



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. John, 2017 ONCA 622

DATE: 20170726

DOCKET: C54171

MacPherson, Blair and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Curt John

Appellant

Brian Snell, for the appellant

Mabel Lai, for the responding party

Heard: November 17, 2016

On appeal from the conviction entered on June 14, 2010, and the
    sentence imposed on June 29, 2010, by Justice Eugene Ewaschuk of the Superior
    Court of Justice, sitting with a jury.

Watt J.A.:

[1]

Olivia Bow reported a car-jacking to police. In video statements she
    explained how it happened. She said that Germaine did it. Described the
    clothing he and his accomplice were wearing. Identified Germaine in a surveillance
    video. Germaine is Curt John. Police found his fingerprint on the doorframe
    of the stolen vehicle.

[2]

At the preliminary inquiry a few months later, Ms. Bows story left out
    some details. But a judge ordered Curt John to stand trial.

[3]

However, at trial, Olivia Bow could not really remember any of the
    details of what had happened. The trial judge let the Crown introduce her
    videotaped statements and her preliminary inquiry testimony to prove the case.

[4]

The jury decided that Curt John was guilty of robbery, but not guilty of
    using an imitation firearm in committing the robbery.

[5]

Curt John appeals. He says that his trial was unfair because the trial
    judge intervened too much in his lawyers cross-examination of Ms. Bow and made
    several mistakes in his charge to the jury. In addition, the trial judge
    imposed a sentence that did not give enough credit for time spent in custody
    prior to sentence.

[6]

These reasons explain why I would dismiss the appeal from conviction,
    but allow the appeal from sentence to reflect proper credit for pre-sentence
    custody.

THE BACKGROUND FACTS

[7]

Olivia Bow and Curt John met about a month before the alleged offence.
    Bow approached John at a shopping mall. They exchanged telephone numbers and
    hooked up several times in the weeks that followed. Ms. Bow drove expensive
    cars, a different vehicle each time they met.

The Meeting

[8]

One afternoon in late January, Bow was driving an SUV owned by a friend.
    She received a call from Curt John. As it happened, they were both in the Jane
    and Finch area of the city. They agreed to meet. Bow would pick up John at a
    specific exit at the Jane Finch Mall.

[9]

As Bow waited in the vehicle near the mall exit, she saw John walking
    out of the mall with another man, a cousin, whom she had met before. This
    displeased Ms. Bow who had expected only John.

[10]

Both men got in the SUV. John sat in the front, his cousin, in the rear.

The Plan

[11]

Curt John explained to Ms. Bow that his cousin was to meet somebody
    nearby and needed a ride there. John directed Ms. Bow to an apartment building
    near Tobermory and Niska, a few minutes away from the mall. As Ms. Bow talked
    with the owner of the vehicle on her cellphone, John directed her to drive to
    the rear of the apartment building.

The Wait

[12]

Curt Johns cousin called the person he was to meet from the parked SUV,
    but the person was not available. At Johns direction, Ms. Bow parked the
    vehicle in the parking lot at the apartment building. She, John and Johns
    cousin waited in the vehicle.

The Robbery

[13]

A few minutes later, Curt John reached behind his back, pulled out a gun
    and set it on his lap. He demanded money from Ms. Bow. He wanted $20,000. As
    she continued to talk on her cellphone, Ms. Bow explained to John that she did
    not have ready access to that amount of money, but she could help him out
    later. Johns cousin took the cellphone from Ms. Bow.

[14]

Curt John told Ms. Bow to get out of the vehicle so she could talk to
    him. She accused him of intending to steal the SUV. He denied any such
    intention. Satisfied, Ms. Bow complied. Outside the vehicle, John persisted in
    his demand for money. This time a little bit louder. Ms. Bow continued to deny
    having access to that amount of money. John stopped his demands.

[15]

Curt John, rebuffed in his demands for money, then told Ms. Bow to walk
    to the back of the parking lot. She again accused him of intending to steal the
    vehicle. Again, he denied any such intention. Ms. Bow walked to the back of the
    parking lot.

The Escape

[16]

Curt John got into the drivers seat of the vehicle and began to drive
    away. As the vehicle moved slowly away, Ms. Bow ran after the vehicle, opened
    the front passenger door and grabbed a handle inside. As the car sped up, her
    boots came off and she fell to the ground. John hit her.

The Police Report

[17]

Shortly before 4 oclock that afternoon, Ms. Bow flagged down another
    vehicle and called 911. She reported her vehicle had been stolen and she had
    been threatened with a gun. The police responded. An officer noticed a bruise
    under Ms. Bows left eye. At the scene, Ms. Bow told the police that she had
    been hit in the face with a gun or pistol-whipped, but she declined medical
    assistance.

The Police Statement

[18]

The officers who responded to the 911 call took Ms. Bow back to the
    police station. There she gave a videotaped statement and identified Curt John
    (whom she knew as Germaine) from a photo lineup. She also described the
    clothing he was wearing. The description matched the images from surveillance
    cameras at the Jane Finch mall.

The Recovery of the Vehicle

[19]

About two weeks later, police recovered the SUV. An expert in
    fingerprint identification comparison and analysis located what was admitted to
    be a print of the index finger on Curt Johns left hand. The print had been
    placed there when the drivers door of the vehicle was open.

The Preliminary Inquiry

[20]

Five months later, Olivia Bow testified at Curt Johns preliminary
    inquiry. There, she admitted that she had lied in her video statement when she
    told police that John had hit her.

The Trial Proceedings

[21]

Prior to trial, Ms. Bow received copies of her police statements and
    testimony at the preliminary inquiry to review in preparation for giving
    evidence at trial. At various times during her testimony at trial, she claimed
    that neither her statements nor her evidence at the preliminary helped to
    refresh her memory about the relevant events. She just could not remember the
    details of what had occurred.

[22]

The trial judge held a
voir dire
to determine whether the
    police statements and preliminary inquiry evidence should be admitted under the
    principled hearsay exception. Satisfied that the conditions precedent of
    necessity and reliability had been met, the trial judge admitted the evidence. Crown
    counsel never asked that either be filed as a numbered exhibit.

[23]

Curt John did not testify or call any witnesses in his defence.

THE GROUNDS OF APPEAL

[24]

Curt John (the appellant) appeals both conviction and sentence. On the
    appeal from conviction, the appellant finds fault with the trial judges
    conduct during the course of the evidence of Olivia Bow and with several
    aspects of his final instructions to the jury. I would paraphrase the grounds
    of appeal in this way:

i.

undue interference during the cross-examination of Olivia Bow by defence
    counsel;

ii.

instructing the jury that they could find Ms. Bows memory loss was due
    to fear of the appellant;

iii.

instructing the jury on the absence of motive of Ms. Bow to fabricate
    her account of relevant events;

iv.

instructing the jury that there was no issue that the appellant stole
    the motor vehicle; and

v.

criticizing defence counsels closing address to the jury.

