Court of Appeal for Ontario

Date: April 25, 2019 Docket: C62660

Justices: Watt, van Rensburg and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

Richard Orton Appellant

Counsel:

• Naomi M. Lutes, for the appellant
• Joseph Hanna, for the respondent

Heard: November 6, 2018

On appeal from the convictions entered on October 6, 2015 by Justice Alain H. Perron of the Ontario Court of Justice.

BROWN J.A.:

I. OVERVIEW

[1] Following an 8-day trial in 2015 on 21 counts contained in 3 informations, the appellant, Richard Orton, was convicted of 14 counts, 1 of which was stayed applying the principle in R. v. Kienapple, [1975] 1 S.C.R. 729. The various offences of which the appellant was convicted included dangerous driving, mischief to property, intimidation, and criminal harassment. They are described in detail later in these reasons. The appellant was sentenced to a 12-month conditional sentence, followed by two years' probation. In addition, ancillary orders were imposed, including a five-year driving prohibition.

[2] Five of the charges proceeded by way of indictment. The appellant was convicted of two of them and appeals. The other convictions were in respect of summary conviction offences. The appellant seeks leave to appeal those convictions on the basis that they are factually intertwined with some of the convictions that the appellant may appeal as of right; the respondent does not oppose leave being granted. Consequently, I would grant leave to appeal the summary convictions, and I will deal with both types of convictions together.

[3] The appellant did not testify at the trial but did call some witnesses as part of his defence.

[4] The appellant advances grounds of appeal common to all convictions, as well as others specific to certain convictions. One overarching ground of appeal is that the trial judge's reasons are insufficient in two main respects: they fail to explain why he did not accept the evidence of the defence witnesses; and they lack any real analysis of how the Crown established the essential elements of the offences. As a related submission, the appellant contends that the trial judge applied a higher standard of scrutiny to the evidence called by the defence than to the Crown's evidence. I will consider these common challenges when dealing with each group of charges.

[5] For certain convictions, the appellant also argues that the trial judge erred with respect to the essential elements of the offences.

[6] For the reasons that follow, I would not give effect to any of the grounds of appeal advanced by the appellant.

II. THE JUNE 22, 2013 DRIVING INCIDENT

A. THE CHARGES

[7] In respect of a June 22, 2013 driving incident in North Bay, the appellant was charged with: one count of dangerous driving (Criminal Code s. 249); two counts of criminal harassment by threatening conduct (s. 264(2)(d)); and two counts of intimidation by following in a disorderly manner (s. 423(1)(e)) in relation to the occupants of another vehicle, Darren Binz and Carly Bishop.

[8] The appellant was convicted on all counts.

B. THE EVIDENCE

[9] The charges concerned the interaction on June 22, 2013 in North Bay between the Honda Civic driven by the appellant, bearing the personalized licence plate RIKYO, and a pickup truck driven by Darren Binz. Carly Bishop was a passenger in Mr. Binz's truck. A dispute existed as to whether the passenger in the appellant's truck was his wife, Laurie Orton, or a younger female.

[10] The incident started when Mr. Binz attempted to change lanes on Lakeshore Drive approaching Main Street. The appellant's car was slightly behind the truck, travelling in the lane into which Mr. Binz attempted to move. Mr. Binz did not check his blind spot before he started to move over; he started to cut off the appellant, who honked; and Mr. Binz moved back into his lane.

[11] According to Mr. Binz and Ms. Bishop, the appellant then drove up alongside the Binz car and yelled at Mr. Binz to pull over, claiming that he had captured everything on a dash camera. Mr. Binz did not pull over because he was extremely scared at that point. He continued driving, veering left on Main Street at the "Y"-intersection with McIntyre Street East. The appellant angled right along McIntyre.

[12] After a block, Mr. Binz turned right onto John Street to make his way up to Seymour Street, where his girlfriend worked at a restaurant. He saw the appellant's car turn left from McIntyre onto John into the lane in which Mr. Binz was travelling and drive straight towards the Binz car. Ms. Bishop testified to the same effect. Both Mr. Binz and Ms. Bishop said that just as the appellant reached their truck, he turned his car in front of them at a 90-degree angle, blocking their lane.

[13] Mr. Binz drove around the appellant, who followed. According to Mr. Binz, the appellant moved into the lane of oncoming traffic, crossing a solid line, passed the two or three cars that were between their vehicles, and then tailgated his truck in an extremely close fashion, through several left and right-hand turns, until the intersection of Seymour Street and Highway 11. At that point, Mr. Binz waved his cellphone in the air to convey that he was going to call the police. The appellant then turned left onto the highway.

[14] Laurie Orton testified that she was a passenger in the appellant's car. She and her husband were on their way to the Northgate Shopping Mall. Ms. Orton testified that the appellant had yelled to the other car that they were driving in a reckless fashion and she had pointed to the dash camera at the car. The truck went off to the left on Main Street, while they went to the right on McIntyre. They stopped at a red light at the intersection of McIntyre and John Streets.

[15] Ms. Orton stated that the truck passed in front of them travelling along John Street on the green light at the intersection with McIntyre. Although the truck was moving away from them, Ms. Orton testified that she and the appellant actually thought the truck was trying to follow them. When their light turned green, instead of continuing along the direct route to the Northgate Shopping Mall – driving straight along McIntyre to Fisher Street and then turning right - they decided to turn right onto John Street and follow the truck. According to Ms. Orton, they wanted to take down the licence plate number and report it to the police. They continued to follow the truck all the way to Highway 11, then turned left to the shopping mall. Ms. Orton denied that the appellant had blocked traffic on John Street.

[16] The appellant placed a 911 call at 4:43 p.m.; Mr. Binz placed a separate call a minute later. In his call, the appellant was emphatic that he had been the victim of Mr. Binz's erratic driving and that he had a video capturing the incident. No video of the events was ever located. Mr. Binz's 911 call did not mention the 90-degree maneuver. He only stated that the appellant had been passing, chasing, and driving in the wrong lane.

C. The Trial Judge's Reasons

[17] The trial judge stated that the determination of whether the Crown had proven each and every element of the offences, in the circumstances, turned on the credibility of the three witnesses: Mr. Binz; Ms. Bishop; and Ms. Orton. He expressly instructed himself on the principles set out in R. v. W.D., [1991] 1 S.C.R. 742. As well, he noted the principle articulated by this court in R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal to S.C.C. refused [2007] 1 S.C.R. x (note), at para. 53, that "[a]n outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence."

