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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. Radcliffe, 2017 ONCA 176

DATE: 20170302

DOCKET: C52894

Watt, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frederick M. Radcliffe

Appellant

Frederick M. Radcliffe, acting in person

Brian Snell, appearing as duty counsel

Christine E. Bartlett-Hughes, for the respondent

Heard: July 14, 2016

On appeal from the conviction entered by Justice Paul F.
    Lalonde of the Superior Court of Justice on June 25, 2009, and from the
    sentence imposed on October 8, 2010.

Watt J.A.:

[1]

A judge found Frederick Radcliffe guilty of sexual interference, sexual
    assault and failing to comply with a recognizance as a result of his conduct
    with a teenaged complainant one July evening several years ago.

[2]

The Crown initiated dangerous offender proceedings against Radcliffe.
    The trial judge found Radcliffe to be a dangerous offender and sentenced him to
    imprisonment in a penitentiary for an indeterminate term.

[3]

Assisted by duty counsel, Frederick Radcliffe appeals his convictions
    and the indeterminate sentence imposed upon him at the conclusion of the
    dangerous offender proceedings.

[4]

For the reasons that follow, I would dismiss both appeals.

[5]

An elaborate recitation of the evidence adduced at trial is unnecessary
    to an understanding of the grounds of appeal advanced and my decision to reject
    them. A brief overview is sufficient for both purposes.

The Background

[6]

The essence of the case for the Crown consisted of:

i.

the complainant's video-recorded statement to the police, admitted under
    s. 715.1(1) of the
Criminal Code
, the contents of which she adopted in
    giving evidence at trial; and

ii.

the complainant's trial testimony.

[7]

The complainant was 13 years old at the time of the relevant events and
    15 years old at the time of trial where she testified by closed-circuit television
    with the assistance of a support person.

[8]

The complainant described a single incident of non-consensual vaginal
    and anal intercourse in Radcliffe's truck behind a gas bar where Radcliffe took
    her as he drove her home from a coffee shop parking lot where they had met
    earlier the same evening.

[9]

Shortly after she returned home, the complainant recounted to her friend
    what had occurred. The friend called the police. When the police and paramedics
    responded to the call, they found the complainant in emotional distress. They
    took her to a local hospital for an examination.

[10]

A nurse who examined the complainant at the hospital and administered a
    sexual assault kit testified that she noticed the complainant's cervix was lumpy
    and red and her anus had a fissure. The nurse considered both findings
    unnatural.

[11]

Frederick Radcliffe's pants, as well as vaginal and rectal swabs taken
    from the complainant and a bathing suit bottom the complainant was wearing
    under her shorts, were subjected to DNA analysis. In two areas near the fly of
    Radcliffe's pants, on vaginal swabs and inside the front crotch area of the
    complainant's bathing suit bottom, an expert found a mixture of DNA from the
    complainant and a male. Frederick Radcliffe could not be excluded as the donor
    of the male portion of the DNA mixture.

[12]

The forensic analysis did not detect spermatozoa (an indicator of the
    presence of semen) and could not confirm the bodily substance from which the
    DNA originated. The expert testified that there could not have been full
    ejaculation. In the absence of condom use (as the complainant testified), the
    expert would have seen more DNA than she detected in the sample. However, she
    acknowledged that it was possible to transfer some DNA material without
    ejaculation including some from saliva transferred from a finger to a vaginal
    area.

[13]

The position of the Crown at trial was that, emboldened by the
    complainant's lack of resistance to some of his sexually suggestive comments,
    Frederick Radcliffe offered to drive her home. He deliberately made a wrong
    turn, stopped at the rear of the car wash/gas bar and entered the back seat of
    his vehicle where the complainant was sitting. In the back seat, Radcliffe
    pushed the complainant down, pulled down her shorts and bathing suit bottom and
    had non-consensual vaginal, then anal intercourse with her. Each then had a
    cigarette before Radcliffe drove her home, dropping her off at a street corner
    near her residence.

[14]

Frederick Radcliffe, 36 years old at the time of the offence and 38 at
    trial, testified on his own behalf. He acknowledged having had "sexual
    problems" since he was a teenager. He had received counselling and
    treatment. He discontinued use of prescribed medication  Cialis  in the
    months prior to the alleged offences because it was too expensive.

[15]

Frederick Radcliffe admitted that the complainant was in his truck  a
    sport utility vehicle  on the night she alleged he sexually assaulted her. He
    offered her cigarettes, but did not participate in any sexual talk with her or
    ask her for any sexual favours. He agreed to drive her home from the coffee
    shop parking lot.

[16]

En route to the complainant's home, Radcliffe made a wrong turn. He
    decided to turn around at a car wash/gas bar. He testified that he hit a bump
    in the pavement in the gas bar, causing his cigarettes to fall on the floor. He
    got out of the vehicle behind the gas bar to pick up the package. When he
    returned to the vehicle, he and the complainant each smoked a cigarette. After
    asking if he had a girlfriend, the complainant leaned over to kiss him. She
    fondled his penis. She put her fingers in his mouth, then in her crotch after
    pulling her shorts down. Radcliffe told the complainant he was not interested
    and then drove her home.

[17]

Frederick Radcliffe denied having had sexual intercourse with the
    complainant in his truck.

[18]

Frederick Radcliffe's wife confirmed that he had suffered from erectile
    dysfunction for at least two years prior to the alleged offence.

THE APPEAL FROM CONVICTION

[19]

On the appeal from conviction, Frederick Radcliffe ("the
    appellant"), advanced two arguments. He says that the trial judge erred:

i.

in subjecting the evidence of the appellant to a more stringent standard
    of scrutiny than the testimony of the complainant; and

ii.

in failing to adhere to the principles in
R. v. W. (R.)
, [1992]
    2 S.C.R. 122, in assessing the evidence of the complainant.

Ground #1: The Uneven Scrutiny Argument

[20]

The appellant says that the trial judge was uneven in his scrutiny of
    the testimony of the two principal witnesses, the appellant and the
    complainant. On the one hand, the trial judge subjected the evidence of the
    appellant to intense scrutiny, finding fault and rejecting it for reasons
    unrelated to its reliability or the appellant's credibility. His defensive
    posture in cross-examination. His request that simple, straightforward
    questions be repeated. His evasive responses. His characterization of some
    questions as irrelevant.

[21]

On the other hand, the appellant continues, the trial judge was markedly
    less critical and substantially more forgiving of many things that told heavily
    against her credibility and the reliability of her evidence. Her combative
    attitude in cross-examination by defence counsel. Unexplained inconsistencies
    in her testimony. Embellishments in her evidence. Her self-admitted
    unreliability. Her hasty retreat to "I don't remember" and "I
    can't recall" when challenged or faced with contradictory physical
    evidence.

[22]

In my assessment of this claim of uneven scrutiny, I keep in mind
    several basic principles.

