COURT OF APPEAL FOR ONTARIO

CITATION: R v. Reid, 2016 ONCA 524

DATE: 20160630

DOCKET: C59670

Juriansz, Watt and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Erik Reid

Appellant

John Norris, Breese Davies and Owen Goddard, for the
    appellant

Alexander Hrybinsky, for the respondent

Heard: December 17, 2015

On appeal from the convictions entered on June 13, 2013 and
    the sentence imposed on June 20, 2013 by Justice Eugene G. Ewaschuk of the
    Superior Court of Justice, sitting without a jury.

Watt J.A.:

[1]

Ian McCulloch had some guns.  He kept them lawfully in a storage locker
    in Port Perry.

[2]

Lawrence Wray had some guns too.  He kept his guns lawfully in a storage
    locker in Port Perry.

[3]

In late October one year, somebody broke into both storage lockers.  And
    stole about thirty guns, most of them handguns.

[4]

About a week later, police found about three dozen guns in another
    locker.  Erik Reids locker.  Along with 5,000 rounds of ammunition.  All the
    guns came from the Port Perry lockers.  So did two other handguns found in
    Reids home, along with some more ammunition and Ian McCullochs coin
    collection and identification.

[5]

Police charged Reid with nearly 100 firearms offences.  At Reids trial,
    his lawyer asked the judge to exclude all the evidence found in his storage
    locker and at his home.  Reids lawyer said that the searches were unreasonable
    and the evidence gathered, inadmissible.

[6]

The trial judge did not agree with Reids lawyer.  The search was
    lawful.  The evidence found during the searches was admissible.  A little
    later, the judge convicted Reid of more than three dozen firearms offences on
    the basis of an Agreed Statement of Facts prepared by Reids lawyer and the
    trial Crown.

[7]

Erik Reid asks us to set aside his convictions, or, if we are not
    prepared to do so, to substantially reduce the lengthy penitentiary sentence
    the trial judge imposed upon him.

[8]

These reasons explain why I would dismiss the appeal from conviction,
    but allow the appeal from sentence to the extent of awarding enhanced credit to
    Reid for pre-disposition custody, thereby reducing the
remanet
of his sentence.

The Background

[9]

The issues raised on the appeal from conviction do not require any
    elaboration of the circumstances underpinning the offences charged beyond those
    necessary for an understanding of the grounds of appeal advanced.

The Unrelated Arrest

[10]

About a week after the Port Perry gun thefts, police arrested Reid on an
    unrelated and outstanding warrant.  When searched incident to his arrest, Reid
    had several .22 calibre bullets in his pocket.  He was not charged in
    connection with this ammunition.

The Locker Search Warrant

[11]

The day after Reids unrelated arrest, police obtained a warrant to
    search a storage locker leased to him at a Toronto address.  In that locker,
    officers found 22 handguns, 13 long guns, and over 5,000 rounds of ammunition.
    All the handguns and six of the long guns came from the storage lockers in Port
    Perry.

[12]

The information to obtain (ITO), which provided the basis for the warrants
    issuance, recited the circumstances of Reids recent arrest and what he told
    investigators in a post-arrest interview.  He denied any knowledge of the
    ammunition in his pocket but admitted a familiarity with firearms through his
    deceased father.

[13]

The core of the ITO consisted of information provided by a confidential
    informant (CI) known to the Toronto Police Service.  In the copy of the ITO
    provided to defence counsel, the trial Crown redacted not only biographical
    details of the CI but also all the information the CI had provided.

[14]

The balance of the ITO disclosed observations a police officer made of
    the storage facility unit leased to Reid.  Through a slim door opening, the
    officer could see cases of razors stacked on the floor along with something
    else covered with a dark tarp.  Some of this paragraph was also redacted.

The Search Warrant for Erik Reids
    Home

[15]

After police had executed the search warrant for Reids storage locker
    and found the cache of stolen guns and ammunition there, they sought and
    obtained a second warrant to search the home Reid occupied with his mother.
    Execution of that warrant yielded two more stolen handguns, more ammunition, and
    various items belonging to Ian McCulloch.  The issuance of this warrant was not
    directly challenged at trial.

The Challenge
    at Trial

[16]

Trial counsel for Reid challenged the issuance of the search warrant for
    the storage locker.  He invoked s. 8 of the
Canadian Charter of Rights and
    Freedoms

and contended that under
R. v. Garofoli
, [1990] 2
    S.C.R. 1421, the warrant could not have issued on the basis of the material
    included in the ITO.

[17]

As part of the appellants s. 8 application, trial counsel sought leave
    to cross-examine the author of the ITO.  Counsel sought to establish that the
    police had not been forthcoming in the ITO about the timing of the information
    received from the CI as well as about the CIs reliability and criminal
    antecedents.  After all, trial counsel argued, the redacted ITO made it clear
    that issuance of the warrant depended entirely on the reliability of the
    information provided by the CI.

[18]

The trial judge dismissed the application to cross-examine the author of
    the ITO.  The trial judge concluded:

In this case, it seems to me that the proposed
    cross-examination is essentially directed at undermining the reliability of the
    CI.  At the same time, it also seems to me that the proposed cross-examination
    would likely tend to narrow the class of possible informants, given the short
    timeframe involved and thereby tend to indirectly identify the CI.  The need to
    protect the identity of confidential informers remains a valid ground for
    denying cross-examination of the affiant in this area.

In the end, the accused has failed to satisfy me that the
    proposed cross-examination as to the CIs information would tend to undermine
    one of the statutory preconditions to the issuance of the search warrant.
    Alternatively, there is no basis indicating that the affiants own credibility
    is material to undermining one of the statutory preconditions to the issuance
    of the search warrant.  Accordingly the application for leave to cross-examine
    the affiant is hereby dismissed.

[19]

After the trial judge ruled on trial counsels application to
    cross-examine the author of the ITO, the trial Crown acknowledged that the
    redacted ITO could not support the issuance of the warrant to search the
    storage locker.  The Crown invoked step six of
Garofoli
and provided the
    trial judge with a draft summary of the redacted parts of the ITO.  The trial
    judge reviewed the draft and provided it to defence counsel.

[20]

Defence counsel complained that the summary was so devoid of information
    that he could not make any submissions on his
Garofoli
application.
    Counsel did not challenge the constitutional validity of step six in
Garofoli
under s. 7 of the
Charter
or on any other basis.

The Ruling of the Trial Judge

[21]

The trial judge was satisfied that the summary provided to trial counsel
    was adequate to permit Reid to make full answer and defence on his
Garofoli
application. The trial judge relied on the redacted portions of the ITO and
    found that the warrant could have been issued in reliance upon them.  The judge
    dismissed the application to exclude the evidentiary fruits of the search of
    Reids storage locker.

The Trial Proceedings

[22]

After the trial judge had dismissed the s. 8 application, counsel
    prepared an Agreed Statement of Facts that summarized the Crowns case.  Reid
    pleaded not guilty and agreed that findings of guilt could be recorded on about
    three dozen of the 98 counts: one count of possession of a firearm for the
    purpose of trafficking, one count of possession of an unregistered firearm with
    ammunition readily accessible, and 35 counts of possession of unlicensed
    firearms.  The trial judge recorded the findings of guilt, entered convictions
    on those counts, and subsequently sentenced Reid to a net sentence of nine
    years in the penitentiary.  The Crown withdrew the remaining counts.

The Grounds of Appeal

[23]

Erik Reid (the appellant) appeals his convictions and seeks leave to
    appeal his sentence.

[24]

On the appeal from conviction, the appellant seeks to challenge, for the
    first time in this court, the constitutional validity of step six of
Garofoli
which he says offends s. 7 of the
Charter
.  In the alternative, he
    submits that the trial judge erred in dismissing the
Garofoli
application
    at trial by relying on redacted portions of the ITO when the judicial summary provided
    to him (the appellant) did not make him sufficiently aware of the nature of the
    excised material to permit him to effectively challenge it by evidence or
    argument.

[25]

On the appeal from sentence, the appellant says that the trial judge
    imposed a demonstrably unfit sentence because of his singular focus on
    denunciation and deterrence and his failure to accord appropriate weight to
    various mitigating factors and the appellants rehabilitative prospects.  The
    appellant contends that the trial judge also erred in failing to award him
    adequate credit for time spent in pre-disposition custody by granting credit on
    a 1:1 rather than a 1.5:1 basis.

The Appeal from Conviction

Ground #1: The Constitutional Validity of Step Six of
Garofoli

[26]

In accordance with the directions of the case management judge, counsel
    filed written submissions on whether the appellant should be permitted to raise
    the constitutional validity of step six of
Garofoli

in this court, for the first time.  We
    permitted brief oral submissions on the issue then retired to consider whether
    we would permit the appellant to advance the argument.  We concluded that we
    would not permit the appellant to pursue the constitutional challenge.

[27]

It is sufficient in these circumstances to summarize briefly the
    positions of the parties, set down the governing principles, and explain why
    the application of those principles yielded the conclusion we reached.

The Arguments on Appeal

[28]

The appellant begins with an acknowledgement of the incontrovertible.
    As a general rule, appellate courts will not entertain grounds that were not
    raised at trial.  This general prohibition applies equally to constitutional
    and non-constitutional arguments that see their first sunrise in the appellate
    court.

[29]

But, the appellant continues, the rule is general, not universal or
    unyielding.  Appellate courts have the discretion to permit pursuit of new
    arguments, constitutional or otherwise, for the first time on appeal.  New
    arguments are more likely to be countenanced where those arguments can be
    fully, fairly, and effectively addressed on the record of the trial court that
    is before the appellate court.

[30]

Here, the appellant says, the proposed ground relates to the basis on
    which the case for the Crown was challenged at trial.  The appellant contested
    the constitutional validity of the search of the storage locker and seizure of
    its contents.  The ITO was targeted.  The attack was both facial and
    subfacial.  The constitutional challenge proposed on appeal fastens upon the
    procedural mechanism invoked by the Crown to rebuff the challenge.  The nexus
    is sufficient to oust the operation of the general rule and to permit
    consideration of the proposed argument made here for the first time.

