CITATION:
R. v. Manley, 2011
          ONCA 128

DATE: 20110214

DOCKET: C50195

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Sharpe and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Manley

Appellant

Brian Snell, for the appellant

Randy Schwartz, for the respondent

Heard: November 26, 2010

On appeal from the convictions imposed on January 15, 2008 by
          Justice Denis Power of the Superior Court of Justice, sitting with a jury.

Sharpe J.A.:

[1]

The appellant appeals his convictions for several
    offences related to two retail store robberies.  The key issue at trial was identity.
The appellant
    argues that the trial judge erred by failing to provide the jury with an
    adequate instruction about the frailties of the identification evidence.  The appellant also submits that the trial
    judge erred by rejecting the submission that the police breached his s. 8
Charter
rights by searching the stored
    data on a cell phone they seized from him at the time of his arrest and that a
    photograph found on the phone should have been excluded under s. 24(2) of the
Charter
.  Finally, the appellant submits that the trial
    judge erred by instructing the jury that robbery was an included offence to
    armed robbery and that as the jury acquitted him of using a firearm, to wit: a
    sawed off shotgun, in robbing [the cashier] of cash monies, the conviction for
    robbery with violence should be set aside.

Facts

[2]

On October 19, 2006, a man with his face partially
    covered and holding a gun and a knife robbed a Mr. Sub restaurant in
    Trenton.  The cashier described him as
    5-foot-8, medium build, in his twenties, with dark eyes and without an accent.  Using a sniffer dog following the trail from
    the store, the police found in a nearby parking lot a T-shirt with a hole cut
    out of it that could have been used as a mask. The dog followed the scent to a
    point where there were fresh tire tracks, suggesting that the robber may have
    fled in a car. DNA on the T-shirt matched that of the appellant.

[3]

On November 11, 2006, a Trenton music store was robbed
    by a man holding a sawed off shotgun.  The owner, a salesperson, and a customer were present.  The salesperson described him as 5-foot-8 to
    5-foot-9, in his mid to late twenties, with short light brown hair.  The owner described him as 5-foot-8 to
    5-foot-9 and thin.  The salesperson and
    the customer were unable to identify the appellant in a photo line-up.  The owner was not asked to do so.

[4]

The police obtained information from a confidential
    informant identifying the appellant as a suspect in the music store robbery.  The appellant was arrested on November 13,
    2006 for the music store robbery and on an outstanding arrest warrant for break
    and enter.  The police conducted a frisk
    search incident to the arrest.  They
    seized a concealed knife and a cell phone, as well as two GM car keys (one
    apparently modified to break into cars), a hypodermic needle, handcuffs and a
    handcuff key capable of unlocking standard police handcuffs, binoculars, and
    local garbage bag tags.  The police
    examined the cell phone, purportedly to identify the lawful owner.  They opened it, searched its stored data, and
    found a photograph of the appellant holding a sawed off shotgun, taken the day
    after the music store robbery.  The
    photograph was copied and printed.  A
    warrant was subsequently obtained to search the contents of the phone.

[5]

A
voir dire
was held to determine the admissibility of the photograph of the appellant
    holding a sawed off shotgun.  The defence
    did not challenge the lawfulness of the arrest, and conceded that the frisk
    subsequent to arrest and the seizure of the items found were both lawful.  The defence did, however, submit that the
    photo should be excluded because it was unlawful to examine the phones
    contents without a warrant, and the subsequent warrant was tainted by the
    earlier warrantless search.  The trial
    judge ruled that the initial search was reasonable, that the search warrant was
    valid, and that in any event, the photo would have been admissible under s. 24(2).

The in-dock identification evidence

[6]

The Mr. Sub cashier was not shown a photo line-up and could
    not identify the appellant at the preliminary inquiry.  She was not asked in examination-in-chief at
    trial if she could identify the appellant, but did testify as to the robbers
    general features, his approximate height, weight, colouring, and clothing.  She testified that the robber had dark eyes.  In cross-examination by the appellants trial
    counsel (not Mr. Snell), the following transpired:

Q:
    You see the accused sitting in the box.  Take your time and just look at him, look in his eyes.  Can you say for sure that those are the eyes?

A:
    He was fully covered and he looks, yeah.

Q:
    Those are definitely the eyes you saw when you look again?

A:
    Yeah

Q:
    Youre sure?

A:
    Yeah.

Q:
    How many seconds did you see the eyes, do you think, all said?

A:
    I dont know.  I dont know for sure how
    long it would have taken for everything to interchange.  Less you know, a couple of minutes.  Like, there was no argument; the money was
    given.

Q:
    Is it possible, maam, that those could be somebody elses eyes in the heat of
    the moment that youre mistaken as to the eyes?

A:
    I dont believe so.

Q:
    You dont believe so, or do you know for sure those are the eyes?  Is there any possibility those eyes could
    have been somebody elses eyes other than this man sitting here?

A: No

[7]

Like the Mr. Sub cashier, the music store owner could
    only give a general description of the robber and she was not asked to identify
    the robber in a photo line-up.  When
    asked at the preliminary inquiry, she failed to identify the appellant as the
    perpetrator.  At trial, she attempted to
    explain her failure to identify him at the preliminary inquiry:

Q: After this
    robbery, did you think that you would be able to identify that person, the
    robber?

A: I
    thought I could, yes.

Q:
    And have you seen him since?

A:
    Yes.

Q:
    And can you tell us about that?

A:
    Yes.  Um, when I was at thethe last time
    I was in court we had, umyou were asking questions similar to what we are
    now.  Um, but at that time I was asked,
    Can you identify him, and I was the distance away I am now, from behind
    you.  And at that point I was unable to
    see the features that I had recognized at the robbery.  But on going out of that courtroom, I was as
    close to him as the jurors are to each other, as I walked past him, and then I
    recognized him.

Q:
    Okay.  And how is it, at that point, you
    recognize him?

A: Because the profile that I saw at that time, as
    he turned away from me, as I went past him ... that I recognized the profile.

[8]

However, the music store owner was still unable to
    identify the appellant at trial as the robber.

[9]

The other witnesses to the music store robbery could
    not identify the appellant from a photo line-up, nor could they identify the
    appellant in-dock at the preliminary inquiry or at trial.  The music store customer did testify that the
    appellants features were similar, very similar although the appellant
    appeared to be heavier than the robber whose facial features were more drawn
    and more muscular.  The music store
    salesperson testified much to the same effect.  She could not say that the appellant was the
    robber but he did have similar features although the appellant appeared to be
    fuller in the face.

[10]

The Crown relied primarily on the circumstantial
    evidence tying the appellant to the music store robbery.  In addition to the T-shirt and the cell phone
    photograph, the music store robber was wearing a coat or jacket with a
    fur-lined hood and he fled the scene on a bicycle.  When arrested two days later, the appellant
    was wearing a coat or jacket with a fur-lined collar and riding a bicycle.

The verdict

[11]

The appellant was charged with nine offences: two
    counts of robbery, one count of pointing a firearm, one count of possession of
    a prohibited weapon without a licence, one count of possession of a weapon for
    a purpose dangerous to the public peace, one count of possession of a firearm
    while under a prohibition, one count of carrying a concealed weapon, one count
    of obstruction of a police officer, and one count of possession of instruments
    for breaking into vehicles.  He pleaded
    guilty to obstruction of a police officer, the possession of a prohibited
    weapon count was dismissed during the trial, and the jury returned guilty
    verdicts on the other counts.  The
    pointing a weapon count was stayed on the
Kienapple
principle.

[12]

Both robbery counts in the indictment specified the use
    [of] a firearm, to wit: a sawed off shotgun ... contrary to s. 344 (a) of the Criminal
    Code of Canada.  In his charge to the
    jury, the judge instructed that simple robbery, i.e. stealing with violence or
    threats of violence, was an included offence to armed robbery.  During its deliberation, the jury asked if
    the weapon had to be a sawed off shotgun.  While the Crown conceded, and the judge agreed, that the Crown had to
    prove the charge as particularized, the judge in his response to the jury
    reminded them that simple robbery was an included offence.  On the count for the Mr. Sub robbery, the jury
    found the appellant not guilty of robbery as charged, but guilty of robbery
    accompanied by extorting stolen money with the use of violence or threats of
    violence.

[13]

The appellant was sentenced to a total of eight years
    imprisonment. He appeals his convictions on all counts except obstruction of a
    police officer and possession of instruments for breaking into vehicles.

Issues

[14]

The appellant raises three issues:

1. Did the trial judge
    err in his instructions on identification evidence?

2. Did the trial judge
    err by admitting the photograph from the cell phone?

3. Did the trial judge
    err in his instruction that robbery was an included offence to armed robbery?

Analysis

1. Did the trial judge err in his instructions on
    identification evidence?

[15]

The trial judge gave the jury a standard instruction
    regarding the need for caution in relation to eyewitness identification
    evidence.  He told the jury that the case
    depended to a large extent on eyewitness testimony and that they had to be
    very cautious about relying on eyewitness testimony to find that the
    appellant was guilty of the crimes alleged.  He instructed the jury that miscarriages of justice had occurred because
    of mistaken eyewitness identification evidence, that [i]t is quite possible
    for an honest witness to make a mistaken identification, and that honest and
    apparently convincing witnesses, even ones who are sure and positive can still
    be mistaken.

[16]

The trial judge also cautioned the jury with respect to in-dock
    identification evidence:

Now identification of a witness, I have to tell
    you, made in court is evidence that you have to be careful about because Mr.
    Manley is sitting in the prisoners box. So theres sort of a suggestion, hes
    the guy. But hes there because thats where he has to sit. Hes accused of it.
    So if a witness comes into the court and identifies somebody in the prisoners
    box, you have to be careful of that.
I'm
    not saying it's not good; not at all.
But

you have to be careful of that kind of identification. [Emphasis
    added.]