[23]

First, as the appellant recognizes, this is a difficult argument to make
    successfully. The reasons are twofold. Credibility findings are the province of
    the trial judge. They attract significant appellate deference. And appellate
    courts invariably view this argument with skepticism, seeing it as little more
    and nothing less than a thinly-veneered invitation to re-assess the trial
    judge's credibility determinations and to re-try the case on an arid, printed
    record:
R. v. Howe
(2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59;
R. v. George
, 2016 ONCA 464, 349 O.A.C. 347, at para. 35.

[24]

Second, to succeed on an uneven scrutiny argument, an appellant must do
    more than show that a different trial judge assigned the same task on the same
    evidence could have assessed credibility differently. Nor is it enough to show
    that the trial judge failed to say something she or he could have said in
    assessing credibility or gauging the reliability of evidence:
Howe
, at
    para. 59.

[25]

Third, to succeed on the argument advanced here, the appellant must
    point to something, whether in the reasons of the trial judge or elsewhere in
    the trial record, that makes it clear that the trial judge
actually
applied different standards of scrutiny in assessing the evidence of the
    appellant and complainant:
Howe
, at para. 59;
George
, at para.
    36.

[26]

Fourth, in the absence of palpable and overriding error, there being no
    claim of unreasonable verdict, we are disentitled to reassess and reweigh
    evidence:
George
, at para. 35;
R. v. Gagnon
, 2006 SCC 17, [2006]
    1 S.C.R. 621, at para. 20.

[27]

After a careful review of the reasons of the trial judge, considered as
    a whole, I am not persuaded that this ground of appeal has been made out.

[28]

I begin with the obvious. The mere fact that the trial judge accepted
    the evidence of the complainant and rejected that of the appellant in
    concluding that guilt had been established beyond a reasonable doubt does not
    move the yardsticks on an argument based on uneven scrutiny.

[29]

Read as a whole, the reasons of the trial judge reveal a keen awareness
    of the issues raised about the complainant's credibility and the reliability of
    her evidence. The inconsistencies and their relationship with the core elements
    of her testimony. Her frequently denied memory about incidental events. Her
    combative attitude with defence counsel. Her age, attitude, level of education
    and lack of sophistication. The time that had elapsed between the events of
    which she testified and the time of which she gave her evidence at trial. She
    got no free pass from the trial judge.

[30]

In addition, I am mindful of the fact that, in some respects at least,
    the complainant's evidence was confirmed by other testimony and findings. The
    condition of her cervix and anus. The DNA deposits on the fly area of the
    appellant's pants and the crotch of the complainant's bathing suit bottom.

[31]

Further, the trial judge explained why he rejected the testimony of the
    appellant. His reasons were firmly grounded in the evidence and in the manner
    in which the appellant testified. There was nothing unfair, unreasonable or
    hyper critical in his approach or findings. Nor does the balance of the trial
    record suggest that the trial judge subjected the appellant's testimony to a
    more demanding level of scrutiny than that of the complainant.

Ground #2: The
W. (R.)
Error

[32]

The appellant advances a second ground of appeal against conviction, a
    complaint somewhat related to the first alleged error.

[33]

This ground of appeal has its roots in the decision in
W. (R.)
.

[34]

The appellant accepts the teachings of
W. (R).
about the manner in
    which trial judges are to assess the reliability of the evidence of children.
    Not on the basis of some inherent unreliability or special caution, but rather
    on a common sense individualized basis taking into account the strengths and
    weaknesses which characterize the evidence offered in the case:
W. (R.)
,
    at p. 134. In the assessment of the evidence of a child (even an adult) about
    things that happened during childhood, a trier of fact should consider the
    presence of inconsistencies, especially those having to do with peripheral
    issues like time and location, in the context of the age of the witness when
    the events about which she or he testifies happened:
W. (R.)
, at p. 134.

[35]

The appellant says that the trial judge failed to consider the need to
    properly scrutinize the evidence of the child complainant and failed to subject
    it to the same standard of proof as required of adult witnesses in a criminal
    case.

[36]

I would not give effect to this ground of appeal. In my view, read as
    whole, the reasons of the trial judge do not reflect either an inappropriately
    superficial level of scrutiny of the complainant's evidence or a diminution of
    the standard of proof.

[37]

After a lengthy review of the substance of the evidence adduced at
    trial, the trial judge enumerated several principles that governed his
    decision. The onus and standard of proof. The limitations on demeanour as a
    credibility determinant. The obligation to consider the whole of the evidence,
    not simply to choose between competing versions of relevant events. The value
    of inconsistencies in assessing credibility of witnesses and the reliability of
    their evidence. And that proof of the case for the Crown did not follow from
    rejection of the appellant's evidence.

[38]

The trial judge made it clear that he was not applying some
    prefabricated rule in his assessment of the complainant's credibility, rather,
    as
W. (R.)
directs, was adjudging it by reference to her mental
    development, understanding and ability to communicate. The judge also took into
    account that aspects of the complainant's testimony were confirmed by
    independent evidence of her physical and emotional condition within minutes and
    hours of the alleged assault and the results of DNA analysis of stains on the
    fly of the appellant's pants and the crotch of the complainant's bathing suit
    bottom.

[39]

As noted in relation to the first ground of appeal, the trial judges
    assessment of the complainants credibility and reliability demonstrated clear
    awareness of the inconsistencies and frailties in her evidence. He rejected
    certain aspects of her evidence as untrue, discounting some of them as relating
    to peripheral matters. Despite the recognized issues with the complainants
    evidence, fundamentally the trial judge accepted her evidence on the central
    issue at trial  whether or not a sexual assault occurred  as truthful. He was
    fully alive to the Supreme Court of Canadas directions in
W. (R.)
. While
    the trial judge considered the complainants mental development, understanding
    and ability to communicate, he did not weaken the standard of proof by situating
    her evidence in that context. He was entitled to reach the conclusion that he
    did.

[40]

It is also worth remembering that contradictions emerging in
    cross-examination of parts of a video admitted under s. 715.1, do not render
    the contradicted parts inadmissible. Self-evidently, a contradicted videotape
    may well be accorded less weight in the final determination of the issues. But
    contradiction of the video in cross-examination does not necessarily mean that
    the video is wrong or unreliable. It is open to the trial judge to conclude
    that the inconsistences are insignificant and find the video more reliable than
    the trial testimony:
R. v.  F. (C.C.)
, [1997] 3 S.C.R. 1183, at para.
    47.

[41]

In the result, I would dismiss the appeal from condition.

THE APPEAL FROM SENTENCE

[42]

The appellant advances a single ground of appeal against the sentence of
    imprisonment in a penitentiary for an indeterminate term imposed by the trial
    judge.

