COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nur, 2018 ONCA 8

DATE: 20180105

DOCKET: C58643

Sharpe, Watt and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hussein Jama Nur

Appellant

Ariel Herscovitch, for the appellant

Christine E. Bartlett-Hughes, for the respondent

Heard: December 20, 2017

On appeal from the conviction entered on May 27, 2013 by
    Justice Brian Trafford of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant and two of his three co-accused were found guilty of
    manslaughter in the death of a fellow inmate at the Don Jail. The Crown alleged
    that the appellant was a member of a group that grabbed the deceased, punched
    him in the face, kicked and stomped on him, dragged him into a shower, and dragged
    him back to his cell where he was later found dead.

[2]

The appellant submits that the trial judge erred in his charge to the
    jury on post-offence conduct and that he further erred by failing to relate the
    evidence against the appellant specifically to the elements of manslaughter.
    The appellant concedes that no single error standing alone is sufficient to
    require a new trial, but submits that their cumulative effect is fatal to the
    conviction.

[3]

At the conclusion of the appeal, we indicated that despite the very
    capable argument of Mr. Herscovitch, we did not need to call upon the Crown and
    that our reasons for dismissing the appeal would follow. These are our reasons.

1.

Did the trial judge err in his instruction on the use
    the jury could make of evidence of post offence conduct?

[4]

The Crown relied on the evidence that the appellant had been involved in
    moving the deceased into the shower, washing him, and then dragging him back to
    his cell as evidence of post-offence conduct from which the jury could infer
    that the appellant had participated in the assault that led to the death.

(a)

The alleged
Hall
 error

[5]

The trial judge instructed the jury that if you find that the
    defendant(s) did those things because they were conscious of having committed
    the assault, you may consider this evidence, together with all the other
    evidence, in reaching your determination of the issue of the identity of the
    perpetrators of the assault.

[6]

The appellant submits that this amounted to an invitation to engage in
    the kind of impermissible circular reasoning identified by this Court in
R.
    v. Hall
, 2010 ONCA 724.

[7]

We do not accept this submission. The impugned passage in the charge was
    preceded by a reminder to the jury that it should consider the post-offence
    conduct evidence in the context of the evidence as a whole. It was immediately
    followed by a caution to be careful not to immediately conclude that the
    defendant(s) did these things because they were conscious of having committed
    the assault. Immediately thereafter, the trial judge instructed the jury to
    consider any innocent explanation for the post offence conduct, such as an
    intention to revive the deceased, or to follow the jail culture of interfering
    with the evidence of crime to frustrate a police investigation even if one were
    not involved in the crime itself. The trial judge also properly characterized
    the evidence of post-offence conduct as circumstantial evidence that could be
    considered, together with the rest of the evidence, in the determination of
    guilt: see
R. v. Taylor
, 2015 ONCA 448 at para. 142. In this case, as
    in
R. v. Moffit
, 2015 ONCA 412, at para. 55, the jury was not invited
    to jump directly to the issue of guilt as in
Hall
: see
R. v. Salah
,
    2015 ONCA 23, at para. 242.

[8]

We note as well that the so-called
Hall
 error, standing on
    its own, is not fatal:
Hall
at para. 146;
Taylor
, at para.
    141.

[9]

Moreover, very experienced trial counsel did not object to this aspect
    of the charge. The failure to object is, of course, not fatal on appeal, but it
    does suggest that if even if there were an error, it was neither serious nor
    significant in the mind of experienced trial counsel who was in the best
    position to assess its impact: see
Taylor,
at paras. 142, 145.

(b)

Post-offence conduct evidence and the defence of prevention of the use
    of force.

[10]

The
    appellant submits that the trial judge erred by instructing the jury that it
    could consider evidence of post-offence conduct in assessing the defence of
    preventing the use of force. The appellant argues that the post-offence conduct
    evidence had no probative value on that issue, absent evidence that the
    appellant had the requisite knowledge to understand that the assault on the
    deceased could have been legally justified. Even if the appellant had that
    knowledge, in the context of a prison assault leading to death, the jury should
    have been instructed that a participant might well attempt to hide his
    involvement to avoid prosecution and the risk of conviction, even if he thought
    he was legally justified.

[11]

We
    disagree with those submissions.

[12]

The
    trial judge paraphrased s. 34(1) of the
Criminal Code
as the basis of
    his instructions on what he termed the defence of preventing the use of
    force. The justification for which s. 34(1) provides has three requirements:

·

(reasonable) belief

·

purpose

·

(reasonable) response.

[13]

Neither
    the appellant nor any other defendant expressly relied on this justification or
    asked the trial judge to leave it to the jury as arising on the evidence
    advanced at trial. The evidence to support the defence of preventing the use
    of force was at best tenuous. None of the defendants testified that the force
    they used was for the purpose of preventing themselves or others from actual or
    threatened force from the deceased. In addition to the absence of evidence on
    what we have designated the belief and purpose elements of the justification,
    the nature and extent of the injuries inflicted on the deceased by the several
    assailants seem irreconcilable with the requirement of a reasonable response in
    s. 34(1)(c).

[14]

In
    any event, we are satisfied that given the manner in which this issue was left
    with the jury, there is no risk that the appellant could have suffered any
    prejudice.

[15]

The
    jury was properly instructed that it should consider any possible innocent
    explanation for the post-offence conduct. In the context of this case and this
    evidence, the jury would have understood that a possible innocent explanation
    was that the accused believed that they were justified in using force against
    the deceased.

[16]

We
    observe that here again, there was no objection to the charge, indicating that
    the alleged frailty in the charge urged on appeal did not exist in the mind of
    the experienced defence counsel who had close familiarity with how the evidence
    had unfolded at trial. Even if for tactical reasons counsel did not wish to
    emphasize the prevention of force defence in his submissions to the jury, he
    could easily have asked the trial judge to make more explicit the instruction
    requested on appeal if he thought that there was a realistic possibility that
    the jury would not understand this specific innocent explanation for the
    post-offence conduct.

2.

Did the trial judge err by failing to relate the
    evidence pertaining to the appellant on the issue of
mens rea
for
    manslaughter?

[17]

The
    appellant submitted in his factum that the trial judge failed properly to
    relate the evidence pertaining to the appellant on the issue of the
mens
    rea
required for manslaughter.

[18]

We
    disagree. The instruction on the legal requirement of
mens rea
for
    manslaughter must be read in the light of the trial judges detailed review of
    the evidence and the positions of the parties. The jury was properly instructed
    on the
mens rea
issue and, in our view, when the instruction is read as
    a whole, the evidence relating to the appellant on the issue of
mens rea
was fully and fairly presented. The jury was instructed to consider the
    evidence related to each accused separately and the situation of the appellant
    was distinguished from that of the other accused. Accordingly, we would not
    give effect to this ground of appeal.