[17]

Later in the charge when dealing with the evidence
    pertaining to each count in detail, the trial judge returned to the issue of
    identification evidence.  Dealing first
    with the Mr. Sub cashiers evidence, he reminded the jury that she could initially
    only give a very general description of the robber but that when asked in
    cross-examination whether the perpetrators eyes were the same as the eyes of
    the accused in the prisoners box, she answered yes:

So how reliable is that identification, the
    identification of somebody's eyes? In and of itself, how reliable is it? In
    connection with all the other evidence does it fit in? Does it come up against
    other evidence? Is it contradicted by other evidence? Does other evidence
    confirm it? Does it confirm other evidence? That's the type of process you have
    to go through. You have to be satisfied beyond a reasonable doubt that the
    perpetrator was Mr. Manley.

[18]

With respect to the music store robbery, the trial
    judge reminded the jury that the salesperson could not identify the appellant
    from a photo line-up shortly after the robbery and that she could not identify
    the appellant in court other than to say he had similar characteristics.  Similarly, the customer could not identify the
    appellant from a photo line-up and could only say that the appellants features
    were similar to those of the robber.  The
    trial judge observed:

Thats not identification beyond a reasonable doubt
    for sure, but is that, when taken with all of the evidence, sufficient for you
    to come to a conclusion as to whether the accused was or was not the perpetrator?

[19]

Finally, the trial judge dealt with the music store
    owners evidence.  He reminded the jury
    that she had only given a general description of the robber and that she had
    not been asked to view a photo line-up.  As for what transpired at the time of the preliminary inquiry, he simply
    stated:

[Y]ou heard her explanation about why she didn't
    identify him during the preliminary inquiry but did later. How reliable is that
    identification? Even if she's telling the truth, is it reliable? How much does
    that tip the scales either way in your deliberating as to whether identity has
    been proven beyond a reasonable doubt?

[20]

The appellant argues that the trial judges instruction
    regarding the in-dock identification evidence was even weaker than the little
    weight caution disapproved of by the Supreme Court in
R. v. Hibbert
, [2002] 2 S.C.R. 445 at para. 49, where the court
    stated that an in-dock identification had an almost total absence of value as
    reliable positive identification.  See
    also
R. v. Tebo
(2003), 175 C.C.C.
    (3d) 116 at para. 19 (Ont. C.A.): this was a case where the jury should have
    been forcefully told that they could give virtually no weight to the in-dock
    identification evidence.

[21]

In my view, it would have been preferable had the trial
    judge given a stronger warning about the nature and weakness of the in-dock
    identification evidence.  In particular,
    the trial judge should not have said in relation to that evidence Im not
    saying its not good; not at all

and
    should instead

have instructed the jury
    that an in-dock identification had almost no value as reliable positive
    identification. However, I am not able to say that, in the circumstances of
    this case and reading the charge as a whole, the manner in which the trial
    judge instructed the jury on this issue amounted to an error of law.

[22]

The danger posed by the in-dock identification evidence
    at issue in this case is different from that faced in
Hibbert
where two eyewitness testified that the prisoner in the
    dock was the perpetrator of the crime alleged.  There is a significant risk that the jury will
    accord far more weight to a confident positive identification of that nature
    than it deserves and hence the need for a strong warning about the very limited
    probative value the evidence has.

[23]

Here, the in-dock identifications  if indeed they
    amounted to in-dock identifications  were qualified.  While the music store owner explained how she
    was able to identify the appellant after testifying at the preliminary inquiry,
    she still could not identify him at trial.  The Mr. Sub cashiers evidence about the
    appellants eyes was elicited by the appellants trial counsel in
    cross-examination.  The trial Crown did
    not place undue reliance on this evidence in his closing and rested his case
    primarily on the circumstantial evidence of the dog-tracking evidence, the
    T-shirt and the matching DNA, and the cell phone photograph of the appellant.  There was no objection by defence trial
    counsel and no request for a stronger caution.

[24]

The trial judge did warn the jury in general terms
    about the dangers of eyewitness and in-dock identification evidence, and I am
    not persuaded that the shortcoming in his instruction that I have identified
    amounted to a reversible error of law in the circumstances of this case.

[25]

I am satisfied that the jury would have appreciated
    from the manner in which the case was presented by the Crown and from what they
    were told by the trial judge that, standing on its own, the identification
    evidence was weak, and that it had to be assessed on the basis that it amounted
    to no more than one small piece of a much larger puzzle.

[26]

Accordingly, I would not give effect to this ground of
    appeal.

2. Did the trial judge err by admitting the photograph from
    the cell phone?

[27]

The trial judge found that the search and seizure
    conducted at the time of the appellants arrest was carried out for three
    reasons:

1)

For
    the safety of the police and the public as the appellant was suspected of
    committing crimes with weapons;

2)

To
    check the ownership of items in the appellants possession; and

3)

To
    check for evidence and to protect it from destruction.

[28]

The trial judge made several findings of fact on the
    appellants
Charter
motion to exclude
    the cell phone photograph that are not challenged on appeal.  The police had information from a
    confidential informant making the appellant a prime suspect in the music store
    robbery and a CPIC check revealed an outstanding warrant for the appellant for
    a break and enter.  The police also had
    information that the appellant had stolen cell phones and used them with stolen
    access cards.

[29]

The trial judge found that at the detachment, the cell
    phone had been opened by the first constable with the intention of finding
    something in it that would identify the cell phones owner as there was
    nothing on the exterior of the phone to identify its owner. In the process of
    doing this the officer  pushed various scroll and other buttons in order to
    observe the saved data in the phone and in that process, observed the images
    of the appellant holding a gun.  The
    officer noted that the phone was losing power and gave the phone to another
    officer with more technical knowledge.  That
    officer feared that the images could be lost if the phone shut down.  He downloaded the images to his own phone and
    then to a computer to preserve them.

[30]

The trial judge found that the search of the cell phone
    did not violate the appellants s. 8
Charter
right, but focussed most of his attention on the validity of the search
    warrant.  He found that even if there was
    a problem with the initial search, if the tainted information from that search
    was removed, there was still an adequate basis to support the search warrant.  Finally, he found that in any event, the
    evidence of the cell phone images should not be excluded under s. 24(2).  He found that the police had acted in good
    faith, that any breach of the appellants
Charter
rights was not serious, and that the exclusion of the challenged evidence
    would adversely affect the administration of justice.

[31]

In
R. v. Grant
,
    [1993] 3 S.C.R. 22 at pp. 251-52, the Supreme Court set out the proper
    procedure to be followed where the information to obtain a search warrant
    contained facts obtained through a
Charter
violation:

[W]here the information contains other facts in
    addition to those obtained in contravention of the
Charter
, it is necessary for reviewing courts to consider whether
    the warrant would have been issued had the improperly obtained facts been
    excised from the information sworn to obtain the warrant.... [T]he warrant and
    search conducted thereunder ... will be considered constitutionally sound if
    the warrant would have issued had the observations gleaned through the
    unconstitutional ... searches been excised from the information.

However, even if the warrant would
    have issued, s. 24(2) must still be considered because of the possibility that
    the entire search process was tainted by the prior warrantless search (p.
    254). Accordingly, it is necessary to consider the validity of the initial
    search of the cell phone as well as the search conducted after the search
    warrant was obtained.

[32]

The
appellant does not question the validity of the arrest or the
    initial frisk search or the validity of the seizure of the cell phone but
    argues that the trial judge erred in concluding that:

1)

the police were entitled to
    search the saved data in the phone without a warrant as an incident to arrest;

2)

even without the information
    obtained as a result of that search, namely the photograph, the police had
    sufficient information to obtain a warrant; and

3)

even if the appellants
Charter
rights were breached, the
    evidence of the photograph should be admitted under s. 24(2).

[33]

It is common ground that incident to a lawful arrest,
    the police have the power to search the person arrested without a warrant for
    the purpose of ensuring officer safety, and, if there is some reasonable
    prospect of securing evidence of the offence for which the accused is being
    arrested, to secure and preserve that evidence:
R. v. Caslake,
[1998] 1 S.C.R. 51 at para. 22 (emphasis omitted).

[34]

The appellant submits that as the only thing taken in
    the relevant robbery had been cash there was no reasonable prospect that
    searching the cell phone would provide evidence of the robbery.  However, the appellant was also arrested for
    a break and enter and the police had information that he had used stolen cell
    phones in the past.  The Crown argues
    that determining whether the cell phone was stolen was a valid purpose
    connected to the arrest.  If the phone
    did not belong to the appellant, it could serve as evidence of a break and
    enter and the rightful owner could be informed that the phone had been
    recovered.

[35]

The appellant submits that even if the police had
    grounds to believe that the cell phone had been stolen, they had no power to
    search the saved data in the cell phone without a warrant. In the leading
    Ontario case,
R. v. Polius
(2009),
    196 C.R.R. (2d) 288 (Ont. S.C.), Trafford J.
rejected the Crowns argument that the power to
    lawfully seize a cell phone incidental to arrest includes a warrantless power to
    examine its contents.  He held that one
    has a reasonable expectation of privacy in the often deeply personal contents
    of ones cell phone and, at para. 57, that to protect the privacy interests
    implicated in a manner consistent with s. 8 jurisprudence, a search incident to
    arrest should be limited to a power to seize it, where there is a reasonable
    basis to believe it may contain evidence of the crime, for the purpose of
    preserving its evidentiary value, pending a search of its content under a
    search warrant.
Polius
was followed in
R. v.
    Finnikin
,

[2009] O.J. No. 6016
    (S.C.);
R. v. O. (T.)
, 2010 ONCJ 334;
    and
R. v. McBean
, 2011 ONSC 8.
    Compare
R. v. Giles
, 2007 BCSC 1147;
R. v. Otchere-Badu
, 2010 ONSC 1059.