[25]

On the appeal from sentence, the appellant protests the trial judges
    failure to award proper credit for time spent in pre-disposition custody.

THE APPEAL FROM CONVICTION

Ground #1: Interference in the Cross-examination of Olivia Bow

[26]

Olivia Bow was a critical, but uncooperative witness for the Crown. The
    trial judge sparred with her frequently during the
voir dire
to
    determine the admissibility of her videotaped statements and her preliminary
    inquiry testimony, as well as during the trial.

The Essential Background

[27]

In general terms, trial counsel for the appellant (not Mr. Snell) sought
    to cross-examine Olivia Bow on inconsistent accounts she had provided on a
    variety of subjects in her videotaped statements, testimony at the preliminary
    inquiry and in her evidence on the
voir dire
at trial. Among the
    subjects were Bows activities as an escort and some outstanding charges she
    was then facing arising out of an alleged incident with a cab driver.

The Escort Business

[28]

In her video statements, Olivia Bow volunteered information about her
    involvement in the escort business. The police were properly not concerned with
    the details of her work.

[29]

At the preliminary inquiry, Olivia Bow denied having worked as an
    escort. She acknowledged that on about five occasions she had sex for money
    with patrons of clubs where she had performed as an exotic dancer. She had no
    repeat customers and stopped this activity in March, 2009. She had also made
    arrangements for others to have sex for money, but denied that she allowed her
    home to be used for these purposes.

[30]

On the
voir dire
at trial, Ms. Bow testified that for about two
    years ending in August, 2009, she had worked as an escort several times each
    week. Sometimes, she met clients at hotels or motels and had repeat customers.
    She did not make arrangements for other escorts, but did let them use her
    place.

[31]

At trial, defence counsel opened his cross-examination of Ms. Bow by
    questioning her on the history of her relationship with the appellant and the
    events of the day when she alleged the offence had occurred. Shortly after
    proceedings resumed after the luncheon recess (Ms. Bow was late for the fourth
    time), defence counsel turned to the subject of Ms. Bows work as an escort.

[32]

When defence counsel asked Ms. Bow:

You met clients at clubs?

The trial judge asked:

Okay, where are we going with this line?

Defence counsel explained that he would not be long in
    pursuit of this line of questioning. He proposed to repeat the questions he had
    asked Ms. Bow on the
voir dire
, the answers to which the jury had not
    yet heard.

[33]

In the absence of the jury, but with the witness present, the colloquy
    between defence counsel and the judge continued:

THE COURT: Where do you want to go, specifically?

[DEFENCE COUNSEL]: Nowhere. Just the same points that I ---

THE COURT: I dont remember the point particularly. Where do
    you want to go to thats additional to what youve got already?

Several clients a week; she did it for two years; she was a
    paid escort.

[DEFENCE COUNSEL]: Several more questions after that, mlord,
    not much.

THE COURT: I want to know what general area you want to
    develop.

[DEFENCE COUNSEL]: Well, again, mlord, my objection 

THE COURT: Shes heard it before. She heard it two days ago.
    She was here. You put the questions to her. Lets not be naïve.

[DEFENCE COUNSEL]: Mlord, Im simply trying to apply some
    consistency to a proceeding that has been very inconsistent. Thats my sheer
    goal.

THE COURT: Youve already done that. Multiple inconsistencies.
    Tell me something specific, otherwise were going to shut it down.

[DEFENCE COUNSEL]: Where the service was to the client, working
    out of the home  pretty much it, mlord.

Im trying to address inconsistencies. Thats the only reason I
    do this. I dont do this to offend the Court --

THE COURT: Ill give you ten more questions.

[34]

Defence counsel resumed his cross-examination with a few (but not ten)
    questions about how Ms. Bow met her clients and set up dates for others. The
    trial judge interrupted:

Okay, this areas done. So lets move on to a new subject
    matter.

Counsel then proceeded to ask whether Ms. Bow met
    clients at hotel rooms. The trial judge intervened immediately:

THE COURT: Were not going to the clients. The clients are
    done. Youve got new subject matter, go to new subject matter.

[DEFENCE COUNSEL]: Again, mlord, my submission is, its
    relevant. This was asked at the previous voir dire.

THE COURT: Ive ruled on it. Thank you. Carry on. New subject
    matter. Shes a paid escort; she received money for sex  the jury knows that 
    for approximately two years. Lets get on with it.

[DEFENCE COUNSEL]: Theres a purpose to my question, mlord.

THE COURT: Thats it. Ive made a ruling. Do you understand
    that, [Defence counsel]?

The Outstanding Charges

[35]

On the
voir dire
to determine the admissibility of her video
    statements and preliminary inquiry testimony, Olivia Bow was cross-examined
    about an incident in which she was alleged to have been involved with a cab
    driver about a year after the offences with which the appellant was charged. As
    a result of the later incident, Ms. Bow was charged with mischief, assault and
    transportation fraud.

[36]

When defence counsel began to explore the subject of the outstanding
    charges and, to some extent, the circumstances surrounding them, the trial
    judge interceded. He pointed out that Ms. Bow, who denied any participation in
    the events underpinning the charges, was presumed to be innocent of those
    charges. Further, the trial judge pointed out, counsel was bound by Ms. Bows
    answers and could not adduce any evidence to contradict them.

[37]

In the presence of the jury, counsel suggested to Ms. Bow that she had
    been involved in an altercation with a cab driver on February 5, 2010. Ms. Bow
    denied the suggestion. When counsel persisted by suggesting the circumstances
    in which the dispute arose, Ms. Bow maintained her denial. The trial judge
    prohibited any further questions about the incident.

The Arguments on Appeal

[38]

The appellant says that in a case that depended largely, if not entirely
    on Ms. Bows testimony, defence counsel was entitled to cross-examine her on
    inconsistencies in the various accounts she had provided. It was significant to
    the defences case to show that the witness had perjured herself on details of
    her employment.

[39]

In addition, the appellant continues, trial counsel was entitled to
    cross-examine Ms. Bow on the fact and circumstances of the criminal charges
    that were outstanding against her. Her responses were relevant to establish her
    character or disposition, which was in turn relevant to her credibility as a
    witness. The outstanding charges were also relevant to establish a motive for
    her to testify favourably for the Crown and adversely to the appellant, thus
    relevant to establish testimonial bias on her part.

[40]

The appellant submits that curtailment of cross-examination on these
    subjects rendered the trial unfair and resulted in a miscarriage of justice.

[41]

The respondent rejects any suggestion of judicial error, much less
    unfairness resulting from the trial judges curtailment of cross-examination.

