Jennifer Christine Caskie

The appellant appealed his summary conviction for criminal harassment of his former intimate partner.

He raised several grounds of appeal, including inadequate reasons, violation of his right to a fair trial regarding the abandonment of an O'Connor application while self-represented, reasonable apprehension of bias, misapprehension of evidence, improper admission of character evidence, and unreasonable verdict.

The Superior Court of Justice found no errors in the trial judge's assessment of the evidence or procedural rulings, noting the trial judge's findings were supported by the uncontroverted evidence of the complainant.

The appeal was dismissed.

The accused was charged with sexual assault and sexual interference involving a 15-year-old complainant.

The core issue was whether the accused knew, or was wilfully blind or reckless about, the complainant's age, and whether he took all reasonable steps to ascertain her age.

The court found that the accused failed to take all reasonable steps, ignoring 'red flags' such as a message from the complainant's mother stating her age.

The accused was found guilty of both counts.

The accused was charged with impaired driving and driving with a blood alcohol content exceeding the legal limit.

The accused conceded her impairment, her elevated blood alcohol content, and that she was driving, but claimed she did not voluntarily consume the alcohol necessary to exceed the legal limit, asserting instead that a companion had spiked her drink with an unknown drug, rendering her unconscious and incapable of making conscious decisions about drinking and driving.

The court rejected the accused's characterization of the defence as a mens rea issue and determined it was an actus reus issue involving a claim of involuntary conduct akin to automatism.

The court found the accused bore the burden of proving involuntary conduct on a balance of probabilities and failed to meet this burden.

The court rejected the accused's claim of amnesia as not credible and found no evidentiary foundation for the claim of drug-induced impairment.

The court convicted the accused.

The applicant sought access to manually manipulate her seized cell phone, arguing that the forensic extractions provided by the Crown might be incomplete.

The Crown had provided digital and forensic copies of the extraction but refused manual access without strict conditions, arguing that access is governed by s. 605 of the Criminal Code.

The court dismissed the application, finding that even if an independent right to access existed outside s. 605, the applicant failed to show an air of reality or provide evidence beyond mere speculation that the forensic extractions were deficient.

The accused, charged with kidnapping and human trafficking, brought a Charter application challenging production orders for their cell phone records.

They argued the Information to Obtain (ITO) lacked reasonable grounds to believe the records would afford evidence of the offences, as there was no evidence they possessed or used cell phones during the alleged offences.

The court agreed, finding the ITO relied on mere suspicion rather than credibly-based probability, resulting in a breach of section 8 of the Charter.

A subsequent hearing will determine if the evidence should be excluded under section 24(2).

The applicant, charged with human trafficking and related offences, brought an application to exclude evidence obtained from a search of her rented vehicle, alleging a breach of her s. 8 Charter rights.

Police initially entered the vehicle without a warrant to retrieve the complainant's property, during which they observed wallets and identification, prompting them to obtain a search warrant.

The court dismissed the application, finding that even if the observations from the initial entry were excised from the Information to Obtain, there were sufficient grounds to issue the warrant.

Furthermore, the court held that even if a s. 8 breach occurred, the evidence would be admissible under s. 24(2) of the Charter as the police acted in good faith and its admission would not bring the administration of justice into disrepute.

The accused, L.R., brought an application under section 24(2) of the Charter of Rights and Freedoms to exclude a videotaped statement given to police, alleging a breach of her section 10(b) right to counsel and that the statement was involuntary due to oppressive conditions and inducements.

The Crown concurrently sought a finding that the statement was voluntary.

The court found that the Crown proved voluntariness beyond a reasonable doubt, as L.R.'s will was not overborne by inducements or oppressive conditions, and she maintained her right to silence numerous times.

The court also found no breach of L.R.'s section 10(b) Charter rights, as she was properly informed of her rights, understood them, and was afforded opportunities to consult with duty counsel.

Consequently, L.R.'s application to exclude the statement was dismissed, and the Crown's application for admissibility was granted.

The accused was charged with impaired driving, dangerous driving, and failing to remain at the scene of an accident after his vehicle collided with a tree and a garage door.

The accused argued he was involuntarily intoxicated, claiming he had taken a sleeping pill (Ambien) along with his regular prescription medications and a small amount of alcohol, resulting in 'sleep driving.' The court rejected the accused's testimony, finding he was not credible regarding his consumption of other powerful narcotics found in his system.

Applying the W.(D). framework, the court found the accused failed to rebut the presumption of voluntary intoxication and entered findings of guilt.

The accused was charged with criminal harassment.

At a bail hearing, the Crown and duty counsel presented a joint submission for release with conditions, including that the accused live at a specified address and report any address changes to the police.

The presiding Justice of the Peace rejected these specific conditions, finding them unnecessary under the Antic framework and the ladder principle, as there was no evidence they were required to address secondary grounds.

The court emphasized that justices are not rubber stamps for joint submissions and must ensure bail conditions are strictly necessary and not punitive.