[18] The trial judge accepted as credible and reliable the evidence of Mr. Binz and Ms. Bishop, in large part because their accounts of the events were consistent.

[19] He did not accept Ms. Orton's evidence as reliable or credible for several reasons: on cross-examination she became vague and non-responsive to some basic elements of what happened and, towards the end, aggressive; at one point she testified that she did not remember specific details; and her testimony that she thought the truck was chasing them, so they decided to follow it, did not make sense. As well, based on the descriptions given by Mr. Binz and Ms. Bishop that the passenger in the appellant's car was a young female under the age of 20, the trial judge had serious concerns as to whether Ms. Orton - who testified that she was 45 years old - was in fact a passenger at the time of the incident. For those reasons, he rejected her evidence.

[20] The trial judge concluded that the Crown had established beyond a reasonable doubt that: the appellant's driving on the date in question amounted to a marked departure from the standard of care that a reasonable person would have observed and presented a danger to the public; blocking the Binz vehicle's lane of travel on John Street was conduct that was threatening in nature, which created some reasonable fear to both Ms. Bishop and Mr. Binz; and crossing a solid line to pass motor vehicles in the opposing lane of traffic and then following someone in a disorderly and aggressive fashion met the elements of the offence of intimidation by following in a disorderly manner.

D. Errors of Fact

[21] The appellant advances numerous grounds of appeal regarding the trial judge's assessment of the evidence about this incident. I shall deal with each.

Uneven Scrutiny of Evidence

[22] The appellant contends that the trial judge improperly and unfairly subjected the evidence called by the appellant to a heightened degree of scrutiny, specifically the evidence given by his wife, Ms. Orton:

(i) According to the appellant, the overt criticism of Ms. Orton's lack of memory of precise details of the driving incident stands in sharp contrast to the forgiveness of the inconsistences between Mr. Binz and Ms. Bishop in their versions of that same event;

(ii) The trial judge appeared to draw an adverse inference from the fact that Ms. Orton spent less time dealing with the topic of the June 22, 2013 incident in her examination-in-chief than she did in cross-examination. The appellant contends that no Crown witness was subjected to this kind of scrutiny;

(iii) The trial judge found that Laurie Orton was vague and unresponsive in her answers and he criticized her for being uncertain in her answers about specific details, yet those details, in the view of the appellant, were peripheral to the core allegations. He contends that his wife was cooperative, readily conceded issues where she was unsure, and was quick to adopt reasonable suggestions put to her by the Crown. She was anything but antagonistic; and

(iv) The trial judge noted that he had "serious concerns" that Ms. Orton was even in the vehicle on June 22. However, the appellant argues that this suggestion was never put to Ms. Orton by the Crown. Rather, Ms. Orton agreed that if the other driver described her as a young woman, she would take it as a compliment, and it would have been a mischaracterization.

[23] Uneven scrutiny of the evidence is a difficult ground of appeal to advance. In order to succeed with an argument that a trial judge applied a different and stricter standard of scrutiny to defence evidence, it is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to set out expressly legal principles relevant to that credibility assessment. Instead, an appellant must point to something in the reasons or elsewhere in the record that make it clear the trial judge applied different standards in assessing the evidence of the appellant and the complainant: R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59.

[24] A review of the transcript of the evidence of Mr. Binz, Ms. Bishop, and Ms. Orton does not bear out the appellant's submission of uneven scrutiny. The trial judge accurately noted that Ms. Orton testified that she was unable to remember many details of the incident, some of them quite important ones. The trial judge did not draw an adverse inference from the comparative lengths of her examination-in-chief and cross-examination. He did fairly state that the incident was "only addressed very briefly during examination-in-chief." The transcript supports the trial judge's description of Ms. Orton's answers in many places as vague and unresponsive. And while Crown counsel did not directly suggest to Ms. Orton in cross-examination that she was not in the car at the time, he did ask a series of questions that indirectly put that suggestion to her.

The Dash Cam Video

[25] Next, the appellant argues that the trial judge misapprehended the evidence by characterizing the existence or non-existence of the dash cam video as a red herring. The appellant contends that "the trial judge ought to have considered whether evidence of the existence of the dash camera during the events in question, including the evidence of Mr. Binz, in conjunction with the Appellant's immediate and spontaneous declaration to the police that he possessed exculpatory video evidence, raised a reasonable doubt about" these charges.

[26] I am not persuaded by this submission.

[27] When the appellant placed his 911 call, he informed the operator that he had a video of the incident. In a conversation with Cst. Drolet a few days after the incident, the appellant stated the incident had been recorded on his dash cam and the video would not incriminate him. Transcripts of the 911 call and conversation with Cst. Drolet were entered into evidence.

[28] The video was not tendered as an exhibit at trial. The trial judge was not prepared to accept that the video would exculpate the appellant simply because the appellant had made that assertion during his conversation with Cst. Drolet. In those circumstances, the trial judge regarded the existence or non-existence of the video as a "red herring on this trial" because "[t]his Court has not received the video in evidence and makes no conclusion from any reference to it on the fact - or from the fact that same has not been tendered as evidence." I see no error in that statement.

Mr. Binz's 911 Call

[29] The appellant further argues that the trial judge failed to give effect to important inconsistencies between the statements made by Mr. Binz in his initial 911 call and his evidence at trial. The appellant argues that the trial judge erred in discounting the content of the 911 call because it was not a "statement".

[30] It is true that the trial judge did not characterize Mr. Binz's 911 call as a "statement"; he described it as a "complaint" to the police. Nevertheless, the trial judge did not ignore the defence argument that Mr. Binz's credibility was weakened because he did not mention in his 911 call that the appellant had blocked his passage on John Street. The trial judge directly addressed that discrepancy, placing the 911 call in context when assessing its weight and consistency with other evidence:

These types of calls are quick [in] nature and only provide the highlights or basic facts of what occurred. One must recall that Mr. Binz testified that this was one of the scariest moments of his life and the call was made within minutes, if not seconds, of it and forgetting or brushing off some details can be understood.

However, he does clearly explain to 911 that the vehicle was driving in the wrong lane and that it [passed] a car on the city streets trying to catch up to him.