[42]

To begin, the respondent says, the trial judge has the authority to
    manage the conduct of a trial to ensure that the proceedings are effective,
    efficient and fair to both sides. This includes supervision of
    cross-examination to protect witnesses from questioning that is repetitious and
    irrelevant to the substantive issues or the witness credibility. Here,
    evidence about Ms. Bows activities as an escort was canvassed extensively at
    the preliminary inquiry. The evidence adduced there was admitted at trial as
    proof of the truth of what was said and read to the jury. There was no need for
    it to be repeated.

[43]

Second, it was readily acknowledged at trial that Ms. Bow had been an
    escort for two years. She had several clients per week. What was cut short, and
    properly so, were details of the places and arrangements of her sex-for-pay
    activities. These details were of no real probative value and could not
    legitimately assist the jurors in their assessment of her credibility and the
    reliability of her evidence.

[44]

Third, the trial judge had a preview of the cross-examination on the
    outstanding charges, the circumstances surrounding them and Ms. Bows responses
    during the
voir dire
. This evidence could not advance the defence
    position in any meaningful way. It was of dubious probative value, likely to
    protract proceedings and to distract the jury from its task. Further, it was
    strictly collateral and Ms. Bows denials could not be contradicted by other
    evidence.

[45]

Finally, even if the rulings imposing limitations on the
    cross-examination were erroneous, there was no prejudice occasioned to the
    appellant as a result of the trial judges interventions. The trial judge
    instructed the jury that it could not accept Ms. Bows evidence unless it was
    confirmed by other evidence admitted at trial.

The Governing Principles

[46]

This ground of appeal may be resolved by the application of principles
    that describe the trial management authority of a judge presiding at a criminal
    trial, as well as those that govern cross-examination of non-accused witnesses
    on incidents that disclose their character and give rise to outstanding criminal
    charges.

[47]

Trial judges have a firmly rooted authority to control proceedings over
    which they preside. In the exercise of that authority, they may intervene when
    counsel or witnesses fail to follow the rules or rulings made during the course
    of the trial. Judges are entitled to control the procedure of trial to ensure,
    as best they can, that the proceedings are effective, efficient and fair to all
    parties, including those required to give evidence:
R. v. Snow
(2004),
    190 C.C.C. (3d) 317 (Ont. C.A.), at para. 24;
R. v. Felderhof
(2003),
    180 CCC (3d) 498 (Ont. C.A.), at paras. 36-40;
R. v. Valley
(1986), 26
    C.C.C. (3d) 207 (Ont. C.A.), at pp. 230-32, leave to appeal refused, [1986] 1
    S.C.R. xiii (note).

[48]

The position of established neutrality occupied by trial judges requires
    them to confine themselves as much as possible to their own responsibilities,
    and to leave to counsel and to the jury their respective functions:
R. v.
    Torbiak and Campbell
(1974), 18 C.C.C. (2d) 229 (Ont. C.A.), at pp. 230-31.
    When judges intervene, for example in the conduct of cross-examination, we
    begin from a strong presumption that they have not done so unduly, and that
    there are many proper reasons why the judge may do so:
R. v. Hamilton
,
    2011 ONCA 399, 271 C.C.C. (3d) 208, at para. 29, leave to appeal refused, 304
    O.A.C. 395 (note), 304 O.A.C. 397 (note), and 303 O.A.C. 398 (note).

[49]

The limits of permissible judicial conduct are not absolute. They are
    relative, a function of the idiosyncrasies of the trial proceedings in which
    they emerge. And so it is that every alleged departure from the accepted
    standards of judicial conduct during a trial requires close examination to
    determine its effect on the fairness of the trial in which it occurred, not in
    some hypothetical trial constructed for comparative analysis:
Torbiak and
    Campbell,
at p. 231;
Valley
, at p. 231.

[50]

The analysis of judicial interventions is contextual. The interventions
    are not judged in isolation, rather in the context of the entire trial. We are
    to assess the record in its entirety and evaluate the interventions
    cumulatively, not as isolated occurrences:
Hamilton
, at para. 32;
R.
    v. Stucky
, 2009 ONCA 251, 240 C.CC. (3d) 141, at para. 72.

[51]

The ultimate question to be decided is whether the trial judges
    interventions create the appearance of an unfair trial to a reasonable person
    present throughout the trial proceedings. In making this determination, the
    critical focus is on what occurred in the presence of the jury. Events that
    took place in their absence, at least in most cases, cannot affect them or
    their decision:
Valley
, at p. 235.

[52]

A specific incident of the trial judges trial management power is the
    ability to control cross-examinations. While, no one can gainsay the importance
    of the right of an accused to cross-examine witnesses for the prosecution  
    indeed, we now recognize that right as being protected by ss. 7 and 11(d) of
    the
Charter
 it is a right, however jealously protected and broadly construed,
    that must not be abused. Counsel are bound by the rules of relevancy. It is not
    open season on witnesses. Counsel are barred from resorting to harassment,
    misrepresentation, repetitiveness or, more generally, from putting questions to
    witnesses the prejudicial effect of which exceeds their probative value:
R.
    v. Lyttle
, 2004 SCC 5, [2004] 1 S.C.R. 193, at paras. 41-44.

[53]

On the other hand, where credibility is the central issue at trial, the
    importance of cross-examination becomes even more critical:
Lyttle
, at
    paras. 69-70. Improperly limiting cross-examination of a witness is an error.
    The ultimate question an appellate court must determine is whether there is a
    reasonable possibility that the verdict would have been different had the error
    not been made:
Lyttle
, at para. 68.

[54]

I now turn to the two specific areas of cross-examination said to be
    improperly curtailed by the trial judge.

[55]

A non-accused witness may be cross-examined on discreditable conduct,
    irrespective of whether that conduct amounts to an offence or has resulted in a
    conviction. By this cross-examination, counsel endeavours to evidence the
    character of the witness, which, in its turn, is a relevant factor for the
    trier of fact to consider in assessing the credibility of the witness and the
    reliability of his or her testimony:
R. v. Bradbury
(1973), 14 C.C.C.
    (2d) 139 (Ont. C.A.), at pp. 141-142.

[56]

Where the purpose of cross-examination on discreditable conduct is to
    establish a character trait or disposition relevant to a non-accused witness
    testimonial reliability, what is elicited must be relevant to establish the
    character trait or disposition, which must itself be relevant to the issue of
    testimonial reliability. The answers of the witness relate to a collateral
    issue  the witness credibility  thus may not be the subject of contradictory
    evidence because of the collateral facts rule.

[57]

Finally, cross-examination of a non-accused witness on outstanding
    criminal charges and the circumstances that underpin them.

[58]

The fact that a person is charged with an offence cannot degrade their
    character or impair their credibility:
R. v. Gonzague
(1983), 4 C.C.C.
    (3d) 505 (Ont. C.A.), at pp. 510-511. After all, the fact of charge arises from
    the opinion of an informant of a reasonably grounded belief in the commission
    of an offence, hardly the stuff of character impeachment.