The court also ruled that bald occurrence reports of uncharged incidents were inadmissible.

The applicant, L.R., brought a motion for a stay of charges under section 24(1) of the Canadian Charter of Rights and Freedoms, alleging a breach of her right to trial within a reasonable time under section 11(b).

The central issue was whether the 18-month or 30-month presumptive ceiling from R. v. Jordan applied to a case proceeding by direct indictment in Superior Court without a preliminary inquiry.

The applicant argued for the 18-month ceiling, which would make the 26-month delay presumptively unreasonable.

The court reviewed several Ontario, Manitoba, and Alberta Superior Court and appellate decisions, all of which consistently held that the 30-month ceiling applies when a case is going to trial in Superior Court, regardless of whether a preliminary inquiry was held or if a direct indictment was preferred.

The court dismissed the applicant's motion, affirming that the 30-month ceiling was applicable and that the applicant had not demonstrated unreasonable delay falling short of that ceiling, nor had she taken meaningful steps to expedite proceedings.

The court also declined to grant leave for a further s. 11(b) application, emphasizing that all alternate arguments should be brought in one application.

The Crown sought to introduce evidence of the accused's prior discreditable conduct, specifically statements made 20 to 30 years prior expressing urges to harm homosexual men, to prove motive in a first-degree murder trial.

The court applied the Handy test for similar fact evidence and ruled the historical statements inadmissible, finding that their probative value was diminished by the passage of time and lack of action, while the risk of moral and reasoning prejudice was significant.

However, more recent statements made by the accused in 2014 were ruled admissible as they were proximate in time and relevant to intent.

Derrick Lawlor, charged with first-degree murder, sought to exclude an audio-recorded statement made to police while he was a patient in a psychiatric unit.

The Crown sought a ruling that the statement was voluntary and admissible.

The court found the statement voluntary, noting Lawlor initiated contact with police and was not under detention for Charter purposes.

The court also rejected arguments that the police's failure to re-caution Lawlor when he made incriminating statements violated his right to a fair trial, concluding that Lawlor was committed to speaking to the police regardless.

The statement was ruled admissible.

Sentencing following conviction for sexual interference involving the prolonged sexual abuse of a child stepdaughter between ages 10 and 12 by an offender in a position of trust.

The court held that denunciation, deterrence, and separation from society were the primary sentencing objectives under ss. 718 and 718.01 of the Criminal Code, and treated the victim’s age, vulnerability, grooming, oral sex, persistence of abuse, and breach of trust as significant aggravating factors.

Although the offender had no prior record and had suffered collateral personal consequences, the court found a penitentiary sentence was required.

A sentence of four years’ imprisonment was imposed, together with DNA, weapons prohibition, child-contact prohibition, SOIRA, and custodial no-contact orders.

The appellant appealed a conviction for assault with a weapon and possession of a weapon for dangerous purposes.

The appeal concerned whether the trial judge erred in considering court documents related to bail for identification purposes and if this caused a denial of procedural fairness.

The appellate court found that the trial judge erred in using the surety's affidavit for its truth and that the manner in which the bail documents were introduced into the analysis, after the defence had closed its case, violated procedural fairness.

The appeal was allowed, convictions set aside, and the case remitted for a new adjudication. interesting_citations_summary: > The decision clarifies the admissibility of court documents for the truth of their contents, applying the two-step test from *R. v. Caesar, 2016 ONCA 599*.

It distinguishes between the inherent reliability of original court documents like a Recognizance and the substantive admissibility of information within them, particularly affidavits.

The court emphasizes that while a Recognizance itself may be admissible, the introduction of such evidence by the trial judge *sua sponte* after the close of the Crown's case and defence election not to call evidence constitutes a denial of procedural fairness, as it deprives the accused of knowing the full case against them.