[43]

The appellant does not contest the trial judge's finding that the
    evidence satisfied the requirements for a dangerous offender (DO) designation.
    Where the trial judge went wrong, according to the appellant, was in failing to
    order a
Gladue
report or to consider the influence of
Gladue
factors and s. 718.2(e) of the
Criminal Code
in determining whether
    there was a reasonable possibility of eventual control of the appellant's risk
    of re-offence in the community. Had the trial judge embarked on that

course
    and analysis, the appellant says he would have been designated a long-term
    offender (LTO) and sentenced to a term of imprisonment followed by a period of
    long-term supervision, rather than the sentence imposed.

[44]

In support of his sentence appeal, the appellant tenders two reports
    from the Correctional Service of Canada. Each describes the appellant's
    progress in the penitentiary and his participation in various programs there.

The Background

[45]

The trial judge found that the appellant met the criteria for dangerous
    offender under ss. 753(1)(a)(i), 753(1)(a)(ii) and 753(1)(b) (the last of which
    the appellant admitted).

[46]

In closing submissions at the end of the dangerous offender hearing,
    trial counsel for the appellant referred the trial judge to a brief letter from
    a staff member at the Ottawa Carleton Detention Centre where the appellant had
    been detained prior to trial and the dangerous offender proceedings.

[47]

For a portion of this time, the appellant was serving a sentence for an
    unrelated offence. The author of the letter, a native inmate liaison officer,
    reported on the appellant's self-identification as Aboriginal and participation
    in Aboriginal programs. The letter was filed as an exhibit.

[48]

In closing submissions, trial counsel for the appellant made brief
    reference to the letter and the appellant's claimed Aboriginal status. Counsel,
    relying on the then state of the law (post-
Gladue
, but pre-
Ipeelee
),
    noted that some offences required lengthy jail terms regardless of the
    offender's ethnicity. However, counsel did link Aboriginal status to a finding
    that the appellant was an LTO. The appellant self-reported that he was adopted
    at an early age by supportive adoptive parents.

[49]

The trial Crown emphasized the need for evidence of the availability of
    some measures to help manage the risk of re-offence by the appellant in the
    community. The absence of evidence, the trial Crown argued, was fatal to the
    submission that the appellant should be found an LTO.

The Arguments on Appeal

[50]

In oral argument, duty counsel contended that the trial judge's failure
    to consider
Gladue
factors in determining the designation to be made and
    sentence imposed was a fatal flaw in the sentencing proceedings and required a
    new hearing. There, duty counsel says, a
Gladue
report can be prepared
    and proper consideration given to the appellant's Aboriginal status in
    determining whether he should be found an LTO, rather than a DO, and sentenced
    to something other than imprisonment in a penitentiary for an indeterminate
    term.

[51]

The respondent points out that the trial judge did consider the limited
    evidence about the appellant's Aboriginal status. While it may have been
    preferable to have a more robust record on the issue, the respondent reminds us
    that Aboriginal status and s. 718.2(e) have a diminished role in dangerous
    offender proceedings. They exert no influence on the fundamental decision of
    whether the requirements for designation of an offender as a DO have been met.
    Further, to the extent that it has anything to say about eventual control of
    the risk in the community, what is critical, and lacking here, is evidence
    about the availability of programs realistically likely to achieve that goal.
    Here, the risk resides in the appellant's paraphilias and his personality
    disorder, neither of which can be ameliorated  by Aboriginal programming.

The Governing Principles

[52]

It is now firmly established that when sentencing an Aboriginal
    offender, a judge must consider:

i.

the unique systemic or background factors which may have played a part
    in bringing the particular Aboriginal offender before the court; and

ii.

the types of sentencing procedures and sanctions which may be
    appropriate in the circumstances for the offender because of his or her
    particular Aboriginal heritage and connection.

See
R. v. Gladue
, [1999] 1 S.C.R. 688, at para.
    66;
R. v. Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 59.

[53]

Systemic and background factors may bear on the culpability of the
    offender, to the extent they illuminate the offender's level of moral
    blameworthiness:
Ipeelee
, at para. 73. The second set of circumstances
    the types of sanctions that may be appropriate  has to do with the
    effectiveness of the sentence itself:
Ipeelee
, at para. 74.

[54]

Courts are required to take judicial notice of the systemic and
    background factors affecting Aboriginal people in Canadian society. But, on
    their own, these matters about which judicial notice must be taken do not
    necessarily justify a different sentence for Aboriginal offenders. They provide
    the necessary
context
for understanding and evaluating the case-specific
    information which counsel have a duty to present, absent express informed
    waiver of the right to have it presented:
Ipeelee
, at para. 60.

[55]

Although systemic and background factors provide the necessary context
    to enable a judge to determine an appropriate sentence, rather than to excuse
    or justify the underlying conduct, it is only where the unique circumstances of
    an offender bear on culpability, or indicate which sentencing objective can and
    should be actualized, that they will influence the ultimate sentence:
Ipeelee
,
    at para. 83.

[56]

Section 718.2(e) of the
Criminal Code
imposes a statutory duty on
    a sentencing judge to consider the unique circumstances of Aboriginal
    offenders. Failure to apply
Gladue
in any case of an Aboriginal offender
    offends this statutory obligation and constitutes an error justifying appellate
    intervention:
Ipeelee
, at para. 87.

[57]

As a matter of general principle, characteristics that make an offender
    "less blameworthy" have little impact on a dangerous offender
    application:
R. v. B. (D.V.)
, 2010 ONCA 291, 254 C.C.C. (3d) 221, leave
    to appeal refused, [2011] S.C.C.A. No. 207, at para. 80. Where
Gladue
factors serve to establish the existence and availability of alternative
    Aboriginal-focused means aimed at addressing the environmental, psychological
    or other circumstances which aggravate the risk of re-offence posed by the
    Aboriginal offender, a sentencing judge must make reference to them:
R. v.
    Jennings
, 2016 BCCA 127, 384 B.C.A.C. 152, at paras. 35, 38;
R. v.
    Standingwater
, 2013 SKCA 78, 417 Sask. R. 158, at para. 51.

[58]

To determine whether a lesser measure will adequately protect the
    public, there must be evidence before the sentencing judge that the dangerous
    offender can be safely released into the community. Mere hope, even a judicial
    assumption about the existence of community programs or other necessary
    resources, is inadequate to the task of addressing the reasonable expectation
    of protection of the public. Evidence of the existence and availability of
    community resources that will provide the essential level of extra-custodial
    supervision to adequately protect the public is necessary:
R. v. Smarch
,
    2015 YKCA 13, 374 B.C.A.C. 291, at para. 48.

[59]

Some courts have pointed out that the application of
Gladue
factors must be practical. Sometimes, the long-standing problems of a person
    declared a dangerous offender simply cannot be adequately ameliorated, the risk
    of re-offence reduced to an acceptable level, by Aboriginal programs or
    facilities alone. The failure to consider Aboriginal circumstances may be
    overcome by evidence regarding risk of re-offence and the absence of any
    reasonable possibility of eventually controlling that risk in the community:
Jennings
,
    at paras. 40-41.