[36]

The
    Crown responds with two submissions, the first narrow and confined to the facts
    of this case and the second broad and general. The Crowns first submission is
    that in the circumstances of this case, the police were entitled to conduct a
    cursory warrantless inspection of the cell phone including its stored data to
    ascertain ownership of the phone
. Second, the Crown submits that
Polius
was wrongly decided and that the
    police are entitled to conduct warrantless searches of cell phones seized as an
    incident to a lawful arrest.

[37]

I agree with the Crowns first submission. The
    appellant was arrested for break and enter and, when arrested, he was in possession
    of a number of unusual and suspicious items. The police had information from a
    confidential informant that in the past the appellant had stolen cell phones. Ownership
    of the cell phone was relevant to the offences for which the appellant had been
    arrested. In my view, this combination of circumstances provided the police
    with a lawful basis for conducting a cursory search of the cell phone to
    determine whether it had been stolen. As I can see no basis to interfere with
    trial judges factual finding that the first officer came upon the photograph
    while conducting a search of the cell phone to determine its ownership, I would
    uphold the trial judges determination that the cursory search of the cell
    phone was lawful.

[38]

I wish to emphasize, however that my decision rests on
    two points. First, that the police had a legitimate interest in determining
    whether the cell phone had been stolen and second, that the police did not
    search the stored data in the cell phone for any other purpose. According to
    the testimony on the
voir dire
that
    was accepted by the trial judge, the cell phones telephone number was
    identified after the discovery of the photograph.  A telephone number is sufficient information
    from which the ownership of a phone may be determined.  Had the examination of the phone continued
    after the telephone number had been found, this would be a different case.  If the telephone number had been written or
    inscribed on the exterior of the cell phone or visible or easily found when the
    phone was opened, any further search obviously could not be justified as a
    cursory inspection to determine ownership. Likewise, in a case where there was
    no reason to doubt the arrested partys ownership of the phone and no link
    between ownership and the offence for which the person was arrested, a search
    of the stored data in the phone could not be justified on the basis that the
    police were simply trying to determine who owned the phone.

[39]

In the light of my conclusion with respect to the
    Crowns first submission, it is not necessary for me to deal with the second.  Accordingly, it is neither necessary nor
    desirable to attempt to provide a comprehensive definition of the powers of the
    police to search the stored data in cell phones seized upon arrest. However, I
    would observe it is apparent that the traditional rules defining the powers of
    the police to conduct a search incident to arrest have to be interpreted and
    applied in a manner that takes into account the facts of modern technology. While
    I would not apply
Polius
in the
    particular circumstances of this case, I am far from persuaded that
Polius
was wrongly decided or that it ought
    to be overruled. Cell phones and other similar handheld communication devices
    in common use have the capacity to store vast amounts of highly sensitive
    personal, private and confidential information  all manner of private voice,
    text and e-mail communications, detailed personal contact lists, agendas,
    diaries and personal photographs. An open-ended power to search without a
    warrant all the stored data in any cell phone found in the possession of any
    arrested person clearly raises the spectre of a serious and significant
    invasion of the
Charter
-protected
    privacy interests of arrested persons. If the police have reasonable grounds to
    believe that the search of a cell phone seized upon arrest would yield evidence
    of the offence, the prudent course is for them to obtain a warrant authorizing
    the search.

[40]

Finally, I turn to the warrant that the police did
    obtain. I do not accept the appellants submission that the trial judges
    finding that even without the information obtained from the initial search of
    the cell phone, a search warrant would have issued was unreasonable.  In my view, there was sufficient evidence to
    support the trial judges finding that the Information to Obtain Search Warrant
    recited facts sufficient to support the issuance of a search warrant to permit
    the police to search the stored data on the cell phone seized from the
    appellant upon his arrest to obtain evidence linking the appellant to the
    robbery of the music store. Those facts included:

·

the details of the music store robbery;

·

a confidential informant had identified the appellant as the
    perpetrator;

·

the informers description of the appellant matched the
    description of the robber;

·

the appellant had a lengthy criminal record for property and
    other offences;

·

the informant indicated that the appellant steals cell phones
    and uses them with stolen access cards;

·

the items found on the appellant upon his arrest, including
    the cell phone;

·

The records of incoming, outgoing and missed calls will help
    afford evidence to [sic] person(s) who may have been contacted prior to, or
    immediately after the robbery ... as these person(s) may be witnesses.

[41]

Accordingly, as I would uphold the trial judges
    overall conclusion that there was no breach of the appellants s. 8
Charter
right, I find it unnecessary to
    consider the issue of exclusion of the evidence under s. 24(2).

3. Did the trial judge err in his instruction that robbery
    was an included offence to armed robbery?

[42]

The appellant argues that this court should set aside
    the conviction on the robbery charge related to the Mr. Sub robbery, because
    the jury should not have been instructed that robbery was an included offence
    to armed robbery.

[43]

Robbery is defined by s. 343 of the
Criminal Code
:

343. Every one
    commits robbery who

(
a
)
    steals, and for the purpose of extorting whatever is stolen or to prevent or
    overcome resistance to the stealing, uses violence or threats of violence to a
    person or property;

(
b
)
    steals from any person and, at the time he steals or immediately before or
    immediately thereafter, wounds, beats, strikes or uses any personal violence to
    that person;

(
c
)
    assaults any person with intent to steal from him; or

(
d
) steals from any person while armed with
    an offensive weapon or imitation thereof.

[44]

Section 344(a) (now s. 344(1)(a.1)) provides
    that
where a firearm is used in the
    commission of the offence of robbery, the minimum punishment is imprisonment
    for a term of four years.

[45]

The indictment charged the appellant in the following
    language: that Michael Manley did, on or about the 19
th
day of
    October, 2006, at the City of Quinte West ... use a firearm, to wit: a sawed
    off shotgun, in robbing Colleen Tracey of cash monies contrary to Section 344 (a)
    of the Criminal Code.  The count on the
    second robbery was framed in the same terms.

[46]

The trial judge instructed the jury that the essential
    elements that the Crown had to prove to make out a conviction were that:

1)

the appellant stole money
    from Colleen Tracey; and

2)

he was armed with a sawed
    off shotgun at the time of the stealing.

[47]

Colleen Tracey, the cashier in the Mr. Sub robbery, was
    unable to identify the kind of gun the robber was carrying and testified that
    the gun could have been a pellet gun.  The
    trial judge explicitly instructed the jury that if they were not satisfied
    beyond a reasonable doubt that the accused was armed with a firearm, i.e. a
    sawed off shotgun, you must find him not guilty of robbery.

[48]

The trial judge instructed the jury that if they were satisfied
    that the appellant had stolen money but were not convinced beyond a reasonable
    doubt that the appellant had used a sawed off shotgun in carrying out the
    robbery, they were to go on to consider whether or not he was guilty of a
    possible included offence, the offence of robbery with violence.

[49]

During their deliberations, the jury asked the
    following question: For Count 1, does the weapon have to be a sawed off
    shotgun?  The trial judge invited
    submissions and Crown counsel raised the possibility of an amendment to the
    indictment. The trial judge indicated that he would be reluctant to grant an
    amendment at that point out of concern for fairness to the accused. The Crown
    conceded that it would not be fair at that point to no longer have it
    particularized.

[50]

The jury was instructed that the answer to their
    question was that on the count as charged, the answer is yes, the Crown must
    prove to you beyond a reasonable doubt that the firearm in question here was a sawed
    off shotgun.  However, the trial judge
    went on to remind the jury that it would still be open to them to return a
    verdict for simple robbery -  robbery with violence or threats of violence.

[51]

As I have previously noted, the jury found the
    appellant not guilty of robbery as charged, but guilty of robbery accompanied
    by extorting stolen money with the use of violence or threats of violence.

[52]

The appellant submits that the trial judge erred in law
    by instructing the jury that simple robbery was an included offence to armed
    robbery.  See
R. v. Johnson
(1974), 35 C.C.C. (2d) 439 at pp. 460-461 (B.C.C.A.):

Robbery cannot be an offence included in the offence described
    in the indictment because the latter is by definition robbery and there is
    but one offence of robbery created by s. [343]. Different ways of committing
    that offence are described in paras. (
a
), (
b
), (
c
) and (
d
) of s. [343].
Having particularized the mode by which the
    appellant was alleged to have committed robbery, the appellant submits that
    Crown was required to prove that the offence had been committed in that manner.
     As the jury acquitted the appellant of
    the offence as charged, the conviction for the included offence of robbery
    with violence or threats of violence should be set aside.

[53]

The respondent Crown does not dispute the proposition
    that the trial judge erred in his included offence instruction and accepts the
    general principle that the Crown must prove the case as it is alleged and
    particularized in the indictment.

[54]

However, the Crown submits that the conviction should
    be maintained as, properly read, this indictment did not allege a particular
    mode of robbery or limit the Crown to proving a particular mode of robbery.  The Crown submits that the trial judges
    instruction regarding the need to prove the case exactly as pleaded was wrong
    in law and unduly favourable to the appellant.  Any error in relation to the trial judges
    included offence theory was inconsequential as it was open to the jury on the
    wording of this count to convict the appellant of robbery even if the Crown
    failed to prove that he had used a sawed off shotgun.  If necessary, the curative proviso should be
    applied to sustain the conviction for robbery on the first count.