[31] The trial judge committed no palpable and overriding error in so assessing that piece of evidence.

Failure to Apply the Principles in W.D. and J.J.R.D.

[32] Finally, the appellant argues that the trial judge erred in his interpretation and application of the principles in W.D. and J.J.R.D. by comparing the versions of the evidence and finding that he was not left with a reasonable doubt notwithstanding the absence of obvious flaws in the defence evidence. As a result, he "failed to squarely consider whether he was left with a reasonable doubt".

[33] I see no such error. Ms. Orton testified that when they were stopped at the lights at John and McIntyre Streets, they saw the Binz truck pass in front through the intersection, moving away from them. She stated that instead of taking the direct route to the shopping mall, the appellant made a right turn in order to follow the truck, ostensibly to take down its licence plate number. In his reasons, the trial judge questioned why the appellant would follow a truck that, on Ms. Orton's evidence, they thought was trying to chase them. Given the implausibility of her explanation, it is understandable why the trial judge did not regard Ms. Orton's evidence as giving rise to a reasonable doubt.

E. Error of Law

[34] The appellant was convicted of two counts of intimidation by following in a disorderly manner contrary to s. 423(1)(e) of the Criminal Code, which states: "Every one is guilty of an indictable offence … who, wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that he or she has a lawful right to do … (e) with one or more persons, follows that person, in a disorderly manner, on a highway."

[35] The trial judge convicted the appellant of intimidation for the following reasons:

Finally, having [to] pass motor vehicles in the opposing lane of traffic is, in this Court's view, and following someone in a disorderly manner and following them in such an aggressive fashion does meet the provisions of Section 423 of the Code.

[36] The appellant submits the trial judge failed to address the fault element of the offence because he did not consider whether the Crown had proved beyond a reasonable doubt that the appellant's conduct was for the purpose of compelling the complainants to abstain from doing something they had a lawful right to do. This submission forms part of the appellant's overarching position that the trial judge's reasons are not sufficient to permit appellate review.

[37] As stated in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 43 and 44, the degree of detail required in reasons may vary with the circumstances. Less detailed reasons are required in cases where the basis of the trial judge's decision is apparent from the record, even without being articulated. What is required is that the reasons, read in the context of the record and the submissions on the live issues in the case, show the judge seized the substance of the matter.

[38] The Crown submits that a finding that the appellant had the requisite mens rea for the two intimidation charges was clearly inferable from the conduct involved. I agree. The trial judge accepted the evidence of Mr. Binz and Ms. Bishop that, after attempting to block the passage of their car on John Street, the appellant drove quickly to catch up with them, crossing a solid line to pass intervening traffic, and then proceeded to tailgate their truck aggressively for a considerable distance until they reached Highway 11.

[39] It was clear from the findings of fact made by the trial judge that he accepted the appellant had driven in such an aggressive manner for the purpose of compelling Mr. Binz and Ms. Bishop to abstain from their lawful use of a public highway. I would not give effect to this ground of appeal.

III. THE JUNE 26, 2013 DRIVING INCIDENT

A. The Charges

[40] In respect of the June 26, 2013 driving incident, the appellant was charged with the following counts: dangerous driving (s. 249(1)(a)); escaping from lawful custody (s. 145(1)(a)); assaulting a person with intent to resist or prevent lawful arrest or detention (s. 270(1)(b)); counselling a person to commit the offence of obstructing the police, which was not committed (s. 464(a)); and wilfully obstructing a peace officer engaged in the execution of his duty by attempting to conceal evidence (s. 129(a)).

[41] The appellant was convicted of dangerous driving and escaping from lawful custody but acquitted on the other charges. He appeals those convictions.

B. The Evidence

The Evidence Relating to Dangerous Driving and Escaping from Lawful Custody

[42] On June 26, 2013, the police decided to arrest the appellant on charges relating to the June 22 driving incident involving Mr. Binz and Ms. Bishop. The Street Crime Unit was to arrest the appellant in his vehicle away from his home. Cst. McFarlane, who previously had dealt with the appellant, commenced surveillance of the appellant's residence. He saw the appellant leave his house with a young female at 11:35 a.m. and drive away in his black pickup truck.

[43] Cst. McFarlane followed the truck using an unmarked vehicle. He instructed other members of the Street Crime Unit to box in the appellant's truck at a red light. An initial attempt to do so at the intersection of Lakeshore Drive and Gertrude Street failed.

[44] When the appellant stopped in the curb lane at the next red light, at Lakeshore and Judge Avenue, Cst. McFarlane decided to proceed with the arrest. According to Cst. McFarlane: he left his vehicle; walked over to the appellant's truck where the appellant's left arm was resting on the rolled-down driver's window; placed his left hand on the appellant's wrist and his right hand on the appellant's bicep; and told him that he was under arrest. The appellant looked at the officer, said "like fuck," pulled his arm away, and started to put the truck in motion. Cst. McFarlane put his arm into the truck to reach for the keys. At the same time, the vehicle started to mount the curb towards an adjacent parking lot. Cst. McFarlane stated that his arm was caught in the window and he was dragged with the truck, but was able to get off before the truck hit the curb. Cst. McFarlane suffered a scrape on his arm. He decided not to pursue the appellant's truck at that time.

[45] Cst. Robertson was a member of the arrest team, driving a separate car. Following the unsuccessful attempt to box in the appellant, Cst. Robertson followed Cst. McFarlane and stopped two car lengths behind his cruiser at the intersection of Lakeshore and Judge. Cst. Robertson left his car when he saw Cst. McFarlane leave his. Cst. Robertson then saw Cst. McFarlane reach inside the appellant's vehicle. When Cst. Robertson had almost reached the back of the appellant's pickup truck, it started to move towards the right onto the curb. He heard Cst. McFarlane yell "stop". He observed the truck moving about three to four feet towards the curb, with Cst. McFarlane still reaching inside the window of the truck with his arms. Once the truck hit the curb, Cst. Robertson went back to his car to broadcast on the radio that the appellant was fleeing. The appellant's truck jumped the curb into the adjacent parking lot and drove away.

