Section <mask> of the Criminal Code incorporates by reference certain portions of s. 121(1)(a). It is therefore necessary to review s. 121(1)(a) to understand s. 121(1)(d). The full text of both the English and French versions of s. 118 (the definition provision) and s. 121 is set out in Appendix 'A' to these reasons. For convenience, the English version of s. 121(1)(a) and (d) is reproduced below:


James Albert Stanley FISHER, between the 22nd day of August, 2015 and the 7th day of December, 2015, inclusive, at or near Vancouver and Surrey, in the Province of British Columbia, being an official, did, in connection with the duties of his office, commit a breach of trust by kissing [A] for a sexual purpose, [A] being a witness in a criminal prosecution, contrary to Section <mask> of the Criminal Code.


James Albert Stanley FISHER, between the 3rd day of December, 2015 and the 6th day of December, 2015, inclusive, at or near Burnaby, in the Province of British Columbia, being an official, did, in connection with the duties of his office, commit a breach of trust by kissing [B], [B] being a witness in a prior criminal prosecution, contrary to Section <mask> of the Criminal Code.


[40] The first factor is whether or not a change in circumstances justifies the extension. In Carter , for example, the fact that Parliament had been dissolved for general elections was found by the Supreme Court of Canada to be a sufficient change in circumstances justifying the extension of the suspension of the declaration of the constitutional invalidity of paragraph 241(b) and section <mask> of the Criminal Code .


Norman Monty PORTER, on or about the 17 th day of May, 2002,  at or near Central Saanich, in the Province of British Columbia, being at  large on a recognizance entered into before a Justice or a Judge and being  bound to comply with a condition of that recognizance as directed by a Justice  or a Judge, did fail without lawful excuse to comply with the following condition  or direction: "To surrender any firearm, cross-bow, prohibited weapon, restricted  weapon, prohibited device, ammunition, prohibited ammunition or explosive  substance, and any related authorizations, licences and registration certificates  you possess to the Central Saanich Police Department within 24 hours of your  release from custody", contrary to Section <mask> of the Criminal Code.


Section <mask> of the Criminal Code provides that "it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge" where the complainant is under the age of 16 years. Section 150.1(2.1) sets out certain exceptions where a complainant is 14 years of age or more but under the age of 16. As the respondent is more than five years older than the complainant and not married to her, the exceptions do not apply. [2]


[M.R.H.], from the 28th day of October, 2006 to the 28th day of October, 2011, inclusive, at or near Surrey and Harrison Hot Springs, in the Province of British Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of J.S., a person under the age of fourteen years, contrary to Section <mask> of the Criminal Code.


[M.R.H.], from the 28th day of October, 2006 to the 28th day of October, 2011, inclusive, at or near Surrey and Harrison Hot Springs, in the Province of British Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of J.S. , a person under the age of fourteen years, contrary to Section <mask> of the Criminal Code.


"[I]n my opinion, an unprovoked attack against a complete stranger/strangers in a public place in broad daylight followed by a bizarre suicide attempt is strongly indicative of a severe mental illness at the time of the index offences. This is further indication that Mr. Palmer would not have been aware that what he was doing was wrong or even aware of the physical nature of his actions if he was in a significantly confused state. In my opinion Mr. Palmer would have come within the terms of Section <mask> of the Criminal Code of Canada at the material time of the index offence."


Dr. Bradford provided an opinion letter dated June 14, 2013 in which he concluded that the appellant currently suffered from "Schizophrenia, Catatonic Type, Continuous, with prominent negative symptoms" and further that he was severely mentally ill prior to the index offences and at the time of the index offences. His opinion concluded that "Mr. Palmer would have come within the terms of Section <mask> of the Criminal Code of Canada at the material time of the index offences."


"Given the unpredictability of his actions secondary to his mental illness, the severe nature of his illness, his disorganized thinking, it would be more likely than not that he would not have been able to weigh the pros and cons of his actions, exercise rational choice or know that what he was doing was morally wrong. ... It is therefore my opinion that Mr. Palmer does meet, on the balance of probabilities, the test for Section <mask> of the Criminal Code of Canada."


Section <mask> of the Criminal Code sets out a range of punishment for offenders on indictment to be a minimum of 12 months to a maximum of 10 years imprisonment for accessing child pornography. The Criminal Code also sets out that conditional sentences are not available for offenses under this section. I have reviewed the jurisprudence provided by counsel, all the relevant post- Friesen jurisprudence, and the amendments to the Criminal Code , in the result, I cannot entertain a conditional sentence here.


[8] See Payam Akhavan, "Should Duress Apply to All Crimes? A Comparative Appraisal of Moral Involuntariness and the Twenty Crimes Exception Under Section <mask> of the Criminal Code" (2009) 13 Can. Crim. L. Rev. 271, at pp. 277-78, 282-84 (pointing out that the penal codes of France and Germany do not exclude duress as a defence to murder yet no evidence suggests that the availability of duress in those jurisdictions facilitates organized killing); W.R. LaFave, Substantive Criminal Law , 2d ed., vol. 2 (St. Paul: Thomson West, 2003), at p. 81 (noting that Alaska, Arkansas, Connecticut, Delaware, Hawaii, New York, North Dakota, Pennsylvania, South Dakota, Texas and Utah allow duress as a defence to murder by statute).