The case reinforces the principle that an accused is entitled to know the entirety of the Crown's case before responding. final_judgement: > The appeal is allowed, the convictions are set aside, and the case is remitted back to the Ontario Court of Justice for adjudication. winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2016 decision_number: 5778 file_number: "SCA 8478" source: "https://www.canlii.org/en/on/onsc/doc/2016/2016onsc5778/2016onsc5778.html" cited_cases: legislation: - title: "Criminal Code of Canada" case_law: - title: "R. v Bailey, 2014 ONSC 5477" url: "https://www.canlii.org/en/on/onsc/doc/2014/2014onsc5477/2014onsc5477.html" - title: "R. v. Caesar, 2016 ONCA 599" url: "https://www.canlii.org/en/on/onca/doc/2016/2016onca599/2016onca599.html" - title: "R. v. C (W.B). (2000), 130 O.A.C. 1" url: "https://www.canlii.org/en/on/onca/doc/2000/2000canlii5659/2000canlii5659.html" - title: "R. v. Hunt (1986), 18 O.A.C. 78" - title: "R. v. Toozhy, [2013] O.J. No. 1303 (S.C.)" - title: "R. v. Timms, [1989] O.J. No. 893 (C.A.)" - title: "R v. M.B.P., [1994] 1 S.C.R. 555" url: "https://www.canlii.org/en/ca/scc/doc/1994/1994canlii125/1994canlii125.html" - title: "R. v Evaglok, [2010] NWTJ No. 90 (C.A.)" - title: "R. v. Roy, 2012 SCC 26" url: "https://www.canlii.org/en/ca/scc/doc/2012/2012scc26/2012scc26.html" - title: "R. v. MacNeil, 2009 NSCA 46, [2009] N.S.J. No. 203 (C.A.)" url: "https://www.canlii.org/en/ns/nsca/doc/2009/2009nsca46/2009nsca46.html" - title: "R. v. Watson, [2004] O.J. No. 4921 (C.A.)" url: "https://www.canlii.org/en/on/onca/doc/2004/2004canlii45443/2004canlii45443.html" - title: "R. v. Crawford, [2015] A.J. No. 552 (C.A.)" - title: "R. v. K.T., 2013 ONCA 257" url: "https://www.canlii.org/en/on/onca/doc/2013/2013onca257/2013onca257.html" keywords: - Criminal law - Appeal - Procedural fairness - Identification evidence - Bail documents - Recognizance - Affidavit of surety - Admissibility of evidence - Miscarriage of justice - New trial areas_of_law: - Criminal Law - Evidence - Civil Procedure --- # Court File and Parties **COURT FILE NO.:** SCA 8478 **DATE:** 2016-09-27 **ONTARIO** **SUPERIOR COURT OF JUSTICE** **SUMMARY CONVICTION APPEAL COURT** **B E T W E E N:** **HER MAJESTY THE QUEEN** J. Caskie, for the Crown Respondent **- and -** **Rustam Suleimanov** B. Smart, for the Appellant Appellant **HEARD:** August 31, 2016 A.J. Goodman J.: # REASONS FOR JUDGMENT (On appeal from the Honourable Justice Epstein) [ 1 ] This is an appeal against conviction imposed on January 29, 2015 by Epstein J. of the Ontario Court of Justice at Kitchener, Ontario. [ 2 ] The appeal relates to offences of Assault with a Weapon and Possession of a Weapon for Dangerous Purposes, contrary to their respective provisions in the Criminal Code of Canada. [1] [ 3 ] At the conclusion of submissions on August 31, 2016, the Crown was permitted to file supplementary written materials on the issue of the appropriate remedy should the appeal be successful. [ 4 ] Principally, the appellant raises two grounds of appeal.

Was the trial judge entitled to consider court documents related to bail on the issue of identification?

Did the trial judge’s review of these court documents in the circumstances of this case cause a denial of procedural fairness?

If so, what is the appropriate remedy?

The third area of contention related to the appellant’s mode of participation in the incident was not addressed during oral argument. ## The Evidence at Trial: [ 5 ] The ultimate issue in this case was the identity of the two perpetrators.

On May 1, 2013, at approximately 3:06 p.m., Awad Omar was assaulted near the Grand River Transit platform outside the Bay store entrance of Fairview Park Mall, located at 200 Fairway Road South in the City of Kitchener. [ 6 ] An eye-witness at the scene informed police that two men arrived in a motor vehicle with the license plate number BNEN 125.

The vehicle was silver, four-door 2012 Hyundai and the registered owner of the vehicle was identified. [ 7 ] Later the same day, Detective Constable Merrigan (“Merrigan”) attended 452 Shelley Drive and identified the vehicle.

He observed the appellant who resides at this location with his mother in the parking lot.

Merrigan spoke to the registered owner of the vehicle although Merrigan did not speak to the appellant at that point.

At this location, the appellant’s mother advised that he had access to the vehicle during the time of the assault.

The police subsequently seized the vehicle for processing at the police headquarters. [ 8 ] The defence did not admit that the Ministry of Transportation records showing the license plate number and corresponding registered owner’s name, Nurgul Ogombaieva (“Ogombaieva”) as evidence in relation to the accused. [ 9 ] The Crown Attorney relied upon video footage to demonstrate the two perpetrators assaulting the victim outside of The Bay store.

The video reflected that a vehicle pulled into the driving lane near the bus stop and stopped abruptly.

The doors opened and two males got out.

The man who emerged from the vehicle with an expandable baton came from the passenger side of the vehicle, while the driver carried no weapon.

The video depicted one man hit the victim over the head with a baton, while the other man shoved the victim to the ground, kicked his side, and punched his head.

One of the men visible in the video exited the vehicle after the other, and he was carrying a retractable baton.

After the quick assault, both men returned to the vehicle and drove away. [ 10 ] Detective Constable Livingstone reviewed the footage and testified that he identified the appellant as one of the assailants in the video. [ 11 ] During the course of trial, the judge reviewed documents relating to the judicial interim release of the accused, attached to the Information.

The trial judge discovered from the appellant’s Recognizance that he resided at 452-B Shelley Drive in Kitchener with his mother as his surety.