[46] Cst. Reaume was part of the arresting team, driving a third car. At the intersection of Lakeshore and Judge, Cst. Reaume stopped at the red light with the others. He was within the length of a car and a half from the appellant's truck. He saw Cst. McFarlane go to the driver's side of the appellant's vehicle and yell at the driver that he was under arrest and to stop. The driver immediately turned right onto the curb, with the upper third of Cst. McFarlane's body stuck in the truck's driver's-side window. Cst. Reaume saw Cst. McFarlane dragged by the truck for about seven to eight feet. The truck accelerated, drove over the curb, entered and crossed a parking lot, and turned onto another street. Cst. Reaume followed but lost sight of the truck.

[47] Jodi Lamabe, a Grade 10 student and the girlfriend of the appellant's son, was a passenger in the appellant's truck at the time. She was living with the Ortons. Ms. Lamabe testified that when they were stopped at an intersection, some guy came over, reached into the truck and said "you're under arrest". This man did not identify himself and was not wearing a uniform. The appellant started to close the window and the man removed his arm from the window. The appellant pulled away and went over the curb. Ms. Lamabe testified that after the attempted arrest, the appellant asked her to call his wife. As will be explained shortly, the Crown was unable to cross-examine Ms. Lamabe on her testimony about the incident.

[48] The camera on the front dash of the appellant's truck recorded most of the incident. The video was entered as an exhibit at trial. Although the camera was pointed towards the front of the truck and therefore did not capture the events taking place at the side door, the quality of the audio was good. When the truck was stopped in the curb lane at the intersection of Lakeshore and Judge, the video clearly recorded a male voice yelling "you're under arrest, don't move," three times. The man who was yelling did not identify himself as a police officer. The video shows the appellant's truck mounting the curb and driving away through a parking lot.

[49] The appellant is recorded as telling the passenger to call his wife. When the connection is made, the appellant is then recorded as saying, "Laurie, the cops are trying to arrest me." As well, the appellant can be heard yelling "the cops are trying to arrest me … They just came to grab me out of the truck and everything … they've got undercover cops and everything." As the appellant drove toward his lawyer's office, he said to the passenger: "Do not allow [the police] to get this here fucking recording device." The video stops upon the appellant entering his lawyer's office.

Evidence of Subsequent Events

[50] Cst. Reaume ultimately located the appellant's truck at a lawyer's office.

[51] Cassandra Paulitzki worked at the law office. She testified that the appellant entered the office and claimed that he had been attacked or jumped. The appellant asked her to hold onto the dash camera and not to turn it over to anyone.

[52] According to Cst. McFarlane, the appellant had barricaded himself in the back office. Cst. McFarlane advised him through the door that he was under arrest. He eventually had to force the door open. According to Cst. Reaume, Cst. McFarlane tried to open the door to the back office but it was being held shut.

[53] Ms. Paulitzki testified that the police were able to open the rear office door without having to use force. Ms. Lamabe was with the appellant in the back office. She testified that the appellant was not holding the door shut, although they were both standing very close to the door.

C. Factual Errors Advanced

[54] The appellant advances two fact-based grounds of appeal in respect of these convictions, which can be summarized as: (i) the trial judge did not place enough weight on the evidence of Ms. Lamabe about the events that transpired at the intersection of Lakeshore and Judge; and (ii) the trial judge placed too much weight on Cst. McFarlane's evidence notwithstanding that he did not accept the constable had been "dragged" by the appellant's truck.

[55] I am not persuaded by either submission.

[56] Ms. Lamabe testified briefly about the incident in her examination-in-chief. Part way through her cross-examination, she stated that she did not want to continue and left the courtroom. The following day, counsel agreed that in light of Ms. Lamabe's medical condition, she would not be required to continue with her evidence. The trial judge generally agreed with the position of the defence on how to treat the evidence that she had given: where the evidence was confirmed by other independent evidence, it would be safe to rely upon it.

[57] As the trial judge noted in his reasons, Ms. Lamabe was not cross-examined on her evidence about the events at Lakeshore and Judge. The appellant contends the trial judge erred by not giving any weight to Ms. Lamabe's evidence in-chief that the officer who reached into the truck was not dragged by the vehicle. According to the appellant, part of the error consisted of the trial judge mischaracterizing Ms. Lamabe's evidence that the officer was not dragged by the vehicle and his arm was not pinned by the vehicle's window. The trial judge described that evidence as given in response to leading questions. The appellant argues that the questions were not leading, just focused.

[58] I do not accept the appellant's position. It was open to the trial judge to discount Ms. Lamabe's evidence in light of his ruling that accepted the defence position on how to use her untested evidence. The trial judge preferred the evidence of the three police officers at the scene, which did not support that of Ms. Lamabe on this point. However, contrary to the appellant's submission, the trial judge did not use their evidence to find that the appellant "dragged" Cst. McFarlane with his truck or pinned the officer's arm with the vehicle's window, thereby committing the offence of dangerous driving. Instead, the trial judge stated:

I do agree with Defence Counsel that Constable McFarlane was not dragged by the Orton vehicle. In my view, the word dragged does not properly describe what happened. It is clear in my mind that the Orton vehicle started to move from a parked position while Constable McFarlane was still reaching inside the window. He is clearly able to exit the window before the vehicle accelerated at a high rate of speed.

It is clear that leaving from a parked position while somebody is reaching inside your motor vehicle is dangerous. This combined with the fact that Mr. Orton pulled over a curb into a parking lot on two occasions, made no attempts to slow down or stop at the intersection of Lee or George Avenue, proceeded through a red light at the intersection of Lakeshore Drive and Judge Avenue, and simply slowed down at a stop sign at the intersection of Sherbrooke and Worthington are all, in my view, an indication that he was driving in a manner dangerous to the public.

[59] Ample evidence supported that conclusion, including the video recording made by the appellant's dash cam. I would not give effect to this ground of appeal.

D. Legal Error

[60] Under s. 145(1)(a) of the Criminal Code, the external circumstances of the offence of escaping from lawful custody are complete where the accused escapes from lawful custody. The mental element of the offence requires proof that the accused intended to do so: David Watt and Michelle Fuerst, The 2019 Annotated Tremeear's Criminal Code, at p. 276.

[61] The appellant contends that the only live issues in respect of this offence were the appellant's knowledge and belief: did the appellant know that it was the police who were arresting him and did he know that they were in the lawful execution of their duties? The appellant argues that the trial judge erred by focusing on the reasonableness of the appellant's belief as opposed to his actual subjective state of mind.

