



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section,
    no person shall publish the name of a young person, or any other information
    related to a young person, if it would identify the young person as a young
    person dealt with under this Act.

(2) Subsection (1) does
    not apply

(a) in a case where the information
    relates to a young person who has received an adult sentence;

(b) in a case where the information
    relates to a young person who has received a youth sentence for a violent
    offence and the youth justice court has ordered a lifting of the publication
    ban under subsection 75(2); and

(c) in a case where the publication of
    the information is made in the course of the administration of justice, if it
    is not the purpose of the publication to make the information known in the
    community.

(3) A young person referred to in
    subsection (1) may, after he or she attains the age of eighteen years, publish
    or cause to be published information that would identify him or her as having
    been dealt with under this Act or the
Young Offenders Act
, chapter Y-1
    of the Revised Statutes of Canada, 1985, provided that he or she is not in
    custody pursuant to either Act at the time of the publication.

111(1)          Subject to this section,
    no person shall publish the name of a child or young person, or any other
    information related to a child or a young person, if it would identify the
    child or young person as having been a victim of, or as having appeared as a
    witness in connection with, an offence committed or alleged to have been
    committed by a young person.

138(1)          Every person who
    contravenes subsection 110(1) (identity of offender not to be published), 111(1)
    (identity of victim or witness not to be published), 118(1) (no access to
    records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section
    129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not
    to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent
    disclosure by school) or (1.15) (information to be kept separate), 45(2)
    (destruction of records) or 46(1) (prohibition against disclosure) of the
Young
    Offenders Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence
    and liable to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable on summary
    conviction.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.O.,
    2016 ONCA 236

DATE: 20160401

DOCKET: C60559

Doherty, Simmons and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.O.

Appellant

Catriona Verner, for the appellant

Joanne Stuart, for the respondent

Heard:  March 15, 2016

On appeal from the convictions entered by Justice
    Parayeski of the Superior Court of Justice on August 21, 2012, sitting with a
    jury, and the sentence imposed on December 4, 2014.

Doherty J.A.:

[1]

The appellant was charged with four break-ins and various other offences. 
    He elected trial by judge and jury.  The jury convicted the appellant of three of
    the break-ins and several of the related charges.

[2]

The trial judge sentenced the appellant to 5 years in the penitentiary,
    having given the appellant credit on a 1:1 basis for 970 days of presentence
    incarceration.  The trial judge also made a long-term supervision order for a
    period of 10 years.

[3]

The Crowns case against the appellant was based on the following:

·

Mr.  Patrick Tessaro, the first victim, arrived home during the
    break-in.  There were two intruders, one younger than the other.  The older
    intruder attacked Mr. Tessaro with a knife and a physical altercation ensued.  Both
    burglars eventually fled the scene.  Mr. Tessaro identified the appellant as
    the person who attacked him with the knife.  He picked the appellant out of a
    photo lineup. The jury convicted the appellant of this break-in and of assault
    with a weapon.

·

The appellants 16-year old son, D., testified for the Crown.  He
    testified that he committed three of the break-ins with his father.  The jury
    convicted the appellant on those three break-ins.

·

The appellants wallet containing his birth certificate and other
    papers was found in a red vehicle used by the burglars.  The vehicle belonged
    to the appellants mother.

·

The appellant was in possession of some of the property stolen in
    one of the break-ins shortly after the break-in.  The appellant was acquitted
    of this break-in, but convicted of possession of property stolen in the
    break-in.

·

Chanelle Baird, the victim in the last break-in, overheard the
    younger burglar refer to the older burglar as dad.

[4]

The appellant did not testify.

[5]

The appellant appeals conviction and sentence.

Conviction Appeal

[6]

Counsel for the appellant alleges several errors in the trial judges
    instruction to the jury.  She also contends that one comment made by Crown
    counsel in her closing was prejudicial and resulted in an unfair trial.

[7]

The court required submissions from the respondent on two of the issues
    raised by the appellant.  These reasons will address only those two grounds of
    appeal.