[59]

Although the fact that a non-accused witness is charged with a criminal
    offence has no bearing on the credibility of the witness, thus
    cross-examination on the fact of charge would not be permitted on account of
    irrelevance, where a proper foundation has been laid, the cross-examination may
    be permitted. One basis that provides a proper foundation for cross-examination
    on an outstanding charge occurs when the circumstances support an inference
    that the witness has a motive to seek favour from the prosecution because of
    the outstanding charge:
Gonzague
, at p. 511;
R. v. Chartrand
(2002), 170 C.C.C. (3d) 97 (Ont. C.A.), at para.
10;
R. v.
    Gassyt
(1998), 127 C.C.C. (3d) 546 (Ont. C.A.), at paras.
36, 38,
    leave to appeal refused, 136 C.C.C. (3d) vi (S.C.C.).

[60]

Two further points arise from the nature of the issue to which
    cross-examination on the facts underlying outstanding charges relate. Although these
    facts may have some relevance to the credibility of the witness, greater or
    lesser depending on the circumstances of each case, they are generally
    irrelevant to any other issue at trial. As a result, a trial judge has the
    discretion to curtail cross-examination so that it remains within reasonable
    limits and does not become more distracting than informative. Further, as a
    witness answers seem likely to consist of general denials, the record will
    remain barren of any contradictory evidence, and a jury instruction to that
    effect may become necessary:
Gassyt
, at para 39.

The Principles Applied

[61]

As I will explain, I would not give effect to this ground of appeal. I
    am not satisfied that the interventions of which the appellant complains caused
    a miscarriage of justice by compromising the actual or apparent fairness of the
    trial. I have reached this conclusion for several reasons.

[62]

First, as the authorities teach, I begin from a presumption that the
    trial judge has not unduly intervened, and with a corresponding reluctance to
    interfere on the basis of improper intervention. The complaint here is grounded
    on the manner in which the trial judge exercised a specific incident of the
    trial management power  the authority to control the manner in which witnesses
    are questioned by counsel. This is a core component of the trial management
    power, which requires on the spot decision-making, not detached reflection
    based on a lifeless transcript.

[63]

Second, the analysis is a contextual one which rejects any adjudication
    of each intervention in isolation, in favour of a cumulative evaluation in the
    context of the entire trial. Isolated instances of impatience or annoyance do
    not themselves create actual or apparent unfairness. The fundamental issue is
    whether, from the perspective of a reasonable observer present throughout the
    entire trial, the interventions created the impression of an unfair trial. They
    did not do so here.

[64]

Third, the interventions did not prevent, or even significantly impede,
    defence counsel from advancing the appellants defence at trial that Bow was a
    witness unworthy of belief whose testimony fell far short of the standard of
    proof required of the Crown.

[65]

Fourth, consider the two subjects of cross-examination about which
    complaint is made  disreputable character as evidenced by employment as an
    escort, and outstanding criminal charges. The former, if at all relevant, lies
    at the outer boundaries of relevance. The evidence has no substantive purpose,
    and is of tenuous probative value on the issue of credibility. Further, as we
    have seen, the mere fact that a witness is facing outstanding charges generally
    has no bearing on the witness credibility and cross-examination on the fact of
    charges is generally not permitted. The exception, where the witness may have a
    motive to favour the prosecution because of the outstanding charges, requires
    an evidentiary foundation which is lacking here. No basis has been advanced in
    this case to bring it within the exception. While the situation is different
    with respect to the underlying facts, the trial judge has the authority to keep
    the cross-examination within reasonable limits, especially since the witness
    denials cannot be contradicted by other evidence.

[66]

Fifth, as the respondent points out, the great majority of this evidence
    got before the jury when Bows testimony from the preliminary inquiry was read
    into the record as part of the case for the Crown.

[67]

Finally, we cannot lose sight of the manner in which the trial judge
    dealt with Ms. Bows evidence in his charge to the jury. He directed the jury
    not to convict in the absence of confirmation of her evidence, essentially
    making confirmation a condition precedent to a finding of guilt.

Ground #2: Instructions on Fear as a Basis for Memory Loss

[68]

The second ground of appeal alleges error in the trial judges charge to
    the jury about the reason underlying Olivia Bows claimed memory loss
    concerning the circumstances of the offences charged. A brief reference in the
    impugned portion of the charge, counsels objection and the evidentiary basis
    for the instruction will provide the background essential to an assessment of
    this ground of appeal.

The Charge to the Jury

[69]

The trial judge explained to the jury that it was not open to them to
    convict the appellant of any offence [i]n the absence of any extrinsic
    evidence tending to confirm the reliability of [Ms. Bows] evidence that the
    accused Curt John robbed her of the Ford SUV and her purse and its contents
    while armed with what appeared to her to be a real gun.

[70]

After reiterating the need for jurors to determine whether there was any
    confirmatory evidence which rehabilitates Ms. Bow as a reliable witness, the
    trial judge suggested that the jurors ought begin by asking why Ms. Bows
    memory had failed. He said:

Start first by asking yourselves why Ms. Bow purportedly does
    not remember or did not remember her dealings with the accused on January 28th,
    2009. She obviously remembered them when she spoke to Constable Landry at the
    scene, and she remembered them during the videotaped evidence. Five months
    later, at the Preliminary Inquiry, Ms. Bow purported also to remember the
    events, even though she attempted to resile from her previous evidence that the
    accused had used force against her. Nonetheless, she was consistent that the
    accused had the pistol on his lap in the SUV  she had said that in her
    videotaped statement, she said that at the Preliminary Inquiry.

About one year later, Ms. Bow now claims that she has a total
    memory loss of the events of January 28th, 2009. Why is that so?

It is not disputed that it is open to you to find that Ms.
    Bows claim of memory loss is feigned. It is also open to you to find that her
    claim of memory loss is due to fear; shes frightened. This is so particularly
    if you find as fact that the accused was in possession of a handgun on January
    29th [sic] and showed it to Ms. Bow in the SUV.

The Objections to the Charge

[71]

Defence counsel objected to the instruction:

[DEFENCE COUNSEL]: Just with respect to the statement from the
    bench with respect to fear, again my submission is that theres been no
    evidence with respect to fear on behalf of Ms. Bow, and thats simply
    referencing something thats not in evidence, mlord.

[72]

The trial judge did not re-charge the jury.

The Evidentiary Background

[73]

The jury heard evidence, admitted under the principled exception to the
    hearsay rule, of what Ms. Bow told police during a video interview at the
    police station and what she testified to at the preliminary inquiry. In each
    case, she described the appellant pulling out a gun as they sat in the front
    seat of the SUV parked by the apartment building. At trial, she said she did
    not recall the details of the incident, except that the appellant took the SUV.
    She was not sure whether a gun had been involved.