[62] I am not persuaded by this submission. Again, the starting point is the trial judge's reasons. He stated:

Section 145(1)(a) creates a criminal offence for everyone who escapes from lawful custody. [In] the case at bar, the defence concedes that if – that by Constable McFarlane grabbing Mr. Orton by the arm that he was at that time in lawful custody. The issue is that defence is suggesting that Mr. Orton was justified in escaping as he had a reasonable belief that he was not in lawful custody. His actions were justifiable as he had a reasonable basis to believe that he was being attacked.

I do not accept Defence Counsel's suggestion that Mr. Orton had the belief or in fact that same was reasonable. Within seconds of the incident, Mr. Orton is overheard on the dash-cam video speaking to what the Court believes is his wife Laurie, and telling her 'the cops are trying to arrest me'. He clearly identifies them as undercover cops. Later during the trip to Mr. Eggert's office, he's advising someone on the phone the cops are trying to grab him.

In view of the statement, it is clear that Mr. Orton knew the police were trying to arrest him, and I do not accept that he had any belief that he was not in lawful custody. Any belief that he had, in my view, was definitely not reasonable within the circumstances. [emphasis added]

[63] It is clear from his reasons that the trial judge rested the conviction for this offence on his finding that the appellant knew the police were trying to arrest him. In light of the appellant's statements recorded on the video, that finding is unassailable.

IV. MISCHIEF COUNT INVOLVING DOREEN MCLUHAN

A. The Charges

[64] In respect of the appellant's dealings with his neighbours, he was charged under s. 430(1)(c) of the Criminal Code with four counts of committing mischief by obstructing, interrupting or interfering with the lawful use, enjoyment or operation of the property of Doreen McLuhan, Vital Lascelles, Doug Steringa, and Al and Joelle Boyle. As well, the appellant was charged with one count under s. 175(1)(a)(i) of the Criminal Code of causing a disturbance by using insulting language.

[65] The appellant was only convicted of the count of mischief to the property of Doreen McLuhan; he was acquitted of the other charges.

B. The Evidence

[66] Doreen McLuhan and her late husband lived next door to the appellant. In 2009 or 2010, their relationship with the appellant soured. The appellant would ride his mower onto the McLuhans' lawn, damaging it. The McLuhans complained about loud music frequently coming from the appellant's garage during the day, often when he was not at home. Ms. McLuhan went to the police and was advised to start keeping a journal of incidents with the appellant, which she did.

[67] Ms. McLuhan also testified about the appellant's noisy driving in the neighbourhood: he would rev the engine and spin the wheels of his truck as he drove down the road and would do "burnouts" inside of his garage, which resulted in the emission of smoke when the garage door opened.

[68] The appellant would also insult her when she was hanging clothes outside, saying: "Well I guess the fucker's going out to hang her clothes". After the McLuhans complained to the police about the noisy music from the appellant's garage, he yelled at them: "See you old fuckers, nobody telling me what to do." The next day, Ms. McLuhan heard the appellant loudly singing: "Bob's an old fucker, a real old fucker."

[69] Ms. McLuhan also testified that her house once got egged and painted with a swastika. She later confirmed that she did not know if her house had been mistaken for that of the appellant, who had been charged with sexual offences in 2009 and 2010. Although ultimately acquitted on some of the charges, with others disposed of by way of a peace bond, the appellant's house had been the target of several episodes of vandalism.

[70] Ms. Orton testified that several police officers had attended from time-to-time in response to noise complaints. When Cst. Parker attended, the radio was on in the garage although no one was in it at the time. She went with him into the garage to determine an acceptable level for the music. She placed a scratch on the radio knob to indicate the level.

[71] Ms. Orton claimed that she had never experienced her husband spinning tires or revving an engine in the driveway. She did testify that he might rev the truck engine in the garage, if he was testing it. She confirmed he might do this without her knowledge. Ms. Orton testified that the oral exchanges between the appellant and the McLuhans usually were polite and calm.

C. The Trial Judge's Reasons

[72] In convicting the appellant of the offence of mischief to the McLuhans' property, the trial judge accepted the evidence of Ms. McLuhan about the events she described. He rejected Ms. Orton's evidence, primarily on the basis that, while she first had denied that there was loud music in the garage, ultimately she admitted that she knew the music from the garage was too loud. The trial judge continued:

I do agree with Defence Counsel that Ms. McLuhan does not know who was turning on the radio that was too loud. It is clear that she did not have a direct view into the garage to see who was in the garage. If the only evidence to support this charge was the loud radio, the Crown would have difficulties in obtaining a conviction. However, there is much more than that. Ms. McLuhan clearly saw Richard Orton in his motor vehicle, revving the engine and spinning the tires. She clearly saw him and heard him yelling obscenities to her and her husband on a number of occasions. She was clear that the bullying behaviour of Mr. Orton clearly interfered with her enjoyment of the property to a point that they had to move and relocate.

I am therefore satisfied, beyond a reasonable doubt, the Crown has proven all the elements of the offence and accordingly there will be a finding of guilt.

D. Errors Advanced

[73] The appellant did not identify a specific error made by the trial judge regarding this conviction. However, in respect of all convictions the appellant advanced general grounds of appeal involving the misapplication of the principle in W.D., insufficient reasons, and uneven scrutiny of the evidence.

[74] I see no insufficiency in the trial judge's reasons on this count. They show that the trial judge seized the substance of the matter. Nor do his reasons disclose any misapplication of the principle in W.D. or an uneven scrutiny of the evidence.

V. WEST FERRIS SECONDARY SCHOOL INCIDENTS

A. The Charges

[75] The appellant was charged with several offences relating to students at the West Ferris Secondary School (the "School") and an incident at the School: one count of dangerous driving on Summit Drive, the street on which the appellant lived, contrary to the Criminal Code s. 249; one count of causing a disturbance at the School by shouting contrary to s. 175(1)(a); and one count of mischief in respect to property, namely the School, contrary to s. 430(1)(c).

[76] The appellant was convicted on all counts, but the count of mischief to property was stayed upon application of the Kienapple principle.

B. The Evidence

June 2011 Driving Incident

[77] Zach Vibe, a student at the School, testified that in June 2011 he was walking home from School for lunch with three other people along Summit Drive, spread across the oncoming lane of traffic. Mr. Vibe was the closest to the centre of the road. He testified that there was a lot of room for a car to go around the group. He noticed a black truck turn onto Summit and come towards them in the lane in which they were walking. The truck started to pull into the other lane to pass by them but then accelerated aggressively, swerved toward them, and pulled away at the last second. The truck revved its engine while swerving. Mr. Vibe jumped to the left out of the way, and the truck passed two or three feet away from him.