The learned judge also noted that the affiant of the affidavit of surety was Ogombaieva. [ 12 ] During submissions, the trial judge asked counsel whether he could make substantive use of information contained in the Bail Recognizance and the affidavit of the surety.

He invited submissions on this point and adjourned to allow counsel to present further submissions and authorities. [ 13 ] Having regard to the evidence of the police officer, the Ministry of Transportation records filed with the court, and the documents examined by the trial judge, the judge determined that there was sufficient evidence to constitute proof of the identity of the accused as the driver. ## Positions of the Parties: [ 14 ] The appellant submits that the learned trial judge erred in denying procedural fairness.

After the defence elected to call no defence, the trial judge advised that he was cognizant of documents attached to the Information, including the affidavit for Justification for Surety, the Recognizance itself and documents filed in support of the appellant’s release plan.

In doing so, the appellant submits that the trial judge erred in finding that a connection could be established between the appellant and the owner of the vehicle used during the assault.

In embarking upon his own investigation of the documents attached to the Information the judge violated the principle of a “case to meet”. [ 15 ] The appellant submits that not only was there a denial of procedural fairness, rather the trial judge failed to conduct a proper analysis of the bail documents in support of his conclusion. [ 16 ] The Crown concedes based on recent appellate jurisprudence, (that was not available to the trial judge), the relationship between the surety and the appellant, as described in the surety’s affidavit was not admissible.

The Crown submits that the information contained in the Recognizance was substantively admissible as circumstantial evidence against the appellant. [ 17 ] The Crown says that the trial judge was entitled to consider the recognizance and the evidence advanced at trial in arriving at his determination.

Based on all of the evidence before him the trial judge drew the proper conclusions and inferences in support of his finding.

The Crown submits that any analysis conducted by the trial judge with respect to the Recognizance and the weight attributed to it in the overall analysis of the evidence was minimal and would not have affected His Honour’s verdict. [ 18 ] The Crown submits there was no denial of procedural fairness as the trial judge permitted defence counsel to make full submission on the very issues before this appeal court.

The appeal should be dismissed. ## Analysis: ### The examination of court documents: [ 19 ] Historically, the jurisprudence supported the proposition that a Court can take notice of its own documents and processes.

The rule that “the Court has at all times power to look at its own records and to take notice of their contents although they may not be formally brought before the Court” was first expressed by the Court of Exchequer in 1869 and has been consequently cited with approval by the Ontario Court of Appeal.

The justification for this Rule was explained by Campbell J. in *R. v Bailey, 2014 ONSC 5477*, [2014] O.J. No. 4420, (S.C.) at para. 18, where he stated that: At common law, original judicial or court documents… were always admissible as evidence, without notice.

This long-standing rule of law was based on the notion that courts always had the power to examine their own records and take notice of their contents in proceedings before them.

The lack of notice caused no unfairness to any parties to the litigation as, being public documents, original judicial or court documents are always readily available for inspection. [ 20 ] After the appellant’s conviction in this case, the Ontario Court of Appeal released its judgment in the case of *R. v. Caesar, 2016 ONCA 599*, [2016] O.J. No. 4007, which specifically addressed the use a Court can make of the contents of its own documents.

In *Caesar*, the Court of Appeal employed a two-step test to determine whether records of judicial proceedings are admissible for the truth of their contents.

First, the court must determine whether the records meet the criteria for admission without further proof of authenticity; and secondly, if so, whether their contents are substantively admissible either because it was the recorder’s duty to verify their validity or because they are otherwise admissible through the principled exception, or some other exception. [ 21 ] In *Caesar*, the Court applied this test to find that the fact of the co-accused’s guilty plea, noted on the Information, was admissible.

However, in that case, the transcripts could not be tendered for the truth of their content or as evidence of the facts underlying the plea. [ 22 ] While the power of a court to examine its own documents without notice is often relied upon by a party to a litigation attempting to tender a court document as part of its case; in *Caesar*, the Court of Appeal reframed the question with respect to substantive admissibility.

In doing so, the Court of Appeal reviewed some of the relevant jurisprudence including *R. v. Hunt* (1986), 18 O.A.C. 78 and *Bailey*, amongst other cases.

Whether the contents of the documents or records are admissible for the truth of their contents is clearly dependant on the circumstances: para 36.

Court documents are admissible without further proof because of their inherent reliability: para. 36. [ 23 ] If the scope of the duty of the court official making the record is to validate the truth of the contents, prepared by a court official and signed by a jurist, the jurisprudence permits such a court document, - the actual Recognizance - as admissible for all purposes, satisfying the criteria as outlined in para. 38 of *Caesar*, without the need for exemplification.

See also *R. v. C (W.B). (2000)*, 130 O.A.C. 1.

Indeed, the same level of trustworthiness or reliability does not arise for the introduction of transcripts of prior proceedings without a complete analysis as directed by the appellate court. [ 24 ] In this case, during final submissions, the Crown alleged that the registered owner of the motor vehicle was the appellant’s mother.