The Arguments on Appeal

[74]

The appellant submits there was no evidence, direct or circumstantial,
    that Ms. Bows memory loss was due to fear. She claimed that the deficit was
    due to stress and the passage of time. Nobody asked her at trial whether she
    had been threatened, thus she gave no evidence on the issue. And no such
    inference could be drawn from the nature of her relationship with the
    appellant, a casual sexual alliance apparently satisfactory to both parties.

[75]

The appellant says that the manner in which the evidence or issue was
    left to the jury invited use of tautological reasoning. The purpose of the
    inquiry into memory loss was an assessment of the reliability of Ms. Bows evidence,
    including her earlier claim that she had been threatened when the appellant
    pulled out a gun. But the judge invited the jury to find that her testimonial
volte
    face
was caused by the threat she said occurred in the SUV, thereby
    presuming the veracity of her evidence on this point.

[76]

The respondent takes issue with both aspects of the appellants
    submissions. As a matter of common sense and logic, the jury can find that Ms.
    Bows claimed memory loss was feigned. By a similar path of reasoning, the jury
    could conclude that the memory loss was attributable to self-interest and fear.
    Further, the instruction did not invite jurors to engage in circular reasoning.

[77]

Ultimately, the respondent says, the appellant was not convicted of any
    firearm related charges. Therefore, even if the trial judge erred in his
    instruction, it is clear that the jury did not find beyond a reasonable doubt
    that the appellant had a gun. The appellant suffered no prejudice.

The Governing Principles

[78]

To inform a decision about this ground of appeal, it is helpful to
    recall two basic principles of the law of evidence. The first concerns the
    distinction between inference and speculation; the second, the relevance of
    evidence of fear and threats.

[79]

An inference is a deduction of fact that may logically and reasonably be
    drawn from another fact or group of facts found or otherwise established in the
    proceedings. An inference which does not follow logically and reasonably from
    established facts is forbidden, since it amounts to conjecture and speculation:
R. v. Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 209.

[80]

Evidence of fear or threats may be relevant to several different issues
    in a criminal trial, among them, the state of mind of a person who testifies in
    those proceedings. Threats to a witness, or fear on the part of a witness about
    consequences following the giving of evidence or testifying in a certain
    manner, may explain why a witness has strayed from prior versions of the same
    events:
R. v. Speid
(1985), 20 C.C.C. (3d) 534 (Ont. C.A.), at pp.
    546-547;
R. v. Cuadra
(1998), 125 C.C.C. (3d) 289 (B.C.C.A), at para.
    29;
R. v. Lawrence
(1989), 52 C.C.C. (3d) 452 (Ont. C.A.), at p. 456.

The Principles Applied

[81]

As I will briefly explain, I agree with the appellant that the trial
    judges instruction which left it open to the jury to conclude that Ms. Bows
    claimed memory loss was feigned due to fear was a direction that invited jurors
    to speculate in the absence of an evidentiary foundation. But I do not consider
    this error of sufficient gravity, despite the centrality of the evidence of Ms.
    Bow to the proof of guilt, to warrant our interference.

[82]

No one could gainsay that Ms. Bows claimed amnesia about the details of
    the car-jacking was anything other than feigned. She said it was due to the
    passage of time and stress. The trial judge left fear as a basis to rebut the
    reasons advanced by Ms. Bow for her memory loss. He did not assign fear any
    wider influence, as for example, as confirmatory of the truth of her original
    statements. He limited this fear to production of the handgun in the SUV. But
    it was plain that the jury rejected that part of Ms. Bows testimony. They
    convicted of robbery only, not robbery with a firearm, and acquitted of using
    an imitation firearm during the commission of an indictable offence. In these
    circumstances, it seems inconceivable that the impugned reference to fear
    linked to the presence of the firearm could have exerted any influence on the
    jurys verdict.

Ground #3: Jury Instructions on the Absence of Motive to Fabricate

[83]

This ground of appeal also challenges a portion of the trial judges
    final instructions relating to the testimony of Olivia Bow. Brief reference to
    the addresses of counsel, the evidence adduced at trial and the judges final
    instructions will provide a suitable backdrop for the discussion that follows.

The Closing Addresses of Counsel

[84]

Understandably, counsel spent much of their closing addresses on the
    credibility of Ms. Bow and the reliability of her evidence, including her prior
    statements. Among the subjects each canvassed were Ms. Bows claimed loss of
    memory and why the jury should accept or reject her prior statements of the
    alleged events admitted under the principled exception to the hearsay rule.

[85]

The trial Crown submitted that Ms. Bow had no motive to lie about what
    happened and who was responsible. Defence counsel suggested that people say and
    do things for a reason, but that there was no onus on the appellant to prove
    that Olivia Bow had a motive to lie.

The Evidence

[86]

The jury heard no evidence of any
animus
or antipathy between
    the appellant and Olivia Bow. Ms. Bow was annoyed at the appellant for having
    brought his cousin along with him. She had expected the appellant, with whom
    she shared a mutually satisfactory casual sexual relationship, to be alone when
    she picked him up at the Jane Finch Mall.

The Charge to the Jury

[87]

In response to the Crowns closing address, the defence requested an
    instruction that there was no onus on the defence to prove motive. This request
    was not incorporated into the jury charge. Instead, in instructing the jury
    about evidence that tended to confirm the reliability of Olivia Bows
    out-of-court statements about how the offences charged occurred, the trial
    judge said:

Finally, consider the motivation for Ms. Bow to have made a
    false accusation as to the identity of the person who had stolen the SUV.

She testified she knew the accused only as Germane [sic], that
    they had been intimate on a number of occasions, and that she had never had any
    problems with him except for the unwanted presence of his cousin.

The absence of any motive to have made a false accusation
    against the accused may tend to confirm the reliability of her accusations
    against him.

[88]

Defence counsel repeated his concern about the issue of motive after the
    charge was delivered to the jury. His submissions were focused on the fact that
    the defence had no burden to prove a lack of motive. No recharge was given.

The Arguments on Appeal

[89]

The appellant says that the trial judge made two errors in this passage
    in his final instructions.

[90]

First, the absence of evidence of a motive to fabricate is not the same
    thing as the absence of a motive to fabricate. Here, at best, there was no
    evidence of a motive to fabricate. Not only is this not the same thing as the
    absence of a motive to fabricate, but also it does not follow that the witness,
    in this case Ms. Bow, must be telling the truth. The trial judge erred when he
    instructed the jury that the absence of a motive to fabricate may tend to
    confirm the reliability of Ms. Bows evidence.

[91]

Second, according to the appellant, there is evidence that Olivia Bow
    had a motive to fabricate her initial accounts of her encounter with the
    appellant: she was upset at him because he was not alone when he met her at the
    mall. And so it follows that any instruction about the absence of a motive to
    fabricate, or absence of evidence of a motive to fabricate, was contrary to the
    evidence adduced at trial.