[78] Mr. Vibe's friend, Skylar Logan, gave the middle finger to the driver of the truck, who slammed his brakes, reversed the truck, and exchanged vulgarities with the students. Mr. Vibe identified the appellant as the driver of the truck. The truck drove away, at which time Mr. Vibe's friend again displayed his middle finger. Yet again the truck stopped, reversed, and more common vulgarities were exchanged.

December 2011 Incident at the School

[79] On December 7, 2011, Mr. Vibe was walking along Summit Drive back to School after lunch with several friends, including Robert Dickson. They saw the appellant's truck in a driveway, which prompted Mr. Vibe to throw a McDonalds bag onto the driveway. According to Mr. Vibe, the appellant thereupon came out of his house and told Mr. Vibe to pick up the bag, which he did.

[80] The students continued on to the School. According to Mr. Vibe, the appellant passed them in his truck, slowed, said "I'm not your mom's bang buddy", took their picture, and drove to the School.

[81] Upon their arrival at the School, Mr. Vibe and Mr. Dickson went to the office. Mr. Vibe testified that the appellant called them "shitheads". There ensued a loud verbal exchange amongst Mr. Vibe, Mr. Dickson, and the appellant. Mr. Dickson said the appellant yelled at them, and Mr. Dickson yelled back. Obscenities flowed back and forth for a number of minutes.

[82] Bronwyn Sands, the vice principal, invited the appellant into her office. Mr. Vibe and Mr. Dickson both testified that the appellant insulted them as he was walking out, calling them "scum".

[83] Leslie Aitchinson and Elizabeth Nettlefold, both secretaries at the school, testified that they heard loud voices yelling at each other. Ms. Aitchinson described the voices as loud, raised, at a level above normal conversation, and disrupting the normal work in that part of the School. She thought the appellant was aggressive. Although she had seen upset parents at the school before, what was unusual about the situation was the upset combined with the appellant's aggressiveness.

[84] Ms. Nettlefold took the appellant to see the vice-principal, Ms. Sands. She heard raised voices from the appellant and the students. The appellant was loud, shouting at the students. The students were giving back as good as they were getting. The appellant called one of the students a "little shit". Ms. Nettlefold recalled that the appellant came back later that day to apologize for his behaviour.

[85] Ms. Sands met the appellant in her office. He was clearly agitated and speaking at a loud volume. The two students came by her office; a verbal exchange ensued between them and the appellant. The appellant accused the students of throwing a food wrapper on his property; they accused the appellant of having attempted to run them over. Their voices were raised to the point of extreme agitation. She did not hear any swear words from the boys or the appellant.

[86] Ms. Sands was concerned about the safety of the two boys. Although she infrequently called the police, she did contact the school liaison officer with the North Bay Police Service to report the incident involving the appellant.

[87] The defence called no evidence on these two incidents.

C. Errors Advanced

Dangerous Driving

[88] The appellant submits the trial judge erred by failing to grapple with and give effect to important prior inconsistent statements by Mr. Vibe.

[89] Mr. Vibe maintained that the dangerous driving incident had occurred in June 2011, when the weather was warm and there were leaves on the trees. However, Ms. Sands testified that she spoke with Mr. Vibe after the December incident in the School office. At that time, Mr. Vibe told her he had thrown the wrapper on to the appellant's property in retaliation for an incident in the previous week or two when the appellant had backed his truck out of the driveway and deliberately cut very close to a group of students walking along the sidewalk.

[90] As well, Mr. Dickson, one of the friends involved in the December 2011 lunch bag dropping incident, testified that at that time Mr. Vibe had told him he dropped the bag on the appellant's driveway because of something that had happened earlier about almost getting run over. Mr. Dickson had no knowledge of that event. On cross-examination, Mr. Dickson testified that it sounded like the driving incident had taken place in the weeks before.

[91] According to the appellant, the trial judge erred by forgiving these inconsistencies because he concluded time was not an essential element of the offence. The real issue was not when the offence had occurred, but whether it had occurred.

[92] I am not persuaded by this submission. The trial judge squarely grappled with the defence argument that the inconsistencies in Mr. Vibe's evidence regarding the timing of the driving incident rendered his testimony incredible and unreliable. He did not accept the argument. He explained why at some length in his reasons, stating:

First, one must remember that this incident happened when Zack Vibe was 15 years of age. He testified in June 2015 concerning an incident that happened in 2011. He presented himself to the Court in a clear, competent fashion. He would respond to the question posed to him by both the Crown and defence. He agreed with the suggestion made by both lawyers, even though the suggestions were not entirely favourable to him personally.

The part of his testimony that concerned specifically the incident of December 7, 2011, is clearly confirmed by other witnesses that testified concerning that incident. Yes, there are some discrepancies between the witnesses, especially Mr. [Dickson] and Mr. Vibe's explanation as to how they ended up at the principal's office. However, the testimony of the five Crown witnesses on this incident i[s] generally consistent.

Finally, simply because there are inconsistencies between Ms. Sands and Zack Vibe does not mean that Zack Vibe is not a credible witness. It is simply possible that Ms. Sands herself misunderstood what was explained to her, or simply got it wrong.

Accordingly, I accept Zack Vibe's evidence and find his evidence to be credible and reliable. I also accept the Crown's submission that the time of the offence is not an essential element that the Crown must establish as provided by the Supreme Court of Canada decision R. v. B.(G.), [1990] 2 S.C.R. 30.

[93] The respondent submits that just because the trial judge did not give the prior inconsistent statements the weight the defence wished, it does not follow that he committed reversible error. I accept that submission. I see no basis for appellate intervention.

Causing a Disturbance and Mischief to Property

[94] The appellant did not make any specific submissions about the convictions on these counts. The evidence of the witnesses about the incident at the School generally was in agreement about the nature and effect of the appellant's conduct. The trial judge gave detailed reasons for his findings on both counts. I see no reversible error.