[55]

The issue to be determined is whether, on the wording
    of the indictment, to sustain a conviction for robbery the Crown was required
    to prove that the appellant did use a firearm, to wit: a sawed off shotgun in
    carrying out the robbery.

[56]

In
R. v. Saunders
,
    [1990] 1 S.C.R. 1020 at p. 1023, the Supreme Court of Canada stated: It is a
    fundamental principle of criminal law that the offence, as particularized in
    the charge, must be proved.
Saunders
involved a charge alleging
    conspiracy to import heroin but the evidence established a conspiracy to import
    cocaine.  The Supreme Court affirmed the
    decision of the British Columbia Court of Appeal setting aside the conviction
    for conspiracy to import and ordering a new trial.  Writing for the Court, McLachlin J. stated at
    p. 1023:

To permit
    the Crown to prove some other offence characterized by different particulars
    would be to undermine the purpose of providing particulars, which is to permit
    "the accused to be reasonably informed of the transaction alleged against
    him, thus giving him the possibility of a full defence and a fair trial":

R. v. Côté
, [1978] 1 S.C.R. 8, at p. 13.

[57]

The appellant relies on
R. v. Sloan
(1974), 19 C.C.C. (2d) 190 (B.C.C.A.), where the accused
    was charged that he did UNLAWFULLY attempt to steal from the Golden Arms Motor
    Hotel money while armed with an imitation of an offensive weapon, to wit: a
    gun.  The evidence established that the
    accused had covered himself with a sheet and demanded money from a hotel
    attendant.  It was common ground that the
    accused had pointed his finger under the sheet and that he was not armed with a
    gun.  McIntrye J.A. held, at p. 191, that
    as the information was framed in the terms of s. 302(d) (now 343(d)), the Crown
    was bound to prove that the robbery had been carried out in that manner: The
    Crown having alleged that the appellant had attempted to steal while armed with
    an imitation of a gun was bound to prove just that.  See also
Johnson
,
    at pp. 460-461.

[58]

The respondent does not dispute the basic proposition
    that the Crown must prove the particulars alleged in the charge, but submits
    that the wording of the count here did not limit the Crown to proving a
    particular mode of robbery.  The wording
    of the indictment did not specify one of the modes of committing robbery under
    s. 343 and the words use a firearm, to wit: a sawed off shotgun refer to the
    minimum penalty provision, s. 344(a).  The
    Crowns position is supported by a later decision of the British Columbia Court
    of Appeal,
R. v. A.D.
(2003), 173
    C.C.C. (3d) 177, where the accused were charged with the following offence:

S.L.I., E.E.H., J.P., V.M.R. and A.D., on or about
    the 16th day of January, 2001, at or near Richmond, Province of British
    Columbia, did, using a firearm, commit robbery of Faustino Esteban, contrary to
    Section 344(a) of the
Criminal Code
.

[59]

This wording, while not identical, is very close to the
    wording of the count at issue here.  The
    trial judge found that the item used by the accused was bent and damaged and
    not capable of operating as a firearm as that term is defined in s. 2 of the
Criminal Code
.  Accordingly, he held that the Crown had
    failed to prove that the accused had used a firearm as alleged in the
    information, but convicted the accused of robbery under s. 343(d)
    stealing
while armed with an offensive weapon or imitation thereof
.  I find the reasons of Finch C.J.B.C., at paras.
    29-31, persuasive:

In
    my respectful view, the trial judge was correct in concluding that the charge
    did not specify a particular mode of robbery described in ss. 343(a) to (d).
    The reference to robbery in the charge must be read together with the words of
    the enactment that describes the offence, namely, s. 343. The appellant could
    therefore be convicted of the offence described in s. 343(d), which encompasses
    stealing from any person while armed with an offensive weapon or imitation
    thereof.

The
    reference to s. 344(a) in the charge was unnecessary, in the sense that proof
    of the use of a firearm, as defined by s. 2, is not an essential element of the
    offence of robbery. Proof that a firearm was used is relevant to the question
    of sentence only. It is well established that non-essential averments in
    charges need not be strictly proved if there is no prejudice to the accused
    ....

In this case, the appellant does not allege that
    she was misled or prejudiced in her defence by the reference to a firearm in
    count one. In my view, on the whole of the evidence, it is clear that the
    appellant had sufficient knowledge of the circumstances of the offence alleged
    in the charge, and there was no prejudice to her. The reference to s. 344(a) in
    the charge gave the appellant notice of the minimum mandatory sentence for
    robbery where a firearm is used, if tried as an adult. [Citations omitted.]

[60]

I see no meaningful distinction between this case and
A.D
.  I note as well that in
R. v. Watson
(2008), 240 O.A.C. 370 (C.A.), this court cited
A.D.
with approval and held that use of
    a firearm goes only to sentence and is not an essential element of robbery.

[61]

I therefore conclude that the appellant was charged
    simply with robbing Colleen Tracy and the words use a firearm, to wit: a sawed
    off shotgun  contrary to Section 344 (a) of the Criminal Code did not
    particularize an element of the offence but rather put the appellant on notice
    that he faced the minimum sentence for robbery where a firearm is used.

[62]

Accordingly, I conclude that while the trial judge erred in
    leaving robbery with violence with the jury on the basis that it was an
    included offence, that error did not result in any substantial wrong or
    miscarriage of justice as it was open to the jury on the indictment as framed
    to return a verdict for robbery with violence.

Conclusion

[63]

For these reasons, and despite the very capable
    argument advanced by Mr. Snell, I would dismiss the appeal.

Robert J. Sharpe J.A.

I agree W. Winkler
    C.J.O.

I agree A.
    Karakatsanis J.A.

RELEASED:  February
    14, 2011


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), (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 complainant 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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273,
    279.01, 279.02, 279.03, 346 or 347,

(ii)  an offence under section 144 (rape), 145 (attempt to
    commit rape), 149 (indecent assault on female), 156 (indecent assault on male)
    or 245 (common assault) or subsection 246(1) (assault with intent) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse
    with a female under 14) or (2) (sexual intercourse with a female between 14 and
    16) or section 151 (seduction of a female between 16 and 18), 153 (sexual
    intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross
    indecency), 166 (parent or guardian procuring defilement) or 167 (householder
    permitting defilement) of the
Criminal Code
, chapter C-34 of the
    Revised Statutes of Canada, 1970, as it read immediately before January 1,
    1988; or

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

(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 complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, 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).

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.

CITATION: R. v. R.R., 2011 ONCA 129

DATE: 20110214

DOCKET: C52367

COURT OF APPEAL FOR ONTARIO

Sharpe, Watt and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert R.

Appellant

John H. Hale, for the appellant

Susan Ficek, for the respondent

Heard: February 11, 2011

On appeal from the conviction and sentence imposed by Justice
          Cathy Kehoe of the Ontario Court of Justice dated, October 30, 2009 and June
          8, 2010

APPEAL BOOK ENDORSEMENT

[1]

As the appellant recognizes, this case turned entirely on
    credibility.  The trial judge gave very detailed and lengthy reasons explaining
    why she accepted the evidence of the child complainant and rejected that of the
    appellant and the childs mother and found that their evidence did not raise a
  reasonable doubt.

[2]

It is well established that a trial judges findings of credibility
    attract a high degree of deference.

[3]

The appellant identifies a list of instances that he says indicate unfairness
    to the appellant or a pre-disposition to accept the complainants evidence and
    reject that of the appellant.  In our view, whether viewed individually or
    cumulatively, these examples do not reveal any error or deficiency that would
    displace the deference owed or justify this courts intervention.

[4]

The third party record point was not pursued in oral argument.  We agree
    with the respondent that the appellant did not establish an adequate basis for
    production of the records under s. 278.2.  The sentence appeal was abandoned.

[5]

Accordingly, the appeal is dismissed.


CITATION:
R. v.
Sandhu
, 2011 ONCA 124

DATE: 20110211

DOCKET: C51140

COURT OF APPEAL FOR ONTARIO

O'Connor A.C.J.O., Simmons and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

And

Avtar Singh Sandhu

Respondent

Morris Pistyner, for the appellant

John Collins, for the respondent

Heard: November 8, 2010

On appeal from the acquittal entered by Justice Michael G.
          Quigley of the Superior Court of Justice on September 24, 2009.

Simmons J.A.:

Overview

[1]

The Crown appeals from the respondents acquittal on a
    charge of possession of cocaine for the purposes of trafficking.

[2]

The respondent was arrested after police and a Ministry
    of Transportation enforcement officer searched, without a warrant, the trailer
    of a transport truck the respondent was driving and found 205 kg of cocaine
    concealed in nine plastic wrapped bales.

[3]

At trial, following jury selection, the respondent
    applied to have the evidence of the discovery of the cocaine excluded under s.
    24(2) of the
Charter
on the basis
    that the warrantless search of the trailer violated his rights under s. 8 of
    the
Charter
to be secure against
    unreasonable search or seizure.

[4]

Crown counsel at trial argued that the initial inspection
    of the trailer was authorized under s. 216.1 of the
Highway Traffic Act
. He conceded that the police violated the
    respondents s. 8 rights by cutting into one of the bales in which the cocaine
    was secreted without first obtaining a search warrant. However, he submitted
    that the circumstances of that violation did not warrant exclusion of the
    evidence under s. 24(2).

[5]

The trial judge concluded that the initial search was
    not authorized under s. 216.1 and also held that the Crown bore the onus of
    demonstrating that the evidence of the discovery of the cocaine was admissible
    under s. 24(2). He found that the police conduct was at the most serious end of
    the spectrum and excluded the evidence.  As
    a result of the trial judges ruling, the Crown called no evidence at the trial
    proper and a not guilty verdict was entered.