[92]

The respondent rebuffs the suggestion that the trial judge conflated the
    absence of evidence of a motive to fabricate with the absence of a motive to
    fabricate. But more importantly, the respondent says, there is evidence on the
    basis of which the jury could find that Olivia Bow had no motive to fabricate
    an account of events that inculpated the appellant. The evidence negated any
    suggestion of
animus
. The couple had a mutually satisfactory casual
    sexual relationship. The trajectory of proceedings, from the initial
    inculpatory statements, to the tepid version of accounts at the preliminary and
    the steadfast claim of amnesia at trial amply supported an unswerving
    reluctance to implicate the appellant.

The Governing Principles

[93]

The law maintains a distinction between absence of evidence of a motive
    to fabricate and absence of a motive to fabricate. The former is not the
    equivalent of the latter, nor is the latter the same as the former:
R. v.
    L. (L.)
, 2009 ONCA 413, 244 C.C.C. (3d) 149, at para. 44. Said in another
    way, it does not logically follow that, because a witness has no apparent
    reason to lie, the witness must be telling the truth:
R. v. B. (R.W.)
(1993), 24 B.C.A.C. 1, at para. 28. The fact that a witness has no apparent
    motive to fabricate does not mean that the witness has no motive to fabricate:
L.
    (L.)
, at para. 44.

[94]

Second, in the context of a witness motive to fabricate, evidence of a
    good relationship between the witness and the prospective accused does no more
    than reinforce the absence of evidence of a proven motive, not prove the
    absence of motive:
L. (L.)
, at para. 45.

[95]

In instructing juries on motive to fabricate, trial judges must avoid
    making any suggestion that:

i.

an accused has an onus to demonstrate that a complainant or witness has
    a motive to fabricate evidence;

ii.

the absence of a demonstrated motive to fabricate necessarily means that
    there was no motive to fabricate; or

iii.

that the absence of a motive to fabricate conclusively establishes that
    the complainant or witness is telling the truth.

See,
R. v. Batte
(2000), 145 C.C.C. (3d) 449 (Ont.
    C.A.), at para. 121;
L. (L.)
, at para. 48.

The Principles Applied

[96]

I would reject this ground of appeal despite its introduction of a needless
    complication into a case that was otherwise quite straightforward.

[97]

The distinction between absence of evidence of a motive to fabricate and
    absence of a motive to fabricate is not easily digestible. Here, it was left,
    without objection, as potentially confirmatory of the out-of-court statements
    of a witness whose testimony was the subject of a very strong and not
    undeserved
Vetrovec
-like warning. It is at best unclear how the
    absence of a motive on the part of a witness to fabricate can be confirmatory
    of the evidence of a witness whose evidence is subject to a warning of the
    nature given here. The absence of a motive to fabricate lacks the essential
    quality of independence.

[98]

In the end, however, I am satisfied that the inclusion of the impugned
    instruction caused no harm to the appellant. It did not shift the onus to the
    appellant to demonstrate a motive to fabricate. Nor did it expressly or
    impliedly advise the jury that the absence of a demonstrated motive to
    fabricate necessarily meant that there was no such motive. The jury was not
    instructed that the absence of a motive to fabricate conclusively established
    that the witness was telling the truth.

Ground #4: Instructions on Elements of the Offence

[99]

This ground of appeal challenges the correctness of the trial judges
    charge on an essential element of the principal offence charged  robbery. A
    brief reference to the instruction and the positions advanced by the parties at
    trial will provide sufficient background for an assessment of its merits.

The Instructions of the Trial Judge

[100]

In
    instructing the jury on the essential elements of robbery, the trial judge
    posed several questions for the jurors to consider during their deliberations.
    Each question reflected an essential element of robbery. After explaining that
    the first issue the jurors had to decide was whether someone had taken the SUV
    from Olivia Bow, the trial judge described the second issue as:

was that someone who took the SUV the accused Curt John?

then continued:

This issue again does not appear to be in dispute, however it
    may be, but does not appear to be in dispute given the accuseds appearance on
    the videotape, given Ms. Bows immediate complaint to the police that Germane
    (ph) had taken the SUV, given her later selection of the accused as the taker
    of the SUV from the photo lineup, and given the accuseds fingerprint on the
    side door of the SUV.

So the second question is, if you were satisfied that the SUV
    was taken from Olivia Bow on January 28
th
, 2009, was the person who
    took the SUV the accused Curt John. Thats the second question.

The Defence Position at Trial

[101]

At
    trial, counsel for the appellant acknowledged that the appellant and Ms. Bow
    met at the Jane Finch Mall when she picked him and his cousin up in the SUV.
    Counsel also acknowledged that the appellants fingerprint was on the doorframe
    on the drivers side of the SUV. But the appellant took issue with Olivia Bows
    account about how he got the vehicle, in particular, that he used violence and
    produced a gun.

The Arguments on Appeal

[102]

The
    appellant does not quarrel with the manner in which the trial judge framed the
    second question for the jurors to consider. The core of his complaint is the
    trial judges suggestion that the issue does not appear to be in dispute.

[103]

The
    appellant says that the impugned portion of the instruction was unfair. The
    issue was not conceded at trial, rather was the subject of dispute. The brief
    reference to the evidence was unfair. Olivia Bows credibility was very much in
    issue and the fingerprint evidence of limited probative value. That Ms. Bow
    picked the appellants photograph out of a series of pictures added nothing to
    her account about how the SUV was taken from her. These frailties should have
    been highlighted to the jury in order to properly balance the charge.

[104]

The
    appellant adds that, to the extent this part of the trial judges instructions
    could be characterized as an expression of the judges opinion on an issue of
    fact, it goes too far. Such a comment is much stronger than the evidence
    warranted and was unfairly prejudicial to the appellant.

[105]

The
    respondent rejects any suggestion of error, much less prejudicial error, in the
    trial judges instructions.

[106]

The
    respondent points out that the trial judge did
not
say that the
    defence had conceded that this essential element had been proven. The trial
    judge simply narrowed the issues the jury was required to decide, consistent
    with the evidence adduced at trial. Considered as a judicial comment on an
    issue of fact, what the trial judge said was fully warranted by the evidence,
    and did not extend beyond permissible limits.

[107]

The
    respondent reminds us of the undoubted right of a trial judge to comment on the
    evidence adduced at trial and the resolution of factual issues. The comments
    here were measured and moderate, made about a very narrow issue that was
    largely uncontroversial. The SUV was missing. So was the appellant, a person
    whose fingerprint was found on the drivers door. Left undisturbed was the
    critical issue of the means by which the appellant obtained the vehicle and
    whether his conduct amounted to robbery. The trial judge also made it clear
    that the jury was not bound by any views he might express about the evidence or
    factual issues.

