financial
    disclosure to Legal Aid and concerns about the foreclosure proceeding. This
    evidence, together with the inability of our duty counsel program to assist
    Staples on his appeal, amount to material changes in circumstances, which
    justify a reconsideration of his s. 684 application.

[34]

Gillese J.A. did have one other concern: Staples had not been
    forthcoming about his relationship with Ms. Bradt. On his bail review
    application in February 2011, Staples acknowledged he had lived with Ms. Bradt
    for four years, though he also said she contributed little to the upkeep of 96
    Creighton Road and kept the money she earned in a separate bank account. On his
    application for Legal Aid, Staples apparently said nothing about Ms. Bradt or
    his relationship with her. On the material before me, little if anything turns
    on his failure to do so.

[35]

Both Mazza and Sciarra addressed the relationship between Staples and
    Ms. Bradt. Both gave evidence that in a legal and financial sense, Staples and
    Ms. Bradt were not in a common law relationship. I cannot discount their
    evidence. According to them, before Staples trial Ms. Bradt had her own
    apartment. She did rent 96 Creighton Road after Staples was convicted. But, according
    to Mazza, he leased it to her only because he was unable  due to the stigma
    associated with the property  to find another tenant. Also, when Staples
    bought 96 Creighton Road he took title in his own name. On his application to
    get mortgage financing from the Royal Bank he said I am not a spouse. Ms.
    Bradt did not get notice of the foreclosure proceeding or challenge it when she
    learned about it.

[36]

I accept that Staples should have disclosed his relationship with Ms.
    Bradt. If they were not common law spouses, they at least had a close
    relationship. But the only real relevance of their relationship to Staples
    legal aid application or his s. 684 application would be her ability to help
    fund his appeal. As I discuss in the next section, on the available evidence,
    Ms. Bradt likely has no source of funds to help Staples pay for his appeal. And
    even if the information before me does not materially change Gillese J.A.s
    concern, the other material changes in circumstances I have already referred to
    justify a reconsideration of Staples s. 684 application.

D.

The criteria for a s. 684 order have been met

[37]

As Staples has shown a material change in circumstances since Gillese
    J.A. refused his s. 684 application, I now consider his application afresh. I
    am satisfied he is entitled to an order under s. 684 appointing counsel to argue
    his appeal.

(1)

It appears desirable in the interests of justice to appoint counsel

[38]

Staples has been convicted of two counts of the most serious offence in
    our criminal law, first degree murder. The inmate duty counsel program has
    refused to assist him, no doubt because the breadth and complexity of the
    appeal is beyond the programs mandate. The appeal itself is certainly
    arguable. I do not believe the Crown says otherwise. Nor does the Crown contest
    that Staples needs the help of counsel to present his appeal effectively. The
    case against him was entirely circumstantial. The jury deliberated for five
    days. At least one of the trial judges rulings  on the alternative suspect
    application  will have to be reconsidered in the light of the Supreme Court of
    Canadas later decision in
R. v. Grant
, 2015 SCC 9, [2015] 1 S.C.R.
    475. Staples may have to bring applications for further disclosure and likely
    fresh evidence. He needs counsel to argue his appeal.

[39]

With the new information provided on this application, no societal
    interests detract from the desirability of appointing counsel. I accept, as
    Gillese J.A. did, that an applicants failure to be transparent with or provide
    full financial disclosure to Legal Aid may affect whether the interests of
    justice criterion has been met. Whatever concerns about transparency and
    incomplete disclosure existed at the time of the application before my
    colleague, they have now been addressed. Staples has met the interests of
    justice criterion.

(2)

It appears that Staples has insufficient financial means to retain a
    lawyer

[40]

To preserve Staples fair appeal rights I must consider the current
    evidence about his financial means, not the historical evidence: see
Le
,
    at para. 22.

[41]

Staples has been in custody for over two years. Whatever equity he may
    have had in his house  and for reasons I have already discussed, I doubt there
    was much  has been extinguished by Mazzas arms-length foreclosure proceeding.
    Nothing in the record suggests Staples has any money in a bank account or other
    assets that can be used to retain counsel. Whatever money or assets he had, he
    used to fund his defence at trial.