Disposition

[19]

For
    these reasons, the appeal against conviction is dismissed.

Robert J. Sharpe
    J.A.

David Watt J.A.

L.B. Roberts
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ontario (Review Board), 2018 ONCA 50

DATE: 20180123

DOCKET: M48247 (C59882)

Rouleau, Watt and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Moving party (Respondent)

and

The Ontario Review Board

Responding party (Respondent)

and

The Person in Charge, Centre for Addiction and
    Mental Health

Responding party (Respondent)

and

Elizabeth Petroniuk

Responding party (Appellant)

Graham Jenner, for the appellant

Gavin S. Mackenzie, for the respondent The Person in
    Charge, Centre for Addiction and Mental Health

Dena Bonnet, for the respondent Her Majesty the Queen

Heard: January 11, 2018

REASONS FOR DECISION

[1]

The Crown, the respondent on appeal, moves to quash the appeal for lack
    of jurisdiction. The appeal is from the decision of Trotter J. dated December
    1, 2014. That decision dismissed Ms. Petroniuks application challenging the
    constitutionality of s. 672.56 of the
Criminal Code
.

[2]

The application, which sought relief under s. 52 of the
Charter
,
    it was brought by notice of application and constitutional issue under r. 27.03
    of the
Criminal Proceedings Rules

for the Superior of Justice
    (Ontario)
, (SI/2012-7). Initially, a request for
mandamus

was combined with the constitutional
    challenge, but it became moot before the application was heard. Only the
Charter
application proceeded to hearing on the merits.

[3]

The Crown maintains that there is no provision in either the
Criminal
    Code
or the
Criminal Proceedings Rules
(the criminal rules) for
    an appeal to this court of stand-alone
Charter
applications such as
    the one that was brought in this case. According to the Crown, the only route
    of appeal is to the Supreme Court of Canada with leave under s. 40(1) of the
Supreme Court Act
, R.S.C.
    1985, c. S-26.

[4]

Ms. Petroniuk agrees with the Crown but argues that the matter having
    been brought under the criminal rules was, in effect, an error. In fact, once
    the request for
mandamus
became moot and only the
Charter
application
    went forward, the matter should not have proceeded under the criminal rules. The
    application was neither in a criminal proceeding nor did it relate to an
    active criminal court proceeding. It ought to have proceeded as an application under
    s. 14.05(3)(g.1) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194
. An appeal
    from such a decision, therefore, would lie to this court pursuant to s. 6(1)(b)
    of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43
.

[5]

The procedural irregularity of having referred to the criminal rather
    than the civil rules did not, in Ms. Petroniuks submission, prejudice any
    party or impact the proceedings in any substantial way.

[6]

The Crown contends that some parties would not have been part of the
    application if Ms. Petroniuk had brought it under the civil rules. We are
    mindful that the Ontario Review Board and the hospital, the Centre for
    Addiction and Mental Health, might not have been included in the proceedings
.
However, the hospital has acknowledged
    that it is not prejudiced by this court treating the application as if it had been
    brought under the civil rules. As for the Ontario Review Board, it has not
    participated in this motion.

[7]

The Crown also acknowledges that it was not prejudiced by the
    application having been brought pursuant to the criminal rather than the civil
    rules
.

Nonetheless, it maintains
    that this court should quash the appeal and leave it to Ms. Petroniuk to
    seek leave to appeal directly to the Supreme Court of Canada.

[8]

In our view, the motion must be dismissed. We see no reason not to treat
    this proceeding as a civil proceeding. It is apparent to us that the procedure
    adopted in this case was irregular and in error. However, the error was not raised
    by the parties in the court below nor commented on by the application judge.

[9]

The Supreme Court cases cited by the Crown are of no help to it. In the
    cases of
R. v. Laba
,
[1994] 3 S.C.R. 965, and
R. v. Keegstra
,
[1995] 2 S.C.R. 381, the constitutional challenges were
    made in the context of ongoing criminal proceedings. That is unlike the present
    matter, which is in effect a civil proceeding in the form of a stand-alone
    application for a declaration that the legislation is unconstitutional.

[10]

In
    a situation such as this one, we agree with the Alberta Court of Appeals
    comment in
R. v. White
, 2008 ABCA 294, 93 Alta. L.R. (4th) 239, affd
    on other grounds 2010 SCC 21, [2010] 1 S.C.R. 721, at para. 30, that [t]he
    substance of the procedure (which must prevail over its form) was however civil
    and declaratory in nature. The fact that the wrong rules were followed here should
    not preclude an appeal. The substance of the procedure must prevail over its
    form. In the circumstances, it is therefore open to this court to exercise its
    discretion and hear the appeal despite the procedural error committed in the
    court below.

[11]

As
    a result, the motion is dismissed.

Paul Rouleau J.A.

David Watt J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Parshall, 2018 ONCA 59

DATE: 20180124

DOCKET: C63615

Hoy A.C.J.O., MacPherson and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adam Parshall

Appellant

Christian DesLauriers, for the appellant

Caroline Carrasco, for the respondent

Heard: January 23, 2018

On appeal from the conviction entered on November 2, 2016
    by Justice Mitch Hoffman of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant Adam Parshall was convicted of several drug related
    offences by Hoffman J. of the Ontario Court of Justice in Ottawa. He appeals
    the convictions.

[2]

Based on a search warrant, the police seized nearly two ounces of
    cocaine, approximately 23 ounces of marijuana and marijuana shake, crystal
    methamphetamine, drug paraphernalia, and more than $1,000 cash from the
    appellants apartment at unit 2-504 Bronson Ave. in Ottawa.

[3]

At his trial, the appellant applied under ss. 8 and 24(2) of the
Charter
to quash the search warrant for his residence and to exclude the drugs and
    money obtained pursuant to the search.

[4]

The trial judge dismissed the appellants application. He applied the
    criteria for evaluating an Information to Obtain a search warrant enunciated in
R. v. Debot
, [1989] 2 S.C.R. 1140. He found that the information
    provided by the confidential police informant (CI) was compelling and credible.
    He also found that the corroboration of CIs information was not overwhelming
    and significant but limited. He upheld the Justice of the Peaces decision to
    issue the search warrant.

[5]

The appellant challenges the trial judges ruling on two grounds.

[6]

First, the appellant contends that the trial judge misstated the test
    for granting the search warrant when he framed the issue in this fashion:

The issue boils down to whether there is
some
    reliable information
that might reasonably be believed upon which the
    issuing Justice of the Peace could have issued the search warrant. [Emphasis
    added.]