[31]

Besides, the appellant contends, the trial record is adequate to permit
    advancement of the argument and adjudication of its considerable merit.  The
    respondent will suffer no prejudice.

[32]

The respondent rejects any suggestion that we should depart from the
    general rule, invoke the exception, and take on the constitutional challenge
    proposed by the appellant.

[33]

The respondent submits that the evidentiary record before this court is
    inadequate. It is not the functional equivalent of what would have been put in
    place had the argument been advanced at trial. The respondent reminds us that
    the constitutional infringement alleged at trial was a breach of s. 8, not a
    claim that a procedural component of the inquiry offended s. 7.  The argument
    advanced was highly contextual.  The argument proposed here is of a more
    general nature, seeking to strike down step six on the ground it fails to
    accord with the principles of fundamental justice.  What is proposed is an
    entirely new argument, and one that cannot be advanced, much less decided, in
    the abstract.  What is required is a record compiled to reflect the highly
    contextual nature of the challenge and including s. 1 materials. This argument cannot
    be legitimately characterized as supplementary to that advanced at trial.

[34]

The respondent points out that whether an argument proposed for the
    first time on appeal is important is not dispositive of whether the general
    rule should give way to the exception.  This is not an issue that will escape
    appellate review if not heard in this case.  It will emerge in future cases in
    which
Garofoli
applications are mounted and step six is involved: its
    constitutional validity will be assailed, the necessary evidentiary foundation developed.

[35]

The respondent also notes that the s. 7 challenge to step six of
Garofoli
invites us to overturn, as unconstitutional, a procedural step created by the
    Supreme Court of Canada in
Garofoli
and considered by this court
    recently in a decision that contained no query about constitutional
    vulnerability.  Nothing has occurred since either decision was rendered to
    warrant further consideration.

[36]

The respondent concludes by questioning the claim of merit advanced by
    the appellant.  The essence of the argument for the appellant rests on a claim
    that invokes the disclosure obligations of the Crown, the right to make full
    answer and defence, and authorities involving national security and security
    certificates.  The right to make full answer and defence is not absolute.
    Neither it nor an accuseds entitlement to disclosure can trump CI privilege.
    What will be required to meet the commands of s. 7 will vary with the context
    in which the claim arises.

The Governing Principles

[37]

The principles that control whether an appellate court will entertain on
    appeal an argument not raised at trial are not controversial.

[38]

The general rule is preclusive but not unyielding.

[39]

The general rule is that courts of appeal will not permit an issue to be
    raised for the first time on appeal:
R. v. Warsing
, [1998] 3 S.C.R.
    579, at para. 16,
per
LHeureux-Dubé J. (dissenting in part);
R.
    v. Brown
, [1993] 2 S.C.R. 918, at pp. 923-924,
per
LHeureux-Dubé
    J. (dissenting);
Kaiman v. Graham
, 2009 ONCA 77, 245 O.A.C. 130, at
    paras. 18-19; and
R. v. Roach
, 2009 ONCA 156, 246 O.A.C. 96, at para.
    6.

[40]

The general rule arises out of several concerns that include but are not
    limited to the following:

i.

prejudice caused to the other side which lacks the opportunity to
    respond and adduce evidence at trial;

ii.

the absence of a sufficient record from which to make findings of fact
    essential to a proper determination of the issue;

iii.

societal interest in finality and the expectation that criminal cases
    will be disposed of fairly and fully at first instance; and

iv.

the important responsibility of defence counsel to make decisions that
    represent a clients best interests and to advance all appropriate arguments
    throughout the trial.

See
Warsing
, at paras. 16-17 and
Brown
,
    at pp. 923-924.

[41]

The general rule applies to constitutional arguments or challenges
    raised for the first time on appeal, regardless of whether an appellant invokes
    the remedial powers of s. 24 or the declaratory or nullifying authority of s.
    52(1):
Roach
,
at para.
    6.

[42]

The burden is on the party who seeks to raise the new issue on appeal to
    bring the argument to be advanced within the exception to the general
    prohibition.  It is incumbent on that party to demonstrate that all the facts
    necessary to address the proposed issue are as fully before the appellate court
    as they would have been had the issue been argued at trial:
Kaiman
, at
    para. 18.  As the evidentiary disputes generated by the materials first filed
    on appeal mount, the likelihood that an appellate court will hear the argument
    diminishes:
Roach
, at paras. 7-8.

[43]

A party who seeks to escape the grip of the general prohibition against
    raising issues for the first time on appeal must meet or satisfy three
    preconditions:

i.

the evidentiary record must be sufficient to permit the appellate court
    to fully, effectively and fairly determine the issue raised on appeal;

ii.

the failure to raise the issue at trial must not be due to tactical
    reasons; and

iii.

the court must be satisfied that no miscarriage of justice will result
    from the refusal to raise the new issue on appeal.

See
Brown
, at p. 927,
per

LHeureux-Dubé
    J. (dissenting).

[44]

A final point.  The decision whether to grant or refuse leave to permit
    a new argument is a discretionary decision informed by a balancing of the
    interests of justice as they affect all parties:
Kaiman
, at para. 18.

The Principles Applied

[45]

In combination, several reasons persuaded us that this was not a case in
    which we should depart from the general injunction against permitting issues to
    be raised for the first time on appeal.

[46]

First, we are not satisfied that the facts are as fully developed as
    they would have been had the constitutionality of step six been raised at first
    instance.

[47]

For all practical purposes, the evidentiary record consists of the
    redacted ITO and the judicial summary of the redacted portions of the ITO
    provided to defence counsel.  The focus of the inquiry at trial was on whether
    the judicial summary provided made the appellant sufficiently aware of the
    nature of the excised material that he was able to challenge it in argument or
    by the introduction of evidence. The issue was whether the Crown could invoke step
    six or was confined to the admittedly inadequate redacted ITO. An evidentiary
    record adequate for this purpose provides no such nourishment to sustain a
    claim that step six is constitutionally impotent because it fails to accord
    with the principles of fundamental justice.

[48]

Second, the proposed argument is not supplementary to the position
    advanced at trial. There, trial counsel contended that the Crown could not rely
    on step six, not because it was unconstitutional, but because the summary
    provided did not meet its requirements. The proposed argument is a claim that step
    six has no place in a
Garofoli
application because this step is itself
    constitutionally flawed.

[49]

Third, to the extent that the proposed argument is grounded on a claim
    that the right to make full answer and defence trumps confidential informer
    privilege, such a claim is unsustainable. In a similar way, the invocation of
    the principles elucidated in
Charkaoui v. Canada

(Citizenship
    and Immigration)
,

2007
    SCC 9, [2007] 1 S.C.R. 350, is of little value in this context since that case
    makes it clear that s. 7 does
not
require a particular type of process
    but one that is fair in light of the nature of the proceedings and the
    interests at stake:
Charkaoui
, at para. 20.

[50]

Finally, the appellant invites a reassessment of a common law procedure
    put in place by the Supreme Court of Canada to deal with applications to
    exclude evidence allegedly obtained by a breach of s. 8 of the
Charter
.
    A part of the procedure  the conditions precedent to obtaining leave to
    cross-examine the affiant  has been held constitutionally sound under s. 7:
R.
    v. Pires
;
R. v. Lising
, 2005 SCC 66, [2005] 3 S.C.R. 343, at
    para. 38. Besides, step six has received extensive analysis recently in this
    court without any suggestion of constitutional infirmity:
R. v. Crevier
,
    2015 ONCA 619, 330 C.C.C. (3d) 305.

GROUND #2: The Inadequacy of the Judicial Summary

[51]

The appellant targets the judicial summary provided to defence counsel
    at trial. He says that the summary fell short of what step six in
Garofoli
requires.
    An assessment of this complaint requires a brief sketch of some features of the
    ITO and judicial summary and a snapshot of the trial judges ruling on the
Garofoli

application.

The ITO

[52]

The core of the ITO was the information provided by the CI. Absent this
    information, the trial Crown conceded, the warrant could not have issued.

[53]

The copy of the ITO provided to defence counsel at trial was redacted,
    barren of the information provided by the CI.

The Judicial Summary

[54]

The trial Crown provided the trial judge with a proposed summary of the
    redacted portions of the ITO. In open court, in the presence of defence
    counsel, the trial Crown and the trial judge discussed the adequacy of the
    summary. The trial judge was satisfied with its adequacy and provided a copy to
    defence counsel.  The trial Crown and trial judge retained a copy of the
    unredacted ITO.

[55]

The summary tracked the paragraphs and subparagraphs of the ITO in language
    that was, of necessity, somewhat general in order not to disclose information
    that might reveal the identity of the CI. Among other things, the summary made
    it clear that the ITO contained no information about:

·

the
    criminal record, if any, of the CI;

·

any
    outstanding charges the CI may have been facing; and

·

the
    CIs prior involvement, if any, in providing information to a police force.

[56]

The summary describes the currency of the information provided by the CI
    by reference to the same season of the same year in which the ITO was completed
    and the warrant issued. Further, the summary discloses that the ITO includes
    specific facts relating to a storage facility at a disclosed location. The
    facts include description of specific objects in the storage facility, how the facts
    became known to the CI and when those facts became known. Additional parts of
    the summary explain the basis upon which the author of the ITO undertook
    certain investigations and discuss corroboration of the information provided by
    the CI.

The Positions of the Parties at Trial

[57]

Trial counsel for the appellant focused his submissions on the adequacy
    of the judicial summary. He contended that the summary was so generic that he
    could not make submissions about whether the requirements of
R. v.

Debot
,
    [1989] 2 S.C.R. 1140, for information from informants  compelling information,
    a credible source, and corroboration by police investigation  had been met.