[60]

A final point has to do with the admissibility of fresh evidence on
    appeals from indeterminate sentences imposed in dangerous offender proceedings.
    Among other things, fresh evidence must be sufficiently cogent that it could
    reasonably be expected to have affected the result of the dangerous offender
    proceedings had it been adduced there along with the other evidence:
R. v.
    Angelillo
, 2006 SCC 55, [2006] 2 S.C.R. 728, at para. 15;
R. v.
    Peekeekoot
, 2014 SKCA 97, 446 Sask. R. 22, leave to appeal refused, [2014]
    S.C.C.A. No. 502, at para. 46. We are concerned here with a review of the
    sentence imposed by the trial judge in 2010, not with what the outcome might be
    were the proceedings held today. For the most part, evidence of institutional
    progress since sentence, including participation in and completion of various
    programs, exerts no meaningful influence on the trial judge's sentencing
    determination:
Peekeekoot
, at paras. 48-52;
R. v. Sipos
, 2014 SCC
    47, [2014] 2 S.C.R. 423, at para. 40.

The Principles Applied

[61]

As I will explain, I would decline to admit the proposed fresh evidence
    and would not give effect to this ground of appeal.

[62]

At the outset, we acknowledge that the trial judge did not refer to
    either
Gladue
or to s. 718.2(e) in reaching his conclusion on sentence.
    Section 718.2(e) requires that, as a matter of substantive decision-making, an
    offender's Aboriginal status and related circumstances must be considered when
    determining an appropriate sentence. Despite this error, we are satisfied that
    express consideration of
Gladue
factors and s. 718.2(e) would have made
    no difference in the result.

[63]

It is well settled that
Gladue
factors and s. 718.2(e) of the
Criminal
    Code
have limited relevance in dangerous offender proceedings. They have no
    say in whether an offender meets the statutory requirements for designation as
    a dangerous offender. Their influence has to do with the subsidiary question of
    whether there is a reasonable possibility of eventually controlling the
    offender's re-offence risk in the community, thus on the divide between
    dangerous and long-term offenders. With the paramount sentencing objective of
    protection of the public, the judicial discretion to determine an appropriate
    sentence is significantly circumscribed.

[64]

The trial judge gave extensive consideration to whether there was a
    realistic possibility of eventual control of the risk of the appellant
    re-offending in the community. He concluded that the evidence disclosed no such
    possibility. The evidence revealed that the appellant had an abysmal record of
    response to treatment. He lacked any recorded history of completion of any
    treatment program. Repeated breaches of court orders. Unmotivated. Continued
    involvement in high-risk situations. An unreliable source of historical fact
    and promise of future conduct.

[65]

In this case, the trial judge had to determine whether there was a
    realistic possibility of eventually controlling the risk that the appellant
    would re-offend in the community. It was not a close contest. An offender with
    an incurable anti-social personality disorder, several equally-incurable
    paraphilias and a significantly elevated likelihood of violent recidivism. One
    who had a richly documented history of treatment avoidance. It is inconceivable
    in these circumstances that
Gladue
considerations, especially without
    evidence of the availability, much less the nature of ameliorative programs,
    could have converted an unmanageable risk into a manageable one.

[66]

I would not admit the proposed fresh evidence for want of cogency. We
    are not concerned here with the appellant's current situation, or with whether,
    if sentenced today, there would be a realistic possibility of controlling the
    risk of his re-offence in the community. Our focus is historical, statutorily
    locked into a consideration of the sentence imposed about seven years ago.

CONCLUSION

[67]

For these reasons, the appeals against conviction and sentence are
    dismissed.

Released: March 3, 2017 ("DW")

"David Watt J.A."

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

"I agree. M. Tulloch J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rafiq, 2017 ONCA 185

DATE: 20170303

DOCKET: C58932

MacFarland, Pardu and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shikar Rafiq

Appellant

I. Grant and R. Silverstein, for the appellant

Gillian Roberts, for the respondent

Heard: March 1, 2017

On appeal from the conviction entered on April 25, 2014
    by Justice Joseph Fragomeni of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant submits that the trial judge erred
    in admitting evidence of a gun found in a vehicle operated by him. The
    appellant argued at trial that he was arbitrarily detained when police stopped
    their vehicle two feet behind his vehicle which was parked at a gas station,
    and when an officer went to each side of the vehicle to speak to the occupants.
    He says further that police violated his s. 10(a) and s. 10(b)
Charter
rights when they failed at that time to advise him of the reason for
    detention and his rights to counsel.

[2]

The trial judge agreed that the appellant was
    then detained but found that it was not arbitrary. He found that the police had
    a reasonable basis to suspect that the occupants of the car were engaged in
    criminal activity. He found that there were violations of s. 10(a) and s. 10(b)
    of the
Charter
because police did not,
    immediately upon this detention, advise the appellant of the reason for
    detention and his rights to counsel.

[3]

The trial judge applied the test in
R.
    v. Grant
2009 SCC 32, and refused to exclude the
    evidence, concluding that the short delay occurred because of concerns for
    officer safety, and because the police, acting in good faith, did not think
    they had detained the appellant until they asked him to step out of the car.

[4]

The appellant argues that the bases advanced by
    the police for a reasonable suspicion were insufficient. However, the appellant
    and each of his two companions all acknowledged in statements made by them that
    an onlooker observing their behavior at the time would have found it
    suspicious. While each of the factors in isolation relied upon by the police
    would not be sufficient, the cumulative effect of the appellants and his
    companions behavior, was, as found by the trial judge, sufficient to support
    the investigative detention.

[5]

The appellant has not established that the trial
    judge erred in admitting the evidence, despite the violations he found. No
    challenge is made to the trial judges underlying factual findings which are
    entitled to deference. Assuming the correctness of the trial judges decision
    that the appellant was detained when police pulled in a car behind him, and
    went to speak to the occupants, here the police made no efforts to elicit
    inculpatory evidence after pulling behind the appellants vehicle but asked
    only very general questions. This case is nothing like
R. v. Wong
2015 ONCA 657. The appellant made no inculpatory statements to
    police before being advised of his rights and the reason for detention. The
    police did advise of the reason for detention and gave the appellant his
Charter
rights as soon as it was safe to do so. The presence of a
    loaded gun in the glove-box of the car was a significant finding. It was not
    uncovered as a result of evidence police compelled the appellant to produce.
    There was a substantial public interest in determination of this case on the
    merits.

[6]

Accordingly, the appeal is dismissed.

J. MacFarland J.A.

G. Pardu J.A.

G. T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Rashid, 2017 ONCA 240

DATE: 20170323

DOCKET: C62205

Doherty, Huscroft and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adrian Rashid

Appellant

Alan B. Richter, for the appellant

Kathleen Healey, for the respondent

Heard:  March 21, 2017

On appeal from the conviction entered on March 8, 2016 by
    Justice M. Block of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

This was a straightforward case.  It was for the trial judge to assess
    the circumstantial evidence and determine whether any inferences inconsistent
    with guilt were reasonably available on the totality of the evidence.

