COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fraser, 2016 ONCA 745

DATE: 20161013

DOCKET: C60274

MacPherson, Pepall and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Allan Fraser

Appellant

Thomas Allan Fraser, in person

Erin Dann, duty counsel

Hannah Freeman, for the respondent

Heard:  September 8, 2016

On appeal from the conviction entered on February 11,
    2015 and the sentence imposed on March 25, 2015 by Justice James A.S. Wilcox of
    the Superior Court of Justice.

Pepall J.A.:

[1]

The appellant viciously and
violently assaulted his
    domestic partner between June 1, 2009 and October 31, 2010.  He was convicted
    of aggravated assault, assault with a weapon, assault, and uttering a threat to
    cause death.  He received a global sentence of seven years.
[1]
He appeals from his
    conviction and seeks leave to appeal his sentence.

A.

BACKGROUND

[2]

The appellant met the complainant when she was in her teens and in high
    school, and he was about 30 years old.  They cohabited and separated and then
    would cohabit again.  The relationship was characterized by his physical
    attacks and verbal abuse.  The complainant is five-feet, five inches tall and
    in 2009 and 2010 weighed about 100 to 110 pounds.  In contrast, the appellant
    is five-feet, eight or nine inches tall and in those years weighed about 215
    pounds.

[3]

The facts on which the convictions were based include the following:

-      the
    appellant held the complainant down and applied a hot cigarette lighter to her
    bare legs three times.  He then pulled down her underwear and applied the
    heated lighter twice to her vaginal area;

-      the
    appellant choked the complainant five or more times.  He put her in a headlock
    and squeezed until she could not breathe.  On one of these occasions, she was
    rendered unconscious;

-      the
    complainant had been sleeping in bed and awoke with the appellant sitting on
    her and suffocating her with a pillow.  He pressed the pillow against her face
    four or five times and in between times elbowed her in the ribs so she would
    keep quiet;

-      on
    another occasion, the appellant held the complainant down and poured a glass of
    his urine on her face and in her mouth;

-      the
    appellant barged into the bathroom where the complainant was having a bath,
    forced her head under the water and held it there repeatedly.  He pulled her up
    by the neck and swung her around quickly such that her head hit the walls.  He
    then pulled her from the tub and hit her head against the cabinet, drawing
    blood.  He continued to whip her around and put her on the floor and punched
    her;

-      the
    appellant threatened to kill the complainant if she did not climb over a porch
    railing, which had a drop of six to eight feet to the ground, which she
    proceeded to do; and

-      the
    appellant would slap, punch or knee the complainant more or less every day and
    threatened her almost every day.  He said he would kill her or her family if
    she said anything about what was going on.

[4]

At the trial, which took close to two weeks, both the appellant and the
    complainant testified, as did nine other witnesses including many of their
    friends, acquaintances and at least one family member.  The evidence against
    the appellant was overwhelming, and the trial judge was satisfied beyond a
    reasonable doubt of the appellants guilt.

B.

conviction appeal

[5]

In reaching his decision, the trial judge noted, among other things, the
    appellants failure to deny the allegations when given the opportunity.
    Assisted by duty counsel, the appellant submits that reliance on this failure
    was an error of law.

[6]

I do not accept this submission.

[7]

The trial judges comments must be placed in context.  At trial, a close
    friend of the appellant testified about an occasion when the complainant asked
    the appellant: What about the time you burnt me with the lighter? and
    motioned to the area of her groin and vagina.  The appellant responded: Do you
    know about the punch in the face game?  The witness concluded from this and a
    subsequent exchange that the appellant had no defence for himself.   Another
    witness drew a similar conclusion.

[8]

When a statement is made in an accuseds presence, in circumstances
    where the accused could reasonably have been expected to reply, silence may
    lead to an inference of adoption:
R. v. Robinson
, 2014 ONCA 63, 118
    O.R. (3d) 581, at para. 51.  Here, however, the trial judge did not make a
    finding that there was any adoption of any evidence by the appellant.  The
    trial judge also cautioned himself that a failure to respond is not proof of
    guilt. His comments on the appellants failure to deny the allegations were
    referable to the reactions of the witnesses who testified on their own
    reasonable expectations.  He was not making a finding that the appellant never
    rejected the complainants assertions.  Indeed, at page 14 of his reasons, the
    trial judge noted that when asked about the allegations, the appellant
    described the complainant as a lying bitch.

[9]

In addition to the argument advanced by duty counsel, the appellant made
    six submissions in support of his conviction appeal.  In essence, they amounted
    to an invitation to retry the case.  Credibility findings and findings of fact
    fall within the province of a trial judge.  I also reject the contention that
    the trial judge applied a different level or standard of scrutiny to the
    evidence of the Crown and defence witnesses.

[10]

I see no basis on which to overturn the convictions and would dismiss
    the conviction appeal.

C.

Sentence Appeal

[11]

On sentencing, duty counsel advances two arguments.  First, she submits
    that the trial judge erred in treating the appellants absence of remorse as an
    aggravating factor.  Second, she argues that the trial judge erred in failing
    to apply
Gladue
principles in sentencing the appellant.

(1)

Did the trial judge err in considering the appellants lack of

remorse as an
    aggravating factor?

[12]

In his reasons for sentence, the trial judge identified the following
    aggravating factors:

-

the ongoing and repetitive nature of the appellants misconduct: this
    was not a brief momentary lapse of judgment;

-

the appellant was abusing his domestic partner.  Sentencing for domestic
    violence must emphasize deterrence and denunciation;

-

the controlling, cruel and sadistic nature of the incidents, which put
    the complainant in fear for her life;

-

the significant impact the crimes had on the complainant;

-

the appellants lengthy criminal record, which shows multiple
    convictions from 1990 to 2002 including several counts of robbery; and

-

the apparent lack of remorse.

[13]

I agree that the trial judge erred in considering this last factor.
    Absence of remorse is not an aggravating factor.  Rather, the presence of remorse
    may be a mitigating factor:
R. v. Valentini
, 43 O.R. (3d) 178;
R.
    v. Ling
, 2014 ONCA 808, 328 O.A.C. 210.