The Governing Principles

[108]

The
    parties share common ground that a trial judge is entitled to express opinions
    on issues of fact, as strongly as the circumstances permit, provided that what
    is said amounts to advice, not direction, and the judge makes it clear that the
    jury is not bound by the judges views on these issues:
R. v. Lawes
(2006), 206 C.C.C. (3d) 15 (Ont. C.A.), at paras. 20-21, 34, leave to appeal
    refused, 228 O.A.C. 399 (note);
R. v. Gunning
, 2005 SCC 27, [2005] 1
    S.C.R. 627, at para. 27.

[109]

A
    significant limitation is that a trial judges opinion can only be expressed
as
    strongly as the circumstances permit
. A trial judge is entitled to express
    his or her own view of the facts or of the credibility of witnesses and to
    express that opinion in strong terms. But sometimes, even where a judge has
    told the jury that it is not bound by the judges views on the evidence, a
    judge may go too far by expressing an opinion that is far stronger than the
    facts warrant or by expressing the opinion so strongly that the jury is likely
    to be overawed by it:
Lawes
, at para. 22;
R. v. Garofoli
(1988), 41 C.C.C. (3d) 97 (Ont. C.A.), at p. 133, reversed on other grounds,
    [1990] 2 S.C.R. 1421.

[110]

The
    judge must not use such language as leads the jury to think that they must find
    the facts in the way the judge has indicated. And the charge must not deprive
    the accused of a fair presentation of the defence case to the jury:
Garofoli
,
    at p. 133. In each case, it is a question of degree and of fairness:
Lawes
,
    at para. 23.

[111]

The
    other firm limitation on the trial judges ability to comment is that a trial
    judge is not entitled to assess the evidence and make a determination that the
    Crown has proven one or more of the essential elements of an offence and to
    direct the jury accordingly. Trial judges may offer opinions on factual issues,
    but not give directions on how issues put to the jury are to be decided:
Gunning
,
    at para. 31.

The Principles Applied

[112]

As
    I will explain, I would reject this ground of appeal.

[113]

In
    his instructions to the jury on the count charging robbery, the trial judge
    summarized the essential elements of the offence in a series of questions. On
    each issue, he made brief reference to the evidence of Ms. Bow and left the
    issue to the jurors to decide. For all practical purposes, the evidence of Ms.
    Bow was the only evidence on the issue. The appellant did not testify and no
    evidence was adduced on his behalf.

[114]

To
    begin, the trial judge did not tell the jury that the second issue was
    conceded, much less direct the jury to find this essential element established.
    Had he done so, the trial judge would not only have been factually inaccurate,
    since this was not the position of the defence, but also legally wrong, because
    he would have determined himself an issue that was not his, but the jurys, to
    decide. The words used  does not appear to be in dispute, however it may be
     considered in their entirety and context, cannot fairly be said to amount to
    a direction that this essential element had been proven with the necessary
    degree of certainty. Importantly, the jury charge also included reference to
    the defence position:

The accused conceded that he met Ms. Bow at the Jane/Finch
    mall. That is not in issue. What is in issue is what happened thereafter.

It would have been clear to the jury that this
    essential element had not been conceded.

[115]

Second,
    the trial judge expressly instructed the jury that it was not bound to follow
    and free to ignore any views he expressed on factual issues.

[116]

Third,
    trial counsel did not object to this aspect of the trial judges instructions.
    While not fatal, the failure to object affords some indication that trial
    counsel did not consider the instruction prejudicial to the defence advanced at
    trial.

[117]

Fourth,
    on all the evidence adduced at trial, in particular, Ms. Bows out-of-court
    statements, the conclusion that the appellant took the SUV from Ms. Bow was not
    in serious dispute. The vehicle was gone when police arrived. So was the
    appellant. Ms. Bow identified him as the thief. The vehicle was found weeks
    later with the appellants fingerprint on the doorframe on the drivers door.
    It was a vehicle he had not previously occupied. The strength of the trial
    judges opinion was therefore commensurate with the circumstances.

[118]

Finally,
    the real focus of the defence at trial was on the legal character, not the fact
    of the taking. And on that issue, the impugned instruction had nothing to say.

Ground #5: The Defence Closing

[119]

The
    final ground of appeal against conviction claims the trial judge erred in
    giving a correcting instruction to the jury about a portion of defence counsels
    closing address to the jury. Brief reference to the closing address and the
    corrective instruction are all that is required as context for this allegation
    of error.

The Closing Address

[120]

In
    his closing address, trial counsel for the appellant suggested an analogy for
    jurors to consider in assessing the evidence of Ms. Bow:

If I can use an analogy, that youre at a restaurant, and
    theres a fly in your soup  you order a bowl, theres a fly in it  do you
    simply remove the fly and eat the rest of the soup? Absolutely not. You would
    never do this. The soup is tainted. Simply plucking out the fly will not
    alleviate the concern. Youre going to throw out the entire bowl. You cant
    trust the soup.

In this case, again, the flies are Ms. Bows lies, the
    inconsistencies, severe inconsistencies, and lying when she affirms to tell the
    truth. In my submission, theres an infestation of flies in this case.

Simply, ladies and gentlemen, Ms. Bow is not credible, is not
    reliable. Shes not consistent in her version of events. Her version of events
    does not make sense. As a result, I ask you to find Mr. John, and I submit you
    must find Mr. John, not guilty.

The Charge to the Jury

[121]

In
    discussing the evidence of Olivia Bow, the trial judge made specific reference
    to the analogy offered by defence counsel in his closing address:

It has been suggested to you that a criminal trial may be
    viewed as a bowl of soup ordered in a restaurant, and that if there is an
    apparent flaw in the soup, the soup must be rejected, as must be the Crowns
    case.

That is not so. The analogy is false. A criminal trial is not
    like a bowl of soup ordered in a restaurant.

Proof, in a criminal case, must be assessed in its entirety, and
    one flaw or even multiple flaws do not necessarily destroy the strength of the
    Crowns case. Instead, you must determine whether the flaws are offset by
    reliable confirmatory evidence.

[122]

Trial
    counsel did not object to this portion of the charge.

The Arguments on Appeal

[123]

The
    appellant says that the trial judges corrective instruction unfairly
    prejudiced him. Trial counsel was simply making a legitimate argument about the
    many flaws in the case for the Crown. Olivia Bow, at least her out-of-court
    statements, were the case for the Crown. The many flaws in her evidence
    contaminated the case and tainted it to such an extent that it fell short of
    the standard of proof required.

[124]

The
    respondent contends that the trial judge was properly concerned that defence counsels
    colourful analogy might unintentionally mislead the jury about the effect of a
    single flaw in Ms. Bows evidence on the standard of proof required of the
    Crown. On its face, the analogy contradicted the basic principle of
    fact-finding that, in determining whether the case had been proven beyond a
    reasonable doubt, the trier of fact could accept some, none or all of the
    evidence of a witness. Further, the correction involved the exercise of
    discretion in the management of the trial process, a determination that is
    entitled to significant deference on appeal.

