Court of Appeal for Ontario

Date: July 15, 2025
Docket: COA-24-CR-0406
Coram: Tulloch C.J.O., MacPherson and Sossin JJ.A.

Between:
His Majesty the King (Respondent)
and
Lisa Griffiths (Appellant)

Appearances:
Bryan Badali, for the appellant
Emily Bala, for the respondent

Heard: June 3, 2025

On appeal from the conviction entered on August 22, 2023, and the sentence imposed on November 21, 2023, by Justice Gregory A. Pockele of the Ontario Court of Justice.

Tulloch C.J.O.:

Introduction

[1] This appeal arises from the conviction and sentencing of the appellant, Lisa Griffiths, who was convicted of six counts of breaking and entering a dwelling-house with intent to commit an indictable act, and one count of attempted break and enter, contrary to ss. 348(1)(b) and 463(a) of the Criminal Code, RSC 1985, c C-46. She was sentenced to 18 months of imprisonment followed by two years of probation.

[2] The appellant raises three grounds of appeal: (1) the trial judge violated her statutory right to be present at trial and her right to procedural fairness; (2) the trial judge erred in interpreting the term “dwelling-house” under s. 348 of the Criminal Code; and (3) the trial judge erred in principle when assessing the appropriateness of a conditional sentence.

[3] For the reasons that follow, I would dismiss the conviction appeal, and allow the sentence appeal.

Issue 1: Violation of the Appellant’s Right to be Present and Procedural Fairness

[4] At the close of the trial, defence counsel argued that the common areas of the condominium which the appellant unlawfully broke into and entered were not a “dwelling-house” because they were a shared space with a reduced expectation of privacy. The trial judge stated that he would resolve this issue and asked counsel to provide any relevant caselaw by email, and both counsel did so. At the next hearing, the trial judge acknowledged receipt of the defence cases but nonetheless ruled that the common areas satisfied the definition of “dwelling-house.”

[5] The appellant argues that the trial judge violated her rights by inviting counsel to submit caselaw via email without further oral submissions. First, she submits that he breached her right under s. 650 of the Criminal Code to be present at her trial. While she conceded that sending the emails alone did not violate this right, she maintains that the emails were “clearly a continuation of and elaboration of … the close of the trial.” Therefore, the trial judge should have made the email part of the record and invited counsel to make further submissions on the case law submitted. Second, she argues that the trial judge breached her right to procedural fairness, which was heightened due to the gravity of the charge. Because this breach prejudices the appearance of fairness, she maintains that the curative proviso cannot apply.

[6] I disagree. First, the trial judge did not breach the appellant’s right to be present at trial. Section 650’s protections are only engaged if “what occurred involved or affected the vital interests of the accused or whether any decisions made bore on ‘the substantive conduct of the trial.’” See R. v. Simon, 2010 ONCA 754, para 116 (citations omitted), leave to appeal refused, [2010] S.C.C.A. No. 459. The email exchange did neither. Exchanging caselaw via email, following oral submissions, does not constitute a substantive part of the trial requiring the appellant’s physical presence or otherwise affect her vital interests. The appellant was represented by counsel, who actively participated in the exchange, and the trial judge’s invitation was an administrative step to supplement the oral arguments already presented at the close of trial. There is no indication that the appellant was denied the opportunity to instruct her counsel or that her absence from this email exchange affected the fairness of the trial.

[7] Second, the lack of further oral submissions did not breach procedural fairness. Defence counsel’s primary argument in closing submissions was that the break-ins were not of a “dwelling-house” as defined in the Criminal Code. At the close of trial, the judge invited counsel to provide any cases that were of “relative importance” in helping him decide the matter. Upon reconvening, the trial judge acknowledged that the defence’s submitted cases were “helpful” and defence counsel did not ask to make further submissions at any point. On the record, it is apparent that the trial judge considered the submitted case law and provided reasoned findings to reject the defence submission, focusing on the evidence and legal principles already canvassed during the trial. The process, while unconventional, did not deprive the appellant of a fair hearing. Accordingly, this ground of appeal fails.

Issue 2: Definition of “Dwelling-House” under s. 348 of the Criminal Code

[8] The appellant further challenges the trial judge’s finding that the common areas of the apartment buildings constituted a “dwelling-house” under s. 348(1)(b) of the Criminal Code. She argues that because they are shared common spaces, the lobbies and storage rooms of residential apartment buildings are not a place of residence, or a structure closely associated with it, as the definition of dwelling house requires.

[9] Section 2 of the Criminal Code defines a “dwelling-house” as:

the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and includes…

(a) a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passage-way…

[Emphasis added.]

[10] Determining whether a space meets this definition depends on the nature of the premises and the expectation of privacy associated with them. See, e.g., R. v. Shin, 2015 ONCA 189, para 84; R. v. Paquet and Vieno, pp. 25-26; R. v. Henderson. The trial judge found that the common areas in this case—secured lobbies, mail rooms, and storage rooms restricted to residents—satisfied this test, as they formed an integral part of the residential complex and were not accessible to the general public.