(2)

Did the trial judge err in not considering
Gladue
principles?

[14]

Turning to the second issue, no submissions were made before the trial
    judge on any need to consider
Gladue

principles.  The Crown and
    the defence agreed to the admission before this court of fresh evidence
    consisting of a report that considered the appellants Aboriginal history and
Gladue
principles.  It was prepared after his sentencing but in advance of the hearing
    of this appeal.

[15]

The report describes details of the appellants status: Both the
    offender and his father are non-status although they are in the process of
    obtaining same.  The paternal grandmother obtained her status card when she was
    63 years of age.  The offenders mother is non-native.  The offender has never
    resided on the reserve, nor have his parents or siblings.  He has little
    knowledge of his heritage and traditions.

[16]

In the absence of anything to alert the trial judge to the need to
    consider
Gladue
principles, it is unfair to say that he erred in that
    regard.  That said, I accept duty counsels submissions that
Gladue
principles should be considered in the sentencing of the appellant.

(3)

Is appellate intervention warranted in this case?

[17]

In
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, the
    Supreme Court addressed appellate intervention on sentence appeals.  Writing
    for the majority, Wagner J. stated, at paras. 43-44:

I agree that an error in principle, the failure to consider a
    relevant factor or the erroneous consideration of an aggravating or mitigating
    factor can justify the intervention of an appellate court and permit that court
    to inquire into the fitness of the sentence, and replace it with the sentence
    it considers appropriate.  However, in my opinion, every such error will not
    necessarily justify appellate intervention regardless of its impact on the
    trial judges reasoning.  If the rule were that strict, its application could
    undermine the discretion conferred on sentencing judges.  It is therefore
    necessary to avoid a situation in which [TRANSLATION] the term error in
    principle is trivialized;

In my view, an error in principle, the failure to consider a relevant
    factor or the erroneous consideration of an aggravating or mitigating factor
    will justify appellate intervention only where it appears from the trial
    judges decision that such an error had an impact on the sentence.  [Footnotes
    omitted.]

[18]

The record does not disclose what impact the appellants absence of
    remorse had on the sentence.  Clearly, it had some impact or the trial judge
    would not have mentioned it as an aggravating factor.

[19]

In contrast, consideration of
Gladue
principles could not have
    had an impact on the sentence given by the trial judge as he was not made aware
    of any need to address these principles.

[20]

In these circumstances, the deference owed to a trial judges sentencing
    decision as described in
Lacasse
is inapposite.  Rather, given the
    trial judges error respecting the absence of remorse and the need to consider
Gladue
principles, it falls to this court to sentence the appellant.  That said, for
    the following reasons, I would not interfere with the sentence imposed by the
    trial judge.

(4)

What is the appropriate sentence in this case?

[21]

As pointed out in
R. v. Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R.
    433, at paras. 68-73, sentencing of all offenders, including Aboriginal
    offenders, is an individualized process.  As stated by the Supreme Court in
    that case, at para. 83:

Systemic and background factors do not operate as an excuse or
    justification for the criminal conduct.  Rather, they provide the necessary
    context to enable a judge to determine an appropriate sentence.  This is not to
    say that those factors need not be tied in some way to the particular offender
    and offence.  Unless the unique circumstances of the particular offender bear
    on his or her culpability for the offence or indicate which sentencing
    objectives can and should be actualized, they will not influence the ultimate
    sentence.

[22]

In
R. v. Collins
, 2011 ONCA 182, 104 O.R. (3d) 241, this court
    stated that an Aboriginal offender does not bear the burden of establishing a
    direct causal link between the systemic and background factors and the
    commission of the offence.  However, these factors should be considered.

[23]

In some cases, the evidence may suggest that the offenders Aboriginal
    background played a role in shaping the offenders path to committing the
    offence:
R. v. J.N.
, 2013 ONCA 251, 305 O.A.C. 175.  In that case,
    this court concluded that the evidence that the appellants Aboriginal ancestry
    may have played a part in his criminality was weak: para. 47.

[24]

In the fresh evidence filed on this appeal, the appellant identified
    himself as a non-status Cree.  His maternal family is described as being
    non-native.  The appellants Aboriginal heritage is through his father.  He
    states that his grandmother attended residential school.  The appellant was
    born in Scarborough where he lived until he was 12.  He then moved with his
    family to Aurora and then to Strathroy and lastly, to Bradford.  Except for periods
    of incarceration, he lived with his parents until he was 30.  The appellant described
    his upbringing as positive; he has always enjoyed a close and positive
    relationship with his parents and his siblings and was raised in a supportive
    home void of any criminal activity or substance abuse.  He described his
    family as non-violent and social people.   He denied any difficulties in school
    during his formative years.  He states that when he was 12 and 13, he was
    sexually abused by an uncle (not identified as being on the maternal or
    paternal side of the family), who died soon after.

[25]

The appellant has a son, age 12, and he has re-established his
    relationship with the mother of the child.  At the time of his arrest, he had
    been working in a retail bedroom furniture store.  He describes himself as an
    almost non-existent drinker and states that he has never experimented with
    any form of illicit drug except marijuana.  There is no indication that he was
    under the influence of any drugs or intoxicants when committing the index
    offences.

[26]

Although the appellants Aboriginal background is relevant in
    determining the appropriate sentence, it is not determinative.  Rather, it is
    one factor that must be considered in the context of the appellants individual
    circumstances, along with all of the other relevant factors:
R. v. Gladue
,
    [1999] 1 S.C.R. 688, at para. 88.  As stated in that decision at paras. 79-80,
    Generally, the more violent and serious the offence, the more likely as a
    practical reality that the terms of imprisonment for aboriginals and
    non-aboriginals will be close to each other or the same, often taking into
    account their different concepts of sentencing.  See also
R. v.
    Kakekagamick
(2006), 81 O.R. (3d) 664, leave to appeal dismissed, [2007]
    S.C.C.A. No. 34, at paras. 34-36.