Section <mask> of the Criminal Code makes it an indictable offence to wilfully intercept private communications by means of specified types of devices. Section 184(2)(b) exempts a person who intercepts a private communication "in accordance with an authorization" granted under Part VI of the Criminal Code from criminal liability for that interception. In order for a search under Part VI to be constitutionally compliant, it needs to be done in accordance with the authorization: R. v. Duroslovac , 2012 ONCA 680, 112 O.R. (3d) 696, at para. 30.


An appeal lies, with leave, on a question of law alone, to the court of appeal, within the meaning of section <mask> of the Criminal Code , from any order or decision of a judge or a court in Canada made under this Act, if the application for leave to appeal is made to a judge of the court of appeal within fifteen days after the order or decision.


(f) "Agent of the Province" means any agency of the Province, including OLG, that conducts and manages a lottery scheme under the authority of section <mask> of the Criminal Code , and includes the Province itself if the Province conducts or manages any such lottery scheme directly but, for greater certainty, does not include any operator that the Province, OLG or any other agency of the Province that conducts and manages such lottery schemes may hire to operate any gaming facility or to operate the conduct and manage of such lottery schemes for or on behalf of the Province, OLG or such other agency of the Province.


[1] Section <mask> of the Criminal Code , R.S.C. 1985, c. C-46, eliminates the common law distinctions between principals and accessories and puts perpetrators of crimes and those who aid or abet them on the same legal footing, labelling them all "parties" to the crime: R. v. Maciel (2007), 219 C.C.C. (3d) 516 (Ont. C.A.), at para. 85. Nonetheless, as a matter of ordinary usage, the term "party" is often used to denote parties to an offence who are not principals. As a matter of convenience, unless I specifically indicate otherwise, throughout these reasons, I will use "party" to mean a party to an offence who is not a principal.


Our criminal law does not distinguish among the modes of participation in an offence in determining criminal liability. Section <mask> of the Criminal Code makes principals, aiders and abettors equally liable. A person becomes a party to an offence when that person, knowing of a principal's intention to commit the crime, and with the intention of assisting the principal in its commission, does something that helps or encourages the principal in the commission of the offence: Vu , at para. 58, citing R. v. Briscoe , 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 14-18.


Section <mask> of the Criminal Code provides for three modes of participation in a crime. Section 21(1)(a) governs principal parties: those who actually commit the crime. Sections 21(1)(b) and (c) govern aiders and abettors respectively. Those who help, through acts or omissions, or encourage others to commit crimes, may also be guilty of those crimes. Although different considerations are taken into account when assessing liability under the different modes of participation, principals, aiders, and abettors are equally culpable at law: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 13.


Section <mask> of the Criminal Code governs the liability of principals. The provision applies where two or more people "actually commit" an offence and makes both persons individually liable for that crime. The provision also applies where two or more persons together form an intention to commit an offence, are present at its commission, and contribute to it, although each does not personally commit all the essential elements of the offence. Provided the trier of fact is satisfied beyond a reasonable doubt that an accused committed all elements of a crime, it is of no moment whether another person may also have committed it: R. v. Pickton , 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 63.


Second, the trial judge held that as the Crown had maintained throughout its case that the respondent was the getaway driver, fairness to the respondent dictated that the Crown was limited to that factual theory of liability in seeking to establish the respondent's culpability for manslaughter (paras. 73-81). The trial judge went on to hold that, given the factual theory the Crown advanced, "the Crown is limited to proving the guilt of Mr. Kelly as an aiding party, as the getaway driver, in accordance with section <mask> of the Criminal Code " (para. 83).


As a parent, section <mask> of the Criminal Code imposed a legal duty on the respondent to provide the necessaries of life to K.L., her child under the age of 16 years. She failed to discharge that duty. That the CAS also failed to live up to its mandate is beside the point for the purposes of the respondent's criminal liability. Likewise, in connection with the gravity of offence, her degree of responsibility and her moral blameworthiness.


42.(2) When a youth justice court finds a young person guilty of an offence and is imposing a youth sentence, the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other and, if the offence is first degree murder or second degree murder within the meaning of section <mask> of the Criminal Code , the court shall impose a sanction set out in paragraph ( q ) or subparagraph ( r )(ii) or (iii) and may impose any other of the sanctions set out in this subsection that the court considers appropriate:


Section <mask> of the Criminal Code sets out the requirements for a murder to constitute first degree murder. As explained in R. v. Farrant , [1983] 1 S.C.R. 124, at p. 140, this provision does not create a separate substantive offence, but classifies murder into two categories: first degree murder and second degree murder. The subsection that is relevant to the present case is s. 231(2), which provides the following:


Section <mask> of the Criminal Code provides that a second degree murder committed in connection with certain enumerated crimes of domination can be elevated to first degree murder: R. v. Pritchard , 2008 SCC 59, [2008] 3 S.C.R. 195. Robbery is not an enumerated offence. In order to elevate McLellan's conviction to first degree murder, the Crown therefore had to rely on unlawful confinement, the offence enumerated in s. 231(5)(e). Unlawful confinement involves coercive restraint or direction of the victim contrary to his or her wishes for "any significant period of time".