[11] The evidence supports the trial judge’s conclusion. The surveillance footage and police investigation demonstrated that the appellant and her co-accused forcibly entered these secured areas, which were designed to protect the privacy and security of the residents. The presence of personal property in these areas, such as bicycles and packages, further underscores the residential character of these spaces.

[12] Finally, I do not accept the appellant’s argument that the trial judge’s finding conflicts with R. v. Yu, 2019 ONCA 942, paras 87-88, leave to appeal refused, [2020] S.C.C.A. No. 38. Yu is not directly applicable because it is a s. 8 Charter case that did not interpret the definition of “dwelling-house.” Further, even assuming that Yu was relevant to this distinct issue, it does not assist the appellant. Yu ruled that the condominium residents in that case had a reasonable albeit diminished expectation of privacy in secured common areas because they were not accessible to the public. See at paras. 87-88. This ruling supports, rather than undermines, the trial judge’s finding that the residents here also reasonably expected that outsiders would be excluded from the secured common areas. A diminished expectation of privacy in the common areas of the residential buildings did not transform their nature from residential to public.

[13] Therefore, I reject this ground of appeal.

Issue 3: Error in Principle in Sentencing

[14] The appellant argues that the trial judge erred in principle by relying on her decision not to plead guilty as a basis for finding a lack of remorse and for increasing the severity of her sentence. I agree.

[15] While the trial judge acknowledged the appellant’s expression of remorse in court, he stated: “If you’re sorry … that’s usually shown by a guilty plea at the earliest possible date. You did not do that.” He further remarked:

[A]t the end of the day, the case against you was absolute rock solid. You didn’t testify. There was no possible defence. All you did was inconvenience the victims of this crime and take up valuable court time on a defence that simply didn’t exist. That’s not accepting responsibility for what you did. It’s not apologizing and it’s not attempting to repair. You get no points for repair. You get no points for - for remorse in this matter.

[16] This reasoning is legally flawed. First, the trial judge erred by equating the appellant’s decision to proceed to trial with a lack of remorse warranting an increased sentence. As Di Luca J. explained in R. v. Lu, 2022 ONSC 1918, para 58:

A plea of not guilty is not inconsistent with [a] claim of remorse. While a guilty plea is, inter alia, a sign of remorse, a person can be remorseful for having committed an offence while nonetheless exercising their constitutional right to a trial. The two are not incompatible.

See also R. v. Kozy, p. 550.

[17] Second, although he did not expressly cite it as an aggravating factor, the trial judge erred in appearing to increase the appellant’s sentence because she exercised her right to a trial rather than plead guilty. As this court held in R. v. Reeve, 2020 ONCA 381, para 20:

“Accused persons are entitled to put the Crown to its proof and cannot be punished or seen to be punished after-the-fact, simply because the Crown met that burden.”

[18] The appellant and her co-accused were entitled to proceed to trial and require the Crown to meet its evidentiary burden. Indeed, the trial judge ultimately acquitted the co-accused, finding the Crown had failed to establish his identity. The trial judge’s dissatisfaction with the manner in which defence counsel conducted the trial, or with the fact that the Crown succeeded in proving its case, did not justify a harsher sentence for the appellant.

[19] Because the trial judge’s reasons reveal that this error in principle affected the sentence imposed, we must sentence the appellant afresh, without deference to the original sentence. However, we remain bound to accept any factual findings that are not tainted by the error. See R. v. Friesen, 2020 SCC 9, paras 26-28.

[20] Accordingly, I would reduce the custodial portion of the sentence by three months, substituting a term of 15 months’ imprisonment followed by two years of probation. This revised sentence recognizes the appellant’s remorse as a mitigating factor and avoids penalizing her for exercising her constitutional right to a trial, while still reflecting the trial judge’s findings regarding aggravating factors and the need for denunciation and deterrence.

[21] However, I would decline the appellant’s request to impose a conditional sentence. A conditional sentence is unavailable in this case because, as the trial judge correctly found, it would endanger the safety of the community. See R. v. Proulx, 2000 SCC 5, para 69. I see no reason to interfere with that finding, which is unaffected by the error in principle and is supported by the appellant’s lengthy criminal record, including multiple prior convictions for property offences.

Conclusion

[22] For the foregoing reasons, I would dismiss the conviction appeal. I would grant leave to appeal the sentence and allow the sentence appeal. I would vary the appellant’s sentence to a term of 15 months’ imprisonment followed by two years of probation. I would leave the ancillary orders imposed by the trial judge in effect.

Released: July 15, 2025

“M.T.”

“Michael Tulloch”

“I agree. J.C. MacPherson J.A.”

“I agree. Sossin J.A.”