[2]

This court defers to that assessment absent demonstrated error in law or
    a clear and palpable factual error.  The appellant shows neither here.  A
    failure to articulate other possible factual scenarios in the reasons for
    judgment cannot be equated with a demonstrated failure to consider other
    possible scenarios.

[3]

The reasons were adequate.  The judge reviewed the evidence and made the
    basis for his finding clear.

[4]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sualim, 2017 ONCA 178

DATE: 20170302

DOCKET: C59412

Cronk, Rouleau and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ahmed Sualim

Appellant

Najma Jamaldin, for the appellant

Peter N. Fraser, for the respondent

Heard: February 23, 2017

On appeal from the ruling of Justice C. Brewer of the
    Ontario Court of Justice, on April 22, 2014 dismissing the appellants
    application that he be declared not criminally responsible on account of mental
    disorder.

By the Court:

I.        Background

[1]

After a trial by judge alone, the appellant was convicted of five counts
    of robbery with a firearm and five counts of theft over $5,000.  The offences
    in question involved a string of armed robberies and thefts committed in
    January 2012.

[2]

Following the appellants convictions, the defence advanced a not
    criminally responsible on account of mental disorder (NCR) plea pursuant to
    s. 16(1) of the
Criminal Code
, R.S.C. 1985, c. C-46.

[3]

An NCR hearing was conducted on various dates between June 2013 and
    March 2014.  Two forensic psychiatrists testified: Dr. Julian A.C. Gojer, for
    the defence, and Dr. Treena Wilkie, for the Crown.  The two experts agreed on
    many issues, including: that the appellant suffers from a major mental illness
    (Dr. Wilkie  schizophrenia and substance abuse disorder; Dr. Gojer
    schizoaffective disorder); that he was likely experiencing psychotic symptoms
    of his illness in the days leading up to the offences; that his behaviour was
    goal-directed at the time of the offences; that he was able to appreciate the
    nature and consequences of his actions; and that he knew his actions were legally
    wrong.

[4]

However, Dr. Wilkie and Dr. Gojer disagreed on whether, at the time of
    the offences, the appellant also knew that his actions were
morally
(as opposed to legally) wrong.  In their testimony, both experts confirmed that
    the appellants self-reports or statements during their interviews of him
    were the only evidence bearing on this critical issue.

[5]

Dr. Wilkie interviewed the appellant approximately one year after the
    date of the offences.  At the time of this interview, the appellant denied any
    auditory or visual hallucinations, although he thought people were watching
    him, for unknown reasons.  He told Dr. Wilkie that he committed the offences to
    make money to start a drug dealing business; that he did not hear voices when
    he committed the robberies; and that he was concerned that his parents would
    find out about his activities.  Based on these statements, Dr. Wilkie offered
    the opinion that the appellant understood the moral wrongfulness of his conduct
    and that he could engage in rational choice.  Consequently, in Dr. Wilkies
    view, the appellant was criminally responsible at the time of the offences.

[6]

In contrast, at Dr. Gojers interview with the appellant conducted about
    two years after the date of the offences, the appellant said that he had been
    hearing voices at the time of the robberies; that a song by the musician Jay Z
    was controlling his mind; that the voices he heard had told him to commit the
    robberies; and that he needed money to support a child he believed (without any
    evidence) was his.  Based on these statements, Dr. Gojer was of the opinion that
    the appellants experience of prominent psychotic symptoms at the relevant
    times would have prevented him from distinguishing between the moral and legal
    wrongfulness of his acts and, more likely than not, rendered him unable to
    exercise rational choice.  Consequently, in his view, the appellant was not
    criminally responsible for the offences.

[7]

For reasons dated April 22, 2014, the trial judge held that the opinions
    of the two psychiatric experts regarding whether the appellant knew that his
    actions were morally wrong, although admissible, were entitled to no weight
    because they were based on the appellants hearsay statements or self-reports to
    each expert and the appellant had not testified.  She therefore concluded that
    the defence had failed to meet its onus under s. 16(3) of the
Criminal Code
to establish, on a balance of probabilities, that the appellant was NCR at the
    time of the offences.

[8]

On June 9, 2014, trial defence counsel wrote to the trial judge, copied
    to the trial Crown, taking the position that the trial judge had erred in her ruling
    on the admissibility of the expert evidence of the two psychiatrists.  As
    detailed in his letter, trial defence counsel essentially maintained that the
    NCR hearing had proceeded on a misunderstanding about the admission of the
    appellants self-reports to Dr. Wilkie and Dr. Gojer for the truth of their
    contents, without the necessity of calling the appellant as a witness.

[9]

Specifically, trial defence counsel maintained that counsel had agreed
    at the NCR hearing that it would not be necessary to call all relevant medical
    parties involved in the psychiatric assessments of the appellant or the
    appellants parents, who had provided information to the two psychiatrists
    regarding the appellant, as witnesses at the NCR hearing.  Further, counsel had
    also agreed that the parents statements and the appellants self-reports to
    Dr. Gojer and Dr. Wilkie, as detailed in the experts reports, could be relied
    on by the trial judge for the truth of their contents, without the necessity of
    leading oral evidence from the appellant or his parents at the NCR hearing.
    Trial defence counsel acknowledged in his letter, however, that counsel had not
    informed the trial judge about their agreement regarding the appellants self-reports
    to Dr. Gojer and Dr. Wilkie.

[10]

In these circumstances, trial defence counsel suggested in his letter
    that the trial judges NCR ruling may have been predicated on an assumption
    regarding the treatment of hearsay evidence that was not shared by counsel at
    the NCR hearing and, consequently, that both counsel probably share[d] the
    same concerns with respect to the underpinnings of [the trial judges]
    judgment.

[11]

Trial defence counsel therefore requested that the trial judge review
    her judgment as it relate[d] to the admissibility of the expert medical
    evidence.  In his letter, counsel stated:

I also concede that the onus was entirely on the defence with
    respect to establishing the section 16 defence and any fault with respect to
    appreciating concessions is entirely mine.  That is why I raise the motion to
    re-open the case  it is my perspective that it is not too late to remedy any
    miscommunication on the very important issue of admissibility of the expert
    evidence.

It may also be somewhat fair to argue that both [the trial
    Crown and trial defence counsel] were working on the same understanding.  To
    begin with the issue of Mr. Sualims testimony as being necessary to the issue
    of his defence was never raised at any point of the trial.  The issue of his parents
    narrative of facts relating to his psychosis at the proximate time of the
    offence was raised by your Honour but both [the trial Crown] and I immediately
    identified our common understanding that your Honour could rely on that hearsay
    without the necessity of calling either parent.  Retrospectively I wish I would
    have also clarified our position with respect to Mr. Sualim but that was not
    done.

[12]

No formal application to reopen the appellants NCR plea proceeding was
    made.