[7]

The appellant attacks the emphasized portion of this passage. He says
    that it sets the bar for judicial authorization of a search warrant too low
    because the accepted test is whether there is sufficient credible and reliable
    evidence to support the warrant: see
R. v. Sadikov
, 2014 ONCA 72, at
    para. 84.

[8]

We do not accept this submission, essentially for two reasons.

[9]

First, the appellants submission amounts to linguistic quibbling. In
R.
    v. Araujo
, [2000] 2 S.C.R. 992, Lebel J. said, at para. 51:

In looking for
reliable information
on which the authorizing judge could have granted the authorization, the
    question is simply whether there was
at least some
    evidence that might reasonably be believed on the basis of which the authorization
    could have issued
. [Emphasis in original.]

[10]

Second,
    a fair reading of the trial judges ruling establishes that he was very
    focussed on both the credibility and reliability of the CI and the information
    he/she provided. He did not look for some information in the air. Rather he
    explicitly linked the information he was examining to the concepts of
    credibility and reliability.

[11]

The
    appellants second basis for challenging the search warrant is that the trial
    judge misapplied the
Debot
factors.

[12]

We
    are not persuaded by this submission. In his factum, the appellant states that
    [t]he information provided by the CI was somewhat compelling and [t]he
    appellant is not suggesting that the CI in the case at bar should not have been
    considered to be reliable, but only that his/her reliability is not as solid as
    the reviewing judge concludes it to be. This strikes us as, at most, only an
    attack at the margins of the trial judges reasoning on these points.

[13]

On
    the corroboration factor, the appellant submits:

[T]he information based on which the reviewing judge concluded
    that the information provided by the CI was corroborated is a few confirmed
    entries of individuals into unit 2-504 Bronson Avenue, and observations made by
    the police of [Bernard Jacobs]. The appellant submits that this was less than
    sufficient to corroborate the CI information.

[14]

We
    disagree. The trial judge explicitly recognized that, of the three
Debot
factors, the weakest in this case was corroboration. He said: I find the
    information to be corroborated to a moderate degree. With respect to Bernard
    Jacobs, he said:

The ITO contains an opinion viewed through the lens of police
    experience, and drug investigation experience, that Jacobs is the supplier, or
    is a supplier of drugs to the accused.

As I indicated the observations of Jacobs are helpful because
    of his connection to unit 2 through his connection to the accused.

[15]

We
    do not see a problem with this analysis. The trial judge does not exaggerate
    the strength of the corroboration factor. Rather, he labels it as somewhat
    significant, but limited. He then combines it with his strong conclusion
    relating to the credibility of the CI and the compelling nature of the
    information he provided to reach the ultimate conclusion that it was appropriate
    to issue the search warrant. We agree with his analysis and conclusion.

[16]

The
    appeal is dismissed.

Alexandra Hoy A.C.J.O.

J.C. MacPherson J.A.

Paul Rouleau J.A.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pindus, 2018 ONCA 55

DATE: 20180125

DOCKET: C62679

Laskin and Pepall JJ.A. and Gans J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Roger William Allan Pindus

Appellant

Matthew Gourlay and Kenneth Grad, for the appellant

Rebecca De Filippis, for the respondent

Heard: November 28, 2017

On appeal from the convictions entered on June 27, 2016
    and the sentence imposed on September 23, 2016 by Justice John A. Desotti of
    the Superior Court of Justice, sitting without a jury.

Laskin J.A.:

A.

Overview

[1]

The appellant, Roger Pindus, appeals his convictions for six counts of
    sexual assault and two counts of assault of the complainant, C.R., and his
    sentence of six years in the penitentiary.

[2]

C.R. alleged that Pindus sexually and physically assaulted her over a
    two year period, between 2005 and 2006. When the assaults began, C.R. was 14
    years old; Pindus was 44. C.R. disclosed the assaults in 2013 when she was 22.

[3]

Pindus was tried in 2016 before a judge alone on 14 counts of sexual
    assault, two counts of assault, and one count of unlawful confinement. At the
    time the sexual assaults were alleged to have occurred, the age of consent in
    Canada was 14, not 16 as it is now. Thus, to convict Pindus, the Crown had to
    prove lack of consent beyond a reasonable doubt.

[4]

C.R. gave evidence that, for nearly two years, Pindus sexually and
    physically abused her numerous times. The abuse included many instances of
    forced oral sex and sexual intercourse. She testified that sometimes she would
    resist Pinduss advances by pulling away and telling him to stop. Other times
    she would acquiesce because she felt there was no point in saying no.

[5]

Pindus testified and denied any sexual contact at all with C.R. He
    claimed that C.R. was a love-struck teenager, who fabricated her allegations
    because she was infatuated with him. But Pindus took the alternate position
    that any sexual activity with C.R. was consensual. C.R. had kept a diary in
    which she described her sexual encounters with Pindus. Defence counsel cross-examined
    C.R. on many of her diary entries to try to show that she consented to sex with
    Pindus.

[6]

The trial judge gave lengthy oral reasons. He acquitted Pindus on 8 of
    the 14 counts of sexual assault and the one count of unlawful confinement. He
    held at para. 52 that because of the complainants silence or acquiescence,
    he could not conclude beyond a reasonable doubt that these allegations of
    sexual assault were not consensual. He convicted Pindus on the other six counts
    of sexual assault and on the two counts of assault.

[7]

On his conviction appeal, Pindus accepts that the trial judge was
    entitled to find that sex took place and thus to reject Pinduss primary
    defence that he did not engage in sexual activity with C.R. His appeal instead
    focuses on his alternate position at trial, the question of consent. He raises
    three issues:

1.

Did the trial judge misapply the burden of proof?

2.

Did the trial judge misapprehend the significance of C.R.s diary?

3.

Did the trial judge err by assessing C.R.s testimony according to the
    standard applicable to young persons?

[8]

On his sentence appeal, Pindus submits that the trial judge made two
    errors in principle justifying this courts intervention: he relied on
    inadmissible portions of C.R.s victim impact statement; and he failed to apply
    the principle of parity.

[9]

For the brief reasons that follow I would dismiss both the conviction
    and the sentence appeals.

B.

additional background

[10]

C.R.
    was born in 1991, and grew up in Sarnia, where all the alleged incidents
    occurred. She met Pindus through her friend S.V. S.V. lived with her mother and
    her uncle, Joseph Lamore. Lamore and Pindus were friends, and Pindus often went
    to S.V.s house to see him.

[11]

C.R.
    testified that she first met Pindus in the summer of 2005. He was introduced to
    her by his nickname Dog. Pindus quickly took notice of her. He offered her
    rides on his motorcycle and told her to call him on his cellphone. He told her
    that she was pretty.