[58]

The summary provided no information about the degree of detail and was
    significantly deficient because it omitted, deliberately, any information about
    the CIs criminal record, outstanding charges, and previous involvement with
    law enforcement. In the end, counsel said, the summary failed to provide him
    with adequate information to challenge the ITO.

[59]

The trial Crown emphasized the nature of the judicial summary required
    by step six of
Garofoli
. The summary must be such that it makes the
Garofoli
applicant sufficiently aware of the
nature
of the excised material to challenge it in argument or by evidence:
Garofoli
,
    at p. 1461. The summary need not provide the specifics of the excised material.
    To impose such a requirement or standard would be at once unfaithful to the
    benchmark mandated by
Garofoli
and disloyal to the near absolute
    nature of the CI privilege.

[60]

Further, the trial Crown argued, the ultimate issue on the hearing was
    whether, on the basis of the ITO, as amplified on review, the warrant could have
    been issued. This test and the nature of the inquiry itself  a hearing to
    determine the admissibility of evidence  help to define the scope of
    disclosure required. It is in this narrower context, a threshold evidentiary
    hearing to determine the admissibility of items seized under a warrant as
    evidence, that the nature and scope of the judicial summary must be considered.

[61]

In the end, the trial Crown said, the summary was adequate. It pointed
    out the defects in the ITO  the absence of any mention of the CIs criminal
    record and prior history  and demonstrated a sufficient basis upon which trial
    counsel could argue and the trial judge decide whether the information was
    reliable and sufficiently corroborated by police investigation to overcome the
    effect of the omissions.

The Ruling of the Trial Judge

[62]

The trial judge described that the nature of his task at the threshold
    stage was to determine whether the judicial summary of the redacted portions
    met the standard required by step six of
Garofoli
. He concluded that
    the summary met this standard by its references to the following:

·

the
    background of the CI;

·

the
    CIs motivation;

·

the
    shortcomings in connection with the CIs criminal record (if any) and prior
    history as an informer;

·

the
    currency of the information about the storage locker and the accuseds
    circumstances;

·

the
    description of the contents of the storage locker; and

·

the
    source of the CIs knowledge.

[63]

The trial judge went on to consider whether, on the basis of the
    unredacted ITO, the warrant could have been granted. He concluded as follows:

In this case, I find the
    information provided by the CI, and in turn by the affiant, to the issuing
    judge to have been highly detailed and compelling. The information was current
    within a tight timeframe. Furthermore, the police corroborated the CIs
    information as to the location of the storage locker, its description, and
    various items found in or on the locker.  The CI also indicated how he/she came
    to be aware of the information, that is whether it was first or second hand
    information.  The police verified with the facility manager that the accused,
    Reid, had indeed rented the locker.  The locker was, furthermore, padlocked.

In the end, I find that there was
    a sufficient evidentiary foundation for the judge to have issued the search
    warrant, based on the compelling detail provided by the CI in corroboration of
    much of that detail.

The Arguments on Appeal

[64]

The appellant begins with a reminder that the Crowns resort to step six
    of
Garofoli
is circumscribed. To take advantage of this extraordinary
    step, which allows recourse to materials that have not been disclosed to an
    accused, Crown counsel must satisfy the reviewing judge that the judicial
    summary makes the accused sufficiently aware of the nature of the excised
    material that she or he may challenge it in argument or by evidence. In this
    case, the appellant says, the summary falls short of what is required.

[65]

The appellant acknowledges the difficulty in including any specifics
    about the information provided by the CI in the summary since those specifics,
    even what appears to be an innocuous detail, may tend to reveal the identity of
    the CI, thus impermissibly breach the CI privilege. But the appellant says that
    the compromise reflected in step six does not eradicate an accuseds right to
    make full answer and defence by challenging the admissibility of evidence
    proposed for admission by the Crown.

[66]

What happened here had that effect. The summary, generic in nature, left
    the appellant unaware of the source of the CIs information  first hand
    observation, hearsay, or rumour  as well as his or her motivation. For all
    practical purposes, the appellant lacked the ability to challenge, by argument
    or evidence, whether the
Debot
requirements

had been satisfied.
    The trial judge should not have permitted the Crown to rely on step six because
    the judicial summary failed to meet the standard required to invoke this
    extraordinary procedure.

[67]

The respondent rejects the appellants claim that the judicial summary
    fell short of what is required by step six of
Garofoli
.

[68]

The respondent says the very term used in step six of
Garofoli
 summary  recognizes that what is supplied does not replicate the fine
    details of the unredacted version. And besides, an ITO that contains
    information from a CI must pay heed to the CI privilege with the inevitable
    consequence that the summary cannot include anything that may reveal the
    identity of the CI.

[69]

The respondent invites our consideration of the purpose of the summary as
    a factor informing our assessment of the adequacy of the summary challenges
    here.  Summaries are intended to provide an accused with as much information
    about the nature of the redacted material as is necessary to permit meaningful
    participation by an accused in the evidentiary challenge but not so much as to
    compromise the near absolute nature of CI privilege.

[70]

Further, according to the respondent, our assessment of the sufficiency
    or, more accurately, adequacy of the judicial summary cannot ignore the reality
    of the challenge to admissibility. The appellant was not unarmed but for the
    summary. He also had the Crown disclosure. He had the opportunity to adduce
    defence evidence and to advance hypothetical and alternative arguments on the
Debot
issues, especially whether the omissions in the ITO negated the credibility of
    the CI and the compelling nature requirement of
Debot
.

[71]

The respondent reminds us about the purpose and place in the trial process
    occupied by the summary.  Summaries have to do with a pre-trial procedure the
    purpose of which is to determine the admissibility of evidence.  They are not
    concerned with the trial on the merits or the adequacy of the Crowns proof of
    guilt.  In this case, the summary satisfied the
Garofoli
step six
    requirement and permitted a challenge based on the
Debot
criteria.

The Governing Principles

[72]

Several principles have their say in our determination of this ground of
    appeal.  Some have to do with the scope of review, confidential informant
    privilege, and the right of those charged with a crime to make full answer and
    defence.  Others focus more directly on step six of
Garofoli
.

The Scope of Warrant Review

[73]

The reviewing judge does not stand in the same place and perform the
    same function as the issuing justice.  The reviewing judge does not conduct a
    rehearing of the application for the warrant.  He or she does not substitute
    his or her view for that of the issuing justice.  The task of the reviewing
    judge is to determine whether, based on the record that was before the issuing
    justice  the ITO  as amplified by any evidence adduced on the review, the
    issuing justice
could
have issued the warrant.  Provided the reviewing
    judge is satisfied on the basis of these materials that the warrant
could
have issued, then the reviewing judge must not interfere:
Garofoli
, at
    p. 1452;
R. v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51.

[74]

It is essential that the reviewing judge base his or her decision on
    reliable information.  In other words, the test or standard is whether there
    was reliable evidence that might reasonably be believed on the basis of which
    the warrant could have issued:
Araujo
, at para. 54.

[75]

A further point about what the
Garofoli
review does not do.  A
Garofoli
review is an evidentiary hearing.  Its purpose is to determine whether a
    judicial order, a warrant or authorization, can sponsor state activity that,
    without it, would offend the s. 8 guarantee against unreasonable search or
    seizure.  The hearing is not intended to test the merits of any of the Crowns
    allegations in respect of the offence charged.  The truth of the allegations in
    the ITO as they relate to the essential elements of the offence and an
    accuseds participation in it remain to be established by the Crown on the
    basis of admissible evidence adduced at trial:
Pires
;
Lising
,
    at para. 30.

[76]

As the
Garofoli
hearing commences, the reviewing judge will
    have a copy of the ITO, the warrant, and any materials filed in support of the
    application.  When the ITO includes reference to information provided by a CI,
    that information will be redacted to guard against any breach of CI privilege.
    The record may become expanded by further information as, for example, by
    cross-examination of the author of the ITO.  But cross-examination does not
    follow as a matter of right, an invariable component of the right to make full
    answer and defence.  A requirement that the defence meet a threshold test
    before engaging in cross-examination, pursuing a specific line of inquiry, or
    eliciting evidence in support of a full answer and defence is neither unique to
    a
Garofoli
application nor anomalous within the criminal justice
    system:
Pires
;
Lising
, at para. 37.

The Right to Disclosure and CI
    Privilege

[77]

An accuseds right to make full answer and defence, a principle of
    fundamental justice constitutionally protected under s. 7 of the
Charter
,
    includes the right to full and timely disclosure, the right to know the case to
    meet, the right to challenge the admissibility of the evidence proffered for
    admission by the Crown, and the right to cross-examination:
Crevier
,
    at para. 52.

[78]

On the other hand, neither the right to make full answer and defence nor
    the right to disclosure is absolute.  For example, however fundamental, the
    right to make full answer and defence does not reach so far that it issues a
    blank cheque to an accused to pursue any and every conceivable tactic and line
    of inquiry in service of defending him or herself against an allegation of
    crime:
Crevier
, at para. 53;
R. v. Quesnelle
, 2014 SCC 46,
    [2014] 2 S.C.R. 390, at para. 64.  Context and the presence and influence of
    other competing interests are of importance in establishing the outer
    boundaries of the right:
Crevier
, at para. 53.

[79]

Nor is an accuseds right to disclosure absolute.  It is subject to the
    discretion of the Crown, a discretion which extends to the enforcement of CI
    privilege:
R. v. Stinchcombe
, [1991] 3 S.C.R. 326, at pp. 335-36 and
    339.

[80]

Confidential informant privilege is a class privilege.  The rule is of
    fundamental importance to the workings of our criminal justice system:
Bisaillon
    v. Keable
, [1983] 2 S.C.R. 60, at p. 105;
R. v. Leipert
, [1997] 1
    S.C.R. 281, at para. 10.