Section <mask> of the Criminal Code deems culpable homicide to be first degree murder when "the death is caused [...] while committing or attempting to commit" an enumerated offence, in this case, forcible confinement. The rationale for this elevation of culpability was expressed in R. v. Paré , [1987] 2 S.C.R. 618, at p. 633, as "the [offender's] continuing illegal domination of the victim which gives continuity to the sequence of events culminating in the murder". The victim who has been dominated in the commission of the predicate offence need not be the same victim who was murdered: R. v. Russell , 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 43.


The trial judge raised the issue of provocation. She pointed out that no one had raised it thus far in their discussions about the charge. Defence counsel pointed out that since the included offence of manslaughter was being left to the jury, provocation should be included as well because it (provocation) reduced the state of mind of the shooter. This is not so. Manslaughter committed under provocation is voluntary manslaughter, sometimes called mitigated murder. As the introductory language of section <mask> of the Criminal Code provides - "Culpable homicide that otherwise would be murder" - the statutory partial defence of provocation has nothing to do with the fault element of murder. And whether voluntary manslaughter should be left to a jury depends on whether there is an air of reality to the defence which is unrelated to whether involuntary manslaughter - an unlawful killing unaccompanied by the fault element required for murder - should be included in the charge.


Araya surrendered to the police and was charged with murder. No one else has ever been charged in the shooting. In November 2011, after a four-week jury trial, Araya was found guilty of manslaughter. Section <mask> of the Criminal Code , R.S.C. 1985 c. C-46, requires a mandatory minimum sentence of four years' imprisonment for the use of a firearm in the commission of manslaughter. In December 2011, the trial judge sentenced Araya to eight years' imprisonment (less 15 months for pre-sentence custody).


[107] Section <mask> of the Criminal Code creates the offence of attempted murder: Simpson , at p. 134. However, the subsection, in particular its phrase "by any means", does not "describe" the ways in which the offence of attempted murder may be committed: Simpson , at p. 140. The offence of attempted murder may be committed without committing an assault or causing any bodily harm whatsoever: Simpson , at p. 142. It follows that, "as described in the enactment creating it", attempted murder does not include any crime of assault or unlawfully causing bodily harm: Simpson , at pp. 142‐143.


[318] It is, on the other hand, a crime to cause the death of another person by means of an unlawful act. If you were to be satisfied beyond a reasonable doubt that the accused administered a noxious thing to his wife, then, as I have earlier explained, that would amount to an offence, contrary to section <mask> of the Criminal Code , and, by definition, as it were, an unlawful act.


Section <mask> of the Criminal Code sets out the essential elements of the offence of dangerous operation of a motor vehicle. The provision requires consideration of all the circumstances including, but not only, those listed. What must be determined, by a consideration of all the circumstances, is whether the manner in which the person charged was operating the vehicle was dangerous to the public.


Even if the purpose of legislation is unobjectionable, the administrative procedures created by law to bring that purpose into operation may produce unconstitutional effects, and the legislation should then be struck down.... In the present case, the appellants are complaining of the general effects of s. 251. If section <mask> of the Criminal Code does indeed breach s. 7 of the Charter through its general effects, that can be sufficient to invalidate the legislation under s. 52. [Emphasis omitted.]


The appellant was charged with eight Criminal Code offences related to a home break-in in which a car was stolen. The appellant was convicted at trial of four offences, including fleeing the scene of an accident without leaving his name and address. His counsel conceded his guilt on this count during final submissions. Mr. Seipp appeals this conviction on the basis that the concession amounted to ineffective assistance of counsel that caused him prejudice. He contends that the mens rea of the offence was not proved. Held: Appeal dismissed. A decision by counsel to acknowledge an accused's guilt after all the evidence has been presented is a legal decision that does not require instructions. And in this case, it caused the appellant no prejudice. Section <mask> of the Criminal Code presumes that an accused who fled the scene of an accident did so with an intent to avoid civil or criminal liability unless the accused presents evidence to the contrary. Mr. Seipp's evidence that he left the scene to avoid being arrested for driving a stolen vehicle does not amount to evidence to the contrary. It is sufficiently connected to the accident to be captured by the legislative intent of the provision.


Section <mask> of the Criminal Code creates what is commonly referred to as a "presumption of identity". This presumption, if applicable, relieves the Crown of the burden of proving that the accused's blood alcohol level at the time of the offence was the same as it was at the time of testing. Where this presumption is not available, the accused's blood alcohol level at the time of the offence is normally proven by evidence from a toxicologist.


That Jeffery Brownson on or about the 28 th day of June in the year 2010 at the village of Marmora in the said Region, did operate a motor vehicle, to wit a 2006 yellow Bombardier ATV, while disqualified from doing so by reason of an order pursuant to section <mask> of the Criminal Code contrary to section 259(4)(a) of the Criminal Code of Canada . [Emphasis added.]


Following the case of Pappajohn , the government was lobbied to make amendments to the Criminal Code to narrow the breadth of the defence of mistake of fact in cases of sexual assault. The Criminal Code was thereafter amended to provide that belief in consent would not be a defence to a charge of sexual assault if an accused's purported belief arose from intoxication, recklessness or wilful blindness or if the accused had not taken reasonable steps to ascertain that the complainant was consenting (s. 273.2). Section <mask> of the Criminal Code requires a judge instructing a jury in an assault case where such a defence is advanced to instruct the jury "when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief."