[12]

About
    three weeks after they met, Pindus took C.R. on a bike ride, as he had done
    before. But this time he took her to his house. They went inside to his living
    room and sat on the couch. He asked C.R. if he could touch her breasts. She
    said no. Still, he lifted up her shirt and fondled her breasts. He then undid
    her pants, pulled back her underwear, and put his fingers in her vagina. He
    moved his fingers around a couple of times, but stopped when he realized she
    was on her period.

[13]

C.R.
    then stood up and said she wanted to go. She tried to walk away. Pindus grabbed
    her arm, pushed her down onto a chair, and held her there while he undid his
    pants. He exposed his erect penis, and told C.R. he wanted her to put his penis
    in her mouth. She said she didnt want him to. But he pulled her toward him so
    that his penis was touching her lips. She said he was so persistent that she
    opened her mouth. He put his penis inside and told her to suck it. She pushed
    him away and said she wanted to leave. He took her back to S.V.s house.

[14]

From
    this first incident, Pinduss abuse of C.R. escalated. It took place at Pinduss
    house, S.V.s house, and on a few occasions at the house of a classmate of C.R.
    and S.V.

[15]

During
    the time Pindus was sexually assaulting C.R., Lamore was also sexually
    assaulting her. In April 2007, she became pregnant with Lamores child and
    later that year gave birth.

[16]

Eventually
    C.R. underwent counselling, which she said helped her to understand what had
    occurred. In April 2013, she disclosed what Pindus and Lamore had done to her.

C.

The conviction appeal

(1)

Did the trial judge misapply the burden of proof?

[17]

Pindus
    acknowledges that the trial judge correctly stated the Crowns burden of proof
    beyond a reasonable doubt, but argues that he misapplied it. Pindus contends
    that on the issue of consent, the trial judge wrongly took an either/or
    approach to the assessment of the evidence: either Pindus was lying or C.R. was
    lying. He correctly points out that Pinduss evidence could be rejected in its
    entirety, and he could still be acquitted on all counts if on all the evidence
    lack of consent had not been made out beyond a reasonable doubt:
R. v. W.(D).
,
    [1991] 1 S.C.R. 742, at pp. 757-758. In essence, Pindus submits that the trial
    judge did not apply the reasonable doubt standard to the question of consent,
    contrary to
W.(D.)
. In support of his submission, he relies on this
    courts decision in
R. v. J.W.
, 2014 ONCA 322, 316 O.A.C. 395. I
    disagree with Pinduss submission.

[18]

The
    trial judge considered the credibility of both Pindus and C.R. He found at
    para. 47 that, except on one minor and immaterial matter, Pinduss testimony
    was unremarkable and did not display any significant shortcomings.

[19]

But
    the trial judge was favourably impressed with C.R.s evidence and her
    composure under fire (para. 43). He acknowledged the inconsistencies in her
    evidence but found that she did not fabricate or even exaggerate her accounts
    of Pinduss sexual assaults. He concluded at para. 82 that she gave her
    evidence in a most detailed and convincing manner even with some
    inconsistencies with respect to dates, clothing and locations. And he accepted
    that C.R. had numerous sexual encounters with Pindus, some of which were
    non-consensual. He then rejected Pinduss denials.

[20]

Had
    the trial judge stopped there with these findings, Pindus might have had a
    legitimate complaint. A general acceptance of a complainants evidence and a
    rejection of an accused evidence does not exhaust the trial judges duty to
    apply the standard of proof beyond a reasonable doubt. A reasonable doubt can survive
    a finding that the complainant is credible:
J.W.
, at para. 26.

[21]

But
    the trial judge was acutely aware of the reasonable doubt standard, and his
    reasons for judgment show that he applied it. He repeatedly referred to the
    reasonable doubt standard throughout his reasons, and expressly discussed the
W.D.
analysis. Perhaps most compelling, he acquitted Pindus on eight of the counts
    of sexual assault because C.R.s silence or acquiescence on these counts left
    the trial judge with a reasonable doubt on each one. As the Crown points out,
    in acquitting Pindus on these counts, the trial judge applied a more rigorous
    standard on the issue of consent that Pindus was entitled to. But for this
    ground of appeal, the important point about the acquittals is that they
    demonstrate the trial judge did not misapply the burden of proof.

[22]

Also,
    in closing submissions, the trial judge commented to the Crown counsel that he
    would have to wrestle with whether the Crown had satisfied him beyond a
    reasonable doubt:

The Court:  at the end of the day, I mean, that is what we
    really are talking about here, and whether or not was any compulsion on the
    part of the accused with respect to that, if I reject his evidence entirely.

Ms. Stoner: Yes.

The Court: We still have to do the
W.(D).
analysis

Ms. Stoner: Yes

The Court:  as Mr. Marley points out. And his position is even
    if I get to denying the first prong of
W.(D).
and I am prepared to
    reject to the second prong, is there sufficient evidence on the issue of
    reliability on the third prong,
does the Crown satisfy me beyond a
    reasonable doubt. So I have got to wrestle with that
. [Emphasis added.]

[23]

Then,
    on each count, the trial judge considered whether C.R.s evidence proved a lack
    of consent beyond a reasonable doubt.

[24]

Overall,
    the trial judge was faithful to this courts decision in
R. v. J.J.R.D.
(2006), 215 C.C.C. (3d) 252 (Ont. C.A.). He rejected Pinduss evidence and
    convicted him based on a considered and reasoned acceptance beyond a reasonable
    doubt of C.R.s evidence. See also:
R. v. R.D.
, 2016 ONCA 574, 30 C.R.
    (7th) 373.

[25]

This
    courts decision in
J.W.
, on which Pindus relies, is a different case
    and does not assist him. In
J.W.
,
the trial judge committed the very error Pindus relies on. He approached the
    evidence of the complainant and the accused in a sexual assault case on an
    either/or basis. He convicted the accused in that case because, even though the
    accuseds evidence was not shaken, the trial judge preferred the
    complainants version and was convinced by it. But he failed to consider
    whether the evidence as a whole raised a reasonable doubt about the accuseds
    guilt or whether the Crown had proved the case against the accused beyond a
    reasonable doubt. The trial judge in
J.W.
erred by failing to apply
    the reasonable doubt standard, which is an essential component of Doherty
    J.A.s reasons in
J.J.R.D.
The trial judge in this case did not commit
    that error. I would not give effect to this ground of appeal.

(2)

Did the trial judge misapprehend the significance of C.R.s diary?