[81]

Informer privilege is of such importance that, once established, a court
    is not entitled to balance the benefit that enures from the privilege against
    countervailing considerations:
Leipert
, at paras. 12 and 14.  The only
    exception to the rule is innocence at stake.  No exception exists for the right
    to make full answer and defence:
Named Person v. Vancouver Sun
, 2007
    SCC 43, [2007] 3 S.C.R. 253, at para. 28.

[82]

Preservation of the near absolute nature of CI privilege has significant
    implications for the redaction process as well as for requests for further
    disclosure about the informants sources of knowledge or the nature of the
    information provided.  It is virtually impossible for a court to know what
    details may reveal the identity of a CI:
Leipert
, at para. 28;
World
    Bank Group v. Wallace
, 2016 SCC 15, 395 D.L.R. (4th) 583, at para. 129.

[83]

An absolute CI privilege rule, subject only to the innocence at stake
    exception, is consistent with the protection the
Charter
accords to
    the right to a fair trial:
Leipert
, at para. 24;
Vancouver Sun
,
    at para. 28.

Step six of
Garofoli

[84]

In
Garofoli
, which involved a challenge to a conventional
    authorization under what is now Part VI of the
Criminal Code
, Sopinka
    J. set out a procedure to be followed when the Crown objects to disclosing part
    of the affidavit filed in support of an application for authorization: see
Garofoli
,
    at p. 1461.  The same procedure applies to an ITO relied upon to support
    issuance of a search warrant:
R. v. Blake
, 2010 ONCA 1, 251 C.C.C.
    (3d) 4, at para. 15;
R. v. Rocha
, 2012 ONCA 707, 112 O.R. (3d) 742, at
    para. 56.

[85]

Step six of
Garofoli
may be invoked when the editing of the
    supportive affidavit or ITO to ensure compliance with the CI privilege rule
    renders the affidavit or ITO incapable of satisfying the conditions precedent
    for issuance of the warrant or authorization.  Step six is in these terms, at
    p. 1461:

6.     If,
    however, the editing renders the authorization insupportable, then the Crown
    may apply to have the trial judge consider so much of the excised material as
    is necessary to support the authorization.  The trial judge should accede to
    such a request only if satisfied that the accused is sufficiently aware of the
    nature of the excised material to challenge it in argument or by evidence.  In
    this regard, a judicial summary of the excised material should be provided if
    it will fulfill that function.  It goes without saying that if the Crown is
    dissatisfied with the extent of disclosure and is of the view that the public
    interest will be prejudiced, it can withdraw tender of the wiretap evidence.

The step six procedure attempts to balance conflicting
    interests.  On the one hand, the interests of law enforcement, including the
    duty to ensure the protection of informers and preserve the near-absolute sanctity
    of CI privilege.  On the other hand, the right of every person charged with a
    crime to make full answer and defence: see
Garofoli
, at p. 1458.  The
    balancing is not a weighing of absolutes for, as we have already seen, neither the
    right to make full answer and defence nor CI privilege is absolute.

[86]

Step six adopts a
quid pro quo
approach to this balancing
    process. This involves, on the one hand, permitting the Crown to rely upon the
    unredacted ITO, which has not been disclosed to the defence, to support the
    issuance of the warrant.  And on the other hand, permitting the defence to
    challenge the issuance of the warrant, and thus the reasonableness of the
    search, on the basis of the redacted ITO and a judicial summary of the nature
    of the redacted material.  The Crown may only invoke step six, however, where
    the summary makes the accused sufficiently aware of the nature of the excised
    material to challenge it in argument or by evidence:
Crevier
, at para.
    43;
Garofoli
, at p. 1461.  A summary that fails to meet this standard
    disentitles the Crown to rely on the unredacted ITO to sustain the issuance of
    the warrant as the enabling search authority.

[87]

Three points about the judicial summary are worthy of reminder.

[88]

First, what is provided is a
summary
.  By its very nature, a
    summary is general, not detailed.  Its predominant characteristics are
    conciseness and brevity.  A summary eschews detail.  Indeed, were a summary to
    contain the last detail, it would not only exceed what is required by step six
    but also, in all likelihood, breach CI privilege.

[89]

Second, and despite its general nature, the summary must provide an
    accused with a meaningful basis on which to challenge whether the author of the
    ITO made full and frank disclosure of the
Debot
factors relating to
    the CI:
Crevier
, at para. 83.

[90]

Third, the summary need only make the accused aware of the
nature
of the redacted material, not its substance and not its details.  The summary
    must be sufficient to allow the accused to mount a challenge to the redacted
    material by argument or evidence.  But recall that the judicial summary is not
    the only means available to an accused to challenge the issuance of the
    warrant.  An accused may seek leave to cross-examine the author of the ITO, may
    rely on other information that has been the subject of Crown disclosure, or may
    adduce other evidence:
Crevier
, at paras. 72, 77 and 83.

The Principles Applied

[91]

Several reasons persuade me that we should not give effect to this
    ground of appeal.

[92]

First, the trial judge stated and applied the proper test in concluding
    that the judicial summary provided to the appellant made him sufficiently aware
    of the excised material so that he could (and did) challenge it.  The inquiry
    in which the trial judge was involved is a fact-specific examination of all the
    circumstances.  Inherent in this analysis are findings of fact and an
    assessment of whether those findings satisfy the legal standard required of
    them.  These findings are owed deference on appellate review.

[93]

Second, the arguments advanced by the appellant are largely generic,
    more apt to a constitutional challenge to the procedure mandated by step six, a
    challenge we declined to hear for reasons already expressed, than a focused
    submission on the alleged deficiencies here.

[94]

Third, it is important not to lose sight of the nature of the inquiry of
    which step six may be a part.  The hearing is a pre-trial, threshold
    evidentiary hearing in which an accused challenges the constitutional integrity
    of an evidence-gathering device or technique.  Guilt or innocence is not at
    stake.  In the end, what the judge must decide is whether there is any basis
    upon which the issuing justice could have been satisfied that the statutory
    preconditions to the issuance of the warrant had been met.

[95]

Fourth, the judicial summary provided in this case struck an appropriate
    balance between the right to make full answer and defence, on the one hand, and
    the preservation of the near absolute nature of CI privilege on the other. The
    innocence at stake exception was not invoked. The summary contained meaningful
    information that permitted the appellant to argue that the
Debot
requirements had not been met. These three factors are assessed on the totality
    of the circumstances, bearing in mind that a weakness in one, say the
    credibility of the source, may be made up in others, such as the compelling
    nature of the information or its corroboration by law enforcement authorities.

[96]

A final point concerns the factors a trial judge should consider in
    assessing the adequacy of the judicial summary.  There is no closed list of
    factors that require consideration.  And whichever factors are considered, all
    sides must recognize that nothing is to be included in the summary that risks
    revealing the identity of the CI.

The Appeal from Sentence

[97]

The appellant also seeks leave to appeal sentence.  He received an
    effective sentence of 9 years after the trial judge had taken into account the
    principle of totality and awarded 36 months credit for time spent in
    pre-disposition custody.

[98]

The appellant says that the trial judge made three errors in determining
    the sentence he imposed:

i.

he erred in principle by placing undue emphasis on denunciation and
    deterrence and excluding from consideration the appellants rehabilitative prospects
    and the fact that he had not previously received and served a penitentiary
    sentence;

ii.

he erred in imposing a sentence that was demonstrably unfit; and

iii.

he erred in failing to award appropriate credit for time spent in
    pre-disposition custody.

[99]

Although I would not give effect to either of the appellants first two
    complaints, it is common ground that the trial judge gave inadequate credit for
    the time the appellant spent in pre-disposition custody in settling upon the
    net sentence he imposed.

[100]

The trial judge
    was satisfied beyond a reasonable doubt that the appellant had the 37 firearms
    in his possession for the purpose of selling them to others engaged in unlawful
    activities.  These firearms, especially the handguns, together with over 6,000
    rounds of ammunition had no legitimate purpose.  Handguns intimidate.  Handguns
    injure.  Handguns kill.  This arsenal was capable of wreaking havoc in any
    community into which it made its way.

[101]

Handgun crimes
    warrant exemplary sentences.  Deterrence and denunciation must be and remain
    the predominant sentencing objectives.  Realistic rehabilitative prospects
    cannot be ignored but must be subordinate to denunciation and deterrence.
    Here, the appellants circumstances  a mature, 40 year old recidivist who has
    accumulated four dozen convictions over about two decades  equally warrant
    assignment of rehabilitation to a subservient place in the determination of a
    proportional sentence. Even accepting that the appellants initial acquisition
    of the guns was fortuitous, the indelible fact remains that he was prepared to
    put them out on the street in the hands of those bent on unlawful activities.
    The inference that financial gain was at the root of this plan is irresistible.

[102]

It may well be
    that the sentence initially mentioned by the trial judge  15 years  was
    beyond the range of sentences appropriate for this offence and offender.  But
    that is somewhat beside the point because the trial judge recognized the
    modifying effect of the totality principle.  I would not characterize 12 years
    as unfit and that was what the application of the totality principle yielded.

[103]

The parties
    agree that the trial judge should have awarded the appellant credit for the
    entire 31.5 months of pre-disposition custody at a rate of 1.5:1 to give effect
    to the decision in
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575, a
    judgment of which the trial judge did not have the benefit at the time of
    sentencing.  The application of the
Summers
principles reduces the net
    sentence by 11 months, to eight years and one month.

Conclusion

[104]

I would dismiss
    the appeal from conviction, grant leave to appeal sentence, and allow the
    appeal from sentence by reducing the nine-year sentence imposed by the trial
    judge to a sentence of eight years, one month to reflect appropriate credit for
    pre-disposition custody.

Released: June 30, 2016 (RGJ)

David Watt
    J.A.

I
    agree R.G. Juriansz J.A.