Section <mask> of the Criminal Code provides: "Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant." In this case, the indictment was particularized to permit three avenues to conviction for the offence of aggravated assault instead of four: the brothers were alleged to have wounded, maimed, and/or disfigured Mr. Miller. The indictment removes the possibility of a fourth avenue to conviction, namely, through endangerment of life.


Although the test for refusing surrender on s. 7 grounds is a "strict one" and is only met in "very exceptional" cases, it is beyond debate that torture-derived evidence may not be used in legal proceedings and cannot be relied upon by a state seeking extradition or being asked to extradite. Article 15 of the Convention Against Torture -to which both Canada and France are signatories - makes this clear. It provides that parties are obliged "to ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made". Section <mask> of the Criminal Code , R.S.C. 1985, c. C.46, incorporates this prohibition into Canadian domestic law. To similar effect is s. 83(1.1) of the Immigration and Refugee Protection Act , which excludes from evidence in deportation proceedings any information that is believed on "reasonable grounds" to have been obtained as a result of the use of torture.


Subsection <mask> of the Criminal Code , as it was at the relevant time, provides that consent means the voluntary agreement of the complainant to engage in the sexual activity in question. Subsections 273.1(2)(b) and (d) provide that no consent is obtained where the complainant is incapable of consenting to the activity or where the complainant expresses by words or conduct, a lack of agreement to engage in the activity. Subsection 273.1(3) provides that nothing in s. 273.1(2) shall be construed as limiting the circumstances in which no consent is obtained.


Section <mask> of the Criminal Code places important limits on the defence of honest but mistaken belief in communicated consent, including s. 273.2(b), which states " [ i ] t is not a defence" where "the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting". As Moldaver J. held in R. v. Barton ,


Second, I see no basis to accept the appellant's claim that the trial judge ignored the appellant's right to make full answer and defence in balancing that right with the complainants' rights to privacy, personal security, and equality based on the factors in s. 278.5(2). The trial judge noted that he had to be "satisfied that the records are likely relevant to an issue at trial and that production is necessary in the interest of justice". He then said that he had "given specific consideration to the criteria set out in sub-section <mask> of the Criminal Code and 278.3(4) of the Criminal Code ". He cited from Mills , at para. 61, which directs that the rights to be balanced include "full answer and defence, privacy, and equality". Finally, he discussed the "very high" privacy rights attaching to CAS records and concluded that, although the complainants had admitted that they lied to the CAS, "investigating the records to determine the extent of their lies is insufficient for this Court to review the records". The trial judge's explicit statement and his process of analysis refute the claim that he ignored the appellant's right to make full answer and defence.


Section <mask> of the Criminal Code sets out the procedure for an accused to apply for a hearing to determine the admissibility at trial of evidence of other sexual activity on the part of the complainant not the subject of the charge before the court. Section 278.93(4) specifies that the presiding judge or justice may decide to hold an admissibility hearing. [2] Section 278.94 prescribes various procedural rules relating to any hearing that is ordered, including a requirement that the presiding judge or justice give reasons for the admissibility determination: s. 278.94(4). [3]


The actus reus of the offence requires proof of: (1) a confinement, (2) the confinement is without lawful authority, and (3) a lack of consent by the complainant to the confinement. Proof of the first two elements is objective; the third, subjective. The third element, which is not referred to in s. 279(2), was the subject of discussion in R. v. Gough (1985), 18 C.C.C. (3d) 453 (Ont. C.A.), in which the constitutionality of s. 279(3) (formerly s. 247(3)) of the Criminal Code was in issue. Section <mask> of the Criminal Code reads:


Gholam Reza Sadeghi-Jebelli stands charged that he, sometime between and including the 30 th day of April in the year 1995 and the 1 st day of July in the year 1995, at the Municipality of Metropolitan Toronto, in the Toronto Region, did being a parent of Paul Aryan Wayne Jebelli, a person under the age of fourteen years, in contravention of the custody provisions of a custody order in relation to the said Paul Aryan Wayne Jebelli, made by his Honour Judge Ball of the Ontario Provincial Court, Family Division, with intent to deprive Madonna Hollett, the parent of Paul Aryan Wayne Jebelli of the possession of Paul Aryan Wayne Jebelli, did take away the said Paul Aryan Wayne Jebelli, contrary to Section <mask> of the Criminal Code .


I am also satisfied that the wording of the information did not prejudice the appellant or mean that the offences were not made out. The appellant's argument is that because the information refers to the Imagenation computer software and he only stole and used the source code that was used to produce the software sold to the public, no offences were made out. The charge that makes the appellant's case clearest is the theft charge: that the appellant on or about July 22, 1996 "did steal the IMAGENATION computer software, the property of Spicer Corporation, of a value exceeding five thousand dollars, contrary to Section <mask> of the Criminal Code of Canada".


Section <mask> of the Criminal Code , R.S.C., 1985, c. C-46, codifies the law of self-defence in Canada. The section also speaks of the defence of others. Mr. Khill claimed to be protecting Ms. Benko in addition to defending himself when he shot Mr. Styres. For the purposes of the appeal, however, I will focus exclusively on the self-defence component of Mr. Khill's defence. In the circumstances of this case, his defence stands or falls on his claim that he shot Mr. Styres to save his own life.


Section <mask> of the Criminal Code does not require that the Crown prove that the issuer of the credit card could be successfully defrauded by its use before the Crown can obtain a conviction under that section. In our view, the question of whether the cards could be successfully used would be relevant to a charge of defrauding the financial institutions who issued the cards, but is not relevant to the offence created by s. 342(3).