The trial judge interjected by correctly pointing out that there had been “no admissible evidence viva voce from the witness box nor [sic] filed as exhibits today which would make the connection between the accused and the registered owner as mother and son”. [2] It was at that was at that point, the trial judge then brought up the documents relating to the appellant’s release, stating: …But I am wondering whether or not I can take into account from the documents attached to the information that the [sic] woman with the same name, same address as the registered owner of that vehicle swore an affidavit of surety and is the named surety on the recognizance of bail for the accused, both at the same address. [3] [ 25 ] The appellant argued that, as the Crown had not sought to rely on those documents, the information contained therein was not admissible evidence against the appellant. [ 26 ] The Crown took the position that those documents and their contents were admissible for all purposes.

Irrespective of any consideration of the surety’s affidavit, the Crown submits that as a court document the trial judge could refer to the Recognizance and take notice of its contents, on his own motion at any time.

The Crown says that the name and address of the surety and the term of the Recognizance requiring that the appellant reside at the address of the vehicle’s registered owner were admissible pieces of circumstantial evidence to connect the appellant to the vehicle used in the commission of the assault. [ 27 ] While the Court exercised its well-recognized and longstanding power to review and take notice of its own documents, apart from the affidavit, the concern advanced here is not only for alleged procedural unfairness, rather, it includes the scope of review of the relevant documents in the decision making process. [ 28 ] There is no dispute that the trial judge erred in his use and consideration of the surety’s affidavit, and the Crown concedes that the contents of the affidavit of surety, specifically the statement that the surety is the appellant’s mother and other information related to identification was not admissible for its truth. [ 29 ] Nonetheless, in my view, the Recognizance itself in this case meets the first requirement of the two-step test set in *Caesar*.

As an original court document, it meets the criteria of admission without further proof of authenticity.

The Recognizance also satisfies the second step without further inquiry as it is the original court document.

In creating that document it was the court clerk and the presiding justice of the peace’s duty to ensure the validity and accuracy of the Recognizance and its terms. [ 30 ] I note that in *Caesar*, the Court of Appeal found the fact of the guilty plea admissible, in part because “[t]he existence of the guilty plea is not contentious nor is it open to competing inferences as to its meaning.” Here, the release and its terms are not contentious or open to competing inferences. [ 31 ] The Crown says that an individual with the very distinctive name of Ogombaieva acted as the appellant’s surety.

The trial judge appeared to have relied upon the Recognizance to demonstrate two facts.

First, that an individual with the same name and address as the registered owner of the motor vehicle acted as the appellant’s surety; and second that the address at which the appellant was ordered to reside. [ 32 ] Therefore, the information contained on the Recognizance was, under *Caesar*, admissible for the truth of its contents and properly considered by the trial judge as circumstantial evidence connecting the appellant to an address with the name of the surety and her address.

I cannot find fault with this logic. [ 33 ] In this context, the trial judge stated: …There is no question that in the video and the stills extracted there from, the person bears a striking resemblance to the accused.

But as I have indicated, the definition of the photos and the images on the video are such that it is not clear and I cannot conclude beyond a reasonable doubt from looking at the videos and the photos alone that the accused is the person who was driving the motor vehicle.

There is however other evidence.

A Ministry of Transportation document was introduced on consent in evidence indicating that the driver’s licence of this accused reflects that his address is 452-B Shelley Drive in Kitchener.

However, as was pointed out by Mr. Smart, the incident occurred on May 1st, 2013 and the MTO extract was printed in April 2014. [4] During the course of the trial, I noted that attached to the information were some documents pertaining to the release of the accused.

He was released on a recognizance to reside at 452-B Shelley Drive, Kitchener.

The surety was his mother and indeed there was an affidavit by his mother as surety that had been prepared and presented by the defence in an effort to obtain the release of the accused.

This affidavit indicated that the affiant, Nurgul Ogombaieau of 452-B Shelley Drive, Kitchener, was the mother of the accused. [5] [ 34 ] Addressing the person named in the charge and the issue of identification of the person before the court as the person who committed the offence, is an element requiring proof at every criminal trial, unless admissions are made by the defence: *R. v Evaglok* [2010] NWTJ No. 90 (C.A.) at p. 6.

This issue is distinct from that of the connection between the person named in the charge and the person appearing before the court.

In *Evaglok*, the court held that the court is entitled to assume that a person appearing in court and answering to a charge is the person charged.

It does not necessarily flow that the person appearing in court and whose name is upon the charge is the person who indeed committed the offence.

The burden of proof rests with the Crown to prove beyond a reasonable doubt the guilt of the accused.

The taking of judicial notice of the court’s process is only a circumstance in which the trier of fact might infer the identity of the accused and is distinct from being conclusive: at para. 27. [ 35 ] In his Reasons for Judgment, Epstein J. continued: Having reviewed the authorities, I am of the view that it is amply clear that I am entitled to have reference to the court process and the documents pertaining thereto attached to this information.

That there is no need that the documents be made evidence in the case and that there is no notice requirement.