I
    agree L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rienguette, 2016 ONCA 450

DATE: 20160608

DOCKET: C61121

Strathy C.J.O. and Pepall and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph
    Rienguette

Appellant

P. Berk Keaney and Michael J. Venturi, for the appellant

David Friesen, for the respondent

Heard:  June 1, 2016

On appeal from the judgment of Justice Robbie D. Gordon
    of the Superior Court of Justice, dated September 9, 2015, sitting as a Summary
    Conviction Appeal Court, dismissing the appeal from the conviction entered on December
    13, 2013 by Justice W. F. Fitzgerald of the Ontario Court of Justice, sitting
    without a jury, with reasons reported at 2015 ONSC 5579.

ENDORSEMENT

[1]

The appellant was convicted of driving over 80. The trial judge
    imposed a sentence of thirty days imprisonment to be served intermittently and
    a two-year driving prohibition. The summary conviction appeal judge dismissed
    the appellants conviction appeal.

[2]

The appellant seeks leave to appeal from the decision of the summary
    conviction appeal judge pursuant to s. 839(1)(a) of the
Criminal Code
,
    R.S.C. 1985, c. C-46. The law is well-settled that leave to appeal to this
    court should be granted sparingly and that a second appeal in summary
    conviction proceedings should be the exception and not the rule:
R. v. R.R
.
,

2008 ONCA 497, 90 O.R. (3d) 641, at para. 25.

[3]

After hearing oral submissions, we dismissed the appellants leave
    application with reasons to follow. These are those reasons.

[4]

On an application for leave to appeal, this court will consider the
    merits of the proposed appeal and its significance to the administration of
    justice. If the merits of the proposed question of law are arguable, even if
    not strong, leave may be granted if the question of law has significance to the
    administration of justice beyond the four corners of the case. Granting leave may
    also be appropriate in cases involving clear errors of law, even if the issues
    to be argued are not of general importance. This is especially the case if the
    convictions are serious and the applicant is facing a significant deprivation
    of his or her liberty:
R.R
.
, at para. 37.

[5]

In his putative appeal to this court, the appellant seeks to renew two
    of the same arguments advanced before the summary conviction appeal judge. For
    the reasons set forth below, we are of the view that the issues to be argued
    are not of significance to the administration of justice beyond the four
    corners of this case and the merits of the proposed appeal are not strong. Therefore,
    the proposed grounds of appeal do not meet the stringent test for leave to
    appeal to this court set out in
R.R
.

Analysis

(1)

ASD Demand

[6]

The appellant argues that the trial judge erred in finding that the arresting
    officers demand that the appellant provide a sample of breath into an alcohol screening
    device (ASD) was made forthwith, as required by s. 254(2)(b) of the
Criminal
    Code
. He submits that the 13-minute delay in obtaining an ASD coupled with
    his roadside detention triggered his right to be provided with a s. 10(b)
    caution.

[7]

In
R. v. Mohamed
, 2015 ONCA 335, at para. 7, this court confirmed
    that the principles of law relating to whether an ASD sample has been taken
    forthwith are well established and do not warrant any restatement. The
    application of these principles to the facts of this case has no significance to
    the administration of justice beyond the four corners of this case.

[8]

We also see no error in the summary conviction appeal judges conclusion
    that the trial judge considered and applied the relevant factors in determining
    that there was no realistic opportunity for the appellant to consult with
    counsel during the 13-minute delay. The evidence supported the arresting
    officers assumption that a nearby officer would deliver the ASD shortly.

(2)

N.I.S.T. Thermometer

[9]

The appellant submits that the summary conviction appeal judge erred in
    not finding that the failure of the breath technician to use a N.I.S.T.
    thermometer raised a reasonable doubt about the accuracy of the breath test
    results. This is another case specific issue; it does not involve a question of
    general importance to the administration of justice.

[10]

In
    any event, the trial judge was entitled to find that the failure to verify the
    simulators internal thermostat using an N.I.S.T. thermometer, a secondary
    means, did not raise a reasonable doubt about the reliability of the breath
    tests. As noted by the summary conviction appeal judge, there was no evidence
    that the internal thermometer was faulty or the digital read was inaccurate.
    Rather, the two calibration checks produced results that were within the
    acceptable range and the evidence of both the expert and the breath technician
    confirmed the accuracy of the results. It was the breath technicians evidence
    that since he had begun doing monthly checks using an N.I.S.T. thermometer the
    simulators digital display was accurate every time. The summary conviction
    appeal judge did not err in affirming the trial judges finding in this regard.

Disposition

[11]

For
    the reasons given, the application for leave to appeal is dismissed.

[12]

The
    appellant shall surrender himself into custody at the Sudbury District Jail on
    Sunday, June 19, 2016 before 8 p.m. to be released on Friday, June 24, 2016 at
    7 a.m., and, if necessary for the completion of his sentence, he shall
    surrender into custody at the Sudbury District Jail on July 17, 2016 before 8
    p.m. to be released from custody at 7 a.m. on the day of the completion of his
    sentence.

G.R. Strathy C.J.O.

S.E. Pepall J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Scantlebury, 2016 ONCA 453

DATE: 20160608

DOCKET: M45910

Lauwers J.A.  (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Kimberly Scantlebury

Applicant

Kimberly Scantlebury, acting in person

Robin Squires,
amicus

Grace Choi, for the respondent

Heard:  May 10, 2016

ENDORSEMENT

A.

Background

[1]

This is a motion for leave to appeal to the Court of Appeal against an
    appeal judgment under the
Provincial Offences Act
,
R.S.O.
    1990, c. P.33 (the POA)
.

[2]

The applicant was charged on July 21, 2014 with operating a motor
    vehicle without insurance, contrary to s. 2(1)(a) of the
Compulsory
    Automobile Insurance Act
, R.S.O. 1990, c. C.25, surrendering false
    evidence of insurance to a police officer, contrary to s. 2(3)(b) of the
Compulsory
    Automobile Insurance Act
, and driving while under suspension, contrary to
    s. 53(1) of the
Highway Traffic Act
, R.S.O. 1990, c. H.8.

[3]

The applicant did not attend court on her trial date of May 27, 2015.
    An
ex parte
trial was held in her absence, and Justice of the
    Peace Cruz convicted the applicant of driving with no insurance and of
    surrendering false evidence of insurance to a police officer.  The charge of
    driving while under suspension was withdrawn by the prosecutor.  The minimum
    fine of $5,000 was imposed on each conviction, for a total fine of $10,000.
    With the mandatory surcharge, the applicant owes $12,500.

[4]

The applicant appealed and the appeal was heard and dismissed by Omatsu
    J. on November 26, 2015. The applicant is seeking leave to appeal both
    conviction and sentence to this court.

[5]

The applicant filed an affidavit together with some exhibits intended to
    explain her absence on the date of her trial and her due diligence defence. The
    applicant argues that defence of due diligence was available to her, which she
    tried unsuccessfully to put before the appeal judge.

[6]

The applicant explained that she missed her trial because her mother,
    who lives in the Barbados, was ill with a brain tumour and required treatment
    in Jamaica. She left Canada on February 24, 2015.  She originally intended to
    return on March 11, 2015. However, her mother continued to need her and she
    missed the return flight. She returned on June 7, 2015, some days after the
    trial date.  She explained that she sent a friend to request an adjournment but
    the friend arrived late, after the court closed.

[7]

On the merits of the due diligence defence, the applicant states that
    her insurance lapsed because her bank account was overdrawn. She says that as
    soon as she discovered that the original insurance had lapsed, she immediately
    secured new insurance. The evidence is that the insurance company sent her a
    one month warning letter by registered mail, which she did not pick up. The
    insurance company sought to withdraw premiums from her account just before the
    date that the charges were laid, but the account did not have enough money in
    it. The applicant offers no explanation for the lack of money in her account.
    However, she asserts that she believed there were sufficient funds in the
    account to cover the insurance, and she believed she was covered by valid
    insurance on the date that she was stopped.

[8]

The applicant was present for her appeal. The transcript notes that the
    applicant explained on the date she was pulled over she believed she had valid
    insurance with the same company that had insured her for five years. She
    advised the appeal judge that she did not receive a letter from the insurance
    company or telephone call cancelling the insurance.

[9]

An exchange occurred between the appeal judge and the applicant:

THE COURT:        You dont dispute that you had no insurance,
    and you dont dispute and you cant prove that you did, and you cant prove
    that your insurance papers were false [
sic
], so Im not sure exactly
    what the point would be of having to start over again.

APPLICANT:         Maam, my insurance slip was not false.

[10]

The
    applicant advised the appeal judge she was extremely confused about what was
    happening during the appeal hearing. She also said she could not afford the
    fines. Then she said she that she wanted a trial. The appeal judge suggested
    the applicant could come back on another date and prove her financial
    situation. After indicating that the matter would be adjourned to deal with the
    fine, a perplexing exchange occurred:

APPLICANT:         So, who would I speak to about the fine?

THE COURT:        Well, usually you speak to the prosecutor,
    and you show them some evidence where your financial situation, so they ...

THE APPLICANT: Well, I did that before when I did the appeal
    thing. I wrote down everything about my financial situation when I first got
    the [indecipherable].

THE COURT:        Well, then Im just going to dismiss the
    appeal.

THE APPLICANT: Why, your Honour.

THE COURT:        Okay, thank you.

B.

The Test for leave to appeal

[11]

Sections 131(1) and (2) of the POA

set out the
    test for determining whether leave to appeal should be granted:
:

131. (1) A
    defendant or the prosecutor or the Attorney General by way of intervention may
    appeal from the judgment of the court to the Court of Appeal, with leave of a
    judge of the Court of Appeal on special grounds, upon any question of law alone
    or as to sentence.

(2) No
    leave to appeal shall be granted under subsection (1) unless the judge of the
    Court of Appeal considers that in the particular circumstances of the case it
    is essential in the public interest or for the due administration of justice
    that leave be granted.