The Criminal Code does not, in fact, create an offence of armed robbery. Section <mask> of the Criminal Code creates the offence of robbery and describes the four ways in which robbery may be committed. A count that charges robbery and refers to s. 344, the punishment provision, does not specify a particular mode of committing robbery nor limit the basis upon which the Crown may prove the substantive offence of robbery.


Section <mask> of the Criminal Code enacts a statutory presumption of intent. Where evidence is introduced that a person unlawfully entered or was unlawfully present in premises, the subsection requires the trier of fact to presume, absent evidence to the contrary, that the intruder was there to commit an indictable offence. In other words, from evidence of the actus reus , the trier of fact presumes the mens rea , absent evidence to the contrary.


[23] There is a lack of discussion within the Reasons for refusal to commit under Section <mask> of the Criminal Code by the Preliminary Inquiry Justice. The Justice states that having reviewed the definition of " forged within the meaning of Section 367 I have difficulty coming to the conclusion in law that the offence of forgery can be supported by the documents as presented ." The failure to identify the description of false document and the Crown argument about Section 321(b) of the Criminal Code of Canada inescapably leads to the conclusion that the Preliminary Inquiry Justice did not assess the whole of the evidence against the correct elements of the offence of forgery. It is not clear from the Justice's reasons if he did consider the elements of Section 321(b). Had the Justice considered the elements argued by the Crown, I find it is possible he may have reached a different conclusion.


[2] Section <mask> of the Criminal Code was repealed by the Citizen's Arrest and Self-defence Act, S.C. 2012, c. 9, s. 2, which came into force on March 10, 2013. Section 35 of the Criminal Code now contains the reformulated defence of property defence, which, among other changes, does not require an individual to refrain from striking or causing bodily harm to the trespasser, but instead requires that the act committed be reasonable in the circumstances.


The appellant was committed for extradition on the offence of "fraud contrary to section <mask> of the Criminal Code of Canada " (the "Code"). He attacks the committal order on two main grounds. First, he argues that the extradition judge had no jurisdiction to proceed since the version of the Authority to Proceed ("ATP") filed by the Attorney General at the extradition hearing was a photocopy, rather than the original, of the ATP. The appellant contends that a photocopy of an original ATP does not constitute a proper ATP within the meaning of the Extradition Act , S.C. 1999, c. 18 (the "Act").


THAT HE, the said KEVIN EKOW PLANGE, between August 13, 2013 and July 28, 2014, in the City of Toronto, in the Toronto Region, and elsewhere in the Province of Ontario, by deceit, falsehood or other fraudulent means unlawfully did defraud or attempt to defraud the Government of Canada of money in an amount greater than five thousand dollars ($5,000), by preparing and submitting false RC366 E Direct Deposit Request - GST/HST, Payroll and/or Corporation Income Tax Forms to the Canada Revenue Agency to change the direct deposit information of corporations, and as a result re-directed or attempted to re-direct Goods and Services Tax refunds and other payments properly payable to corporations, to bank accounts controlled by him, thereby committing an offence contrary to Section <mask> of the Criminal Code of Canada , as amended.


Section <mask> of the Criminal Code defines what constitutes possession for the purposes of the Criminal Code . Section 2(1) of the CDSA exhaustively defines "possession" for CDSA purposes as meaning "possession within the meaning of subsection 4(3) of the Criminal Code ". And in s. 34(2) of the Interpretation Act , R.S.C. 1985, c. I-2, makes all Criminal Code provisions relating to indictable offences applicable to indictable offences created by other federal enactments, except to the extent that the enactment otherwise provides.


Section <mask> of the Criminal Code provides for the forfeiture of the proceeds of crime where an offender is convicted of a designated offence. Fraud over $5,000 is a designated offence: s. 462.3(1). Section 462.37 also provides for a fine in lieu of forfeiture pursuant to subsection (3) if the court is satisfied that a forfeiture order should be made in respect of any property but that property or any part of it cannot be made subject to an order. Subsection (4) requires the court to impose a term of imprisonment in default of payment of the fine, the length of the term depending on the amount of the fine.


Ms. Parker's submissions focussed on the forfeiture order relating to that portion of the seized monies exceeding the $20 "buy money", if indeed such an order were made. She concedes that the $20 is caught by subsection <mask> of the Criminal Code which provides for a forfeiture order where it has been established on a balance of probabilities "that any property is the proceeds of crime and that the designated offence was committed in relation to that property" (emphasis added).


Section <mask> of the Criminal Code authorizes the Crown to seek the forfeiture of any property that is the proceeds of crime, obtained by the commission of a designated offence. The objectives of the provision are "to deprive the offender ... of the proceeds of their crime and to deter them from committing crimes in the future": Lavigne , at para. 16. As this court held in R. v. Schoer , 2019 ONCA 105, 371 C.C.C. (3d) 292, "where the sentencing judge is satisfied on a balance of probabilities that the property is the proceeds of crime, that the offender had possession or control of it at some point, and the designated offence was committed in relation to that property, a forfeiture order must be made": at para. 88, citing Lavigne , at para. 14; R. v. Angelis , 2016 ONCA 675, 133 O.R. (3d) 575, at para. 35, leave to appeal refused, [2016] S.C.C.A. No. 484.