I have given careful consideration to whether or not absent the bail documents I would have been satisfied beyond a reasonable doubt as to the guilt of the accused in this case.

It is almost impossible for me to determine that because I have lurking in the back of my mind the fact that the mother has this unusual name, was the registered owner of the vehicle and lived at that address.

If I exclude the court documents from consideration, I am left with the video showing certainly some considerable similarities between the driver and the accused.

The fact that within an hour he was at the address of the registered owner, or standing on the porch at least, that the car was there beside the house and that the very next day he was wearing what appeared to be a white t-shirt under something else and the pants that I have described.

I believe I would have concluded beyond a reasonable doubt that that was sufficient to establish the identity of the accused as the driver in any event. [6] [ 36 ] From my review of the transcripts, it is readily apparent that the trial judge was alive to the issue of identity.

How much the use of the impugned surety’s affidavit affected the trial judge’s decision making process is difficult to delineate from the other evidence presented at trial.

The language next employed by the learned trial judge is most challenging. [7] I am not certain in that regard, but I believe I would have come to the conclusion.

I can tell you that with the addition of the reference to the bail papers, I am left in no doubt that the accused was the driver of the vehicle. [ 37 ] Although the trial judge considered the release documents in making that decision, he indicated that even without the information contained therein he “believe[s] that [he] would have concluded beyond a reasonable doubt that [the evidence] was sufficient to establish the identity of the accused as the driver”. [ 38 ] In his analysis, Epstein J. appeared to have given some weight to the evidence arising from the bail documents, including the surety affidavit in support of his findings; while at the same time, suggesting some uncertainty - “a belief that he would have concluded” - the identity of one of the perpetrators as the appellant.

To what extent is not readily ascertainable from the Reasons. ### Denial of Procedural Fairness: [ 39 ] This aspect of the appeal is most fundamental to the appellant’s position.

As mentioned, the trial judge first raised the question during the Crown attorney’s final submissions: THE COURT: We’re going to have an issue with respect to the mother and I should raise that now I suppose.

You’ll recall that when Detective Constable Merrigan gave evidence with respect to what he’d been told by the registered owner identifying her son as the person who had the car that there was an objection from Mr. Smart.

And I also took note of the specific acknowledgements that admissions made by Mr. Smart which specifically excluded an acknowledgement that he was the son of the registered owner as I understood it.

So at this stage, with respect to the evidence before me, I think there is no admissible evidence viva voce from the witness box nor filed as exhibits today which would make the connection between the accused and the registered owner as mother and son.

Having said that, there is attached to the first information a recognizance and an affidavit of surety.

I specifically did not raise this during the court of the evidence because I didn’t want to in any way interfere with how the evidence might be called or I didn’t want to be in a position where I might tempt the Crown to call evidence it otherwise wasn’t going to call.

I didn’t want to interfere to that extent.

But I am wondering whether or not I can take into account from the documents attached to the information that the woman with the same name, same address as the registered owner of that vehicle swore an affidavit of surety and is the named surety on the recognizance of bail for the accused, both at the same address.

What’s your position about that?

THE COURT: Well, let me just say this.

The reason that I didn’t raise it when it became apparent to me during the evidence was because I wanted to preserve the situation so that it would essentially play out as it is now.

If I had mentioned it during the trial, then it might’ve prejudiced the defence.

MR.

SMART: Fair enough and I appreciate ….

THE COURT: So that’s why I mentioned it at the end.

So my question becomes this, if we deal with this on the basis of a procedural fairness issue, is any perceived unfairness remedied or can it be remedied by me taking some steps for instance to allow the defence to reconsider whether or not it wishes to call evidence? [8] [ 40 ] Undoubtedly, the trial judge was concerned about this issue.

During submissions of counsel, and followed by a discussion of his Reasons for Judgment, Epstein J. stated: Having said that, there is attached to the first information a recognizance and an affidavit of surety.

I specifically did not raise this during the course of the evidence because I didn’t want to in any way interfere with how the evidence might be called or I didn’t want to be in a position where I might tempt the Crown to call evidence it otherwise wasn’t going to call.

I didn’t want to interfere to that extent.

Fearing that the revelation during the trial of the information found by me might affect how the trial proceeded, I opted not to make mention of it until the evidence was in and we were at the submission stage of proceedings.

I invited both counsel to make submissions and adjourned the matter for that purpose. [9] THE COURT: Mr. Smart also takes the position that procedural fairness dictates that it ought not to be relied upon.

And also takes the position that even if it is something that is admissible, it was incumbent upon the Crown to introduce it as evidence as part of the trial which clearly the Crown did not do.

It was precisely for that reason I decided not to make mention of it during the trial because I did not want to affect that course of the prosecution and give the Crown the option to introduce that evidence which might have been missed by the Crown theretofore.

Having reviewed the authorities, I am of the view that it is amply clear that I am entitled to have reference to the court process and the documents pertaining thereto. [10] [ 41 ] I disagree with the Crown’s characterization that this case is not a situation in which Epstein J. engaged in his own investigation to find evidence against the appellant that would not otherwise have been before the Court.