[12]

The
    principles for granting leave to appeal leave under s. 131 of the
POA
are set out in
Ontario (Labour)
    v. Enbridge Gas Distribution Inc.
, 2011 ONCA 13, per Watt J.A. at paras.
    33-35. There must be a question of law alone, the resolution of which may have
    an impact on the jurisprudence in a way that is of interest to the public at
    large, and that resolution must be essential, in the sense of material,
    important, in the public interest or for the due administration of justice:
R.
    v. Krukowski
(1991), 2 O.R. (3d) 155
(C.A.),
at
    para. 13.

[13]

However,
    where there has been a failure of natural justice, in the sense that the
    defendant has not been heard, leave may be granted:

R. v. Jamieson

(1981),
64 C.C.C. (2d) 550 (Ont. C.A.),
affd by

R. v. Jamieson
(1982), 66 C.C.C. (2d) 576 (Ont. C.A.).

C.

Analysis

(1)

Conviction Appeal

[14]

Operating
    a motor vehicle without insurance and surrendering false proof of insurance are
    strict liability offences. Upon proof of the facts, the accused will be
    convicted unless she can establish a due diligence defence.  As stated by the
    Supreme Court in
R. v. Sault Ste Marie
, [1978] 2 S.C.R. 1299, the
    court must consider what a reasonable person would have done in the
    circumstances. The Supreme Court noted at p. 1326 that the defence of due
    diligence will be available if the accused reasonably believed in a mistaken
    set of facts which, if true, would render the act or omission innocent, or if
    he took all reasonable steps to avoid the particular event.

[15]

In
    my view, the applicant has not satisfied the test for leave to appeal against
    conviction. A review of the record shows that the applicant cannot succeed on a
    due diligence defence.

[16]

The
    insurance company sent the applicant a registered letter informing her that her
    insurance would be canceled due to the non-payment of premiums. That letter was
    returned to the insurance company undelivered because she never collected it from
    the post office. The applicant did not explain why she failed to do so.

[17]

The
    record also shows that the insurance company made several attempts to withdraw
    money from the applicants bank account that failed due to a lack of funds.
    Again, the applicant offered no explanation as to why she did not remedy this
    situation. Simply put, a reasonable person in the applicants position should
    have been aware that there were insufficient of funds to pay her insurance,
    which jeopardized her coverage.

[18]

Nor
    do I think there was a failure of natural justice related to the trial. The
    applicant had notice of the trial and was obliged to attend or make other
    arrangements, which she failed to do.

(2)

Sentence Appeal

[19]

I
    would grant leave to appeal against sentence, for three reasons. The first has
    to do with the failure of natural justice before the appeal judge.

[20]

The
    applicants sentence appeal invokes ss. 57(3) and 59(2) of the POA. Section
    57(3) of the POA allows a court to make inquiries as to the defendants
    economic situation prior to sentencing. Section 59(2) of the POA provides that,
    in exceptional circumstances, a court may either suspend the sentence or impose
    a fine lower than the prescribed minimum where it would be unduly oppressive or
    not in the interests of justice.

[21]

The
    applicant was ordered to pay $12,500 in fines. To put this number in
    perspective, the record shows that the applicant earned a total of $4,440
    derived from social assistance payments in 2014 and $7,500 in 2013. Because the
    trial proceeded on an
ex parte

basis, no inquiry was made
    regarding the applicants ability to pay the fine and she received no
    opportunity to make submissions on sentence.

[22]

However,
    this opportunity ought to have existed at the applicants appeal. The
    transcript of the appeal shows that the applicant expressed her inability to
    pay the fine as ordered. The appeal judge clearly understood this, and
    essentially told the applicant several times that she was in fact asking to
    have her fine reduced. Perplexingly, rather than adjourn the proceedings the
    appeal judge initially proposed to permit the applicant to make submissions on
    sentence, the appeal judge summarily dismissed the entire appeal.

[23]

The
    appeal judge dismissed the appeal of a self-represented applicant of extremely
    limited financial means who was convicted at an
ex parte
trial,
    without making any inquiries or permitting the applicant to make submissions on
    a sentence which is almost three times her annual income. In doing so, the
    appeal judge did not consider whether this was an exceptional case which
    warranted the application of s. 59(2) of the POA.

[24]

Second,
    I am troubled by the imposition of two mandatory fines where the underlying
    delict is the absence of insurance in this particular case.

[25]

Ms.
    Scantlebury was charged and convicted under ss. 2(1)(a) and 2(3)(b) of the
Compulsory
    Automobile Insurance Act
. Section 2 reads, in part:

2. (1)
Subject to the regulations, no owner or lessee of
    a motor vehicle shall,

(a) operate the motor vehicle; or

(b) cause or permit the motor vehicle
    to be operated,

on a highway unless the motor vehicle is insured under a
    contract of automobile insurance.

[]

(3)
Every owner or lessee of a motor vehicle who,

(a) contravenes subsection (1) of
    this section or subsection 13 (11); or

(b) surrenders an insurance card for
    inspection to a police officer, when requested to do so, purporting to show
    that the motor vehicle is insured under a contract of automobile insurance when
    the motor vehicle is not so insured

Is guilty of an offence and is liable on a first conviction to
    a fine of not less than $5,000 and not more than $25,000 and on a subsequent
    conviction to a fine of not less than $10,000 and not more than $50,000 and, in
    addition, his or her drivers licence may be suspended for a period of not more
    than one year.

[26]

In
    this case, while the defence of due diligence would not have succeeded, there
    is no evidence that the applicant did not honestly believe she had insurance
    when she proffered the insurance card. It seems odd to double the fine where
    she would have been spared by simply refusing or failing to produce an
    insurance card.  Even more so because she was obliged by the law to surrender
    the card for inspection under s. 3(1) of the Act.

[27]

Third,
    some guidance on how the totality and the proportionality sentencing principles
    should be applied in these and similar circumstances would be useful.

[28]

I
    would grant leave to appeal sentence to decide whether the appeal judge erred
    in failing to consider the application of s. 59(2) of the POA and whether the
    applicant should have her sentence reduced or suspended as a result.

[29]

The
    Crown submits that leave to appeal should not be granted because there are
    alternative statutory remedies available to the applicant. Specifically, the
    Crown points to s. 69(15) of the POA which provides for relief in the event the
    applicant defaults in paying the fine.

[30]

This
    approach would not appear to be consistent with the objectives of sentencing.
    One of the guiding lights of the
Criminal Code
is that a sentence
    should be proportionate. Section 59(2) of the POA is the codification of this
    principle for non-criminal offences. The Crowns position would result in s.
    59(2) being ignored in favour of requiring defendants to first default on an
    unduly harsh fine before receiving relief. I would view this as an
    unsatisfactory outcome.

D.

Disposition

[31]

The
    motion for leave to appeal against conviction is dismissed and the motion for
    leave to appeal against sentence allowed.

P.
    Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Scott,
    2016 ONCA 498

DATE: 20160622

DOCKET: C59340

Doherty, Feldman and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Percy Basil Scott

Respondent

Michael Fawcett, for the appellant

Eva Taché-Green, for the respondent

Heard:  June 20, 2016

An application for leave to appeal sentence and, if leave
    is granted, an appeal from the sentence imposed by Justice S. Rogin of the
    Superior Court of Justice on August 18, 2014.

APPEAL BOOK ENDORSEMENT

[1]

We are troubled by this sentence.  Certainly, it could have been
    higher.  We must, however, defer to the sentence imposed at trial, absent a
    finding that the sentence was manifestly unfit.

[2]

The co-accused all received the same sentence.  This appeal can only succeed
    if the Crown can convince us that the failure to draw a substantial difference
    between the respondent who was older and had a much longer, but not necessarily
    more serious criminal record, and the others rendered the sentence manifestly
    unfit.

[3]

Certainly, a distinction could have been drawn between the respondent
    and the others, although on the trial judges finding, all were equally
    culpable in the home invasion.

[4]

After anxious consideration, we cannot say that the failure to give the
    appellant a significantly longer sentence rendered the sentence manifestly unfit.

[5]

Leave to appeal is granted. The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Scott,
    2016 ONCA 499

DATE: 20160622

DOCKET: C61666

Doherty, Feldman and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Percy Basil Scott

Appellant

Eva Taché-Green, for the appellant

Michael Fawcett, for the respondent

Heard:  June 20, 2016

On appeal from the conviction entered by Justice S. Rogin
    of the Superior Court of Justice on June 12, 2014 and the sentence imposed on August
    18, 2014.

APPEAL BOOK ENDORSEMENT

The Conviction Appeal

[1]

This was an overwhelming circumstantial evidence case.  The appellant
    did not testify.  The alleged misapprehension of the evidence in respect of the
    clothing of one of the co-accused and the possession of a backpack by one
    co-accused are insignificant to the overall case.  In any event, it is unclear
    to us that the trial judge misapprehended the evidence.  We make the same
    comment about the alleged differences in the gun as described by the victims
    and seen in the photographs from the taxi security camera.

[2]

We would not admit the fresh evidence pertaining to the non-existence of
    the alleyway as described by the taxi driver in his evidence.  Counsel
    cross-examined on the issue at trial and could have further pursued the issue
    if warranted.  He did not.

[3]

In any event, the existence of an alleyway was not the significant
    feature of this part of the evidence.  The significance lay in the place and
    time the taxi driver dropped the appellant and others off and then picked them
    up and the close proximity in time and place of those activities to the scene
    and time of the robbery.

[4]

The victims evidence about the timing of the robbery was understandably
    uncertain and approximate.  Nothing in that evidence precluded or rendered
    unreasonable the trial judges finding that the victims estimates of the time
    when the robbery occurred, coincided with the times at which the appellant was
    seen on the cab security camera getting in and out of the taxi cab.

[5]

Finally, we note that apart from these factual
minutiae
, the
    evidence established that the appellant was with a person who had the victims
    blood on his shoes at the time and place very proximate to the robbery.  The
    appellant had a gun like the gun used in the robbery.  It defies credulity to
    claim that the appellant was not a participant in the robbery.  The suggestion
    that the robbery occurred at some other time after the appellant had left the
    taxi was not raised at trial and is based on speculation.