[27]

One such relevant factor is that the appellant is not a first time
    offender.  In spite of the fact that he is stated to have been raised in a
    supportive home devoid of any criminal activity or substance abuse, the
    appellant found himself in trouble with the law with such frequency that he was
    sentenced to a federal penitentiary when he was 19 years old (in 1993).

[28]

The appellant is a two-time statutory release violator, having committed
    new offences while on conditional release.  He has numerous other convictions
    as well, although, as noted by the trial judge, the last was in 2002.  While I
    accept that the appellants institutional behaviour has been described as
    almost exemplary and that, based on the most recent correctional report, he
    should be commended for completing certain beneficial Aboriginal programs, significantly,
    in my view, he has limited insight into his recent offences and does not take
    any responsibility for them.

[29]

The offences for which the appellant was convicted were very serious.
    They involved domestic violence of a heinous and brutal nature.  As noted by
    the trial judge, they were controlling, cruel and sadistic.  Abuse against the
    offenders common-law partner is specifically enumerated as an aggravating
    factor under s. 718.2(a)(ii) of the
Criminal Code
.

[30]

Domestic violence is an insidious crime, the effects of which endure
    long after the victims physical wounds have healed.  Here, the complainant provided
    a victim impact statement.  While a victim impact statement should not overwhelm
    a sentencing decision, it is a factor to consider.  The description of the
    impact of the offences on the complainant in this case can only be described as
    devastating.  This evidence also amounts to a statutory aggravating factor, as
    set out in s. 718.2(iii.1) of the
Criminal Code
.

[31]

This court emphasized the particular principles at issue when imposing a
    sentence in a case involving domestic abuse, in
R. v. Ibrahim
, 2011
    ONCA 611, at para. 15:

The sentence imposed in cases such as this must also promote a
    sense of responsibility among spousal abusers and an acknowledgement of the
    harm done not only to their immediate victims, but equally to the community at
    large.

[32]

The appropriate sentence in this case must reflect these principles,
    promote denunciation and deterrence, take into account the appellants
    individual circumstances, as well as the circumstances of the offences, and
    assist in his rehabilitation.

[33]

Before the trial judge, the Crown sought a sentence of ten years and the
    defence one of between six months and three years.  In
R. v. Young
,
    [2003] O.J. No. 5124 (C.A.), this court upheld an eleven year sentence given to
    an offender who had been convicted of domestic assault that had persisted for
    almost two years.  In
R. v. Martin
, 2009 ONCA 62, this court upheld a
    sentence of eight years and four months for fourteen offences involving domestic
    abuse.  While these sentences are of a higher range, having regard to the
    relevant sentencing principles, including those in
Gladue
, and the
    circumstances of the offences and the offender, I am of the view that the seven
    year global sentence is fit.

D.

Disposition

[34]

Accordingly, the conviction appeal is dismissed.  Leave to appeal
    sentence is granted but the sentence appeal is dismissed.

Released: October 13, 2016 (JCM)

S.E. Pepall J.A.

I agree J.C. MacPherson J.A.

I agree G. Pardu J.A.

[1]
Four years for the aggravated assault counts, two years consecutive for the
    assault with a weapon, one year consecutive for the assault and one year
    concurrent for uttering a threat to cause death.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Grayston, 2016 ONCA 784

DATE: 20161026

DOCKET: C62179

MacPherson, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frank Joseph Grayston

Appellant

Frank Joseph Grayston, acting in person

Philip Norton, appearing as duty counsel

Jocelyn Speyer, for the respondent

Heard: October 3, 2016

On appeal from the convictions entered on March 16, 2016
    and the sentence imposed on April 29, 2016 by Justice Jane A. Milanetti of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals from convictions for theft under $5,000 and
    possession of property obtained by crime. The property that was stolen is a
    1988 Pontiac Sunbird.  Identity was the sole issue at trial.

[2]

Through duty counsel, the appellants primary argument was that the
    verdict is unreasonable or cannot be supported by the evidence, pursuant to s.
    686(1)(a)(i) of the
Criminal Code,
R.S.C. 1985, c. C-46.

[3]

In our view, the evidence does not support the verdict. We would
    therefore allow the appeal.

The Facts

[4]

Between midnight and 5:00 a.m. on February 18, 2015, the Sunbird was
    taken from the premises of the Barton Truck company. Around the same time and
    in the same vicinity, an attempted break and enter of a jewellery store and a robbery
    of a large quantity of drugs from a pharmacy took place.

[5]

On February 20, 2015 the Sunbird was located abandoned in a parking lot.
    Police found a black skeletal balaclava in the car. Investigation led the
    police to the appellants apartment where they discovered drugs.

[6]

The balaclava was sent for forensic testing. DNA from inside the garment
    around the mouth area showed a mixture of DNA from at least three individuals.
    One DNA profile was determined for comparison. It matched the appellants DNA
    to a degree of statistical certainty.

[7]

The appellant was charged with various offences arising out of the theft
    of the Sunbird, the robbery of the pharmacy and the attempted break and enter
    of the jewellery store.

[8]

To establish that the appellant participated in the theft of the Sunbird,
    the prosecution relied on the DNA evidence and the fact that the attempted
    break and enter of the jewellery store and the robbery of the pharmacy took
    place close to where the car was stolen.

[9]

The appellant neither testified nor called any evidence.

The Trial Judgment

[10]

The trial judge convicted the appellant of the two counts relating to
    the theft of the Sunbird.  The trial judge acquitted the appellant of all other
    counts on the basis of insufficient evidence connecting him to those offences.

[11]

The entirety of the trial judges analysis leading to her conclusion
    that the Crown had proven beyond a reasonable doubt that the appellant stole
    the car is as follows:

[W]hen the vehicle was found on the 20
th
of February
    2015, police discovered a black skeletal balaclava, which was sent to CFS and a
    DNA match with Mr. Grayston was quite convincingly determined.  The numbers
    were in the quadrillions.  Moreover, Mr. Morrow [the owner of the car] (who was
    an excellent witness) said it was not his, did not know what it was, until a
    balaclava was explained to him.  He didnt even know what it meant.  [T]he
    vehicle was found abandoned in a parking-lot behind a Bank of Montreal at 386
    Barton Street East.  I note that all of these offences occur in the Barton
    Street East vicinity; the pharmacy, the truck stop and the truck shop, and the
    third one is the Centre Mall, where the jewelers is. I, thus, conclude that it
    has been established that the Crown has proven both count one and two beyond a
    reasonable doubt that Mr. Grayston broke into the Barton Truck facilities stole
    the Morrow Sunbird vehicle and had it in his possession.