It is clear the trial judge had at least turned his mind to the issue, early on in the case and, as referenced above, stated: “I specifically did not raise this during the course of the evidence because I didn’t want to in any way interfere with how the evidence might be called or I didn’t want to be in a position where I might tempt the Crown to call evidence it otherwise wasn’t going to call”. [ 42 ] The Crown attorney provided the trial judge with the case of *R. v. Toozhy*, [2013] O.J. No. 1303, (S.C.), wherein, Fuerst J. of her own motion, reviewed the signature on the accused’s undertaking and used that signature to support her finding that the accused was the author of a fraudulent loan document.

I am persuaded that the facts and the rationale for Fuerst J.’s use or viewing of the documents for the purpose expressed in *Toozhy* are clearly distinguishable. [ 43 ] In this context, I note the brief reference found in *R. v. Timms*, [1989] O.J. No. 893 (C.A.).

The Court of Appeal held that “the taking of the recognizance is authorized by the Criminal Code and was in form 32.

In our opinion the recognizance is a judicial or court document and was admissible in evidence against the appellant without further proof”.

In that case, the signature on the recognizance was used to validate the signature of the appellant.

The important distinction, however, is that the original Recognizance was tendered into evidence at the opening of trial.

The same situation arose in *Bailey*, where the Crown had tendered the documents into evidence. [ 44 ] I agree with the general proposition advanced by the Crown that while an accused is entitled to be aware of all the evidence that could be used against him at trial, he is not entitled to know how those pieces of evidence will be used and what particular pieces of evidence will ultimately be relied upon.

Again, Crown counsel submits that the appellant was certainly aware of the existence and contents of the Recognizance as he personally entered into it before a justice. [ 45 ] It is true that a Recognizance is a court document that is equally available to both parties for inspection and it is not something that was in the possession or control of the Crown.

However, such a suggestion of knowledge or of its existence only goes so far.

The Crown submits that there was no prejudice, without notice, regardless of who first referred to it.

That it or they were referred to by the Court rather than the Crown caused no unfairness to the appellant. [ 46 ] With respect, I must disagree.

The admissibility of evidence by processes that allow for the ease of such introduction through statute or by the common law is one matter.

The actual tendering of the document into evidence at trial for the truth of its contents is another.

An argument could be made that the Crown’s approach to this question could invite prejudice and may effectively serve to reverse the onus or the burden of proof onto the appellant. [ 47 ] It is trite law that an accused is entitled to know the entirety of the Crown’s case against him or her by the conclusion of the Crown’s case prior to responding, (with very limited exceptions permitted for the Crown to re-open its case. [11]) By analogy, as a matter of fairness and natural justice, the rules permitting the Crown to reopen a case are limited.

As Lamer C.J. held for the majority in *R v. M.B.P.*, [1994] 1 S.C.R. 555 at para. 23, the Crown must not be allowed to reopen its case, absent the narrowest of circumstances, especially once the defence has begun to “meet the case” including having elected to call no evidence.

See also para. 37. [ 48 ] Recall that the Crown attorney did not choose to tender the recognizance documents into evidence during its case in-chief.

Here, the trial judge having considered the issue during the presentation of the Crown’s case and subsequently raising the question with the parties, (bearing in mind his expressed reluctance to alert the Crown to a potential disconnect in the evidence leading to the chain of identification), required that the appellant react or reassess its trial position after having elected to call no defence. [ 49 ] In this matter, the Crown closed its case without calling Ogombaieva as a witness.

The Ministry of Transportation records showing her name as the registered owner of the vehicle involved in the assault was not admitted by the Defence.

Instead, a police officer testified to his knowledge of the identity of the vehicle owner and to whom he believed had access to the vehicle.

That belief is unhelpful to the exercise and the officer’s evidence alone was insufficient to establish the connection between the accused and the vehicle alone. [ 50 ] From a procedural fairness aspect, the trial judge was aware of the bail release documents and information therein and had averred to it in his own mind, albeit without alerting the parties until after the close of the evidence.

I do not understand why the delay in raising the issue was only elevated at the point of final submissions. [ 51 ] After the evidence was presented, and in response to final submissions, the trial judge, in investigating the bail release documents raised the issue.

I agree with the applicant in that the judge’s comments placed him in an untenable position.

Having elected to call no evidence based on the case as presented by the Crown, the judge’s consideration of the document thrust the appellant into a strategic quagmire.

Offering the defence the remedy of an opportunity to call evidence at that late stage of the trial was of diminishing utility.

With respect, the trial judge’s consideration of the issue and the manner in which it was introduced and imported into the analysis here violated the principles of procedural fairness. ## The remedy: [ 52 ] Having found that the learned trial judge denied procedural fairness to the appellant, the question remains as to what is the appropriate remedy? [ 53 ] The appellant submits that the proper remedy in this case ought to be an acquittal.