[13]

On September 4, 2014, the trial judge received oral submissions from
    both counsel regarding the matters raised in the June 9 letter.  For brief oral
    reasons delivered immediately after those submissions, she declined to alter
    her original NCR ruling.  Her reasons, in their entirety, read as follows:

Let me just say a few things with respect to the request to
    re-open, first, I am unaware of any authority that would permit me to re-open a
    case after a verdict has been rendered. I appreciate that Counsel are concerned
    about my misunderstanding of the agreement that they had arrived at with
    respect to the psychiatric evidence, but, in any event, this is not even a
    classic form of a request to re-open as there is not to be any evidence called
    to correct an accidental omission; this was more to ask me to reconsider my
    judgment.

In addition, the request to treat Mr. Sualims statement[s] to
    the two doctors for the truth I think puts me in an impossible situation.  What
    the defendant said to one doctor entirely conflicts with what he said to the
    other doctor.  The only difference between the opinions of the two doctors
    turns on what was said to them, in my opinion.  In my view, this case does not
    really turn on the credibility of the doctors, but on the reliability of the
    information given to them.  So, I am in effect, in my view, being asked to
    resolve an issue of credibility without having heard from the source of the
    conflicting information.  I realize that this is not a result that is
    satisfactory to anyone, but given the circumstances in which I find myself, I
    believe I have to stand by my original decision.

[14]

Shortly thereafter, a sentencing hearing was conducted.  The appellant
    was sentenced to a total of five and one-half years imprisonment after credit
    for pre-sentence custody, plus three years probation.

[15]

The appellant has served his sentence.  However, he remains in custody
    pending his potential deportation to Nigeria, a country to which he has not
    been since he was three years of age.  The appellant now appeals to this court
    from the dismissal of his NCR application.

II.       Issues

[16]

The appellant contends that this appeal turns on whether the trial judge
    erred in her treatment of the evidence of his self-reports to the two
    psychiatrists.  He submits that, in light of counsels agreement about the
    trial judges use of that evidence, described above, the trial judge erred by
    assigning no weight to the opinions of the experts on whether the appellant
    knew that his actions were morally wrong at the time of the offences.

[17]

In support of this contention, the appellant argued in his factum that
    the trial judge erred in according no weight to Dr. Wilkies and Dr. Gojers
    opinions:

(1)

by
    refusing to adhere to the parties agreement to admit the appellants evidence
    through [his] self-report[s] for [their] truth;

(2)

by
    misapprehending the experts evidence; and

(3)

by
    refusing to reopen the appellants NCR application to reconsider the expert
    evidence in light of counsels agreement regarding the admissibility and use of
    the evidence of the appellants self-reports.

III.       Discussion

[18]

In our view, it is unnecessary for the disposition of this appeal to
    address each of these arguments in detail.  For the reasons that follow, we are
    satisfied that the trial judge erred in her treatment of the appellants
    self-reports to the two experts and, consequently, in her assessment of the
    experts opinions.  As a result, a new NCR hearing is required.

[19]

We deal first with the appellants submission that the trial judge erred
    by failing to give effect to counsels agreement that the appellants
    self-reports to Dr. Wilkie and Dr. Gojer would be admitted for the truth of
    their contents without the necessity of calling the appellant as a witness at
    the NCR hearing.  We reject this submission.

[20]

During oral argument before this court, the Crown did not dispute that
    an understanding or agreement existed between the trial Crown and trial defence
    counsel at the time of the NCR hearing regarding the admissibility and use by
    the trial judge of the appellants self-reports to Dr. Wilkie and Dr. Gojer.
    The agreement was to the effect that the appellants statements to Dr. Wilkie
    and Dr. Gojer, which formed the basis of their conflicting opinions regarding
    the appellants knowledge of the moral wrongfulness of his acts at the time of
    the offences, could be admitted and relied upon by the trial judge for the
    truth of their contents without the necessity of calling the appellant as a
    witness at the NCR hearing.

[21]

Importantly, the parties also accepted at the appeal hearing that the
    trial judge did not know of this agreement between counsel until after she had
    delivered her NCR ruling.

[22]

The transcripts of the NCR hearing bear this out.  They reveal that,
    during final submissions at the NCR hearing, the trial judge inquired of
    counsel if there was any agreement between them about whether she could rely,
    for the truth of its contents, on the evidence of the information furnished by
    the appellants parents to Dr. Wilkie and Dr. Gojer, although neither parent
    had testified.  Counsel agreed that she could do so.

[23]

However, neither counsel informed the trial judge of any similar
    agreement between them concerning the appellants self-reports to the two
    experts.  Counsels submissions did not address the admissibility of the
    appellants statements to the two psychiatrists.  Rather, it appears that
    counsel merely presumed the admissibility and use by the trial judge of the
    appellants statements for the truth of their contents.  Nor did the trial
    judge raise this issue.  In the result, the trial judge only learned of counsels
    agreement on this issue upon her receipt of the June 9 letter.

[24]

In these circumstances, the trial judge can scarcely be faulted for
    failing to give effect at the NCR hearing to an agreement or understanding
    between counsel of which she was unaware.  As the trial judge said in her NCR
    ruling:

I appreciate that the parties have urged me to rely on the
    defendants self-reporting in their written submissions, despite the fact that
    no mention of using such evidence for its truth was made on the record at
    trial.

[25]

This ground of appeal therefore fails.

[26]

The question then becomes whether the trial judge erred by failing to
    re-open the appellants NCR application when requested to do so, and whether
    she erred by concluding, notwithstanding the new information provided to her
    about counsels agreement at the NCR hearing, described above, that her
    original NCR ruling should stand.

[27]

In our view, the trial judge did err in her approach to these issues.
    Two factors compel this conclusion.  First, in declining to reopen the
    appellants NCR application, the trial judge concluded that she lacked the
    authority to do so.  For convenience, we repeat the trial judges opening
    remarks in her ruling on the reopening request:

Let me just say a few things with respect to the request to
    re-open,
first, I am unaware of any authority that would
    permit me to re-open a case after a verdict has been rendered
.  I
    appreciate that Counsel are concerned about my misunderstanding of the
    agreement that they had arrived at with respect to the psychiatric evidence,
    but,
in any event, this is not even a classic form of a
    request to re-open as there is not to be any evidence called to correct an
    accidental omission; this was more to ask me to reconsider my judgment
.
    [Emphasis added.]

[28]

Thus, the trial judge was under the impression that she had no
    jurisdiction to reopen the appellants NCR application because she had rendered
    a verdict and, further, because she was being asked to reconsider her ruling on
    the merits, rather than clarifying or amending her ruling for inadvertent
    omissions or errors.

[29]

The trial judge was mistaken in this regard.  A trial judge exercising
    the functions of both judge and jury in a criminal case is not
functus
following a finding of guilt until he or she has imposed sentence or otherwise
    finally disposed of the case:
R. v. Lessard
(1977), 30 C.C.C. (2d) 70
    (Ont. C.A.), at paras. 10-12;
R. v. Griffith
, 2013 ONCA 510, 116 O.R.
    (3d) 561, at para. 12.   The Crown does not suggest otherwise on this appeal.