[6]

The main issues on appeal concern whether the trial
    judge erred by excluding the evidence of the discovery of the cocaine under s.
    24(2) of the
Charter
.

[7]

For the reasons that follow, I would allow the appeal,
    set aside the respondents acquittal and order that a new trial be conducted
    before a different judge of the Superior Court.

Background

[8]

On February 4, 2007, the respondent was employed as a
    tractor-trailer driver by Kandola Brothers Carriers. The respondent did not own
    the truck that he was driving and his duties involved picking up goods from
    suppliers and delivering them to receivers as instructed by his employer. The
    respondents assignment on February 4, 2007 was to deliver a load of carrots to
    stores in the Greater Toronto area.

[9]

Just after 9 a.m. that morning, Mike Dorken, the owner
    of Trucktown Transport Terminal on Steeles Avenue in Milton, spotted the respondent's
    tractor trailer parked beside a passenger vehicle in a private area of the
    transport terminal lot. Mr. Dorken noticed items being loaded from the
    passenger vehicle into the back of the trailer. He drove over to the vehicles
    to find out if the truck driver had a permit to park in that area of the
    transport terminal.

[10]

As Mr. Dorken approached, both the tractor-trailer and
    the passenger vehicle drove away. The vehicles left the lot and then travelled in
    opposite directions on Steeles Avenue. Mr. Dorken followed the respondent.
    After a number of failed attempts, Mr. Dorken was able to block the
    respondents access to the westbound Highway 401 ramp and force the
    tractor-trailer to stop.

[11]

Coincidentally, Officer Jason Leeman, an employee of
    the Ministry of Transportation, was driving in the area at the time. Officer
    Leeman first noticed Mr. Dorkens vehicle and the respondents
    tractor-trailer at the intersection of Steeles Avenue and the James Snow
    Parkway. He thought the vehicles might have been involved in an accident so he
    drove towards them to see if he could help. When he got to the intersection he
    saw no debris or other signs of an accident and thought about driving away.
    However, he watched the vehicles for a few more minutes and observed them come
    to a stop in a strange manner on the access ramp to Highway 401 westbound. He
    drove up behind the tractor-trailer and activated his flashing lights. He said
    it was at that point that he decided he was going to inspect the transport
    truck.

[12]

Officer Leeman spoke initially to Mr. Dorken and then
    to the respondent. Mr. Dorken described what had taken place and expressed
    suspicions about the tractor-trailer. Officer Leeman asked if Mr. Dorken wanted
    the police to be called. Mr. Dorken confirmed that he did but said he had to
    return to his business. Officer Leeman called his dispatcher in order to
    request assistance from the Halton Regional Police.

[13]

When Officer Leeman spoke to the respondent, the
    respondent said something about a gun. After hearing about a gun, Officer Leeman
    contacted his dispatcher to ask that Halton Regional Police expedite his
    request for assistance and took no further steps to inspect the tractor-trailer.

[14]

Shortly thereafter, two police officers arrived at the
    scene. The first officer to arrive was Constable Paul Kent, a fairly new
    officer with about 21 months experience. Constable Kent spoke to Officer
    Leeman as well as to the respondent. During his conversation with the
    respondent, the respondent again made reference to a gun, saying that someone
    had put a gun to his head and told him that he had to put things into the back
    of his tractor-trailer truck.

[15]

The second officer to arrive was Constable Geoff Clarke,
    an eight-year veteran of the Halton Regional Police. Soon after Constable Clarke
    arrived, the rear doors of the tractor-trailer were opened.

[16]

Officer Leeman and the two police officers gave
    conflicting accounts concerning when and how the tractor-trailer doors were
    opened and concerning what happened after the doors were opened.

[17]

Officer Leeman testified that after Constable Kent had
    finished speaking with the respondent, he (Officer Leeman) asked the respondent
    to open the doors of the tractor-trailer so he could examine the contents of
    the trailer. He said it was not his practice to open a trailer himself. Once
    the doors were opened, in addition to shrink-wrapped pallets of baby carrots, he
    observed nine two and a half foot square bales wrapped in dark plastic. Based
    on the packaging and his prior experience and training, Officer Leeman believed
    the bales contained narcotics and stepped back to permit the police officers to
    proceed with the investigation. One of the officers got up into the trailer
    while the other, Constable Kent, opened one of the dark plastic bales with a
    knife to examine the contents. In cross-examination, Officer Leeman denied that
    he had any conversation with the police officers concerning his authority to
    search the truck.

[18]

According to Constable Kent, Officer Leeman claimed to
    have the authority to search the truck under s. 216.1 of the
Highway Traffic Act
. On hearing that, Constable
    Kent said, [t]hen let's do it. The rear doors of the tractor-trailer were not
    locked, and he and Officer Leeman opened them together.

[19]

Constable Kent confirmed that once the respondent spoke
    about the possibility of a gun he thought the contents of the trailer needed to
    be verified. He testified that, in his view, he was assisting Officer Leeman
    he said it did not occur to him to ask for the owners consent to conduct a
    search and the requirement for a search warrant did not register with him.

[20]

Once the doors were opened, Constable Kent initially
    thought the nine bales may have contained CD-ROM players or computers. He
    inserted his knife into one of the bales to see what the bales contained. He
    had no recollection of Constable Clarke jumping into the back of the trailer to
    check for weapons or other people. Constable Kent acknowledged in his evidence
    that he now realized he was exceeding his authority when he inserted his knife
    into one of the bales.

[21]

Constable Clarke testified that Officer Leeman directed
    the respondent to open the back doors of the truck for inspection. The
    respondent repeated his story about being threatened and then opened the trailer
    doors. Because of safety concerns, Officer Clarke jumped up into the trailer
    and conducted a quick search for guns and other people. Constable Clarke did
    not speak to Constable Kent about opening up one of the bales with his knife. However,
    once the content of the bales became apparent, Constable Clarke arrested the
    respondent and charged him with possession of a controlled substance.

[22]

Officer Brad Murray arrived at the scene sometime after
    9:30 a.m. After speaking to the other officers, he determined that a search
    warrant was required and applied for a tele-warrant, which was approved and
    executed before the end of the day.

Section 216.1 of the
Highway Traffic Act

[23]

Although not a police officer or a peace officer,
    Officer Leeman is an enforcement officer authorized to act under the

Highway
    Traffic Act

and other provincial
    transport legislation.

[24]

Section 216.1 of the
Highway Traffic Act
permits an enforcement officer to examine, at
    any time, a commercial vehicle, its contents and all documents relating to the
    ownership and operation of the vehicle to determine whether legislation
    relevant to commercial vehicles is being complied with. The relevant portions
    of s. 216.1 provide as follows:

216.1(1)
Any
    officer
appointed for carrying out the provisions of this Act
may, at any time, examine any commercial
    vehicle and its contents and equipment for the purpose of ascertaining whether
    this Act, the Compulsory Automobile Insurance Act or the Dangerous Goods
    Transportation Act, or the regulations under any of them, are being complied
    with
, and the driver, operator or other person in control of the vehicle
    shall assist in the examination.

...

(3)  Where a commercial vehicle and its contents
    and equipment are examined under this section, the officer conducting the
    examination may require the driver, operator or other person in control of the
    vehicle to surrender all documents relating to the ownership and operation of
    the vehicle and to the carriage of the goods, and to furnish all information
    within that person's knowledge relating to the details of the current trip.

[Emphasis added.]

The Trial Judges Reasons

[25]

Given that the trial Crown conceded that the
    respondents rights under s. 8 of the
Charter
had been violated, the trial judge focused his analysis on the question of
    whether the evidence of discovery of the cocaine should be excluded under s.
    24(2) of the
Charter
. At the outset
    of his reasons, the trial judge indicated that because the violation occurred
    in the context of a warrantless search, the Crown bore the onus of
    demonstrating that admission of the evidence would not bring the administration
    of justice into disrepute:

Clearly the Crown has assisted the applicant by
    admitting, quite properly I might observe, that a
Charter
violation of his rights occurred in the course of obtaining
    the impugned evidence through a warrantless search. This imposes a duty on the
    Crown, given the absence of legal authority for the search and thus the
    presumptive inadmissibility of that evidence, to show through the evidence
    advanced at this
voir dire
that the
    admission of the evidence under section 24(2) would not bring the
    administration of justice into disrepute, notwithstanding that the burden of
    persuasion would normally lie on the defendant: see
R. v. Bartle
(1994), 92 C.C.C. (3d) 289 (S.C.C.).

[26]

After reviewing the factual background and the revised analytical
    framework mandated by the recent decision in
R. v. Grant
, [2009] 2 S.C.R. 353, the trial judge turned to his
    analysis.

[27]

As a preliminary matter, the trial judge rejected the
    trial Crowns argument that Officer Leeman was acting under s. 216.1 of the
Highway Traffic Act
in directing the
    respondent to open the trailer doors and that no
Charter
breach occurred until after the doors were opened.

[28]

The trial judge noted that this was not a random stop
    by Officer Leeman and that Officer Leeman never articulated a reason that
    would have permitted him to engage his authority.

[29]

Further, in the light of Officer Leemans testimony
    that he radioed for police backup within seconds of speaking to the respondent,
    the trial judge found that Officer Leeman never had a simple
Highway Traffic Act
inspection
    motivation.

[30]

In addition, the trial judge concluded that even if
    Officer Leeman had a regulatory enforcement intention when he originally
    stopped at the scene, that intention was quickly superseded by criminal law
    concerns after the respondent spoke about a gun.