[6]

The conviction appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sona, 2016 ONCA 452

DATE: 20160609

DOCKET: C59644 and C59729

Feldman, MacPherson and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Appellant/Respondent

and

Michael Sona

Respondent/Appellant

Howard L. Krongold, for Michael Sona

Nick Devlin and Jennifer Conroy, for the Attorney
    General of Canada

Heard: May 18, 2016

On appeal from the sentence imposed by Justice G. F.
    Hearn of the Ontario Court of Justice on November 19, 2014.

MacPherson J.A.:

A.

Introduction

[1]

Michael Sona was convicted of preventing or endeavouring to prevent an
    elector from voting in a federal election contrary to s. 281(g) of the
Canada
    Elections Act
, S.C. 2000, c. 9 (the
CEA
). He was sentenced to
    nine months incarceration followed by 12 months probation.

[2]

Unusually, both parties appealed. Both contended that the custodial
    portion of the sentence was unfit  Mr. Sona said it was too harsh; the Crown
    said it was too lenient.

[3]

The two appeals were heard together on May 18, 2016. At the conclusion
    of the hearing, the court indicated that both appeals were dismissed, with
    written reasons to follow. These are those reasons.

B.

Facts

(1)

The
    parties and events

[4]

Michael Sona was a young man from a good family. He grew up in Guelph.
    He graduated with honours from both high school and the University of Guelph.
    Following graduation from university, Mr. Sona moved to Ottawa in 2009 and
    became involved in the political internship program with the Conservative Party
    of Canada (the CPC). He then became a Communications Assistant in 2010 and a Communications
    Parliamentary Affairs Manager in 2012.

[5]

During the 2011 federal election, Mr. Sona returned to Guelph where he
    became Communications Director for the local CPC candidate. In this role, he
    became a major and active participant in a scheme designed to prevent some
    non-supporters of the CPC from voting.

[6]

Ultimately, the scheme became well-known in the media as the robo-calls
    scandal. The scheme involved sending 7,676 automated telephone calls on the
    day of the election, May 2, 2011, telling voters that their polling station had
    been changed to a different location. The intent was to send voters to a false
    location to prevent or discourage them from voting. The robo-calls message was
    false and not authorized by Elections Canada.

[7]

It is not possible to know exactly how these calls affected voters.
    However, at the trial it was agreed that 150 to 200 voters attended the false
    polling station as a result of the calls. Some of these voters tore up their
    voter information cards and walked away. Other voters chose not to vote because
    of the inconvenience of the false location.

[8]

Following the election, Mr. Sona boasted to fellow workers and friends
    about his role in the robo-calls scheme.

[9]

Two years later, in April 2013, Mr. Sona was charged that he:

[D]id wilfully prevent or endeavour to prevent an elector from
    voting at an election contrary to paragraph 281(g) of the
Canada Elections
    Act
and by so doing committed an offence contrary to paragraph 491(3)(d)
    of the
Canada Elections Act
.

[10]

Following
    a five day trial, Mr. Sona was convicted of this offence.

(2)

The
    sentence

[11]

At
    the sentence hearing, the Crown sought a term of imprisonment of 18 to 20
    months. Defence counsel asked for a non-custodial sentence, a short sharp
    custodial sentence of 14 to 30 days, or a conditional sentence.

[12]

The
    sentencing judge comprehensively discussed the relevant aggravating and mitigating
    factors. He was well aware of the core principles of sentencing. He concluded:

[48] This is a difficult and troublesome sentencing. I have
    considered the aggravating and mitigating circumstances, the principles to be
    applied and I have exercised some restraint given the fact that Mr. Sona is in
    fact a youthful first time adult offender.

[49] I have concluded and find that the conduct of Mr. Sona on
    the days leading up to the May 2, 2011 federal election was egregious and had
    considerable impact not only on this particular community, but also on our
    democratic process. General deterrence and more importantly denunciation
    mandate a period of imprisonment in my view and are the driving principles to
    be considered. The principles of restraint and rehabilitation together with the
    mitigating circumstances set out simply impact the length of any sentence to be
    imposed. I am satisfied that a period of imprisonment is appropriate and I am
    also satisfied that the fundamental principles of sentencing cannot adequately
    be addressed by a conditional sentence.

[50] Individuals such as Mr. Sona notwithstanding the lack of
    record and their apparent good character must appreciate that this type of an
    offence is an affront to the electoral process and is conduct that simply
    cannot be classified as anything less than very serious. Individuals who choose
    to take part in this type of conduct can expect significant consequences.

[51] Mr. Sona and another or others by their conduct have
    impacted the lives of many. Presumably Mr. Sona, given his background and his
    involvement with government services, was an individual who championed the
    democratic right of everyone to cast their vote in a fair and unhampered
    manner. He took very active steps to see that that did not happen and the
    sentence must be such that the serious nature of this conduct is made apparent
    to those similarly inclined. Anything less than a period of imprisonment would
    fall short in my view of properly denouncing such conduct.

[54] Mr. Sona will be sentenced to a period of imprisonment of
    9 months to be followed by a period of probation of 12 months.

C.

Issue

[13]

Mr.
    Sona and the Crown appeal the sentence. Both appeals present the same issue:
    did the sentencing judge err by imposing an unfit sentence?

D.

Analysis

(1)

Mr.
    Sonas appeal

[14]

Mr.
    Sonas position is that the sentencing judge committed two errors
[1]
in his sentencing reasons that, taken together, resulted in an unfit sentence.
    On appeal, Mr. Sona accepts that a custodial sentence was not
per se
unfit; however, he submits that, absent the two errors, a proper custodial
    sentence would have been about 90 days.

[15]

First,
    Mr. Sona contends that the sentencing judge overemphasized the principles of
    denunciation and general deterrence in his reasons. He points to two passages
    in the sentencing reasons to support this submission:

[44] The cases further provide that where there is interference
    with the electoral process, those who interfere with it must expect that
    deterrence and denunciation will be primary sentencing objectives.

[49]  General deterrence and more importantly denunciation
    mandate a period of imprisonment in my view and are the driving principles to
    be considered.

[16]

Mr.
    Sona submits that the words primary sentencing objectives and the driving
    principles in these passages suggest that the sentencing judge fell into error
     he was focussed too much on the nature of the offence (which he described as
    serious, and egregious and representing a complete disregard for our
    political system and its values) and too little on the individual circumstances
    of the offender and his rehabilitative potential.

[17]

I
    do not accept this submission. In my view, when the sentencing reasons are read
    as a whole, it is clear that the sentencing judge was well aware of, and
    applied, all of the relevant sentencing principles, including rehabilitation.
    In context, the words primary sentencing objectives and the driving
    principles signal that, in a very rare case where a political worker engaged
    in premeditated and serious activities designed to deprive several thousand
    electors of their right to vote, denunciation of his choice and activities and
    deterrence of similar activity by others in the future are important sentencing
    objectives. In my view, this was a perfectly reasonable signal to send.

[18]

Second,
    Mr. Sona asserts that the sentencing judge erred by, in effect, dismissing
    rehabilitation as a sentencing factor. He refers to
R. v. Brown
, 2015
    ONCA 361, 126 O.R. (3d) 797, where this court said:

[7]  The primary objectives in sentencing the youthful first
    time offender remained individual deterrence and rehabilitation. In balancing
    the factors, the sentencing judge still had to impose the shortest term of
    imprisonment that was proportionate to the crime and the responsibility of the
    offender, given his young age.

[19]

In
    my view, the sentencing judge did precisely what
Brown
and many other
    cases mandate. The sentencing judge took account of the many mitigating factors
    relating to Mr. Sona  his youth; the absence of a criminal record; the strong
    support of his family and community, especially his church community; a
    positive pre-sentence report; the fact that his actions in this matter seem to
    be out of character for him; and the fact that the charge has been outstanding
    for a significant period of time and has effectively hung over the head of Mr.
    Sona and his family and supports.

[20]

Having
    recorded all of these mitigating factors, the sentencing judge turned
    immediately to the final section of his reasons, titled Sentence to be
    Imposed. After observing that [t]his is a difficult and troubling
    sentencing, he said explicitly: I have also exercised some restraint given
    the fact that Mr. Sona is in fact a youthful first time adult offender.

[21]

In
    my view, the sentencing judges reasons, read as a whole, fully and properly
    took into account Mr. Sonas prospects for rehabilitation and his individual
    circumstances.

(2)

The
    Crowns appeal

[22]

The
    Crown contends that Mr. Sonas offence amounted to a serious electoral fraud.
    It submits that a custodial sentence of nine months was inadequate as a
    condemnation of conduct that subverted the integrity of our democracy. The
    Crown invites this court to enunciate a general principle that key players in
    large-scale attempts to fraudulently alter the outcome of elections, including
    by depriving electors of the right to vote, will ordinarily be subject to
    penitentiary terms of imprisonment and sentences in the range of 2-5 years
    should be the norm. The Crown asserts that a fit sentence for Mr. Sona was
    three years imprisonment, but that since the Crown in this case limited its
    position to a sentence of 18-20 months before the trial judge, fairness
    dictates that the sentence should be capped at that level on this occasion.

[23]

In
    support of its position, the Crown relies on several decisions imposing
    sentences for various aspects of electoral fraud in the United Kingdom, the
    United States and Australia: see
R. v. Brindley
, [1997] 2 Cr. App. R.
    (S.) 353;
R. v. Khan et al.
, [2009] EWCA 2483, 2009 WL 3829413;
R.
    v. Hussain
, [2006] 1 Cr. App. R. (S.) (62), [2005] EWCA 1866;
Unites
    States v. Cole
, 41 F.3d 303 (7
th
Circ.); and
R. v. Ehrmann
,
    [2001] QCA 50.