VI. THE COUNTS IN RELATION TO THE APPELLANT'S DEALINGS WITH C.S.T.

A. The Charges

[95] As mentioned, the appellant had been charged with committing sexual offences against C.S.T. when she was 10 years old. At the time, C.S.T. was friends with the appellant's daughter. The charges were withdrawn, with the appellant entering into a four-month common law peace bond commencing July 25, 2011. A condition of the peace bond was that the appellant not communicate directly or indirectly with C.S.T.

[96] The appellant subsequently was charged with two counts in relation to his dealings with C.S.T.: disobeying a court order without lawful excuse, contrary to s. 127(1) of the Criminal Code; and, criminal harassment by repeatedly communicating with C.S.T. (s. 264(1) and (2)(b)).

[97] The appellant was convicted on both counts.

B. Evidence

(i) The October 30, 2011 Football Game

Crown Witnesses

[98] Denise Lamontagne was the parent of a student playing at a high school football game. She attended the game with C.S.T. and two other girls who knew her son. There were no incidents during the game. The girls sat with her throughout the game.

[99] After the game, Ms. Lamontagne was walking back to her car with the three girls. C.S.T. was beside her. Ms. Lamontagne heard some voices behind her: those of two young girls and an older man, who was encouraging the girls to make taunts and who himself was making suggestions that there was something dirty and disgusting nearby. He was swearing, saying "fucking dirty" and "take a look at that". Ms. Lamontagne thought there might be some dirt on her coat and asked C.S.T. whether there was. C.S.T. said "no, they're referring to me, like they're talking to me".

[100] After Ms. Lamontagne and the girls reached their car in the parking lot, the man and the other girls drove by in a van. The man was saying, "Should've thrown that out with the trash, disgusting, dirty."

[101] During the game, C.S.T. was not aware that the appellant was present. As C.S.T. was leaving the game with her friends and Ms. Lamontagne, she heard the appellant's voice behind her. He said she smelled like fish and smelled gross. C.S.T. felt scared and gross.

[102] Katherine Harkness also was present at the game. At the time, she was a friend of C.S.T.; by the time of the trial, she had had a falling out with C.S.T. Ms. Harkness testified that as they were leaving the game, the appellant was walking behind them with some girls. She heard the appellant make comments about something smelling like fish and that someone needed to clean something up that was dirty. Ms. Harkness did not know if the comments were directed towards them. She observed that C.S.T. was very upset by the comments.

[103] Desiree Brown was a friend of the appellant's son at the time; she had previously hung out with C.S.T. She attended the game with the appellant and some other people. During the game, there was no communication between the appellant and C.S.T. As she was leaving the game and walking towards the parking lot, Ms. Brown was in a group with the appellant walking behind C.S.T. and her party. The appellant said, "What's that smell?" According to Ms. Brown, it was obvious that the appellant was directing the comment at C.S.T. She could see that C.S.T. was very upset and thrown off by the comment.

Defence Witnesses

[104] Ms. Lamabe attended the game. Her best friend at the time was Desiree Brown. Ms. Lamabe sat in the stands with the appellant. In-chief, Ms. Lamabe testified that during the game C.S.T. and Ms. Harkness walked back and forth in front of where they were sitting in the bleachers saying that the appellant was a pedophile. After the game, Ms. Lamabe walked out with a group that included Desiree Brown and the appellant. She heard the appellant say that it smelled like shit but this comment was not directed at anyone. They were not close to C.S.T. at the time.

[105] During her cross-examination, Ms. Lamabe was asked a series of questions about her dealings with Desiree Brown, with whom she had attended the football game. Ms. Lamabe said that she did not "wanna do this anymore" and she thereupon ended her testimony.

[106] Penny Mason testified about attending a football game. One of her sons was the best friend of the appellant's son. Both in-chief and on cross-examination, Ms. Mason stated that the football game she was testifying about took place in October 2012. She was 100% sure of that. Ms. Mason testified that she sat with the appellant during that particular football game but did not hear the appellant make any remark to C.S.T. She did see C.S.T. and her friends, including Desiree Brown, passing back and forth at the bottom of the bleacher, giggling and making obscene comments toward the appellant's wife and daughter, including the word "cunt". She could not say which of the two girls uttered that word. At the time, the appellant was sitting elsewhere talking to some other parents.

(ii) The Volleyball Game

Crown Witnesses

[107] C.S.T. was on the volleyball team of her elementary school, Alliance Public School. They played a home game against another school team on which the appellant's daughter was a member. The appellant attended the game. C.S.T. testified that as she was walking out of the gym at the end of the game, the appellant called her a "fucker". C.S.T. felt scared and upset.

Defence Witnesses

[108] Haley Holmes, a good friend of the appellant's daughter, testified for the defence. She had had problems with C.S.T. for quite a long time.

[109] In chief, Ms. Holmes stated that she attended the volleyball game and sat in the bleachers with the appellant, his father, and Al McCauley. At the conclusion of the game, Ms. Holmes left with the appellant and others. C.S.T. passed by with her grandmother and said, "piece of shit". The remark was directed towards the appellant. No one in the group responded.

[110] On cross-examination, Ms. Holmes stated she might have been playing in the game, but perhaps not. She was sure the appellant's daughter was playing. Ms. Holmes also was sure that C.S.T. was not playing in the volleyball game. She acknowledged that she had problems with her memory in general, "with a lota stuff in the past."

[111] Al McCauley's daughter was a teammate of the appellant's daughter. There had been a history between C.S.T. and his family. Mr. McCauley recalled attending a volleyball game at a school. He sat with the appellant. As he was walking out to the parking lot, C.S.T. passed by and muttered some sarcastic things, although he could not recall the individual words. The appellant did not say anything to C.S.T.

(iii) The 2011 Halloween School Dance

Crown Witnesses

[112] C.S.T. attended a Halloween dance at a school with her friend Katherine Harkness. The appellant's daughter attended the school. C.S.T. testified that at the end of the dance, as she was exiting and passing some parents waiting in the school foyer, the appellant looked at her and her friend and said "little shits." C.S.T. felt scared.

[113] This incident was described in similar terms by Ms. Harkness.

Defence Witness

[114] Ms. Orton testified that she was present at the end of the dance to pick up her daughter. She did not see C.S.T. at the dance. She did not hear the appellant say "little shits" while waiting for his daughter to leave the dance.

(iv) The Driving Incident

[115] C.S.T. testified that on one occasion she was walking down the street when the appellant drove his car up from behind and almost hit her, passing within about eight inches of her. C.S.T. was really pissed and scared. As a result of this incident, she stopped walking to her friends' homes and had her mother drive her everywhere.