As much as it would be appropriate in the circumstances of this case, I cannot see that the provisions of sections 462.37(1), (3) and (4) of the Criminal Code relating to forfeiture of proceeds of crime are practical. If I were to impose a fine in lieu of of forfeiture, that fine must be $207,700 [ R. v. Lavigne , 2006 SCC 10, [2006] 1 S.C.R. 392], and as much as I believe that the defendant still has much of that money, section <mask> of the Criminal Code would necessitate that a two to three year jail sentence be imposed in default of payment of the fine.


Between the 1 st of June, 2004 and the 30 th of September, 2004 at or near the cities of Burnaby and Vancouver, British Columbia and elsewhere in the Province of British Columbia and in Toronto, Ontario and elsewhere in the Province of Ontario did unlawfully conspire together, the one with the other or others of them and with Casey WELLS, Liaqat KHAN, Amaran TYAB, Clint FARRELL, Ernest POLONI, Micro PASTRO and Robert FRIEDMAN and with a person or with persons unknown, to commit the indictable offence of trafficking in a controlled substance, to wit: Cocaine contrary to section 5(1) of the Controlled Drugs and Substances Act and did thereby commit an offence contrary to section <mask> of the Criminal Code of Canada .


Between the 1 st of June, 2004 and the 30 th of September, 2004 at or near the cities of Burnaby and Vancouver, British Columbia and elsewhere in the Province of British Columbia and in Toronto, Ontario and elsewhere in the Province of Ontario did unlawfully conspire together, the one with the other or others of them, and with Casey WELLS, Liaqat KHAN, Amaran TYAB, Clint FARRELL, Ernest POLONI, Micro PASTRO and Robert FRIEDMAN and with a person or with persons unknown, to commit the indictable offence of trafficking in a controlled substance, to wit: Cocaine contrary to section 5(1) of the Controlled Drugs and Substances Act and did thereby commit an offence contrary to section <mask> of the Criminal Code of Canada .


[90] In my view, the evidence has established that Kwok, Ng and Lau fit squarely within the definition of criminal organization set out in Section <mask> of the Criminal Code . It is not a requirement that it be proven for the purposes of sentencing and s. 467.1(1) and s. [718.2(a)(iv)], that each member of a criminal organization be cognizant of every aspect of that criminal organization's activities, or that any single member know the full extent of the organization. This aggravating factor applies to these accused.


[90] In my view, the evidence has established that Kwok, Ng and Lau fit squarely within the definition of criminal organization set out in Section <mask> of the Criminal Code . It is not a requirement that it be proven for the purposes of sentencing and s. 467.1(1) and s. 718.2(8)(iv), that each member of a criminal organization be cognizant of every aspect of that criminal organization's activities, or that any single member know the full extent of the organization. This aggravating factor applies to these accused.


Count 54 alleges the defendants participated in a criminal organization. Section <mask> of the Criminal Code criminalizes the knowing participation or contribution to a criminal organization's legal or illicit activities. It does not require a criminal act itself and the accused do not need to be a member of the organization. In R. v. Atkins et al. , 2010 ONCJ 262 (CanLII) , it was held that:


The phrase "jurisdiction over the class of offence" in section 686(1)(b)(iv) refers to the classes of offences described in sections 468, 469, and 785 of the Criminal Code . The offence with which we are concerned here - murder - is an offence listed in section <mask> of the Criminal Code . It is an offence within the exclusive trial jurisdiction of the superior court of criminal jurisdiction: R. v. Esseghaier , 2021 SCC 9, at paras. 42, 47, 48.


The presumptive mode of trial in cases of first degree murder is trial by jury: Criminal Code , s. 471. Section <mask> of the Criminal Code expressly permits an allegation of murder, an offence listed in s. 469(a)(vii) of the Criminal Code , to be tried without a jury, provided both the accused and the Attorney General consent to this alternative mode of trial.


This discussion leaves for resolution the last question, whether there  is a statutory foundation for Rule 7 of the British Columbia Court of  Appeal Criminal Appeal Rules, 1986 , S.I./86-137, B.C. Reg. 145/86.  That rule requires the filing and delivery of "an appeal book and transcript"  unless otherwise ordered by a justice or the court. Section <mask> of the Criminal Code gives every Canadian Court of Appeal the power  to make rules for the conduct of criminal proceedings "not inconsistent with  this or any other Act of Parliament". Section 482(3) indicates that rule-making  power is sufficiently broad to authorize the making of Rule 7.


Judge shopping strikes at the core of our judicial system. The concept undermines the high level of confidence that is placed in our judicial system, where the decision of a judicial officer is final and binding unless and until it has been overturned by a higher court. Section <mask> of the Criminal Code provides that a "justice" may issue a warrant. The Criminal Code defines a "justice" as a Justice of the Peace or a judge of the provincial court. Therefore, [the justice at the Ontario Court of Justice] cannot be considered a higher court than [the] Justice of the Peace By applying for successive warrants on the same information to a different judge of the same court, the police committed impermissible judge-shopping . [Emphasis added.]


The search occurred after 9:00 p.m. and was by definition in the Criminal Code a nighttime search. Section <mask> of the Criminal Code provides that search warrants must be executed by day unless the justice is satisfied, based on grounds set out in the affidavit in support of the warrant, that there are reasonable grounds to execute the warrant at night. The terms of the warrant authorized its execution after 9:00 p.m., but there were no grounds set out in the affidavit to support executing the warrant at night. The motion judge held that the failure to comply with s. 488 rendered the warrant invalid and the subsequent search of the apartment both warrantless and unreasonable. [1] The Crown does not challenge this finding.