Analysis

[12]

In circumstances where the appellant challenges the reasonableness of
    the verdict, this court must review and evaluate all the evidence to determine
    whether a reasonable trier-of-fact properly instructed and acting judicially
    could have convicted:
R. v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381,
    at paras. 36-37 and 42.

[13]

Here,
    since the evidence linking the appellant to the crime is entirely
    circumstantial, the question is whether the trier-of-fact, acting judicially,
    could be satisfied that the appellant's guilt was the only reasonable
    conclusion available on the totality of the evidence:
R. v. Charemski,

[1998] 1 S.C.R. 679, at para. 13.

[14]

We start with the evidence that the appellants DNA was found on the
    balaclava. While DNA evidence is powerful evidence that the person whose DNA is
    on the object was in contact with that object, the connection of the accused with
    the crime will depend on the existence of other evidence capable of
    establishing that the accused was in contact with the object at the relevant
    time and place:
R. v. Mars
, [2006]
    O.J. No. 472
(C.A.), at para. 19.

[15]

In
R. v. D.D.T.
, 2009 ONCA 918, [2009] O.J. No. 5486, at para.
    15, this court suggested a two-stage approach for appellate review of the
    reasonableness of a verdict in cases where evidence of this nature provides the
    sole evidence capable of identifying the perpetrator:

The first stage involves an examination of the reasonableness
    of the inference that the [DNA was] placed on the object with connection to the
    crime, at the relevant time and place. The second stage involves an examination
    of the soundness of the conclusion that the totality of the evidence and
    reasonable inferences available to the trial judge were sufficient to prove the
    appellant's guilt beyond a reasonable doubt.

[16]

In this case, the Crown must have demonstrated first that, based on the
    evidence, the inference that the appellant was wearing or had the balaclava
    with him in connection with the theft of the Sunbird is a more likely inference
    than the inference that he was in contact with the balaclava on an unrelated
    occasion. Second, the appellants guilt must have been the only rational
    conclusion available on the totality of the evidence.

[17]

Based on the limited nature of the evidence presented at trial, we are
    not satisfied that the inference that the appellant was in contact with the
    balaclava in the course of the theft of the car was a reasonable one. The Crown
    cannot point to any evidence that makes the inference that the appellant was in
    contact with the garment in connection with the theft more likely than the inference
    that he was in contact with the balaclava at some other time. Evidence of his
    DNA on the balaclava only demonstrates that he likely wore the garment at some
    point in time and falls short of connecting him to the theft of the car on
    February 15, 2015. The discovery of the balaclava with the appellants DNA on
    it in the abandoned stolen car, by itself, did not permit any such inference.

[18]

Crown counsel attempts to bolster the force of the trial judges
    reliance on the DNA evidence by pointing to the proximity of the locations of
    what she referred to as a crime spree on the night in question.

[19]

In our view, the proximity between the Barton Truck company premises,
    where the Sunbird was stolen, and the jewellery store and pharmacy is of no
    relevance given the trial judge was not satisfied that the evidence supported a
    finding that the appellant was at all connected with the other thefts.

[20]

In our view, there was an insufficient evidentiary footing for the trial
    judge to conclude that the appellant's guilt was the only reasonable conclusion
    available on the totality of the evidence. While the evidence supported the
    inference that the appellant had worn the balaclava at some point, there was
    insufficient evidence to support an inference that he was wearing it or
    otherwise was in possession of it at the time the car was stolen. His
    conviction is therefore unreasonable within the meaning of s. 686(1
)(
a)(i).

Disposition

[21]

The appeal is therefore allowed. The conviction is quashed and an
    acquittal entered.

J.C. MacPherson J.A.

Gloria Epstein J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hart, 2016 ONCA 739

DATE: 20161012

DOCKET: C61906

MacPherson, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Melissa Hart

Appellant

Melissa Hart, acting in person

Jocelyn Speyer, for the respondent

Heard: October 4, 2016

On appeal from the decision of the Summary Convictions
    Appeal Court dated March 7, 2016 by Justice Brian P. OMarra of the Superior
    Court of Justice, dismissing the appeal from the conviction entered on April 2,
    2015 by Justice Lloyd M. Budzinski of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant was convicted of driving with a blood alcohol content over
    the legal limit. Her summary conviction appeal was dismissed. The appellant now
    seeks leave to appeal to this court and, if leave is granted, appeals her
    conviction.

[2]

At trial, the appellants only argument, that breath tests at the
    station were not taken a soon as practicable, was rejected. On appeal, the
    appellant did not challenge this finding. Instead she argued, for the first
    time, that her s. 9 and s. 10(b)
Charter
rights had been breached. The
    summary conviction appeal judge refused to exercise his discretion and allow
    arguments not raised at trial, to be advanced at the appeal level.

[3]

Appeals to this court in summary conviction proceedings are not as of
    right or unrestricted in the nature of the grounds that may be advanced. This
    court, in
R. v. R.R.,
2008 ONCA 497, 90 O.R. (3d) 641, set out the
    factors that inform the exercise of discretion in granting leave. However, the
    starting point is s. 839(1) of the
Criminal Code
. This section
    provides that the ground of appeal must involve a question of law alone.

[4]

Before this court, the appellant essentially argues that she was treated
    unfairly. This argument does not qualify for leave to appeal as it does not
    raise a question of law alone. Even if it did, while we appreciate that the
    implications of this conviction are serious for the appellant, the
    circumstances are not such as to meet the requirements set out in
R. v. R.R
.

[5]

Leave to appeal is therefore dismissed.

J.C. MacPherson
    J.A.

Gloria Epstein
    J.A.

P. Lauwers
    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.

6.

(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

7.

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

8.