[30]

In this case, trial defence counsel had requested the trial judge to
    reconsider her ruling on the admissibility of the expert reports at the NCR
    hearing.  This was a mischaracterization of the actual request made of the
    trial judge.  The June 9 letter, read as a whole, makes clear that the real
    issue upon which reconsideration by the trial judge was sought was not the
    admissibility of Dr. Wilkies and Dr. Gojers reports, which had been admitted
    and amplified by their testimony at the NCR hearing, but rather, the
    admissibility of those parts of their reports that detailed the self-reports made
    to them by the appellant.

[31]

The trial judges comments, quoted above, confirm that she was aware
    that she was being asked to reopen the appellants NCR application for the purpose
    of reconsidering her NCR ruling based on the new information about counsels
    agreement.  While the reopening request was made by trial defence counsel, it
    does not appear to have been opposed by the trial Crown.  Nor did the trial Crown
    dispute the existence of the agreement between counsel regarding the
    admissibility and use of the appellants self-reports, as asserted by trial
    defence counsel.

[32]

There is also a further, important consideration.  Because the trial
    judge treated the appellants self-reports to Dr. Wilkie and Dr. Gojer as
    hearsay at the NCR hearing, she concluded that no weight could be assigned to
    the experts opinions that were based on those self-reports.  As a result, in
    the trial judges view, there was no evidence before her upon which she could
    rely establishing whether the appellant understood the moral wrongfulness of
    his acts at the time of the offences.  Accordingly, the trial judge ruled that the
    appellants NCR defence failed because the appellant had not met his onus
    under s. 16 (3) of the
Criminal Code
.

[33]

In so holding, the trial judge did not attempt to reconcile Dr. Wilkies
    and Dr. Gojers competing opinions on the availability of an NCR defence.  Nor
    did she determine at the NCR hearing whether the opinion of one expert should
    be preferred over that of the other expert.

[34]

Similarly, the trial judge did not undertake these inquiries as a result
    of the defence reopening request.  Instead, in her ruling on that request,
    after expressing the view that she had no authority to reopen, the trial judge
    held that, because the appellants statements to the two psychiatrists were
    conflicting and the only difference between the opinions of the two doctors
    turns on what was said to them, she was unable to resolve the reliability of
    the appellants self-reports without having heard testimony directly from the
    appellant.  The trial judge thus concluded that she was not in a position to
    resolve the conflicting expert opinions.  She therefore did not attempt to do
    so, or to otherwise engage in an analysis of the experts competing opinions.

[35]

With respect, by proceeding in this fashion, the trial judge erred.
    Contrary to her understanding, the trial judge had the power to reopen the
    appellants NCR application.  The appellants sentencing hearing had not taken
    place at the time of the reopening request.

[36]

Moreover, without further analysis, the experts opinions on whether the
    appellant appreciated the moral wrongfulness of his acts at the time of the
    offences could not be rejected simply because the appellants statements to the
    experts, upon which their opinions were based, were conflicting.

[37]

It was incumbent on the trial judge to come to grips with the expert
    evidence and to determine whether it could be reconciled, or whether one of the
    expert opinions could and should be preferred over the other.  It may be that,
    having undertaken the requisite analysis of both opinions, the trial judge
    would conclude that she was unable to rely on either experts opinion given the
    nature of the evidence before her, including the appellants inconsistent
    self-reports.  Conversely, the trial judge may have been able to conclude that
    one of the experts opinions was more reliable than the other.  But a conclusion
    on the issue could not be reached unless the trial judge had engaged in the
    necessary analysis of the experts opinions and the information on which they
    were based.

[38]

As we have explained, in the unusual circumstances of this case and for
    differing reasons, this did not occur, either at the NCR hearing or as a result
    of the defence request to reopen the appellants NCR application.  Instead, at the
    NCR hearing, the trial judge concluded that no weight could be attached to the
    experts opinions because the appellants self-reports to Dr. Wilkie and Dr.
    Gojer were hearsay and the appellant had not testified.  And in her ruling on
    the defence request to reopen the appellants NCR application, the trial judge concluded
    that, because the appellants self-reports to the two experts were conflicting
    and the appellant had not testified, she could not resolve the competition
    between the two experts opinions.

[39]

In sum, as a result of the way in which this matter unfolded, the
    fairness of the process, involving a particularly vulnerable accused at a
    hearing to determine his criminal responsibility for serious crimes  a proceeding
    with serious consequences  was tainted.  In these unique circumstances, in our
    opinion, the interests of justice dictate that the trial judges NCR ruling
    cannot stand.  It follows that a new NCR hearing is required.

Disposition

[40]

For the reasons given, the trial judges April 22, 2014 NCR ruling is
    set aside and a new NCR hearing is ordered.  It will be open to the parties, as
    they may be advised and as the trial judge may direct, to rely at the new
    hearing on the evidence already adduced at the original NCR hearing.

E.A.
    Cronk J.A.

Paul
    Rouleau J.A.

B.W. Miller J.A.

Released: March 02, 2017


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Thompson, 2017 ONCA 204

DATE: 20170309

DOCKET: C59957

MacFarland, van Rensburg, and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daron Anthony Thompson

Appellant

Jennifer Penman, for the appellant

John Neander, for the respondent

Heard: February 17, 2017

On appeal from the convictions entered by Justice Brian P.
    OMarra of the Superior Court of Justice, sitting with a jury, on April 23,
    2014.

ENDORSEMENT

[1]

The appellant was convicted of several offences involving the possession
    of a firearm and a dangerous weapon. The convictions followed a trial by judge
    and jury after the appellants
Charter
applications under ss. 7, 8,
    and 9 were dismissed. The application reasons of Pattillo J. are reported at
    2014 ONSC 250.

[2]

This appeal concerns the appellants s. 8 application to exclude
    evidence obtained pursuant to search warrants obtained under the
Controlled
    Drugs and Substances Act
,
S.C.
    1996, c. 19,

and the
Criminal Code
,
R.S.C., 1985, c. C-46
. The warrants were based on information
    provided by a confidential informant (CI), computer checks of police
    databases, and several hours of surveillance of the appellant.

[3]

The appellant challenged the validity of the warrants. The Crown
    conceded that even with the judicial summary of the redacted material in the
    ITO, it could not support the authorization of the warrants. The Crown then brought
    an application to have the application judge consider the unredacted ITO
    pursuant to step six of the procedure established in
R. v.

Garofoli
,
    [1990] 2 S.C.R. 1421. The Crowns application was granted, the s. 8 application
    was dismissed, the evidence obtained in the searches was admitted, and ultimately
    the appellant was convicted of the offences.

[4]

The appellant submits that the application judge erred in two ways:
    first, by not permitting the appellant to challenge the sub-facial validity of
    the redacted portions of the ITO; and second, by denying the appellants
    request for the appointment of
amicus curiae
during the
ex parte
process.