Any other remedy would have a hollow significance, given that the Crown would benefit from the analysis offered here and in the court below and tender the relevant documents in its case in-chief and in accordance with the principles outlined in *Caesar*. [ 54 ] In a criminal prosecution, it is trite law that the trier of fact must adjudicate the merits of the case based on admissible evidence tendered by the parties. [ 55 ] The question to be posed is whether there is any evidence upon which a properly instructed trier of fact could have convicted.

If there is not, then generally an acquittal is the appropriate remedy: *R. v. Roy, 2012 SCC 26* at paras 53-54, *R. v. MacNeil, 2009 NSCA 46*, [2009] N.S.J. No. 203 (C.A.) at para. 16. [ 56 ] A new trial is the appropriate remedy where the actions of the trial judge rendered the original proceedings unfair: *R. v. Watson*, [2004] O.J. No. 4921 (C.A.), *R. v. Crawford*, [2015] A.J. No. 552 (C.A.), *R. v. K.T., 2013 ONCA 257*. [ 57 ] That said, I agree with Crown counsel in that appellate courts have generally reserved their discretion to enter an acquittal to circumstances where the admissible evidence could not support a conviction, which is not the situation found in the present case. ## Conclusion: [ 58 ] For all of the aforementioned reasons, I find that the learned trial judge denied the applicant’s right to procedural fairness.

As a result, there was a miscarriage of justice warranting appellate intervention that cannot be remedied by applying the curative proviso. [ 59 ] The appeal is allowed, the convictions are set aside and the case is remitted back to the Ontario Court of Justice for adjudication. [ 60 ] The appellant has already served the entirety of his sentence.

In this case, the Crown may want to consider whether it would best serve the interests of justice to subject the appellant to a further trial. --- A.J. Goodman, J. Released: September 27, 2016 --- **COURT FILE NO.:** SCA 8478 **DATE:** 2016-09-27 **ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT** **B E T W E E N:** **HER MAJESTY THE QUEEN** Respondent **- and –** **RUSTAM SULEIMANOV** Appellant **REASONS FOR JUDGMENT** (On appeal from the Honourable Justice Epstein) Released: September 27, 2016 [1] The trial judge employed the Kienapple principle with respect to the s. 266 and s. 267(a) counts. [2] Transcript of Proceedings of January 8, 2015 at p. 3. [3] Transcript of Proceedings of January 8, 2015 at p. 4. [4] Reasons for Judgment, Transcript of Proceedings of January 29, 2015 at pp. 70-71. [5] Reasons for Judgment, Transcript of Proceedings of January 29, 2015 at p. 72. [6] Reasons for Judgment, Transcript of Proceedings of January 29, 2015 at pp. 75-76. [7] Reasons for Judgment, Transcript of Proceedings of January 29, 2015 at p. 77. [8] Transcript of Proceedings of January 8, 2015 at pp. 3-4. [9] Reasons for Judgement, Transcript of Proceedings of January 29, 2016 at pp. 72-73. [10] Reasons for Judgment, Transcript of Proceedings of January 29, 2015 at pp. 73 & 75. [11] Although it is clear that such an application here would have the effect of splitting the Crown’s case.

The accused was tried on charges of sexual assault, sexual interference, and invitation to sexual touching arising from repeated sexualized conduct involving his stepdaughter when she was between 10 and 12 years old.

Applying the W. (D.) framework, the court rejected the accused's denial and found his attempt to explain incriminating statements to police to be illogical and unbelievable.

The court accepted the complainant's evidence as credible and sufficiently reliable notwithstanding inconsistencies about dates, duration, and frequency, treating those imperfections in light of her age at the time of the events and her learning disability.

The accused's utterances to police materially corroborated the complainant's account.

The Crown proved all three counts beyond a reasonable doubt.

The accused pleaded guilty to one count of sexual interference contrary to section 151 of the Criminal Code involving a child victim over a period from January 2008 to December 2010.

Following a Gardiner hearing, the court found beyond a reasonable doubt that the accused committed numerous sexual assaults and acts of sexual interference against the victim, including sexual intercourse, oral sex, and anal sex, as well as creation of child pornography.

The accused held a position of trust as the victim's stepfather.

The court imposed a sentence of six years' imprisonment, along with ancillary orders including a DNA order, Sex Offender Information Registration Act compliance, a section 161 prohibition order for ten years, and a no-contact order during incarceration.

The accused was charged with driving while disqualified.

A Charter application was brought alleging violations of section 9 (arbitrary detention) and section 10(b) (right to counsel).

The court found no section 9 breach, as the initial stop was justified by reasonable suspicion based on the officer's observation of evasive driving and information about a prohibited driver.

However, a clear section 10(b) breach was established and conceded by the Crown, as the accused was detained and questioned for approximately 30 minutes without being advised of his rights to counsel.

The court found the evidence obtained prior to the breach was not tainted by the subsequent violation, as the connection was too tenuous.

The accused was convicted of driving while disqualified.

A sentence reduction was imposed as a remedy for the Charter violation.