[26]

C.R.
    kept a contemporaneous diary in which she described her sexual encounters with
    Pindus. Although Pinduss main position at trial was a denial of sexual contact
    altogether, his counsel used the diary to cross-examine C.R. on the question of
    consent. Through his cross-examination, he tried to show that in her diary,
    C.R. described consensual sex with Pindus, contrary to her evidence at trial.

[27]

Pindus
    submits that the trial judge cannot convict him without resolving this
    contradiction between C.R.s diary entries and her evidence at trial. He
    contends that the trial judges apparent resolution of the contradiction cannot
    support the convictions because it reflected a misapprehension of C.R.s trial
    evidence.

[28]

The
    trial judge concluded at para. 83 that, in her diary, C.R. did not intend to
    convey what she felt but was describing what had happened through the eyes of
    an inexperienced, troubled and needy 14 year old teenager. Yet at trial, C.R.
    said in response to defence counsels cross-examination: [I]f thats what Im
    saying thats how I felt at the time. Pindus contends that the trial judge
    conclusion  that in her diary C.R. did not mean to convey her true feelings
    cannot be squared with her evidence at trial.

[29]

I
    do not accept Pinduss contention, as I see no contradiction between C.R.s
    diary entries and her evidence at trial. I make three points in support of my
    conclusion.

[30]

First,
    as I read the diary entries, they did not describe consensual sexual
    encounters; they merely describe sexual encounters. Also, C.R. repeatedly
    explained that her diary did not include all the details of Pinduss assaults,
    and that her age at the time accounted for any misleading language. The trial
    judge accepted her explanation, as he was entitled to do.

[31]

Second,
    C.R.s answer at trial, if thats what Im saying [in the `diary] thats how I
    felt at the time, was not an answer to questions about whether her sexual
    relationship with Pindus was consensual. It was an answer to questions about
    whether she was in love with Pindus. Certainly for a 14 year old having sex
    with a 44 year old, feelings of love cannot automatically be equated with
    consensual sex.

[32]

Third,
    when asked whether her diary described consensual sex with Pindus, C.R.
    repeatedly denied that it did. For example, when testifying at trial about one
    of her entries where she wrote she had sucked [Pinduss] dick, she said: I
    didnt write my feelings. I just wrote down what happened. The trial judge was
    entitled to accept this evidence and to find that the description of the sexual
    encounters in C.R.s diary did not undermine her trial testimony about her lack
    of consent.

[33]

I
    would not give effect to this ground of appeal.

(3)

Did the trial judge err by assessing C.R.s testimony according to the
    standard applicable to young persons?

[34]

C.R.
    was 25 when she testified about the events that occurred when she was 14 and 15
    years old. Nonetheless the trial judge was obligated to assess her evidence
    according to her age when she testified, not her age when the events she was
    testifying about it occurred. In other words, the principle is the following:
    when adult witnesses testify about events that occurred when they were a child,
    their evidence should be assessed by the criteria applicable to adult
    witnesses, not by the somewhat relaxed criteria applicable to child witnesses.
    See:
Kendall v. R
, [1967] S.C.R. 469, at pp. 473-474; and
R. v.
    A.M.
, 2014 ONCA 769,
123 O.R. (3d) 536
, at
    paras. 11 and 25.

[35]

Pindus
    submits that the trial judges reasons show that he violated this principle when
    he assessed C.R.s evidence. His submission rests on a single reference in the
    trial judges reasons to C.R. as a young person. In commenting on the
    reliability of C.R.s evidence, the trial judge said at para. 56:

With respect to the issue of reliability, the following passage
    by the complainant, C.R. in cross-examination perhaps best characterizes some
    of the frailties that exist when a young person testifies in sexual assault
    trials :

I didnt remember saying those
    things because it is hard to tell a stranger all of those things and when
    youre under pressure and uncomfortable its normal to forget or not say it at
    all when you think that you have.

[36]

I
    do not accept that this single reference to young person shows that the trial
    judge applied an incorrect standard for assessing C.R.s evidence. The mere
    mention of young person standing alone does not reflect the application of a
    less rigorous standard. Pindus has not pointed to any aspect of the reasons
    suggesting the trial judge applied a lesser standard to C.R.s evidence.

[37]

As
    the trial judge observed, there were inconsistencies in C.R.s evidence. But
    generally these inconsistencies related to peripheral matters, such as timing
    and sequence. These minor discrepancies could be expected. Also, when an adult
    witness gives evidence about events that took place in childhood, inconsistencies
    and lack of memory have to be considered in the context of the age of the
    witness at the time of the events. Here, the trial judge accepted C.R.s
    explanation that any inconsistencies in her evidence and any inability to
    remember certain things were not the result of dishonesty. They were the result
    of the passage of time and the troubling nature of what C.R. had to testify
    about.

[38]

I
    decline to give effect to this ground of appeal. I would therefore dismiss
    Pinduss conviction appeal.

D.

The sentence appeal

[39]

At
    trial, the Crown asked for a sentence of eight to nine years; the defence
    sought a sentence of two to three years. The trial judge sentenced Pindus to
    six years incarceration, less 33 days for pre-sentence custody. He made the
    usual ancillary orders.

[40]

As
    has been said many times, sentences imposed by trial judges are entitled to
    significant deference on appeal. An appellate court may interfere if the trial
    judge errs in principle but only if the error has an impact on the sentence:
R.
    v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44.

[41]

Here,
    Pindus submits that the trial judge committed two errors in principle
    justifying our intervention. First, he relied on references in C.R.s victim
    impact statement in which she said she suffered from Post-Traumatic Stress
    Disorder (PTSD), even though the Crown did not put forward any expert
    evidence to support this diagnosis or to show her PTSD was connected to Pinduss
    conduct. Second, the trial judge failed to apply the principle of parity set
    out in s. 718.2(b) of the
Criminal Code
, R.S.C. 1985, c. C-46, and
    instead imposed a sentence twice the length of the sentence imposed on
Lamore,

which was three years. I
    would not give effect to either branch of Pinduss submission.

[42]

On
    the first branch, the trial judge did find C.R.s victim impact statement to be
    compelling, poignant, heartfelt, disturbing and reflected the significant
    trauma these sexual encounters occasioned on the physical and mental health of
    this young person. He itemized eight excerpts from her statement. In one of
    the excerpts she is quoted as saying: I have learned through therapy that I
    have [PTSD].

[43]

Even
    accepting Pinduss submission that this excerpt was improperly admitted in the
    absence of an expert diagnosis to support it, the trial judges reasons do not
    suggest that C.R.s description of what she learned in her therapy sessions had
    any impact on the sentence the trial judge imposed.