(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. Hebert, 2016 ONCA 773

DATE: 20161020

DOCKET: C60332

Laskin, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Hebert

Appellant

John Hale, for the appellant

Andrew Hotke, for the respondent

Heard and released orally: September 27, 2016

On appeal from the conviction entered on December 2, 2014
    by Justice Kenneth Pedlar of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant appeals his conviction for sexual assault on the ground
    that the trial judges credibility findings are not supported by the evidence.

[2]

We do not agree with the appellants submission. A trial judges
    credibility findings are, of course, entitled to a high degree of deference in
    this court. Here, the trial judges findings, in which he accepted the evidence
    of the complainant and rejected the evidence of Ms. Mills, are well supported
    by the evidence.

[3]

The trial judge found the complainants evidence of the incident
    credible and noted that her testimony was consistent with the photograph marked
    as exhibit 4. On the other hand, the trial judge gave several reasons for
    rejecting Ms. Mills testimony. Those reasons are summarized at para. 24 of Mr.
    Hotkes factum. We agree with Mr. Hotke that the trial judges assessment of
    Ms. Mills evidence was reasonable and free of error. Thus we have no basis to
    interfere with the trial judges credibility findings.

[4]

The appeal is dismissed.

John Laskin J.A.

E.E. Gillese
    J.A.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jackson, 2016 ONCA 736

DATE: 20161007

DOCKET: C61836 and C62227

Doherty, Pepall and Hourigan JJ.A.

BETWEEN

C61836

Her Majesty the Queen

Appellant

and

Andrew Jackson

Respondent

AND BETWEEN

C62227

Her Majesty the Queen

Respondent

and

Andrew Jackson

Appellant

Alex Alvaro, for the appellant Crown in C61836

Jeff Carolin and Candice Suter, for the respondent,
    Jackson in C61836

Apple Newton-Smith and Mark Halfyard for the intervener,
    Criminal Lawyers Association (Ontario)

Jeff Carolin and Candice Suter, for the appellant,
    Jackson in C62227

Alex Alvaro, for the respondent Crown in C62227

Heard:  September 19, 2016

On appeal from the order of Justice Anne M. Molloy of the
    Superior Court of Justice, dated February 11, 2016, granting
certiorari
and quashing the order of Justice Rebecca Rutherford of the Ontario Court of
    Justice, dated March 12, 2015, and directing a committal for trial on the
    charge of manslaughter, with reasons reported at 2016 ONSC 1069.

Doherty J.A.:

I

[1]

Andrew Jackson was committed for trial on a charge of second degree
    murder.  On a
certiorari
motion, a Superior Court judge quashed the
    committal and substituted a committal for trial on the charge of manslaughter.
    The Crown appealed, contending that the Superior Court judge erred in quashing
    the committal on the second degree murder charge.  Jackson appealed, alleging
    that the Superior Court judge erred in not discharging Jackson entirely.

[2]

There were two live issues at the preliminary inquiry:

·

Was Mr. Jackson the person who stabbed and killed Matthew Archibald?
    [the identity issue]

·

If Mr. Jackson was the person who stabbed and killed Mr.
    Archibald, did he have the
mens rea
required for murder under s.
    229(a) of the
Criminal Code
? [the intent issue]

[3]

The preliminary inquiry judge held that the evidence proffered on both issues
    met the test for committal for trial and committed Mr. Jackson on the charge of
    second degree murder.

[4]

The Superior Court judge deferred to the preliminary inquiry judges
    assessment of whether the evidence supported a finding against Mr. Jackson on
    the identity issue, but held that the inference of the
mens rea
for
    murder, as required under s. 229(a), could not reasonably be drawn from the
    evidence.  Consequently, she quashed the committal on the charge of murder and
    substituted a committal for manslaughter.

[5]

At the end of oral argument, the court indicated that the Crowns appeal
    would be allowed and Mr. Jacksons appeal dismissed, thereby restoring the
    committal on the charge of second degree murder.  The court indicated that
    reasons would follow.  These are those reasons.

II

the test for committal

[6]

Fifteen years ago in
R. v. Arcuri
, 2001 SCC 54, [2001] 2 S.C.R.
    828, McLachlin C.J. described the test to be applied by a preliminary inquiry
    judge in deciding whether to commit for trial pursuant to s. 548(1) as well-settled.
    A preliminary inquiry judge must decide whether a properly instructed jury,
    acting reasonably, could convict on the evidence adduced at the preliminary
    inquiry.  If the evidence relied on by the Crown is circumstantial, the
    preliminary inquiry judge must weigh the evidence in a limited sense to
    determine whether the evidence is reasonably capable of supporting the inferences
    that the Crown relies on to establish the essential elements of the offence:
Arcuri
,
    at paras. 1, 29-30.

[7]

In conducting this limited weighing, the preliminary inquiry judge takes
    the case for the Crown at its highest, meaning she accepts the credibility of
    the evidence relied on by the Crown and assumes the reasonable inferences from
    the primary facts that are most favourable to the Crown:
R. v. Sazant
,
    2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18;
R. v. Foster
(2008), 76
    W.C.B. (2d) 769, at para. 31 (Ont. S.C.); and
R. v. Howells
, 2009 BCCA
    460, 85 W.C.B. (2d) 370, at paras. 13-14.

[8]

If the preliminary inquiry judge decides that on a view of the evidence most
    favourable to the Crown, the circumstantial evidence could reasonably support
    the inferences necessary to establish guilt, she must commit the accused for
    trial.  It is irrelevant that the evidence also supports inferences
    inconsistent with guilt.

[9]

R. v. Russell
, 2001 SCC 53, [2001] 2 S.C.R. 804, released the
    same day as
Arcuri
and also authored by the Chief Justice,
    demonstrates the proper analysis in cases where the evidence relied on by the
    Crown to commit is circumstantial and admits of inferences consistent with and inconsistent
    with guilt.  In
Russell
, the accused was charged with constructive
    first degree murder.  The Crown alleged that he murdered a man named Whittaker in
    the course of the unlawful confinement of another person (Seccombe).  The facts
    raised the question whether the constructive first degree murder provision
    applied if the person murdered was not the person confined.  The court held
    that the section could apply as long as there was a close connection temporally
    and causally between the confinement and the murder.