The Instruction on Eyewitness Identification

[8]

The trial judge told the jury that it should be very cautious in
    relying on eyewitness testimony.  He explained that honest and convincing
    witnesses could be mistaken in their identification.  The trial judge referred
    to several factors the jury should consider when examining the eyewitness
    evidence.  He then summarized the eyewitness evidence of Mr. Tessaro, the
    victim of the first break and enter, who had struggled with the burglar and
    later identified the appellant as the burglar in a photo lineup.  The summary
    included references to details in Mr. Tessaros description of the burglar that
    did not match the appellant, and aspects of the manner in which the photo line-up
    was conducted that arguably diminished the probative value of Mr. Tessaros
    identification of the appellant.

[9]

The appellant submits that although the trial judge initially properly
    cautioned the jury that witnesses who were convinced in their identification
    could well be mistaken, he effectively nullified that instruction when he told
    the jury that Mr. Tessaro was clear and had not waivered in his
    identification of the appellant.  Counsel submits that the net effect of the
    instruction was to make Mr. Tessaros level of certainty a positive feature of
    his identification evidence, thereby nullifying the earlier caution.

[10]

I
    do not agree with counsels submissions.  The references to the witnesss
    certainty were made in the course of the trial judges summary of his
    evidence.  Those references would not be understood by the jury as a
    qualification of the trial judges earlier instructions that eyewitness
    evidence should be approached cautiously and could be wrong even when the
    witness was certain.  In fact, as Crown counsel argued, the references to Mr.
    Tessaros certainty may well have reminded the jury that the trial judges
    instructions as to the cautious approach to eyewitness evidence applied to the
    testimony of Mr. Tessaro.

[11]

Counsel
    also submits that the trial judge wrongly told the jury that witnesses other
    than Mr. Tessaro had identified the appellant in connection with the other
    break and enters.  She submits that while these witnesses did offer some
    description of the older burglar, none identified the appellant as the burglar
    either before trial or in their testimony.  Counsel further contends that the
    manner in which two of these witnesses, both of whom were police officers,
    framed their testimony, combined with the trial judges description of these
    witnesses as having given eyewitness testimony, may well have led the jury to think
    that the witnesses had identified the appellant as the burglar.

[12]

It
    is common ground that none of these witnesses identified the appellant as the
    burglar either prior to or at trial.  There is merit to counsels submission
    that the instructions of the trial judge implied that these witnesses had
    identified the appellant.  However, in the end, the trial judge accurately
    summarized the evidence of these witnesses.  I am confident that the jury looked
    to the content of the witnesses evidence and not to the label placed on the
    witnesses by the trial judge.  Their evidence was straightforward and easily
    understood by the jury.  Its very limited value insofar as the identification
    of the appellant was concerned could not have been lost on the jury.

The
Vetrovec
Instruction

[13]

The
    trial judge gave a
Vetrovec
instruction in respect of the evidence of
    D.  In explaining to the jury that it was dangerous to rely on the unconfirmed
    evidence of D., the trial judge said:

You have heard that he has given differing versions of the events,
    has at least discussed changing his evidence from the truth, and, of course, has
    pled guilty to two of the break and enter offences

[14]

Counsel
    argues that the trial judge failed to identify two additional significant
    reasons for approaching D.s evidence with extreme caution:

·

D. lied in his preliminary inquiry evidence; and

·

D. gave a statement to the police implicating the appellant to
    secure his own release on bail.

[15]

In
    my view, the trial judges reference to the appellant having given differing
    versions of the events was a reference to his different testimony at the
    preliminary inquiry.  The trial judge specifically instructed the jury on the
    significance to D.s credibility of his having given different evidence at the
    preliminary inquiry immediately before the
Vetrovec
instruction.  No
    doubt the jury understood the trial judges reference to differing versions of
    events to be a reference to the preliminary inquiry testimony.

[16]

With
    respect to the argument that the jury should have been specifically told that D.s
    desire to be released on bail provided a discrete basis to approach his
    evidence with caution, I do not read the evidence as establishing that D. gave a
    statement to the police to secure his release.  He was cross-examined on this issue
    and did not admit any connection between the statement and his release on
    bail.  At most, there was an argument that he gave the statement to secure his
    release.  An adequate
Vetrovec
instruction did not require that the
    trial judge identify this as a distinct reason for treating D.s evidence with
    caution.  The
Vetrovec
instruction as given made the need to approach
    D.s evidence with caution crystal clear and offered three valid reasons for
    doing so.  The instruction was adequate.