[24]

The
    Crown also relies on, and draws an analogy from, several leading decisions of
    this court imposing sentences for major professional or commercial frauds: see
R.
    v. Bertram
, 40 O.A.C. 317, [1990] O.J. No. 2013 (C.A.);
R. v. Bogart
(2002)
, 61 O.R. (3d) 75, 167 C.C.C. (3d)
    390 (C.A.);
R. v. Dobis
, 58 O.R. (3d) 536, [2002] O.J. No. 646 (C.A.);
R. v. Drakes
, 2009 ONCA 560, 252 O.A.C. 200; and
R. v. Maxwell
,
    2014 ONCA 316, [2014] O.J. No. 1921.

[25]

I
    do not accept the Crowns submission. I begin with an important contextual
    point. Crown counsel at trial was aware of, cited, and strongly relied on some
    of the foreign electoral fraud and Ontario fraud cases set out above. Indeed,
    these cases were a centrepiece of his submissions at the sentence hearing.

[26]

Trial
    counsels position on sentencing can be summarized in this fashion:

(1)

a conditional sentence is not appropriate;

(2)

a sentence of 18 to 20 months is a fit and appropriate sentence in the
    circumstances for an individual such as Mr. Sona, after trial; and

(3)

if Mr. Sona had been a more senior individual, a campaign
    manager, [the Crown] might well have been seeking a penitentiary term of
    imprisonment in relation to this conduct.

[27]

Against
    this backdrop, I reject the Crowns submission on appeal that this court should
    enunciate a range for electoral fraud cases and that the range should be two to
    five years. I do so for two reasons.

[28]

First,
    fixing a range in this appeal would be premature. This appears to be the first
    case dealing with an offence under the
CEA
. Thus, I am sympathetic to
    what the sentencing judge said when reviewing the foreign cases dealing with
    interference with the electoral system:

[42]  These cases are of some assistance although I am told
    that Mr. Sona is the first individual to be found guilty of such an offence as
    that before the court under the
Canada Elections Act
and there are no
    precedents to help establish an appropriate range of sentence.

[29]

Generally
    speaking, an appellate courts decision to enunciate a range for a particular
    offence flows from experience  with many offenders, many offences, and many
    different circumstances surrounding the offences. Put bluntly, the notion of a range
    is antithetical to the scenario of a first offence ever by anybody.

[30]

Second,
    in my view it would be wrong to fix a range that precludes, in all cases, the
    imposition of a non-penitentiary sentence. Again, on the basis of a single
    case, it is impossible to know anything about the variety of offenders and
    offences that may give rise to convictions under the
CEA
. In the
    context of a one case experience, absolutism now may be the enemy of fairness
    down the road.

[31]

The
    Crowns second position on this appeal is that the nine month sentence imposed
    by the sentencing judge was unfit. Central to this submission is the Crowns
    assertion that the sentencing judge did not take sufficient account of the
    reality that what Mr. Sona did was an affront to, and an attack on, democratic
    institutions and values.

[32]

I
    am not persuaded by this submission. There is no doubt that the sentencing
    judge was alive to, and took account of, Mr. Sonas background and personal
    circumstances in imposing sentence. These led him to exercise some restraint
    for a youthful first time adult offender.

[33]

However,
    I do not think that the sentencing judge overemphasized this factor. On the
    contrary, on many occasions the sentencing judge spoke about the great values
    of Canadian democracy and the need to protect democratic institutions and
    processes from attack. I cite but one of many possible examples of this
    component of the sentencing judges reasons:

[46]  The plan to which Mr. Sona was a party was effectively
    an attempt to manipulate the outcome of the election in the Guelph riding by
    endeavouring to prevent voters from voting. This was a federal election
    undertaken to elect representatives who form the governing body in our nation.
    This was not an amateurish Grade 8 election campaign for student council.
    Conduct such as that of Mr. Sona is not suitable at any time. It is not only
    criminal, but distasteful and disturbing and is a step above other political
    tricks that the court has heard of in evidence including such things as sign
    removal and bingo cards. Defence counsel argues that this was simply a prank
    gone terribly bad. This was much more than a prank and nothing in the
    evidence points to it being such. The evidence in fact points in the other
    direction that this was a deliberate and considered course of criminal conduct
    specifically designed to subvert the inherent fairness of the electoral
    process.

[34]

In
    my view, this is a forceful and eloquent comment about Canadian democracy and
    its institutions and processes. The sentencing judge clearly included it in the
    calculus of factors he considered in imposing a sentence on Mr. Sona.
    Importantly, this and similar passages in the sentencing judges reasons will
    speak into the future if similar cases should arise.

E.

Disposition

[35]

Both
    appeals are dismissed.

Released: June 9, 2016 (K.F.)

J.C. MacPherson J.A.

I agree. K. Feldman J.A.

I agree. P. Lauwers J.A.

[1]
In his factum, Mr. Sona sets out three potential errors. In my view, there is
    some overlap in these issues and, based on Mr. Krongolds oral argument at the
    hearing, it is fair to say that his position is that the sentencing judge made
    two errors in his reasons.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smith, 2016 ONCA 469

DATE: 20160613

DOCKET: C61646

Feldman, Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dennis Smith

Appellant

Dennis Smith, in person

Erika Chozik, duty counsel

Tracy Kozlowski, for the respondent

Heard: June 7, 2016

On appeal from the conviction entered on July 14, 2015
    and the sentence imposed on July 17, 2015 by Justice Trotter of the Superior Court
    of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals his conviction on the basis that the bad
    character evidence that was inadvertently given by two witnesses prejudiced
    the jury and was not sufficiently corrected by the mid-trial instruction or the
    charge to the jury given by the trial judge on the issue. We do not agree.

[2]

The mid-trial instruction was strong and unequivocal, as was the
    charge.  Most importantly, the trial judge considered the issue of a mistrial
    but rejected it as unnecessary.  He stated at p. 20 of the supplementary appeal
    book:

Ive considered the matter of these two incidents, which I
    suspect are related although not orchestrated.  It can be properly dealt with
    by a strong instruction now and again in my final instructions, and so I think
    I can preserve the fairness of the trial by doing that, and then a mistrial
    trial was not necessary to preserve the fairness of the hearing.

[3]

Although the trial judge offered to allow the accused to re-elect judge
    alone before him with the consent of the Crown, which was refused, we do not
    view that offer as in any way undermining his conclusion that the trial was
    fair with the strong instruction he gave to the jury.  We agree with his
    conclusion.

[4]

The appeal against conviction is dismissed.  The appellant abandons his
    sentence appeal as he is scheduled to be released tomorrow.  The appeal against
    sentence is dismissed as abandoned.


WARNING

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

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

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

(a)      any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. T.H., 2016 ONCA 439

DATE: 20160603

DOCKET: C61386

Strathy C.J.O., Pepall and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

T. H.

Appellant

Delmar Doucette, for the appellant

Dayna Arron, for the Crown respondent

Heard: May 30, 2016

On appeal from the conviction entered on November 28,
    2011 by Justice D.R. McDermid  of the Superior Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

The appellant was convicted of two counts of sexual touching and two
    counts of sexual assault. The complainants were the children of S.T., with whom
    he was in a romantic relationship. They were five and seven years old at the
    time of the offences.

[2]

The appellant submits that the trial judge erred by:

(i) improperly
    rejecting the appellants evidence based on his demeanour as a witness;

(ii) improperly
    rejecting the  appellants evidence because of his supposed minimization of
    opportunity to commit the offences, when he admitted that he had the
    opportunity to commit them;

(iii) failing to
    properly analyze the evidence of the complainant K.T., including by employing a
    logical fallacy regarding the source of her knowledge of sexual activity; and

(iv) failing to properly
    analyze the evidence of the complainant B.T., including by failing to give
    proper weight to the coercive interview techniques that were used to obtain
    B.T.s s. 715.1 statement.

[3]

We would not give effect to any of these grounds of appeal for the
    following reasons.

[4]

First, testimonial demeanour is a proper consideration in the evaluation
    of a witnesss credibility:
R. v. O.M.
, 2014 ONCA 503, at para. 34. Although
    the trial judge found the appellants evidence to be clinical and strange, he
    also stated that it might just be a reflection of the appellants normal
    personality. On a review of the trial judges reasons, it is clear that
    demeanour was only one of the factors the trial judge considered when assessing
    the whole of the evidence. It was not dispositive of the trial judges
    credibility assessment.

[5]

Second, although the appellant admitted that he had the opportunity to
    commit the offences his testimony was replete with attempts to

distance himself from
    situations, circumstances, and opportunities to have committed the offences. In
    our view, the evidence amply supported the trial judges finding that the
    appellant attempted to minimize the opportunities that were available to him to
    commit the offences.

[6]

Third, we see no error in the trial judges consideration of K.T.s
    evidence. The trial judge carefully considered her evidence, including internal
    inconsistencies and inconsistencies with her brothers testimony, and concluded
    that it was worthy of belief. This finding was open to the trial judge.

[7]

We reject the submission that the trial judge erred in concluding  that
    K.T.s sexual knowledge of ejaculation was the result of the appellants
    repeated sexual abuse, not her limited exposure to pornography. The appellants
    submission that the trial judge engaged in logical fallacy in his treatment of
    K.T.s evidence overlooks her detailed and compelling account regarding her
    observation of ejaculate during the sexual assaults. The trial judges finding
    that KTs description of the ejaculate resulted from her personal experience
    was a fair inference from the totality of the evidence.

[8]

Fourth, we also see no error in the trial judges careful review of the
    evidence of B.T. The trial judge acknowledged that the officer interviewing
    B.T. pushed him hard to tell the truth. However, he also noted that B.T. was
    told that the officer was not there to force him to do anything he did not want
    to do. In re-examination, B.T. clarified that he would not say something just
    because the police wanted him to. Based on all of the evidence, the trial judge
    reasonably concluded that B.T.  was truthful in his testimony.

[9]

The appeal is dismissed.

G.R.
    Strathy C.J.O.

S.E.
    Pepall J.A.

C.W.
    Hourigan J.A.