[5]

The appeal is dismissed for the reasons that follow.

A.

Was a sub-facial challenge permitted?

[6]

The principles governing step six of
Garofoli
were elaborated by
    this court in
R. v. Crevier
, 2015 ONCA 619, 330 C.C.C. (3d) 305. There
    is no need to repeat the analysis here.

[7]

Some comments made by the application judge suggest that the appellant
    was not permitted to make a sub-facial challenge. However, when the application
    judges reasons are read as a whole, it is clear that the appellant was
    permitted to make, and did make, the sub-facial challenge to the warrant he was
    entitled to make.

[8]

The appellant used the judicial summary, the unredacted portions of the ITO,
    and information obtained from cross-examining the investigating officers and
    the CIs handler at the preliminary inquiry and as part of his s. 7
    application, in arguing that the ITO contained misleading statements and
    material omissions. He was thus permitted to go behind the ITO to challenge the
    reliability of its content, with a view to excising parts that were misleading
    or inaccurate.

[9]

The application judge dismissed the appellants sub-facial challenge. He
    accepted the evidence of Officers Spencer, Warrener, and Edgar concerning the
    surveillance of the appellant and found that the ITO neither omitted any
    material facts concerning that surveillance nor was the information it provided
    misleading. The application judge specifically addressed the defence submission
    that the appellant was associated with a second address. He found that the ITO
    was not misleading in this regard and that the police conducted an adequate
    investigation to corroborate the CIs tip. The appellant was seen leaving and
    using a key to lock the apartment that was subject to the warrant. Although
    there was evidence that the appellant was associated with another address, the application
    judge found that the police were not required to investigate further and that
    evidence as to where the appellants car was parked at another address was not
    a material fact that needed to be disclosed.

[10]

The
    appellant submits that the judicial summary was inadequate to permit him to
    mount a sub-facial challenge. He provided an extensive list of information that
    he asserted required clarification. For example, the appellant says that there
    was no information as to the source of the CIs alleged knowledge, the CIs motivations,
    how the CI knew the appellant, if at all, and how the CI connected the
    appellant with the apartment in question.

[11]

The
    application judge dismissed the appellants request for additional information
    because he was satisfied that further disclosure could and would likely
    disclose the CIs identity.
The appellants application
    to cross-examine the sub-affiant on issues relating to the CI was dismissed for
    the same reason.

[12]

As
Crevier
makes clear at para. 83, the
summary
    must provide the accused with a meaningful basis upon which to challenge
    whether the affiant made full and frank disclosure regarding the reliability of
    the informer and his or her tips, as required by
Debot
 (
R. v. Debot
, [1989] 2 S.C.R. 1140).
    A summary is not a complete substitute for disclosure, given the need to
    protect informer privilege. It is, by its very nature, general rather than
    detailed:
R. v. Reid,
2016 ONCA 524, 132 O.R. (3d) 26, at para. 88,
    leave to appeal refused, [2016] S.C.C.A. No. 432. A summary is sufficient if it
    provides an accused with sufficient knowledge about the
nature
of the
    redactions to enable them to be challenged in argument or by evidence:
Crevier
,
    at para. 72.

[13]

In
    this case, the judicial summary explains the nature of the redacted information
    using the same headings, page numbers, and paragraph numbering and lettering as
    the redacted ITO. It was sufficient to permit the appellant to challenge, by
    argument or evidence, whether the CI was credible, whether the information
    provided by the CI was compelling, and whether the CIs information was
    corroborated, as required by
Debot
. Indeed, during his submissions on
    the warrants validity, the appellant challenged aspects of the redacted material
    such as the currency of the CIs information and how the CI came upon his or
    her knowledge.

[14]

This
    ground of appeal must be rejected.

B.

Should
amicus curiae
have been appointed?

[15]

The
    appellant submits that
amicus curiae
should have been appointed in
    this case. The appellant submits, further, that
amicus
should be
    appointed in the vast majority of cases because it is by and large a
    constitutional necessity to step six.

[16]

These
    submissions must be rejected.

[17]

As
    this court noted in
R. v. Shivrattan,
2017 ONCA 23, at paras. 65-66,
the

trial judge has discretion
    to appoint
amicus
to assist in the consideration of issues relevant to
    confidential informants in particularly difficult cases.
But
the appointment of
amicus
on
    a step six procedure is the exception rather than the rule. It is incumbent on
    the defence to demonstrate why the appointment of
amicus
is necessary in
    a particular case and to set out a proposed procedure for the use of
amicus
that protects the confidentiality of the CIs identity.

[18]

The
    application judge accepted that
amicus
could be appointed but rejected
    the appellants proposal that
amicus
be appointed in this case. He was
    satisfied that the information the appellant had  the judicial summary, along
    with unredacted information in the ITO and the information obtained from
    cross-examinations of the affiant and sub-affiant  was sufficient to enable
    the appellant to argue and to call evidence to establish that the warrants were
    not properly issued. The application judges primary reason for rejecting the
    appointment of
amicus
was that it was unnecessary in the circumstances
    of this case.

[19]

This
    was the application judges decision to make and we see no basis to interfere
    with the exercise of his discretion.

[20]

The
    appellant takes issue with a second reason proffered by the application judge
    for rejecting the appointment of
amicus
: that
amicus
would be
    effectively clothed with the duties of the appellants counsel and would cease
    to be a friend of the court. The appellant submits that
amicus
would
    owe obligations to the court, not to defence counsel or the accused.

[21]

However,
    as the court noted in
Shivrattan
, at
    para. 67,

there are many sensitive issues that would have to be
    resolved before the trial judge could appoint
amicus
on a Step Six procedure, including the
    relationship between
amicus
and
    defence counsel. Steps would have to be taken to ensure that
amicus
did not inadvertently disclose anything that would
    reveal the identity of the CI.

[22]

Given
    the application judges finding that the appointment of
amicus
was
    unnecessary in this case, nothing further need be said about this concern.

[23]

We
    note simply that the appellants submission that
amicus
should be
    appointed in the vast majority of cases must be rejected. Nothing in the case
    law requires or supports this approach.

[24]

It
    is wrong to assert, as the appellant does, that the step six process is
    tantamount to a secret trial.
A
Garofoli
review is an evidentiary hearing, and as such is concerned with the
    admissibility of evidence obtained pursuant to a search warrant that is
    presumptively valid:
Reid
, at para. 94. The essential premise underlying
    the step six procedure is that it may be used only if an accused is
    sufficiently aware of the nature of the excised material to challenge it in
    argument or by evidence:
Garofoli
, at p. 1461.

[25]

Although
    in exceptional circumstances
amicus
may have a role to play in a step
    six procedure, no basis has been shown for interfering with the application
    judges decision not to appoint
amicus
in this case.

[26]

The
    appeal is therefore dismissed.

J. MacFarland J.A.

"K. van Rensburg
    J.A."

Grant Huscroft J.A.