[42]

After Gillese J.A.s decision, Staples asked Legal Aid to reconsider its
    refusal. Legal Aid declined to alter its decision. The basis of its denial,
    however, is instructive. Legal Aid simply relied on Gillese J.A.s reasons in
    concluding that Staples did not qualify for legal aid. It did not refer to any
    of the material now before me, nor did it conduct a current assessment of
    Staples financial eligibility. Although I am not judicially reviewing Legal
    Aids decision, I see nothing in its decision to suggest Staples can now fund
    his appeal.

[43]

Finally, the Crown does not suggest that Staples has any source of
    income to retain counsel on appeal, except perhaps Ms. Bradt. It was her
    refusal to provide her own financial assessment that mainly led Legal Aid
    Ontario in its June 2015 decision to uphold the Area Committees refusal of
    legal aid funding.

[44]

But the preponderance of evidence about Ms. Bradts financial situation
    makes it highly unlikely she has the means to assist Staples. In April 2015,
    she told Legal Aid she worked three days a week, earning $18 an hour. She said
    she had no assets or property. She had no interest in Staples property on
    which Mazza foreclosed  indeed she was not even given notice of the
    foreclosure proceeding. On his bail review application before trial in February
    2011, Staples testified that Ms. Bradt had no interest in his property and he
    never asked her to be a surety because she hasnt got the financial backing or
    means, to be in that situation; that she keeps whatever money she has
    separate; and that he has no access to it.

[45]

None of this evidence about Ms. Bradts financial means has been
    contradicted. Overall, I am satisfied Staples has neither the financial means
    nor access to any source of money to enable him to retain counsel for his
    appeal.

[46]

Staples is entitled to a s. 684 order. It thus unnecessary to consider
    his alternative request for the appointment of
amicus
.

E.

Conclusion

[47]

I appoint Michael Lacy and Marco Sciarra to represent Mark Staples on
    his appeal. My order will include the funding for bringing this s. 684
    reconsideration application.

[48]

Should counsel be unable to agree on any terms of my order, they may
    arrange a conference call with me.

Released: February 15, 2017 (J.L.)

John
    Laskin J.A.

[1]
The latest date I was provided with information about the amount owing on the
    Royal Bank mortgage.

[2]

R. v. Rowbotham
(1988), 25 O.A.C. 321.


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. Williams, 2017 ONCA 126

DATE: 20170213

DOCKET: C59491

MacPherson, Juriansz and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wayne Leroy Williams

Appellant

Wayne Leroy Williams, acting in person

Enzo Rondinelli, duty counsel

Holly Loubert, for the Crown

Heard and released orally: February 6, 2017

On appeal from the conviction entered on June 18, 2013 by
    Justice Joseph M. W. Donohue of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

The appellant appeals his conviction for sexual assault.

[2]

In the submissions he advances personally, he alleges ineffective
    assistance of trial counsel. We see no merit in the argument. The standard to
    establish ineffective assistance of trial counsel is an onerous one and
    difficult to establish.

[3]

The appellant complains trial counsel did not subpoena or call witnesses
    he suggested and did not lead evidence of negative results of the forensic
    test. The record indicates trial counsel hired an investigator who reported
    that one witness he suggested, the superintendent of the building, would not
    provide supporting testimony. As for the other witnesses, trial counsel could
    reasonably assess that they would not have been helpful. The negative forensic
    results were of extremely limited probative value in the context of this case, although
    trial counsel did raise them in closing argument.

[4]

Duty counsel, on behalf of the appellant, submits the trial judge erred
    by not giving the jury a
W.D.-
like

instruction. He cites
R. v.
    B.D.,
2011 ONCA 51,
as
    authority for this proposition. The proposition, as the court indicates in
    para. 114, applies where there is opposing evidence "on a vital
    issue". That was not the case here.

[5]

The appeal is dismissed.

"J.C. MacPherson J.A."

"R.G. Juriansz J.A."

"Paul Rouleau J.A."