[17]

The
    conviction appeal is dismissed.

The Sentence Appeal

[18]

After
    the jury convicted on several counts, the Crown brought a dangerous offender
    application under Part XXIV of the
Criminal Code
.  Although the trial
    judge was satisfied that the appellant was a career criminal, he was not
    satisfied that he should declare the appellant a dangerous offender.  Instead,
    acting under s. 753.1, the trial judge declared the appellant a long-term
    offender.  Section 753.1 requires that the sentencing judge impose a jail term
    of at least two years to be followed by a long-term supervision order that does
    not exceed 10 years.  Section 753.2 provides that a long-term supervision order
    becomes effective when the offender has finished serving the sentence imposed
    for the offence.  The trial judge imposed the maximum 10-year supervision
    order.  That part of the sentence is not challenged.

[19]

The
    trial judge also imposed a five-year penitentiary term, which combined with the
    970 days of presentence custody credited on a 1:1 basis, yielded an effective
    sentence of seven years and eight months.   The trial judge declined to give enhanced
    credit for any part of the appellants presentence custody because the
    appellant had never applied for bail.  The trial judge further indicated that
    even if he had given the appellant enhanced credit for presentence custody, a
    sentence of five years in addition to any time credited for presentence custody
    was still reasonable.

[20]

The
    appellant raises a single issue on his sentence appeal.  He submits that the trial
    judge should have given him credit for presentence incarceration on a 1.5:1
    basis.  The appellant argues that had he been given proper credit for the
    presentence custody, he would have been entitled to an additional 16 months
    credit, resulting in a sentence of three years and eight months, rather than
    five years.

[21]

The
    Crown concedes that on the law as it presently stands, the trial judge erred in
    declining to give the appellant enhanced credit for presentence custody because
    he had not applied for bail:  see
R. v. Safarzadeh-Markhali
, 2014 ONCA 627
, 122 O.R. (3d) 97; leave
    to appeal granted, [2014] S.C.C.A. No. 489, appeal heard and reserved November
    4, 2015.  Crown counsel goes on, however, to submit that at the time the
    appellant was sentenced, there was a strong likelihood that he would not be
    released on any form of statutory release, but would serve his full sentence in
    custody until warrant expiry.  Counsel submits that the likelihood that the
    appellant would serve his full sentence justifies crediting the appellant for
    presentence incarceration on a 1:1 basis.

[22]

In
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575, the court, in
    interpreting ss. 719(3) and (3.1) of the
Criminal Code
, observed that
    persons held in presentence custody who are subsequently convicted are
    generally entitled to credit on sentence for presentence custody at the rate of
    1.5:1.  The enhanced credit is justified primarily because there is no
    opportunity to gain credits towards early release or parole while in presentence
    custody.  Enhanced credit can also sometimes be justified by virtue of the
    harshness of the conditions under which the presentence incarceration is
    served:
Summers
, at paras. 70-71.

[23]

As
Summers
, at para. 79,
makes clear, however, enhanced credit on the basis that presentence custody
    does not count for the purposes of parole eligibility and early release is not
    automatic:

The onus is on the offender to demonstrate that he should be
    awarded enhanced credit as a result of his pre-sentence detention.
Generally speaking, the fact that pre-sentence detention has
    occurred will usually be sufficient to give rise to an inference that the
    offender has lost eligibility for parole or early release, justifying enhanced
    credit.  Of course, the Crown may respond by challenging such an inference.
There will be particularly dangerous offenders who have committed certain
    serious offences for which early release and parole are simply not available.  Similarly,
    if the accuseds conduct in jail suggests that he is unlikely to be granted
    early release or parole, the judge may be justified in withholding enhanced
    credit.  Extensive evidence will rarely be necessary.  A practical approach is
    required that does not complicate or prolong the sentencing process.  [Emphasis
    added.]