Storrey was decided under the former s. 450(1)(a) of the Criminal Code, when the provision read as "reasonable and probable grounds to believe". Section <mask> of the Criminal Code, R.S.C. 1985, c. C-46, removed the reference to "probable grounds", changing the wording to: "believes on reasonable grounds". As noted in Baron v. R., [1993] 1 S.C.R. 416, at p. 446, the word "probable" adds nothing additional to the requirement of reasonableness.


Section <mask> of the Criminal Code authorizes a peace officer to arrest without warrant a person who "on reasonable grounds" the officer believes has committed an indictable offence. The language focuses on the officer's state of mind and the reasonableness of the officer's belief, rather than the actual state of affairs. Reasonable grounds can be based on a reasonable belief that certain facts exist even if it turns out that the belief is mistaken: see Eccles v. Bourque , [1975] 2 S.C.R. 739, at pp. 744-45 ; R. v. Herritt , 2015 NBCA 33 , 325 C.C.C. (3d) 325, at para. 21.


The appellant submits that the trial judge erred in failing to consider whether his arrest and detention was arbitrary apart from a failure to comply with section <mask> of the Criminal Code . It is not clear that this argument was advanced to the trial judge. There is no basis in the record to conclude that the conduct of the officer was arbitrary in the sense described in R. v. Cayer , [1988] O.J. No. 1120 (C.A.), "capricious, despotic or unjustifiable".


requires that offences charged in separate informations be capable of being joined in a single information before a single trial on those separate informations may be conducted. This is not possible here. Each information is laid under a different statute. Section <mask> of the Criminal Code permits joinder of Criminal Code offences in the same information but not provincial offences. And Criminal Code offences cannot be included in an information laid under the POA because they are not offences created by an "Act of the Legislature" as s. 25(5) of the POA requires.


Section <mask> of the Criminal Code permits a justice, before or at any time during the course of a judicial interim release hearing, on application by the prosecutor or accused, to adjourn the proceedings and remand the accused in custody in prison. Where the adjournment exceeds three clear days, the consent of the accused is required. It necessarily follows that an adjournment that is not more than three clear days - as was the adjournment in this case - does not require any consent on the part of the accused.


Once the prosecution establishes that the statutory preconditions are met, the presiding justice must cancel the existing release and the accused is detained. The effect of a revocation of bail is immediate - no further order of the Court is required for the accused to be detained. This is because the revocation of bail under section 524(8), by itself, also reverses the onus and creates a presumption that the accused remain in custody. Unless and until the accused makes a successful application, he is detained under section <mask> of the Criminal Code . At any point after the revocation of the prior release, the accused may be given a reasonable opportunity to show cause why his or her detention is not justified. The common practice of "consenting" to remand in these circumstances is only the deferral of the right, which may be exercised at any time, to show cause. Upon cause being shown, the presiding justice may make a further order under section 524(8) of the Criminal Code to detain the accused or release him under suitable conditions. Section 719(3.1) of the Criminal Code excludes from a person "detained" under section 524(8) and not "ordered detained" under the section.


Section <mask> of the Criminal Code provides that a custodial institution shall apply to a judge to fix a date for a hearing to determine whether or not an accused should be released from custody if the trial has not commenced within 90 days from the date the accused is initially taken before a justice under s. 503, or where there has been a previous detention review order or order detaining the accused, the date of the latter decision. The section stipulates that the person having custody of the detained adult shall make the application immediately after the expiry of the ninety days.


Section <mask> of the Criminal Code imposes "positive obligations" on the attorney general and the courts ( R. v. Bujold , 2011 NBCA 24, 276 C.C.C. (3d) 442, at para. 5). This is based on the observation by the Supreme Court that "[l]anguage rights are not negative rights, or passive rights; they can only be enjoyed if the means are provided . ... [T]he freedom to choose is meaningless in the absence of a duty of the State to take positive steps to implement language guarantees" ( Beaulac , at para. 20 (emphasis added)). In the context of a bilingual preliminary inquiry in which there are accused using each of the official languages, this duty is to ensure that the two languages are treated equally: in other words, that there is no "primary language", with the other language merely being "accommodated." Equality must be the norm and not the exception, and must be achieved without creating conflict.


Section <mask> of the Criminal Code provides that an accused has the right to a preliminary hearing in his or her official language. The Supreme Court of Canada has explained that language rights, such as the right to a preliminary hearing in one's language, "must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada": R. v. Beaulac , [1999] 1 S.C.R. 768, at para. 25 (emphasis in the original).


The bright line approach that I consider myself compelled to follow does not enable the defence to manufacture a s. 11(b) delay by re-electing into a shorter presumptive period of delay. Section <mask> of the Criminal Code requires Crown consent before the accused can re-elect to a trial by a provincial court judge. Where re-election would create the risk of s. 11(b) problems, the Crown has the authority to, and should, refuse consent, absent a s. 11(b) waiver.