[10]

The
    court then turned to whether the evidence led at the preliminary inquiry was
    sufficient to justify the committal on the constructive first degree murder
    charge.  McLachlin C.J. said, at para. 48:

With this in mind, I cannot conclude that the committal of the
    accused was unwarranted.  While the jury would be entitled to find that the
    appellants intention in confronting Whittaker was entirely independent of the forcible
    confinement of Seccombe  indeed, the apparent animosity between the appellant
    and Whittaker might support such a conclusion  the jury would
equally
be entitled to conclude that the appellant
    murdered Whittaker to facilitate his forcible confinement of Seccombe, or that
    the appellant forcibly confined Seccombe to facilitate his murder of
    Whittaker.  [Emphasis added.]

[11]

The Chief Justice makes it clear that evidence at the preliminary
    inquiry that is equally capable of supporting two reasonable inferences, one
    consistent with guilt and the other inconsistent with guilt, requires that the
    accused be committed for trial.  The Superior Court judge in this case indicated
    otherwise at various points in her analysis (see e.g. paras. 20, 25, 26).  The
    Superior Court judge confused cases in which the circumstantial evidence read
    at its strongest for the Crown could not reasonably support an inference of
    guilt (see e.g.
United States of America v. Huynh
(2005), 200 C.C.C.
    (3d) 305 (Ont. C.A.)), with cases in which the evidence could reasonably
    support inferences necessary to a finding of guilt or inferences inconsistent
    with guilt: (see e.g.
Russell
).  The preliminary inquiry judge must
    discharge if the evidence falls into the first category of cases, but must
    commit for trial if the evidence falls into the second category.

[12]

The
    distinction between evidence that cannot reasonably support the inferences necessary
    to establish the Crowns case and evidence that can support competing
    inferences including an inference of guilt can be hopefully made clear with two
    examples using facts similar to this case.  In the first case, assume that the
    Crowns evidence consists of testimony that A and B were in the room with
    the deceased immediately before he was killed.  No one else was in the room,
    and there was no evidence of any joint enterprise between A and B.  On this
    evidence nothing points to A as opposed to B as the killer.  It would be
    unreasonable for a jury to infer from As presence in the room (the primary
    fact) the further fact that he was the killer.  A must be discharged at the
    preliminary inquiry.

[13]

In
    the second example, assume again that A and B were the only people in the
    room with the deceased immediately before he was killed and that there is no
    evidence of joint enterprise.  There was evidence that as the police arrived
    moments later, A was seen leaving the room with the weapon used to kill X
    secreted upon his person.  There was also evidence that B had been involved
    in a loud verbal altercation with X immediately before the killing.

[14]

On
    this evidence, one could reasonably infer from As presence in the room and
    his departure from the room immediately after with the weapon used to kill X in
    his possession, that A had killed X.  One might also infer based on Bs
    presence in the room and the prior altercation with X, that B had killed X.
     On the evidence described in the second scenario the evidence supports two
    reasonable conclusions, one of which is that A killed X.  A preliminary
    inquiry judge would be required to commit A for trial.

[15]

Given
    the nature of the decision the preliminary inquiry judge must make when
    deciding whether to commit, I see no value in reference to
Hodges Case
(1838), 2 Lewin 227.  The often cited passage from
Hodges Case
provides
language that may be used in a
    jury instruction to assist a jury in applying the reasonable doubt standard to
    circumstantial evidence, and to alert the jury to the dangers of leaping too
    quickly to conclusions based on circumstantial evidence: see
R. v.
    Villaroman
, 2016 SCC 33.  Neither concern is germane to the function of
    the preliminary inquiry judge at the end of the preliminary inquiry.  Inserting
    the jury instruction language from
Hodges Case
into the analysis
    required to determine whether an accused should be committed for trial is
    confusing and potentially misleading.

III

the test on a motion to quash

[16]

On
    a motion to quash a committal for trial, the reviewing judge has a very narrow
    responsibility. She is charged only with the responsibility of determining
    whether the preliminary inquiry judge acted within her jurisdiction in
    committing for trial.  The reviewing judge does not make her own assessment of
    whether the evidence could justify a committal for trial, but asks only whether
    there was any evidence at all upon which the preliminary inquiry judge could form
    her opinion that the test for committal had been met: see
R. v. Manickavasagar
(2004), 60 W.C.B. (2d) 508 (Ont. C.A.)
;
    and
R. v. Tuske
, 3 W.C.B. 4 (Ont. C.A.).

[17]

Turning
    first to the identity issue, there was evidence that Mr. Jackson was involved
    in a physical altercation with Mr. Archibald immediately before Mr. Archibalds
    death.  There was also evidence that Mr. Jackson was arrested leaving the apartment
    with a knife up his sleeve.  Mr. Jacksons conduct suggested he was attempting
    to flee the scene with the weapon that had been used to kill Mr. Archibald
    before the police arrived.  Finally, there was evidence that Mr. Jackson
    instructed Ms. Oakes, the only other person in the room when Mr. Archibald died,
    to lie to the police and that he told a similar lie to the police himself.

[18]

The
    body of evidence summarized above constitutes some evidence upon which a
    preliminary inquiry judge could be satisfied that a reasonable jury, properly
    instructed, could conclude beyond a reasonable doubt that Mr. Jackson stabbed
    and killed Mr. Archibald.  For the reasons outlined above, the preliminary
    inquiry judge was not tasked with weighing whether there were other reasonable
    inferences inconsistent with a finding that Mr. Jackson stabbed Mr. Archibald.

[19]

Turning
    to the issue of intent, which is of course approached on the basis that there
    was evidence that Mr. Jackson stabbed Mr. Archibald, the Superior Court judge held
    that the post-offence conduct relied on by the preliminary inquiry judge as
    evidence of intent was irrelevant to Mr. Jacksons state of mind (para. 45).  She
    then went on to make her own assessment of whether the evidence which she
    viewed as properly admissible on that issue warranted the committal of Mr.
    Jackson (para. 49).