[31]

Further, the trial judge found it incredible that the
    three officers could have believed that their actions were in furtherance of an
    enforcement inspection rather than a criminal investigation:

I find that
    Officer Leeman never had a simple Highway Traffic Act inspection motivation.
Within seconds of stopping his vehicle and speaking to [the respondent], he
    radioed in for police assistance, and then made a second call out of concern
    for his own fear and safety when the issue of the possible presence of a gun
    arose.
Even if he had a regulatory
    enforcement intention at the time that he originally stopped behind the white
    transport truck, it is clear on his own evidence that that intention was very
    soon superseded by the criminal law concern of the possibility of guns being
    present at the site
.

I accept the proposition that
Highway Traffic Act
enforcement officers have been given the powers
    by the Legislature to stop and inspect commercial vehicles as described in s.
    216.1 of the
Highway Traffic Act
, but
    it is plain and obvious that that power is not given to the officer, and could
    not be given to the officer, for any purpose beyond the limited regulatory
    purposes of ensuring compliance with the
Highway
    Traffic Act
and the two other statutes referenced in s. 216.1.
It is disingenuous, and astonishing to me
    that it could be suggested that an inspection power of this type granted for
    simple commercial vehicle regulatory purposes could be relied upon by Officer
    Leeman, or Constables Kent or Clarke as providing valid legal authority to
    permit the rear doors of the truck to be opened at a point in time when the
    focus of the investigation that was unfolding on James Snow Parkway had changed
    dramatically from a simple regulatory one, to one involving potential Criminal
    Code infractions
. [Emphasis added.]

[32]

Ultimately, the trial judge accepted Constable Kents
    version of the events. He found that the trailer doors were opened by Officer
    Leeman and Constable Kent acting together seconds after they had had a
    discussion which showed that a mere regulatory power of inspection ... was to
    be relied upon ... to undertake what was clearly a warrantless search directed
    towards the detection of potential criminality. Moreover, the trial judge
    concluded that this conduct occurred at a point in time when both police
    officers testified that they knew that they needed to have search warrants to
    actually proceed as they did.

[33]

Turning to the s. 24(2) analysis, the trial judge considered
    the three separate lines of inquiry that
Grant
requires be addressed in determining whether th[e] illegally obtained evidence
    ought to be admissible: (i) the seriousness of the
Charter
-infringing state conduct; (ii) the impact of the breach on
    the
Charter
-protected interests of
    the accused; and (iii) society's interest in the adjudication of the case on
    its merits.

[34]

Concerning the seriousness of the
Charter
-infringing state conduct, the trial judge noted that while
    the trial Crown conceded that the breach was at the more serious end of the
    spectrum, he nonetheless argued that the police officers conduct was not
    egregious and brazen.

[35]

The trial judge rejected the trial Crown's argument in
    this regard and held that the officers conduct was at the most serious end of
    the spectrum. He found that the officers engaged in an intrusive and invasive
    warrantless search of [the respondents] trailer with full knowledge and
    consciousness that they would only have the legal authority to proceed in that
    way if they had first obtained a search warrant. He said the officers chose
    instead to simply rely on the questionable authority that cloaked Officer
    Leeman as derived from s. 216.1 of the
Highway
    Traffic Act
.

[36]

Concerning the impact of the breach on the
Charter
-protected interests of the
    respondent, the trial judge expressed concerns about the adequacy of counsel's submissions
    but nonetheless accepted the Crowns concession that the respondent had a
    reasonable expectation of privacy in the trailer, albeit at the lower end of
    the scale. However, the trial judge also commented that this finding would not
    have a material effect on the result of [his] analysis for reasons that he
    would explain.

[37]

Finally, concerning society's interest in an
    adjudication of the case on its merits, the trial judge noted that the evidence
    of the discovery of the cocaine was real and totally reliable evidence, that
    the charge faced by the respondent was very serious, and that exclusion of the
    evidence would put an end to the prosecutions case.

[38]

After noting that
Grant
requires that a trial judge weigh the various indications arising from each of
    the three inquiries, the trial judge concluded that the evidence of the
    discovery of the cocaine must be excluded:

when I endeavour in this case to balance the
    interests of truth with the integrity of the justice system, and I consider
    whether the admissibility of the illegally obtained evidence in this case,
    evidence obtained by the Crown's own admission in a reckless manner that
    amounted to an illegal fishing expedition, I reach the inevitable conclusion
    that this evidence must be excluded.

I conclude, based on the evidence in this
    application, that it ought to be evident to any fair and right thinking person
    who seeks to uphold the core values of our judicial system, that the admission
    of the illegally obtained evidence in this case extracts a small, albeit
    meaningful, toll on the truth seeking goal of the criminal trial, as compared
    to the damage that would be caused to the long-term respect and belief of
    Canadians in the rule of law and their confidence that it binds both citizen
    and state in equal measure, as would be the case if that evidence were to be
    admitted in the face of such arrogant and abhorrent state conduct.

Analysis

[39]

The Crown submits that the trial judge made several errors
    of law in his s. 24(2) analysis. I have re-characterized these submissions
    somewhat as follows:

1. The trial
    judge erred in holding that evidence seized as a result of a warrantless search
    is presumptively inadmissible under s. 24(2) of the
Charter
and in placing an onus on the Crown to rebut this
    presumption.

2. In assessing
    the evidence relating to the nature and extent of the s. 8
Charter
breach, the trial judge erred by failing to advert to the
    principle that the existence of a concurrent criminal law purpose does not, of
    itself, make a search that is otherwise authorized by law unreasonable under
    the
Charter
.

3. The trial
    judge failed to engage in any meaningful balancing of the three
Grant
factors and instead relied on his
    finding concerning the seriousness of the s. 8
Charter
breach to exclude the evidence of the discovery of the
    cocaine under s. 24(2) of the
Charter
.

[40]

For reasons that I will explain, I would accept these
    submissions. As I am unable to conclude that the decision would necessarily
    have been the same in the absence of such errors, I would allow the appeal and
    order a new trial before a different judge of the Superior Court.

(i) The
    Onus of Proof under s. 24(2) of the
Charter

[41]

As I have said, relying on
Bartle
, the trial judge held that evidence obtained by an
    unauthorized search is presumptively inadmissible and that the Crown therefore bore
    the onus of demonstrating that admission of such evidence would not bring the
    administration of justice into disrepute. In my opinion, the trial judge erred
    in this conclusion.

[42]

Bartle
does
    not stand for the proposition that the Crown bears the burden of persuasion
    under s. 24(2). Rather, at p. 209,
Bartle
reaffirms the proposition set out in
R. v.
    Collins
, [1987] 1 S.C.R. 265 at pp. 284-86,
R. v. Simmons
, [1988] 2 S.C.R. 495 at p. 532, and
R. v. Duarte
, [1990] 1 S.C.R. 30, at p. 59,
    that it is the applicant for exclusion under s. 24(2) who must ultimately
    satisfy the court on a balance of probabilities that the admission of the
    evidence could bring the administration of justice into disrepute.

[43]

Moreover, at p. 210,
Bartle
simply confirms the common sense proposition that in cases
    involving an unreasonable search, unless the Crown can show the police had a reasonable
    basis for acting as they did, as a practical matter, a presumption may arise
    that the
Charter
-infringing state conduct
    was serious.

[44]

However, this practical consideration relating to but
    one aspect of the s. 24(2) analysis does not have the effect of transforming
    the onus of proof under s. 24(2) so as to require the Crown to demonstrate that
    admission of evidence obtained under the search would not bring the
    administration of justice into disrepute.

[45]

Even if one presumes in certain circumstances that
Charter
-infringing state conduct is
    serious, that does not determine the s. 24(2) analysis. Rather, it remains
    necessary to consider the other lines of inquiry in the
Grant
analytical framework, and to balance the assessments under
    each of these lines of inquiry to determine whether, considering all the
    circumstances, admission of the evidence would bring the administration of
    justice into disrepute: see
Grant
at
    para. 71.

[46]

As I have said, contrary to the trial judges
    conclusion,
Bartle
confirms that the
    onus of proving the latter proposition is on the applicant.

[47]

I find it impossible to say that, absent his erroneous
    conclusion about the burden of proof, the trial judges decision on the s.
    24(2) analysis would necessarily have been the same. The trial judges error
    means that he approached the s. 24(2) issue from the wrong perspective.
    Moreover, it may well explain why he placed so much emphasis on the perceived
    seriousness of the
Charter
violation
    in this case, while essentially ignoring the minimal impact of the violation on
    any
Charter
protected interests of
    the respondent. I will return to this point when addressing the Crown's third
    submission.

(ii) The existence of a concurrent
    criminal law purpose does not of itself  make
    a search that is otherwise authorized by law unreasonable under the
Charter
.

[48]

Where police (or enforcement officers) have conducted a
    warrantless search, the onus is on the Crown to establish on a balance of
    probabilities that the search was authorized by law, that the law itself is
    reasonable, and that the manner in which the search was carried out was
    reasonable:
R. v.
Nolet
,
    [2010] 1 S.C.R. 851, at para. 21, citing
Collins
at p. 278, and
R. v. Caslake
,
    [1998] 1 S.C.R. 51, at para. 10.

[49]

As set out above, in this case, although the Crown
    conceded that Constable Kent breached the respondents s. 8
Charter
rights by cutting into one of
    the bales in which the cocaine was sealed without first obtaining a search
    warrant, the Crown maintained that the three officers were entitled to open the
    rear doors of the trailer and inspect the interior of the trailer relying on
    Officer Leeman's authority to conduct regulatory inspections under s. 216.1 of
    the
Highway Traffic Act
.