C. The Grounds of Appeal

Grounds Relating to the Assessment of the Evidence

[116] The appellant submits that the trial judge made several errors in his assessment of the evidence upon which he based the convictions.

[117] First, the appellant submits that Penny Mason's evidence about events at the football game provided some confirmation of Ms. Lamabe's version of events and ought to have been considered in determining the weight to be placed on Ms. Lamabe's evidence on this point. Although not amounting to direct corroboration, Ms. Mason's evidence lent support to what Jodi Lamabe recounted that C.S.T. said and did before the contact she alleged with the appellant. Ms. Mason's evidence provided comfort that Ms. Lamabe's narrative of the events could be trusted as providing insight into the dynamic between the appellant and C.S.T.

[118] The trial judge found that Ms. Mason's evidence had "very little to add to this matter" because she was adamant that the events about which she testified took place in October 2012, not October 2011, the date of the alleged offence. The trial judge did not misapprehend Ms. Mason's evidence. Given Ms. Mason's recollection of when the events she testified about occurred, her evidence could provide no confirmation of Ms. Lamabe's evidence about a football game that took place a year before.

[119] Second, the appellant argues that in light of the medical circumstances that led to the inability of Ms. Lamabe to complete her evidence, the trial judge should have considered whether Ms. Lamabe's evidence on behalf of the defence raised a reasonable doubt. I disagree. As stated earlier, the trial judge adopted the defence position that although Ms. Lamabe's evidence was admissible, its weight would depend on whether it was confirmed by other evidence. The trial judge applied this ruling to Ms. Lamabe's evidence about the football game; that evidence was not confirmed by any other witness. The trial judge made no error.

[120] Third, the appellant submits that the trial judge's differential treatment of the evidence led by the Crown and the defence is demonstrated by the way in which he looked to confirmatory evidence of the December school incident to bolster Mr. Vibe's general credibility, while failing to look to other events to confirm Ms. Lamabe's evidence. As stated, the trial judge adopted and followed the defence's position regarding the assessment of Ms. Lamabe's evidence. I give no effect to this ground of appeal.

[121] Fourth, the appellant submits that the trial judge's application of uneven scrutiny of the evidence is further shown by his reliance on C.S.T.'s demeanour to bolster her credibility, while at the same time ignoring the antagonistic nature of her cross-examination. Further, the trial judge made no mention of the fact that C.S.T. left the witness box during cross-examination, while at the same time being critical of Jodi Lamabe's emotional response in doing the very same thing.

[122] I am not persuaded by this submission for several reasons:

• The trial judge's ultimate findings demonstrate that he critically examined all of the evidence in an even-handed fashion: while he was satisfied beyond a reasonable doubt that the appellant made the statements alleged at the Halloween dance and football game, he could not reach a similar conclusion regarding the volleyball game in light of the inconsistencies of the various witnesses' versions of events;

• His acceptance of C.S.T.'s evidence rested primarily on the confirmatory nature of the evidence given by other witnesses, especially that given by Desiree Brown concerning what happened on the way out to the parking lot after the football game. Ms. Brown was part of the group walking with the appellant; and

• Although C.S.T. left for a while at the beginning of her cross-examination, she returned and continued to testify, unlike Ms. Lamabe. While it is apparent from the transcript that C.S.T. became frustrated with the repetitious defence questioning over minor differences between her testimony and her statement to the police, she ultimately completed her evidence.

[123] Fifth, and lastly, the appellant submits that the trial judge unfairly criticized Haley Holmes, the appellant's daughter's best friend, for her "self-serving" memory. The trial judge's characterization finds support in the record. I see no palpable and overriding error.

[124] Consequently, I would not give effect to any of these fact and credibility-related grounds of appeal.

D. Legal Error Concerning the Elements of Criminal Harassment

[125] The appellant was charged with one count of criminal harassment by way of repeated communications with C.S.T. causing her to fear for her safety contrary to ss. 264(1) and (2)(b) of the Criminal Code. The appellant contends that in determining whether the charge was made out, the trial judge adverted to only two of the five constituent elements of the offence. His failure to consider all five elements was an error of law.

[126] I am not persuaded by this submission. The elements of the offence are: (i) the accused engaged in the conduct set out in s. 264(2)(a), (b), (c), or (d); (ii) the complainant was harassed; (iii) the accused knew the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed; (iv) the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and (v) the complainant's fear was, in all the circumstances, reasonable: R. v. Kordrostami (2000), 47 O.R. (3d) 788 (C.A.), at para. 8. The jurisprudence considers a complainant as being in a harassed state when by reason of the conduct the complainant feels "tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered": R. v. Kosikar (1999), 178 D.L.R. (4th) 238 (Ont. C.A.), leave to appeal to S.C.C. refused (2000) 142 C.C.C. (3d) vi, at para. 25.

[127] A fair reading of the trial judge's reasons and the evidence demonstrates that all of the elements of the offence were established. The trial judge expressly found that the appellant communicated repeatedly with C.S.T. and those communications made her fearful. The trial judge accepted C.S.T.'s evidence that the appellant almost hit her with his car, a sufficient basis in itself to find that C.S.T.'s fear of the appellant was reasonable. And the evidence left no doubt that C.S.T. felt harassed and the appellant, at a minimum, was reckless or wilfully blind as to whether she was harassed.

VII. SUMMARY

[128] By way of summary, I am not persuaded that the trial judge's reasons were insufficient, demonstrated an uneven scrutiny of the evidence or failed to apply the principles in W.D. He provided lengthy reasons, which explained in detail the basis for his findings. As my review above of the trial judge's assessment of the credibility issues discloses, I see no uneven scrutiny of the evidence on his part. Finally, he expressly self-instructed on the principles in W.D. and I see no misapplication of those principles.

[129] For the reasons set out above, I am not persuaded that the trial judge made any of the errors submitted by the appellant.

VIII. DISPOSITION

[130] Accordingly, I would dismiss the appeal from the convictions for the offences that proceeded by way of indictment. In respect of the summary conviction offences, I would grant leave to appeal but dismiss the appeal.

Released: April 25, 2019

"David Brown J.A."

"I agree. David Watt J.A."

"I agree. K. van Rensburg J.A."