[20]

The
    Superior Court judge erred in both respects.  First, evidence of post-offence
    conduct may have relevance to the state of mind of the perpetrator.  The
    inferences that may be available from post-offence conduct depend upon the
    specific conduct and the rest of the evidence.  There is no
per se
rule declaring post-offence conduct irrelevant to the perpetrators state of
    mind: see
R. v. Rodgerson
, 2015
    SCC 38, [
2015] 2 S.C.R. 760, at paras. 20-21.  The preliminary
    inquiry judge saw the post-offence conduct as capable of supporting inferences
    relevant to Mr. Jacksons state of mind.  That determination, whether right or
    wrong, was within the jurisdiction of the preliminary inquiry judge.

[21]

Furthermore,
    even if the Superior Court judge was correct in regarding the post-offence
    conduct as incapable of supporting any inference as to Mr. Jacksons state of
    mind, she was wrong in holding that the preliminary inquiry judges reliance on
    that evidence allowed her to effectively step into the shoes of the preliminary
    inquiry judge and decide whether, on a proper view of the evidence, Mr. Jackson
    should have been committed for trial.  Regardless of any error the preliminary
    inquiry judge made within the exercise of her discretion, the question for the
    Superior Court judge remained the same  was there any evidence to support the
    preliminary inquiry judges determination that the test for committal for trial
    had been met.

[22]

In
    any event, even if one ignores entirely the post-offence conduct, there was
    evidence upon which the preliminary inquiry judge could conclude that a jury,
    acting reasonably, could find that when Mr. Jackson stabbed Mr. Archibald
    through the heart, he intended to cause him bodily harm, knowing that the
    bodily harm was likely to cause Mr. Archibalds death and was reckless as to
    whether death ensued: see
Criminal Code
s. 229(a).

[23]

The
    Superior Court judge accepted that a stab through the heart could reasonably
    support an inference that the stabber intended to cause the victim bodily
    harm.  She added, at para 49:

However, I fail to see any evidence whatsoever from which the
    jury could reasonably infer that Mr. Jacksons intent went beyond that.

[24]

I
    take the Superior Court judge to hold that no reasonable jury could infer that when
    Mr. Jackson stabbed Mr. Archibald in the heart intending to cause him bodily
    harm, he knew that the wound would probably kill Mr. Archibald.  With due respect,
    the inference of knowledge was properly available.  Juries have been told for
    centuries that they may infer that a person intends the natural consequences of
    his actions.  The preliminary inquiry judge was entitled to take the same
    approach.  In my view, the foreseeability of death as a natural consequence of Mr.
    Jacksons actions supported the inference that he had the intent and foresight
    required for murder under s. 229(a): see
R. v. Magno
(2006), 210
    C.C.C. (3d) 500, at paras. 18-19 (Ont. C.A.), leave to appeal refused, [2006]
    S.C.C.A. No. 407.

[25]

More
    to the point on a
certiorari
application, the nature of the wound
    inflicted provided some evidence upon which a preliminary inquiry judge could
    conclude that a reasonable jury could find that Mr. Jackson had the state of
    mind for murder.

[26]

In declining to commit for trial on second degree murder,
    the Superior Court judge envisioned other scenarios involving Mr. Jackson
    stabbing Mr. Archibald in the heart that would not warrant a conviction on
    second degree murder (para. 51).  The question before her, however, was not
    whether other scenarios could be envisioned, but whether there was any evidence
    capable of supporting the preliminary inquiry judges conclusion that there was
    evidence upon which a jury could make a finding that Mr. Jackson had the
    necessary intent: see
R. v. D.M.
, 2008 ONCA 69, 76 W.C.B. (2d) 338, at
    paras. 4-5.  In my view, the Superior Court judge went beyond the scope of
    review contemplated on a
certiorari
motion and applied a test much closer to the ultimate question of whether the
    Crown had proved its case beyond a reasonable doubt.  She erred in law in doing
    so.

IV

[27]

As
    indicated at the end of oral argument, the Crowns appeal is allowed, Mr.
    Jacksons appeal is dismissed, and the committal for trial on the charge of
    second degree murder is restored.

Released: October 7, 2016 (D.D.)

Doherty J.A.

I agree. S.E. Pepall J.A.

I agree. C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Le, 2016 ONCA 798

DATE: 20161027

DOCKET: M47002 (C58466)

Laskin J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

John Le

Applicant (Appellant)

Brian H. Greenspan and Peter Hamm, for the applicant

Benita Wassenaar, for the respondent

Heard: October 13, 2016

Laskin J.A.:

A.

Introduction

[1]

Mr. John Le applies under s. 684(1) of the
Criminal Code
to
    have Mr. Brian Greenspan assigned as his counsel for his appeal. The Crown
    opposes the application.

[2]

Under s. 684(1), I may appoint counsel if, in my opinion, 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 (emphasis added). Thus, to
    qualify for government funding for an appellate lawyer, an applicant must meet
    two criteria: the interests of justice criterion and the financial eligibility
    criterion.

[3]

The first criterion is not in issue on this application. The Crown
    accepts, and I agree, that the appeal is sufficiently complex and important
    that it is in the interests of justice for Mr. Le to have a lawyer.

[4]

This application turns on the second criterion: financial eligibility. Mr.
    Le says that he meets this criterion. His sworn evidence on the application,
    together with that of his mother and brother, shows that Mr. Le does not have
    the financial means to retain a lawyer. In opposing the application, the Crown
    says that Mr. Le has not exhausted his legal aid remedies; and he has not been
    clear and transparent in disclosing his financial affairs.

[5]

I am satisfied that Mr. Le has met the financial eligibility criterion.
    I therefore order under s. 684(1) that Mr. Greenspan be assigned to represent Mr.
    Le on his appeal.

B.

Background

(a)

Mr. Les
    convictions

[6]

Mr. Le is 44 years old. He has been in custody since 2009. In December
    2013, he, together with his co-accused Mr. Singh, was convicted of two counts
    of second degree murder, two counts of kidnapping, and one count of committing
    an offence for organized crime. On his convictions for murder, Mr. Le was
    sentenced to two life sentences without eligibility for parole for 23 years.