[44]

On
    the second branch of Pinduss submission he points out that
Lamore
was convicted of several counts
    of sexual assault and assaults on C.R. and that he even fathered a child with
    her, yet received a sentence of only three years. Thus Pindus contends his six
    year sentence violated the principle of parity. I disagree.

[45]

Pindus
    was not entitled to the same sentence as Lamore simply because they both
    sexually assaulted the same victim. The principle of parity does not preclude
    disparity where circumstances warrant it. Pindus and Lamore were sentenced in
    different circumstances. One significant differentiating circumstances was that
    Lamore pleaded guilty and thus had the benefit of this mitigating
    consideration. Even so, if anything his sentence was lenient and does not
    justify reducing Pinduss sentence.

[46]

Moreover
    the overriding principle of sentencing is proportionality: the more serious the
    crime and its consequences, and the more morally blameworthy the offender, the
    more severe the sentence:
Lacasse
,
at para. 12. For Pindus, the principle of proportionality entirely justified the
    fitness of a six year sentence. I can do no better than quote the concluding
    words of the Crowns factum:

Sexual offences against children and teenagers demand lengthy
    penitentiary sentences. The appellants trial counsel acknowledged as much. The
    facts of the appellants convictions were egregious, and the aggravating
    factors numerous. The appellant engaged in an escalating pattern of protracted
    sexual and psychological abuse of a young and vulnerable victim almost 30 years
    his junior. The assaults were violent and demeaning, and the impact on the
    victim was devastating and lasting.

[47]

Although
    I would grant leave to appeal sentence, I would dismiss the sentence appeal.

E.

Conclusion

[48]

I
    would dismiss Pinduss conviction appeal. Although I would grant leave to appeal
    sentence, I would also dismiss his sentence appeal.

Released: J.L. January 25, 2018

John Laskin J.A.

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

I agree. Arthur Gans J.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rocha, 2018 ONCA 84

DATE: 20180130

DOCKET: C60980

Hoy A.C.J.O., MacPherson and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Rocha

Appellant

Paul J.I. Alexander, for the appellant

Tanit Gilliam, for the respondent

Heard: January 26, 2018

On appeal from the conviction entered on June 26, 2015
    and the sentence imposed on September 15, 2015 by Justice Nancy L. Backhouse of
    the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant Jason Rocha was convicted of possession of a controlled
    substance (cocaine) for the purpose of trafficking (x4) and possession of
    property obtained by crime. He received a global sentence of five years and
    eight months imprisonment.

[2]

In March 2013, a confidential informant (CI) told police that a male
    known as Jason worked at and was selling powdered cocaine from a bar called Os
    Dragoes and kept cocaine at his home. The CI described Jason. The CIs
    handler, Detective Taylor, knew the male described from a prior investigation.
    Database searches confirmed Jason Rochas address as 64 Crawford Street.

[3]

Surveillance was conducted at 64 Crawford Street and 703 College Street,
    the address of the Os Dragoes bar. The description of that surveillance in
    the unredacted portions of the Information to Obtain (ITO), which was
    prepared by Officer Stehlik, can be summarized as follows:

·

On March 26, 2013, a male later identified as Alan Rocha, the
    appellants brother, was seen getting into a car with a brown paper bag at 64
    Crawford Street. The car was driven by a woman believed to be the appellants
    mother. The car later arrived at the bar where patrons were already waiting.
    Alan Rocha, with a brown paper bag in his possession, unlocked the front door
    and entered with the woman and the patrons. The officers conducting the
    surveillance noted a flow of customers entering the door leading to the
    establishment and leaving in what they considered an abnormally short time for
    patrons of a bar or restaurant.

·

Surveillance of the bar continued on March 27, 2013 where the
    same flow of customers was noted by the observing officers.

[4]

The unredacted portions of the ITO summarized the CIs credibility as
    follows:

·

Two cases in which the CI provided information that culminated in
    arrests and charges, one in 2011 and one before that.

·

The CI had a track record of providing accurate and truthful
    information.

·

The CI was financially motivated and aware that monetary rewards
    are only paid out upon successful results of an investigation.

·

The CI acknowledged that he would face criminal charges for
    making false reports to police.

·

The CI is immersed within the criminal subculture, has several
    contacts in the GTA, and is privy to information not normally available to the
    general public.

·

The CI does not appear to have a criminal record.

[5]

The ITO also contained details of a 2008 case against the appellant and
    others, where a search warrant was executed at the bar and the appellants residence.
    The ITO stated that drugs and firearms had been seized, but also that the
    charges were dismissed at trial (2011 ONSC 2518, appeal dismissed 2012 ONCA
    707).

[6]

The warrant was executed at the appellants residence on April 5, 2013.
    Police seized 800 grams of cocaine, 505 oxycodone pills, drug paraphernalia and
    $32,880 in cash.

[7]

At the outset of the trial, the appellant applied for the fruits of the
    search of his residence to be excluded. In his view, the search warrant should
    not have been issued and the search and seizure infringed his rights under s. 8
    of the
Canadian Charter of Rights and Freedoms
.

[8]

At trial, a heavily redacted copy of the ITO was disclosed to the
    appellant. The Crown conceded that the redacted ITO could not adequately make
    out the grounds for the warrant. A judicial summary was prepared and provided
    to counsel. The judicial summary can be summarized as follows:

·

The CI gave accounts of his firsthand observations of Jasons
    drug trafficking at the bar including when and the number of times the
    observations were made. Sale of cocaine had been observed recently on a
    specific date. The CI also specified the circumstances surrounding the sale of
    drugs inside the bar and his/her means of knowing of Jasons drug trafficking.

·

The CI provided very specific information regarding the CIs
    means of knowledge that Jason keeps cocaine at his home. The information is
    not based on rumour or gossip. The CI made recent observations at the bar
    that lend support to the CIs statement that Jason keeps cocaine at home.

[9]

Some information was excised and other information amplified the ITO.
    References to the 2008 drug seizures from 64 Crawford were excised. Reference
    to a brother of the applicant having died of a drug overdose was excised for
    lack of probative value. The ITO was amplified to show that the CI had no
    criminal record. The trial judge granted defence counsel leave to cross-examine
    the affiant.

[10]

The
    defence argued that the Crowns application to use step 6 of the
Garofoli
procedure (
R. v. Garofoli
, [1990] 2 S.C.R. 1421) ought not to have
    been granted because the CIs means of knowing that the applicant kept drugs in
    his home is redacted, preventing the accused from challenging it in argument or
    by evidence. In the trial judges view, the judicial summary explained how the
    tip was compelling. The defence was able to cross-examine the affiant on a
    number of issues relating to the credibility of the CI and the accuracy of investigative/corroborative
    details. The defences submissions together with the affiants
    cross-examination led the trial judge to find that the accused was sufficiently
    aware of the nature of the excised material to challenge it by argument or
    evidence. Step 6 was found to be appropriate.