The Governing Principles

[125]

Two
    brief points warrant mention.

[126]

The
    first has to do with interrupting the closing address of counsel and including
    remedial directions in final instructions.

[127]

As
    a general rule, trial judges are disinclined to interrupt the closing address
    of counsel. Despite this general disinclination, trial judges are entitled to
    intervene when counsel strays beyond the boundaries of permissible
    subject-matter or method:
Snow
, at para. 26.

[128]

In
    some cases, a trial judge may decide that the better course is not to interrupt
    the address, but to give correcting or cleansing instructions in advance or as
    part of the charge to the jury. Whether, when, how and to what extent to
    intervene lies within the discretion of the trial judge:
R. v. Trakas
,
    2008 ONCA 410, 233 C.C.C. (3d) 172, at paras. 26-28, 38.

[129]

Second,
    the authority available to the trial judge is an incident of the trial
    management power, or writ large, the inherent authority to control the trial
    process as it unfolds to ensure fairness for all concerned.

The Principles Applied

[130]

This
    ground of appeal fails.

[131]

Nothing
    forecloses resourceful counsel from arguing by analogy in a closing address.
    However, the wise counsel clears the analogy with the trial judge prior to
    closing to ensure that it is not apt to mislead. Perfect analogies are rare.

[132]

In
    this case, I would not interfere with the trial judges decision to give a
    corrective or cleansing instruction to ensure that jurors were not confused
    about the impact of a single inconsistency or falsehood in Ms. Bows evidence.
    What was said by counsel in closing was inconsistent with jury instructions on
    the assessment of evidence; the role of inconsistencies in the assessment of a
    witness credibility and the reliability of his or her evidence; and the
    instruction that jurors can believe some, none or all of what a witness says.
    This was a correction of an inapt analogy, not of counsel who invoked it.

[133]

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

THE APPEAL FROM SENTENCE

[134]

The
    appellant also seeks leave to appeal sentence. In oral submissions, he
    abandoned one of his two grounds of appeal. What remains is a claim that the
    trial judge did not award the appellant proper credit for time spent in
    pre-disposition custody.

The Positions at Trial

[135]

The
    trial Crown emphasized the appellants record, which included two prior
    convictions for robbery; the fact that the appellant was on probation for a prior
    conviction of robbery when he committed the offence of which he was convicted;
    the use of personal violence against Ms. Bow; elements of planning that went
    into committing the offence; and the principles of denunciation and deterrence.
    The Crown sought a sentence of two years less one day in addition to the time
    spent in pre-sentence custody and the usual ancillary orders. The Crown did not
    take a position on the calculation of credit for pre-sentence custody, instead deferred
    to the trial judges determination.

[136]

Defence
    counsel sought a sentence of 9-12 months, with credit for pre-disposition
    custody calculated at the rate of two days credit for each day of custody for
    the entire period from arrest to sentence.

Pre-disposition Custody

[137]

The
    appellant was arrested on February 1, 2009 and sentenced on June 29, 2010, a
    period of 17 months. The
Truth in Sentencing Act,
S.C. 2009, c. 29
, (
TSA
) came
    into force on February 22, 2010, and applied only to those persons charged
after
it came into effect without regard to when the offence occurred.

The Sentence Imposed

[138]

The
    trial judge considered a fit sentence for the offence was a term of
    imprisonment of three years. He imposed a net sentence of six months after
    awarding the appellant a credit of 30 months for time spent in pre-disposition
    custody. The judge limited the credit to one day for each day of custody from
    February 1, 2010 until sentence to reflect his policy in connection with the
TSA
.

The Arguments on Appeal

[139]

The
    appellant says the trial judge erred in applying the
TSA
to limit
    credit for time spent in pre-disposition custody to one day credit for each day
    of custody between February 1, 2010 (under the trial judges mistaken belief
    that the
TSA
came into force on that day) and June 29, 2010. The
TSA
only applied to persons charged
after
February 22, 2010 (the date the
    Act came into force), thus had no application to this case. Credit for
    pre-disposition custody should have been awarded at the rate of two days credit
    for each day of pre-disposition custody for the entire period from arrest until
    sentence.

[140]

The
    respondent acknowledges that the trial judge did not award the appellant
    appropriate credit for time spent in pre-disposition custody. The
TSA
and its limits on credit for pre-disposition custody were not in play in this
    case. The appropriate rate of exchange for pre-disposition custody was two days
    credit for each day of pre-disposition custody. The net effect of the error is
    a reduction of the sentence imposed by four months.

The Governing Principles

[141]

One
    basic principle informs our decision on this issue, namely the application of
    the
TSA
.

[142]

The
TSA
, with its cap on credit for pre-disposition custody, came into
    force on February 22, 2010. By its terms, the
TSA
applies only to an accused
    charged
after
the legislation came into force. It is of no moment that
    the offence charged occurred prior to February 22, 2010:
R. v. MacFarlane
,
    2012 ONCA 82, at para. 7;
R. v. Clarke
, 2014 SCC 28, [2014] 1 S.C.R.
    612, at paras. 4, 11.

The Principles Applied

[143]

As
    I will briefly explain, I would give effect to the argument that the trial
    judge erred in his calculation of credit for pre-disposition custody.

[144]

It
    was common ground at trial that, subject to the potential influence of the
TSA
for a period of four months from the time the provision became law until the
    date of sentence, the appellant was entitled to credit for two days for each
    day spent in pre-disposition custody.

[145]

Early
    in the sentencing proceedings, the trial judge announced that it was his
    policy to award only 1:1 credit for time spent in pre-disposition custody
after
the
TSA
became law. Unfortunately, the trial judges policy was at
    odds with the provisions of the
TSA
. Judicial policy cannot trump
    the provisions of the statute. By its terms, the
TSA
had no
    application: the appellant was charged before, not after the
TSA
came
    into force, thus the capping provisions the Act enacted were not in play at the
    time of sentencing. It follows, that the trial judge was wrong in his award of credit
    for pre-disposition custody.

[146]

The
    appellant was entitled to a credit of 34 months for the 17 months he spent in
    pre-disposition custody, not 30 months as awarded by the trial judge. Applied
    to the net sentence imposed by the trial judge  six months  the
remanet
of the sentence is two months.

CONCLUSION

[147]

For
    these reasons, I would dismiss the appeal from conviction, grant leave to
    appeal sentence, allow the appeal from sentence and reduce the sentence to a
    term of two months.

Released: DW July 26, 2017

David Watt J.A.

I agree. J.C. MacPherson J.A.

I agree. R.A. Blair J.A.