[7]

According to the reasons of the sentencing judge, Mr. Singh was an
    upper echelon drug dealer, and Mr. Le worked for his criminal organization.
    One of the two people murdered had apparently stolen 35 kilograms of cocaine
    from Mr. Singhs organization, and Mr. Singh wanted to send a message that
    thefts of drugs would not be tolerated. The other person murdered was unfortunately
    in the wrong place at the wrong time.

(b)

Mr. Les financial
    means

[8]

The evidence of Mr. Les financial means is both historical and current.

[9]

Historically, Mr. Le had some income and access to other income. There
    is evidence that he worked for Mr. Singh and was paid $5,000 per month. Also,
    he apparently was a successful poker player and pocketed up to $2,000 per week
    in cash from his winnings. These two sources of income ended when he and Mr. Singh
    were incarcerated seven years ago. On Mr. Les arrest, however, a large amount
    of cash was found in the house where he lived with his mother and brother.

[10]

Mr. Le had a lawyer at his trial. His trial costs for his defence were
    about $130,000. They were funded by Mr. Singh, who is still incarcerated.

[11]

The last available tax return for Mr. Le, for the 2006 tax year, showed
    income of $33,800.

[12]

Mr. Les current financial situation paints a different picture. Mr. Le
    has sworn under oath that he has no assets, other than a 2006 Mercedes, which
    would need to be repaired before it could be sold. Ministry of Transportation
    records show that he is the owner of two other old cars.

[13]

Mr. Les mother and brother swore affidavits on this application and
    were cross-examined on them. His mothers evidence is that she has no assets
    and that to support herself she formerly relied on payments from the Ontario
    Disability Support Program and now relies on Canada Pension Plan payments. Mr.
    Les brother earns $1,000 every two weeks and has a child to support.

(c)

Mr. Le has been
    refused Legal Aid

[14]

In March 2015, Mr. Le applied for Legal Aid for his appeal. The Area
    Committee denied his application on financial grounds. The Committee said that
    it appeared Mr. Le had other financial resources available to obtain a lawyer
    privately. The Committee noted that Mr. Les family and friends had paid roughly
    $130,000 for his defence at trial.

[15]

Mr. Le appealed the Area Committees denial of funding, but his appeal
    was dismissed. In its reasons, Legal Aid found that Mr. Les family and friends
    were part of his assessment unit. Legal Aid commented that if Mr. Les family
    and friends are no longer able to assist him financially, they may complete
    financial assessments to demonstrate this inability. Absent their doing so,
    Legal Aid held, Mr. Le fails to qualify.

[16]

Mr. Le did not ask his mother or brother to complete financial
    assessments, and neither has provided any information to Legal Aid.

C.

Analysis

[17]

The financial eligibility criterion in s. 684(1) reflects two values. First,
    the governments resources to fund legal representation are limited. Second, if
    it is in the interests of justice for an appellant to have a lawyer to argue
    the appeal, yet the appellant cannot afford to retain one, then the denial of a
    s. 684(1) order will adversely affect the appellants fair appeal rights.

[18]

In opposing Mr. Les application, the Crown relies on the observation of
    my colleague Gillese J.A. in
R. v. Staples
, 2016 ONCA 362, [2016] O.J.
    No. 3280, at para. 40:

To obtain the exceptional relief of government funded counsel,
    the Applicant must satisfy the court that he has exhausted all other means of
    paying for counsel.  He must also be clear and transparent in disclosing his
    financial affairs.  In my view, the Applicant has done neither.

[19]

The Crown contends that I should dismiss Mr. Les application because he
    has failed to exhaust his Legal Aid remedies, as he has not had his mother and
    brother complete financial assessments, and because he has failed to be candid
    about his financial situation. Thus, he has not met the onus of showing he
    meets the financial eligibility criterion in s. 684(1).

[20]

I accept that Mr. Le bears the onus. I also accept that he was not
    candid about his sources of income before he was incarcerated, as Ms. Wassenaar
    effectively demonstrated during her cross-examination of Mr. Le. For example,
    under cross-examination Mr. Le admitted that some of his tax returns were
    inaccurate and that he had not been forthright with Legal Aid about the cars he
    owned. Finally, I accept that Mr. Le did not do what Legal Aid suggested:
    arrange for his mother and brother to fill out financial assessments to
    demonstrate that they could not assist him financially.

[21]

But two considerations weigh against the Crowns position. First, Mr. Les
    lack of candour relates to the period before he was incarcerated  over seven
    years ago. I am satisfied that his disclosure of his current financial means
    has been clear and transparent.

[22]

The second consideration is that I am not, on this application,
    judicially reviewing Legal Aids decision to deny funding. Instead, if I am to
    preserve Mr. Les fair appeal rights, I must do so on the basis of the current
    evidence about Mr. Les financial means, not the historical evidence. See
R.
    v. Peterman
(2004), 70 O.R. (3d) 481 (C.A.), at para. 22.

[23]

The reality of Mr. Les financial means today is as follows:

·

He has been incarcerated for seven years and no longer receives
    income from Mr. Singh, nor is he able to accumulate cash by playing poker;

·

He has no assets other than a 2006 Mercedes and possibly two
    other old cars, which, even if sold, would not come anywhere near generating
    enough money to retain a lawyer for his appeal;

·

Although his mother did not file a financial assessment with
    Legal Aid, her sworn evidence shows that she has no assets. She survives on a
    pension;

·

Although Mr. Les brother also did not file a financial
    assessment, he earns at best about $26,000 per year, out of which he has to
    support a child; and

·

Mr. Le has no one else he can turn to in order to fund his
    appeal.

[24]

In light of these considerations, Mr. Le has shown that he does not have
    sufficient means to obtain legal assistance and has no other source to obtain
    funding.

[25]

Therefore, I assign Mr. Greenspan to act on Mr. Les behalf on the
    appeal. I assume counsel can agree on any other terms of my order. If not, they
    can arrange a conference call with me.

Released: October 27, 2016 (J.L.)

John Laskin J.A.