[11]

Applying
    the criteria in
R. v. Debot
, [1989] 2 S.C.R. 1140 (
Debot
) to
    this case, the trial judge determined that the issuing justice could reasonably
    have found that: the tip was compelling with respect to criminal activity at
    the bar and the presence of cocaine at the appellants home; the CI was credible;
    and the tip was corroborated.

[12]

The
    trial judge rejected the defence argument the tip was insufficiently
    corroborated because no undercover agent entered the bar to observe criminal
    activity. Police officers testified that the bars patrons are a close-knit
    community and they would not have engaged in criminal activity in the presence
    of a stranger. That explanation was found to be credible by the trial judge.

[13]

The
    trial judge also rejected the defences contention that reference to the 2008
    search was deliberately misleading. Reference to the search was excluded
    because the applicants
Charter
rights were breached during that search,
    not because the reference was misleading.

[14]

Accordingly,
    the s. 8 application was dismissed.

[15]

The
    trial judge nonetheless conducted a s. 24(2) analysis in case of an erroneous
    conclusion in relation to the appellants s. 8 rights. The trial judge found
    that the police acted in good faith. Even though the search was conducted in
    the appellants home, society has a great interest in adjudicating the case on
    its merits. Accordingly, the admission of the evidence would not bring the
    administration of justice into disrepute.

[16]

The
    appellant appeals the trial judges ruling relating to the search warrant on
    four grounds.

[17]

First,
    the appellant contends that the trial judge erred by relying on redacted
    material that was not summarized and that the appellant could not challenge.

[18]

We
    do not accept this submission. The trial judge did not err in relying on the
    redacted material, the nature of which was set out in the judicial summary. The
    detail of the redacted information does not have to be communicated to the
    defence. The issue is whether the nature of the material was sufficiently
    summarized and disclosed. In our view, the defence was sufficiently aware of
    the materials nature to challenge it by argument or by evidence, as the trial
    judge comprehensively demonstrated in paragraph 22 of her ruling.

[19]

The
    appellant then submits that the reviewing judge used judicial scrutiny as a
    substitute for the meaningful participation of the defence. Specifically, he
    relies on the portion of the trial judges reasons where she states:

My ability to fully explain my findings with respect to 64
    Crawford is limited by the fact that some of the information remains redacted.
    For protection of his Charter rights, the applicant must essentially rely on
    judicial oversight (of at least 2 levels in this case) to ensure, to the extent
    practicable, that there were reasonable grounds for issuing the warrant.

[20]

We
    are not persuaded by this submission. In our view, in this passage the trial
    judge was simply indicating that the determination as to the existence of reasonable
    grounds supporting the issuance of the warrant would be made by the judge based
    in part on redacted information that had not been disclosed to the appellant.
    It does not, as suggested, indicate that the nature of the redacted information
    relied on by the trial judge was not disclosed in the judicial summary. Nor do
    we interpret it as suggesting that, using the judicial summary and other
    information available to the appellant, he was not in a position to mount both
    a facial and sub-facial attack on these redactions.

[21]

Second,
    the appellant submits that the ITO did not meet the
Debot
criteria,
    namely, whether the CIs tip was compelling, whether the CI was credible, and
    whether there was corroboration for the tip (the three Cs).

[22]

We
    are not persuaded by this submission.

[23]

The
    tip was compelling. It was detailed and current. It was not limited to
    conclusory allegations of criminal conduct. It was sourced to the informants
    direct observations and personal knowledge. The source had a first-hand basis
    for the information and gave detailed information about the drug activity. It
    was not based on rumour or gossip. The appellant has not demonstrated that
    there was no basis upon which the tip could be relied upon as compelling.

[24]

The
    source was credible. The informer was known to police, immersed in the criminal
    sub-culture, and privy to details not normally known to the public. He had
    provided valuable information to the police before. He was aware that he might
    face criminal prosecution by giving false information.

[25]

The
    information was corroborated. Numerous material aspects of the tip were
    confirmed by police, including the appellants connection to the bar and 64
    Crawford Street and activity at the bar suggestive of drug trafficking.

[26]

Third,
    the appellant asserts that the police affiant failed to make full, frank and
    fair disclosure in the ITO. The ITO contained three specific references to the
    2008 case involving the appellant, where a search warrant was executed at the
    appellants home and bar. The ITO stated that drugs and firearms had been
    seized, but also that the charges were dismissed at trial. The police affiant
    did not know, and accordingly did not state, that the reason for the dismissal
    of the 2008 charges was police breach of s. 8 of the
Charter
. This omission,
    contends the appellant, was so misleading as to require the search warrant to
    be set aside.

[27]

We
    disagree. On this point, we explicitly agree with the trial judges reasons:

I do not agree with defence counsels characterization of the
    reference to the 2008 search and seizure as deliberately misleading. While the
    ITO did not state that the evidence had been excluded against the applicant, it
    did state in 3 separate places (each time the 2008 investigation was
    referenced) that the charges were dismissed against the applicant after a
    trial. If the reference to the 2008 search and seizure had been omitted, the
    affiant would have been criticized for failing to disclose facts upon which the
    affiant was in reality relying. Notwithstanding that it was relied upon as a
    ground in the ITO, highlighting the history of 64 Crawford Street including the
    dismissal of all charges against the applicant ensured that the issuing justice
    would not rely on it as evidence of reasonable and probable grounds at the time
    of this application for a search warrant. The references were excised because
    the evidence was excluded against the applicant due to his
Charter
rights having been breached, not because it was misleading.

[28]

The
    appellants fourth submission is that the trial judges alternative conclusion,
    namely that if a
Charter
s. 8 breach were established, the search
    warrant should be upheld under s. 24(2) of the
Charter
, is in error.
    In light of our conclusions on the first three issues, this issue does not
    arise.

[29]

The
    appeal is dismissed.

Alexandra Hoy A.C.J.O.

J.C. MacPherson J.A.

Paul Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sagoo, 2018 ONCA 58

DATE: 20180123

DOCKET: M48729 (C64847)

Feldman J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Jastaap Sagoo

Applicant (Appellant)

Stephen Price, for the appellant

Jessica Smith Joy, for the respondent

Heard: January 23, 2018

ENDORSEMENT

[1]

The appellant seeks bail pending appeal and a stay of the driving
    prohibition of six years. The sentence is six months plus two years probation.

[2]

The Crown opposes on the ground that the appeal is frivolous. Counsel
    has raised a number of grounds including alleged misapprehensions of the
    evidence or failure to reconcile inconsistencies, which, in my view can be
    characterized as frivolous.