[50]

The trial judge rejected this argument and concluded
    that Officer Leeman never had a simple
Highway
    Traffic Act
motivation for searching the tractor-trailer. In addition, the
    trial judge found that even if Officer Leeman initially had a legitimate
    regulatory intention, that intention was quickly superseded by criminal law
    concerns after the respondent spoke about a gun. The trial judge also found it unbelievable
    that the three officers could have relied on s. 216.1 of the
Highway Traffic Act
to open the trailer
    doors at a point in time when the focus of the investigation  ... had changed dramatically from a simple
    regulatory one, to one involving potential
Criminal
    Code
infractions.

[51]

However, the existence of a concurrent criminal law search
    purpose does not, in itself, preclude the existence of a valid regulatory search
    purpose  nor does it, in itself, make a search that is otherwise authorized by
    law unreasonable under the
Charter
:

see
Nolet
.
    In my view, the trial judge erred in failing to advert to these principles when
    assessing the evidence relating to whether opening the trailer doors amounted
    to a s. 8
Charter
breach. In fairness
    to the trial judge, I wish to note that he did not have the benefit of the
    Supreme Court of Canada's decision in

Nolet
.

[52]

In
Nolet
, the
    tractor-trailer the appellants were driving was stopped by an RCMP officer
    engaged in a random check under the Saskatchewan
Highways and Transportation Act
,
1997
, S.S. 1997, c. H-3.01. After discovering some irregularities
    in the units licensing and documentation, the RCMP officer inspected the interior
    of the truck and found $115,000 in a duffel bag located in a sleeping
    compartment immediately behind the driver's seat.

[53]

The RCMP officer testified that he opened the duffel
    bag because its contents crackled like paper when he touched it and he thought
    it might contain travel documents. On finding the money, he arrested the
    appellants for possession of the proceeds of crime. RCMP officers eventually
    found 392 pounds of marijuana concealed in a secret compartment in the trailer.

[54]

The trial judge found that the initial stop of the
    tractor-trailer was lawful. However, even though s. 63(5) of Saskatchewans
Highways and Transportation Act
permits
    a warrantless search of a vehicle for evidence of a regulatory offence where a peace
    officer has reasonable grounds to believe that a vehicle is being operated in
    contravention of regulatory requirements, the trial judge held the warrantless
    search of the duffel bag was unlawful.

[55]

Particularly in the light of the officers suspicion that
    there may have been some alterations done to the trailer, the trial judge
    concluded that the officer was more interested in looking for evidence of
    criminal activity than for contravention to commercial trucking regulations.
    She said, [s]uch a concern does not relate primarily to commercial trucking
    regulations. It relates to suspected criminal activity. Moreover, the trial
    judge held that once the focus of [the police officers inquiry] shifted from
    a regulatory inspection to a criminal investigation, the warrantless search
    became unlawful.

[56]

Writing for the Supreme Court of Canada in
Nolet
, Binnie J. emphasized at paras. 3
    and 4 that while random checks of vehicles for highway purposes must be
    limited to their intended purpose  roadside stops sometimes develop in unpredictable
    ways. At para. 4, he went on to note that, accordingly, reviewing courts must be
    careful to proceed step by step through the interactions of [officers] and [an
    accused] from the initial stop onwards to determine whether, as the situation
    developed, the [officers] stayed within their authority, having regard to the
    information lawfully obtained at each stage of the inquiry.

[57]

In
Nolet
, the
    fact that the random stop occurred in furtherance of a valid regulatory purpose
    was not disputed at the Supreme Court of Canada. Rather, the appellants main
    argument was that the police officers search of the duffel bag was
    predominantly attributable to his interest in illegal criminal activity and, as
    such, was beyond the scope of any valid regulatory purpose.

[58]

Binnie J. agreed with the Saskatchewan Court of Appeal
    that the question [was] not determining which purpose [was] predominant or
    subordinate. As long as there [was] a continuing regulatory purpose on which
    to ground the exercise of the regulatory power, the issue [was] whether the
    officers search of the duffel bag infringed the reasonable expectations of privacy
    of the appellants: see
Nolet
at
    para. 43. Further, he said:

I do not agree that the officers concurrent
    interest in contraband (even if it was predominant) rendered the search
    unlawful or unreasonable within the scope of s. 8 of the
Charter
. As already stated, knowledge of transportation legislation
    is a requirement to be licensed as a driver. Commercial drivers are well aware
    of the police authority to conduct random stops and search vehicles for
    evidence of infractions ... here, as events progressed from the police stop to
    the initial regulatory search of the cab, there was no police invasion of the
    minimal privacy interest that existed. As was the case in
Annett
, the expectation that the search might also uncover drugs
    did not convert a
Charter
-compliant
    regulatory search into a
Charter
violation [citations omitted].

[59]

In this case, in my view, when considered as a whole,
    the trial judges reasons reflect an either/or approach to assessing the
    evidence concerning the officers motivations when the trailer doors were
    opened and fail to reflect an appreciation that the presence of the criminal
    law search purpose does not, of itself, preclude the presence of a valid
    regulatory search purpose.

[60]

In particular, the trial judge's conclusions about the
    officers motivations for conducting a search appear to be driven solely by the
    fact that there were criminal law concerns in this case from the outset and
    that such concerns intensified and became predominant after the respondent
    mentioned a gun. I will repeat the relevant portion of his reasons as set out
    above for ease of reference:

I find that
    Officer Leeman never had a simple Highway Traffic Act inspection motivation.
Within seconds of stopping his vehicle and speaking to [the respondent], he
    radioed in for police assistance, and then made a second call out of concern for
    his own fear and safety when the issue of the possible presence of a gun arose.
Even if he had a regulatory enforcement
    intention at the time that he originally stopped behind the white transport
    truck, it is clear on his own evidence that that intention was very soon
    superseded by the criminal law concern of the possibility of guns being present
    at the site
.

I accept the proposition that Highway Traffic Act
    enforcement officers have been given the powers by the Legislature to stop and
    inspect commercial vehicles as described in s. 216.1 of the
Highway Traffic Act
, but it is plain and
    obvious that that power is not given to the officer, and could not be given to
    the officer, for any purpose beyond the limited regulatory purposes of ensuring
    compliance with the
Highway Traffic Act
and the two other statutes referenced in s. 216.1.
It is disingenuous, and astonishing to me that it could be suggested
    that an inspection power of this type granted for simple commercial vehicle
    regulatory purposes could be relied upon by Officer Leeman, or Constables Kent
    or Clarke as providing valid legal authority to permit the rear doors of the
    truck to be opened at a point in time when the focus of the investigation that
    was unfolding on James Snow Parkway had changed dramatically from a simple
    regulatory one, to one involving potential Criminal Code infractions
.
    [Emphasis added.]

[61]

However, as
Nolet
demonstrates, the presence of a criminal law purpose for conducting a
    search does not, of itself, preclude the existence of a valid regulatory
    purpose.

[62]

Accordingly, the issue for the trial judge was not simply
    whether Officer Leeman had

a criminal
    law purpose -- even a predominant criminal law purpose -- as events progressed.
    Rather, the issues were whether Officer Leeman actually formed a legitimate
    intention initially to search the tractor-trailer for regulatory purposes (whether
    he possessed a concurrent criminal law purpose or not), and if he did, whether
    that legitimate intention was still subsisting when Officer Leeman opened the
    trailer doors.

[63]

In his reasons, the trial judge also observed that
    Officer Leeman never articulated a basis for invoking his
Highway Traffic Act
inspection authority. However, Officer Leeman
    did not require an articulable basis for invoking his authority under s. 216.1.
    He was entitled to conduct an inspection to confirm regulatory compliance even
    in the absence of reasonable and probable grounds for believing that some
    infraction had been committed.

[64]

In the end, I conclude that the trial judge erred when
    assessing the officers evidence relating to whether opening the trailer doors
    amounted to a s. 8
Charter
breach by
    failing to advert to the principles that the presence of a criminal law purpose
    does not, in itself, preclude the existence of a valid regulatory search
    purpose or make a search that is otherwise authorized by law unreasonable under
    the
Charter
.

[65]

Although this conclusion does not undermine the
    validity of the finding that Officer Kent breached the respondent's
Charter
rights when he cut into one of
    the bales, it impacts the question of the extent and seriousness of the
Charter
breach. Given the nature of this
    issue, in my opinion, a new trial is necessary to permit a proper assessment of
    the relevant evidence.

(iii) No
    Meaningful
Balancing
of the Three
Grant
Lines of Inquiry

[66]

Although the trial judge recognized that he was
    required to balance the assessments under each of the three
Grant
lines of inquiry to determine
    whether admission of the evidence of the discovery of the cocaine would bring
    the administration of justice into disrepute, in my opinion, he erred by
    failing to engage in any meaningful balancing of the three lines of inquiry.

[67]

As I read his reasons, the trial judge determined that
    the evidence should be excluded based on his assessment that the
Charter
-infringing state conduct fell at
    the most serious end of the spectrum. While he acknowledged that excluding the
    evidence would result in the Crown being unable to prosecute a various serious
    charge, he failed to attribute any significance to the impact of the violation
    on the
Charter
protected interests of
    the respondent.

[68]

As set out above, the trial Crown conceded that the
    respondent had a reasonable expectation of privacy in the trailer, albeit a
    relatively minimal one. The trial judge accepted this concession and found that
    the impact of the s. 8 breach on the
Charter
-protected
    interests of the respondent was at the lower end of the scale. He went on to
    say that this conclusion would not have a material effect on the result of
    [his] analysis for reasons he would explain. In my view, the trial judge never
    gave any real explanation of this conclusion.

[69]

Even accepting the trial judge's finding that the
Charter
-infringing state conduct fell at
    the most serious end of the spectrum, that factor alone does not determine the
    s. 24(2) inquiry. It is still necessary to balance that assessment with
    the assessments arising from the other two
Grant
lines of inquiry.