[24]

The
    appellant, because of some of the offences for which he was convicted, is
    subject to ss. 129(3) and 130 of the
Corrections and Conditional Release
    Act
, S.C. 1992, c. 20.  Under s. 130(3)(a), the Parole Board may require a
    prisoner to serve his or her entire sentence in custody if the Board is
    satisfied:

that the offender is likely, if released, to commit an offence
    causing the death of or serious harm to another person  before the expiration
    of the offenders sentence

[25]

The
    appellant is 42 years old.  His criminal record extends back almost 30 years. 
    The record, which includes about sixty convictions, begins when the appellant
    was 13 and continues uninterrupted until the present.  The vast majority of his
    offences are property-related, including many break and enters.  Prior to 2003,
    there were a few offences involving violence, including two prior convictions
    for assault with a weapon and a conviction for attempted robbery.

[26]

The
    appellant was arrested in June 2003 on several charges and held in custody.  In
    2006, he was convicted on two robbery counts, one involving the use of a
    firearm, two break and enter charges, and a charge of possession of a firearm. 
    He received a total sentence of six years.

[27]

The
    appellant served two-thirds of the six-year sentence.  He was released on his
    statutory release date in late March 2010.  The appellant enlisted the aid of
    his then 14-year old son and quickly began committing the break-ins which were
    the subject of this trial.  The first break-in occurred about five weeks after
    the appellants release.  The appellants offences stopped only when he was
    caught.

[28]

The
    appellant has been in custody for virtually the entire period between June 2003
    and the present, save for a period of less than two months in April and May
    2010.  During that brief taste of freedom, the appellant went on a crime spree,
    committing many offences, including the assault on Mr. Tessaro with a knife and
    the attempt to escape from the police.

[29]

Dr.
    Julian Gojer, who examined the appellant for the defence in response to the
    Crowns dangerous offender application, opined:

Clinically, his long history of offending, short stay in the
    community on parole and reoffending, support a conclusion that he is a high
    risk to reoffend in a similar manner.  His targets are likely to be random
    individuals who may be present at the time of a break-in.  The harm to the
    individuals is likely to be secondary to a property crime and only if he is
    thwarted.  His violence in the past had the potential to be serious as he has
    used weapons.

[30]

In
R. v. Slack
, 2015 ONCA 94, 125 O.R. (3d) 60, this court considered the
    Crowns submission that presentence credit should be given on a 1:1 basis
    because the accuseds conduct made it unlikely that he would receive parole or
    any other form of early release.  The court stressed that the focus must be on
    the language of ss. 129 and 130 of the
Corrections and Conditional Release
    Act
which sets out the relatively narrow circumstances in which an
    offender can be required to serve his or her entire sentence in custody.  As Cronk
    J.A. observed, it is not enough to show that the appellant has been far from a
    model prisoner while incarcerated.  Section 130(3)(a) requires a determination
    of whether it is likely that the offender, if released before the expiry of the
    warrant, will commit an offence involving serious harm to another before the
    expiry of the warrant.

[31]

The
    appellants lifelong, continuous and, more recently, increasingly violent
    criminal conduct, his virtually immediate return to a life of serious,
    dangerous criminal activity when released in March 2010, and the psychiatric
    opinion of both the Crown and defence psychiatrists, compel the conclusion that
    the appellant is likely to commit further serious offences shortly after his
    release.  Consequently, he is unlikely to be granted any form of release before
    his warrant expiry date.  I am satisfied that there is no realistic chance that
    the appellant would be released before his warrant expiry date.  Enhanced
    credit for presentence custody could not be justified on the basis of a lost
    opportunity to gain credits toward some form of early release.

[32]

I
    would note that the 10-year supervision order imposed by the trial judge has no
    impact on the determination of whether the appellant should be given enhanced
    credit for presentence custody.  A long-term supervision order does not start
    until the offenders sentence is completed.  Even if the offender is released
    from custody, his sentence continues until warrant expiry.  On that date, the
    long-term supervision order takes effect:
Corrections and Conditional
    Release Act
,

s. 128(1);
R. v. Burton
, 2013 ONSC 2626, at
    para. 14.

[33]

Although
    the trial judge erred in declining to give enhanced credit because the
    appellant had not applied for bail, enhanced credit was not warranted for the
    reasons set out above.  The trial judge did not err in giving the appellant
    credit for presentence custody on a 1:1 basis.

[34]

The
    sentence appeal is dismissed.

Released:  DD  APR 01 2016

Doherty J.A.

I agree Janet Simmons
    J.A.

I agree K.M.  van
    Rensburg J.A.