[3]

One alleged error of law is raised that cannot, at this stage, be said
    to be frivolous: that is the trial judges use of the appellants failure to
    comment on the van in front of him to the 911 operator. The trial judge used
    that as part of his reasons for disbelieving the appellant: see
R. v.
    Rivera
2011 ONCA 225 and
R. v. Bowen
2011 O.J. 3738. Whether
    these cases apply is the issue raised.

[4]

The Crown does not rely on either of the other grounds to oppose bail or
    the stay of the driving prohibition. The appellant was allowed to drive to work
    pending trial. Counsel has the transcripts and agrees to perfect very
    expeditiously.

[5]

In the circumstances, bail and the stay are granted on the terms of the
    draft order provided.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Shahcheraghi, 2018 ONCA 29

DATE: 20180115

DOCKET: C63388 & C63240

Rouleau, Watt, Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent/Applicant/Appellant

and

Amir Shahcheraghi

Appellant/Respondent

Catriona Verner, for the appellant

Frank Au, for the respondent

Heard and released orally: January 10, 2018

On appeal from the conviction entered on November 10,
    2016 and the sentence imposed on January 24, 2017 by Justice Edward M. Morgan
    of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

Amir Shahcheraghi, whom we will describe as the appellant, was convicted
    of aggravated assault after a trial before a judge sitting without a jury. The
    passing of sentence was suspended and the appellant ordered to comply with the
    terms of a probation order for three years.

[2]

The events that gave rise to the charge occurred when the complainant, a
    severally intoxicated young man, was asked to leave a bar where the appellant
    was the head of security. While outside the bar, the complainant became
    involved in a verbal exchange with the appellant and a second member of the
    security team. A skirmish followed. The complainant, probably more due to the
    extent of his intoxication than anything else, pushed into the other security
    guard causing that guard to lose his balance and fall to the ground with the
    complainant, a large man, on top of him. The appellant walked over and pulled
    the complainant off the security guard.

[3]

Three witnesses testified about having seen the appellant smash the
    complainants head against a set of glass doors, and two of them claimed to
    have seen the appellant punch the complainant in the face. There was also
    evidence that the other security guard had punched the complainant in the face
    several times with considerable force.

[4]

The appellant testified in his own defence.  He acknowledged having
    restrained the complainant up against the glass doors, but denied doing so
    forcibly and denied punching the complainant in the face.

[5]

The complainant suffered two lacerations to the area of his left eye and
    cheek, including one that severed his tear duct. The defence conceded that the
    tear duct injury met the definition of wounding in s. 268 of the
Criminal
    Code.
Fortuitously, expert medical care at St. Michaels Hospital repaired
    the damage, leaving the complainant without any apparent lasting impacts.

[6]

The appellant appeals his conviction of aggravated assault. The Crown
    appeals the sentence imposed.

The Appeal from Conviction

[7]

On the appeal from conviction the appellant advanced three grounds of
    appeal. He says that the trial judge:

i.

misapprehended evidence about the appellants conduct during the assault
    and relied upon his incorrect understanding of the evidence to find that the
    appellant had caused the complainants injury;

ii.

failed to consider other reasonable possibilities as to what caused the
    complainants eye injury; and

iii.

failed to properly address potential collusion amongst prosecution
    witnesses.

[8]

For our purposes it is sufficient to consider only the first ground of
    appeal.

[9]

The respondent agrees that the trial judge made several mistakes about
    the substance of the evidence given at trial. Those errors were critical to his
    finding on causation, the central issue at trial. The respondent acknowledges
    that these errors not only related to a material issue, but also played an
    essential role in the reasoning process leading to the appellants conviction
    of aggravated assault. As a result, the respondent concedes those errors warrant
    appellate intervention. We agree: see
R. v. Lohrer,
2004 SCC 80, at
    paras. 1 and 2.

[10]

In
    the usual course, the errors identified and acknowledged here would warrant an
    order quashing the appellants conviction and directing that a new trial be
    held on the indictment. However, counsel jointly propose a different result. They
    say that we should exercise our authority under ss. 686(1)(b)(i) and (3) of the
Criminal Code
to substitute a verdict of assault
simpliciter
in
    place of that recorded at trial, aggravated assault.

[11]

It
    is well settled that the fault element in aggravated assault is the fault
    element in assault, coupled with objective foresight of the risk of bodily
    harm. The aggravation lies in the consequences of the assault, and the nexus
    between those consequences, in this case said to be wounding, and the assault
    itself.

[12]

In
    this case, the errors of the trial judge had to do with the essential link
    between the appellants assault and the consequences, the wounding, to the complainant.
    But those errors do not vitiate the finding that an assault occurred and that
    the appellant committed it.

[13]

In
    the result, we are satisfied that, although the appellant was not properly
    convicted of the count of aggravated assault, he was properly found guilty of
    the included offence of assault
simpliciter
. Accordingly, as s. 686(3)
    authorizes but does not require us to do, we dismiss the appeal from the
    conviction of aggravated assault and substitute a finding of guilt of assault
simpliciter
.
    We use the term finding of guilt at this stage because the parties invite us
    to determine a fit sentence, and the appellant asks us to impose an absolute
    discharge.

[14]

In
    light of the substituted verdict the Crown is not pursuing its sentence appeal.

The Appeal from Sentence

[15]

The
    appellant and respondent invite us to deal with the issue of sentence, rather
    than to remit it to the trial court, as we are permitted to do.

[16]

The
    appellant asks us not to enter a conviction, but rather to discharge the
    appellant absolutely or, in the alternative, conditionally.  The appellant
    submits that it is not contrary to the public interest to do so and manifestly
    in his interest that he be discharged. After all, he is a first offender with
    excellent prospects, who has already complied with probationary terms for a
    year including counselling and community service requirements. What is more, a
    conviction may well jeopardize his prospect for a renewal of his security licence.

[17]

We
    are not persuaded that a discharge, whether absolute or conditional, is the
    appropriate sentencing disposition in this case.

[18]

This
    was a serious offence. It involved repeated striking of the complainants head
    against a glass door. It represented significantly excessive force against the
    patron who, though grossly intoxicated and perhaps somewhat obnoxious, was in
    no condition to threaten or resist, and had not exhibited any meaningful
    aggressive tendencies.

Conclusion

[19]

In
    the result, the appeal from conviction of aggravated assault is dismissed and a
    conviction of assault
simpliciter
is entered. We affirm the sentence
    imposed by the trial judge. In light of the substituted verdict, the Crowns
    appeal from sentence on the original conviction is dismissed.

Paul Rouleau J.A.
David Watt J.A.
David Brown J.A.