[70]

In this case, the trial judge failed to take any
    account of the fact that the assessment under the second
Grant
line of inquiry pointed strongly towards admission of the
    evidence.

[71]

To the extent that the respondent had a reasonable
    expectation of privacy in the trailer, his
Charter
-protected
    interest could only be described as minimal. I say that for two reasons.

[72]

First, commercial trucking is a highly regulated
    industry
[1]
and truckers can expect to be subject to random inspections from time to time:
Nolet
, at para. 31.

[73]

Second, the evidence of the owner of the
    tractor-trailer demonstrated the extremely low level of the respondents
    privacy interest in the trailer in this particular case:

·

the respondent did not own the tractor-trailer;

·

the respondent had no authority to determine
    what was loaded into the trailer;

·

the respondent was not allowed to place anything
    in the trailer without the owner's permission;

·

the respondent generally did not load goods into
    the trailer himself;

·

the suppliers, and not the respondent, often
    secured the back of the trailer;

·

on February 4, 2007, the respondent did not have
    permission from the owner to put any items into the trailer other than the load
    he was supposed to deliver; and

·

although the respondent may have put his own
    lock on the back of the trailer from time to time, on February 4, 2007 there
    was no lock on the trailer doors.

[74]

Accordingly, even accepting that the
Charter
-infringing state conduct was very
    serious, the trial judge was required to balance that against the fact that, in
    the circumstances of this case, the impact of the misconduct on
Charter
-protected rights was minimal and
    against the further fact that exclusion of the evidence would put an end to the
    prosecution of a very serious charge.

[75]

Apart from the conclusory statements set out in para.
    38 above, the trial judge failed to engage in any meaningful balancing of the
    three
Grant
lines of inquiry. Once
    again, I am unable to say that in the absence of this error, the trial judges
    decision on the s. 24(2) analysis would necessarily have been the same.

Conclusion

[76]

Based on the foregoing reasons, I would allow the
    appeal, set aside the respondent's acquittal and order a new trial before a
    different judge of the Superior Court.

Signed: Janet
    Simmons J.A.

I agree D. OConnor
    ACJO

I agree David Watt
    J.A.

RELEASED:  JS
    February 11, 2011

[1]
In
    Ontario, a number of statutes govern commercial trucking, including the
Highway Traffic Act
, R.S.O. 1990,
    c. H.8; the
Dangerous Goods
    Transportation Act
, R.S.O. 1990, c. D.1; the
Public Vehicles Act
, R.S.O. 1990, c. P.54; the
Compulsory Automobile Insurance Act
, R.S.O. 1990, c. C.25; the
Fuel Tax Act
, R.S.O. 1990, c. F.35.


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), (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 complainant 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, 172, 172.1,
    173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)  an offence under
    section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on
    female), 156 (indecent assault on male) or 245 (common assault) or subsection
    246(1) (assault with intent) of the
Criminal Code
, chapter C-34 of the
    Revised Statutes of Canada, 1970, as it read immediately before January 4,
    1983, or

(iii) an offence under
    subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual
    intercourse with a female between 14 and 16) or section 151 (seduction of a
    female between 16 and 18), 153 (sexual intercourse with step-daughter), 155
    (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian
    procuring defilement) or 167 (householder permitting defilement) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 1, 1988; or

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

(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
    complainant of the right to make an application for the order; and

(b)  on application made by the
    complainant, the prosecutor or any such witness, 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).

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.

CITATION:
R. v. Savage, 2011
          ONCA 107

DATE:
          20110208

DOCKET: C49883

COURT OF APPEAL FOR ONTARIO

Doherty, Laskin and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Savage

Appellant

Joseph R. Jakabfy, for the appellant

Michelle Campbell, for the respondent

Heard and released orally:
January 28, 2011

On appeal from the conviction entered on November 13, 2007 and
          the sentence imposed on September 24, 2008, by Justice John D. Keast of the
          Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of sexual interference of a
    nine-year old developmentally delayed girl.  He was sentenced to 18 months imprisonment followed by three years
    probation.  He appeals from conviction
    and seeks leave to appeal sentence.

[2]

On the conviction appeal, the appellant argues that the
    verdict is unreasonable.  He also seeks
    to introduce fresh evidence by alleging ineffective assistance of counsel at
    trial.  He says his trial counsel was
    inadequately prepared for trial and inadequately represented him during the two
    day trial.

[3]

He appeals his sentence on the ground that it is
    manifestly unfit.

[4]

The court found it unnecessary to call on the Crown in
    this appeal.

THE CONVICTION APPEAL

[5]

At the time of the alleged incident, the complainant
    was nine years old.  She functions at a
    cognitive level some years younger than her actual age.  She and her father and grandmother lived in
    the appellants house.  The appellant was
    the grandmothers boyfriend. He was a truck driver and away from home a
    significant amount of the time. However, the appellant would occasionally look
    after the complainant when her father and grandmother went out to play bingo on
    Friday evenings.  The incident allegedly occurred
    on one such occasion.

[6]

The complainant was sitting on a couch watching
    television.  The appellant sat next to
    her.  He had been drinking.  He touched her hips and then moved his hands
    towards her breasts.  She flicked his
    hands off and told him not to touch her.  She then got up and went to the computer to check her emails.  He came up behind her, put his hands on her
    shoulders and again moved them towards her breasts.  She again flicked his hands off of her and
    told him not to touch her.  Some six
    years after the incident, the complainant disclosed the incident.

[7]

The trial lasted a single day.  Three witnesses, one of whom was the
    complainant, testified.  The appellant
    did not.  The sole issue was credibility.

[8]

The trial judge was alive to any inconsistencies and
    discrepancies in the complainants testimony.  To the extent there was conflicting evidence from the appellants
    grandmother on secondary matters such as the location of the computer and the
    ability to access the internet, the trial judge considered the evidence and
    preferred that of the complainant, whom he found to be credible and
    reliable.

[9]

We see no merit in the allegation that the verdict was
    unreasonable. The inconsistencies that the appellant raises before this court
    are minor matters. To the extent that the appellants submissions flow from the
    suggestion that the complainants testimony ought not to have been accepted
    because of her diminished mental capacity and her delay in reporting, we reject
    this submission.  The trial judge gave
    cogent reasons for finding her evidence credible and reliable.  He was entitled to accept that evidence and
    convict on it.  His reasons demonstrate
    that he considered each and every argument advanced by the defence at trial and
    that he carefully analysed those arguments.  He gave full explanations for why he rejected them.

THE FRESH EVIDENCE APPLICATION

[10]

We refuse to admit the fresh evidence because, in our
    view, the appellant has not made out his claim of ineffective assistance of
    counsel.

[11]

Having considered the fresh evidence, we find that the
    appellants trial counsel offers a far more credible and reliable history of
    his interaction with the appellant and that there were good tactical reasons
    for the decisions that he made during the course of the trial.  We also note that the appellant continued to
    retain his trial counsel on a different sexual interference charge after the
    trial in question.  In any event, after
    considering the fresh evidence, we are of the view that there was no
    incompetence on the part of trial counsel and there was no miscarriage of
    justice.

THE SENTENCE APPEAL

[12]

The appellant submits that the sentence fails to
    reflect the nature of the sexual touching, which was fleeting, isolated and did
    not escalate in seriousness.  Accordingly, he suggests, the sentence was unfit.

[13]

The Crown acknowledges that the acts in question might
    not normally justify an 18 month sentence of incarceration but says that the
    sentence in this case was fit.

[14]

We accept the Crowns submission on this matter.  There is no basis on which to interfere with
    the sentence imposed.

[15]

The trial judge gave detailed, thoughtful reasons for
    sentence, which properly took into account the aggravating factors of this
    offence, the appellants long standing predatory history of abusing children to
    whom he stood in a position of trust, and the trial judges factual finding
    that this appellant is at a high risk to re-offend.  The appellant was in a position of trust over
    his victim, a young and particularly vulnerable child because of her special
    circumstances.  The psychological impact
    on her has been considerable.

[16]

In its factum, the Crown had indicated that it would
    ask this court to allow the sentence appeal only to the extent of adding the
    following condition to the 3 year probationary term:

Not to be in the presence of anyone under the age
    of 16 unless   continuously in the
    company of another supervising adult other than Y.L.

[17]

The Crown advised the court that she had spoken with
    counsel for the appellant before the oral hearing of the appeal and that he had
    stated that he did not object to the imposition of that additional condition.  The court confirmed with counsel for the
    appellant that he had no objection to the addition of this condition.

[18]

We are satisfied that imposition of this additional
    probationary condition is warranted.

DISPOSITION

[19]

Accordingly, we dismiss the conviction appeal,
    grant leave to appeal sentence and allow the sentence appeal only to the extent
    of adding the probationary condition in the terms requested by the Crown, as
    set out above.

Doherty J.A.

J. I. Laskin J.A.

E. E. Gillese J.A.


CITATION: R. v. Sidhu, 2011 ONCA 139

DATE: 20110222

DOCKET: C51753

COURT OF APPEAL FOR ONTARIO

Laskin, Feldman and Armstrong JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hardeep Sidhu

Appellant

Richard A. Allman, for the appellant

Matthew Asma, for the respondent

Heard: February 18, 2011

On appeal from the sentence imposed
          January 14, 2010 by Justice Nancy S. Kastner of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

A one year term of imprisonment for this lengthy history of domestic
    violence was fully justified.  The public interest would not be served by
    refusing to re-incarcerate the appellant.

[2]

Leave to appeal sentence is granted but the sentence appeal is
    dismissed.