Section <mask> of the Criminal Code permits a provincial court judge acting under Part XIX to adjourn a trial from time to time until the trial is finally terminated. Like other adjournment provisions in the Criminal Code , such as ss. 537(1)(a) and 645(2), s. 571 contains no exhaustive or illustrative list of factors the judge is required or entitled to consider in determining whether to grant or refuse an adjournment.


[1] Section <mask> of the Criminal Code provides that the proceedings stayed may be recommenced within the limited time frame of "one year after the entry of the stay of proceedings, or before the expiration of the time within which the proceedings could have been commenced, whichever is the earlier", without laying a new information. Since this was a summary conviction matter, the time within which the proceedings could have been commenced is six months. Unless the Crown gives notice that it is going to recommence proceedings within that time frame, "the proceedings shall be deemed never to have been commenced." Although the Crown could have reinstituted proceedings within six months, that time has now elapsed.


Section <mask> of the Criminal Code enacts a rule of criminal pleading. As a general rule, each count in an indictment must refer to a single transaction. The term "transaction" is not synonymous with "incident", "occurrence" or "event". A single transaction may include separate acts that are successive and cumulative and which comprise a continuous series of acts forming one transaction: R. v. Hulan , [1970] 1 C.C.C. 36 (Ont. C.A.), at p. 45; R. v. Selles (1997), 116 C.C.C. (3d) 435 (Ont. C.A.), at p. 444.


Second, the appellant's argument is really one of notice. The charges, including the theft charge gave the appellant sufficient notice of the offences with which he was charged so that he could defend himself. Section <mask> of the Criminal Code provides that an information is not insufficient by reason only that "it does not name or describe with precision any person, place or thing".


Section <mask> of the Criminal Code is a rule of pleading that does not, in express terms, authorize joinder of summary conviction and indictable offences together in the same indictment. Equally, s. 591(1) does not prohibit such joinder; it uses the undifferentiated or generic term "offences": R. v. Clunas , [1992] 1 S.C.R. 595, at pp. 611-612. In the result, indictable and summary conviction offences may be joined together in the same indictment or information: Clunas , at pp. 611-612. But where the mode of trial for the indictable offences is trial by a court composed of a judge and jury, the indictable and summary conviction counts may not be tried together: Clunas , at p. 612.


The legal context for analyzing this main ground of appeal is well established and uncontroversial. Section <mask> of the Criminal Code sets out the test for severance: the court may order that two accused be tried separately "where it is satisfied that the interests of justice so require". This provision confers broad discretion on a trial judge. In exercising that discretion, the trial judge must take account of the interest of each accused and of the public, represented by the Crown: see R. v. Suzack (2000), 141 C.C.C. (3d) 449 (Ont. C.A.), at para. 85, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 583.


Section <mask> of the Criminal Code grants trial judges a broad discretion to sever counts in the "interests of justice". The decision attracts considerable deference. Appellate interference is only warranted when the decision is unjudicial or resulted in an injustice: R. v. Litchfield , [1993] 4 S.C.R. 333, at pp. 353-354; and R. v. Last , 2009 SCC 45, [2009] 3 S.C.R. 146, at paras. 14-18.


Section <mask> of the Criminal Code contains the statutory power to amend an information or indictment. While s. 601 specifically refers to amending "indictments", s. 2 of the Criminal Code defines an "indictment" as including an "information or a count therein". Further, s. 601(10) says that where the term "court" is used within the provision, it is to be understood as including a judge acting in summary conviction proceedings. Consequently, the s. 601 power to amend an indictment applies with equal force to informations in summary conviction proceedings. As the focus of this appeal is on amendments to an information, I will use that terminology.


Section <mask> of the Criminal Code provides that a court shall, at any stage of the proceedings, amend the indictment where it appears that the indictment fails to state or states defectively anything that is requisite to constitute the offence, or is in any way defective in substance, and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the trial. In deciding whether to grant the amendment, as per s. 601(4) of the Criminal Code , the court must consider the following:


Section <mask> of the Criminal Code authorizes pre-hearing conferences to be held before trial or other proceedings (for example, a preliminary inquiry) "to consider the matters that, to provide a fair and expeditious hearing, would be better decided before the start of the proceedings and other similar matters".  Where a case is set to be tried by a court composed of a judge and jury, a pre-hearing conference "to consider any matters that would promote a fair and expeditious trial" is mandatory under s. 625.1(2).


Second, the substitution of the presiding judge as the trier of the truth of the challenge does not compromise the impartiality of the jury. Prospective jurors found not to be impartial by the judge must not be empanelled as jurors for the trial. Section <mask> of the Criminal Code makes this clear. And those found impartial may yet be subject to excusal or being stood aside by the trial judge. To preserve impartiality, various in-trial mechanisms serve as antidotes to counter bias, especially the ability to provide jurors with instructions throughout and at the end of the trial.


The circumstances that may prompt an inquiry into the suitability of a juror to continue are myriad. Section <mask> of the Criminal Code, R.S.C., 1985, c. C-46 , entitles a trial judge to discharge a juror for illness or other reasonable cause. The subsection is unrevealing about the threshold for conducting an inquiry, the factors to be considered in making that determination, or the procedure to be followed on any inquiry that is conducted. It would seem logically to follow that the decision about whether to conduct an inquiry falls within the discretion of the trial judge in much the same way as the discretion to determine the procedure to be followed on any inquiry that is held: Durant , at para. 140. See also, R. v. Giroux (2006), 207 C.C.C. (3d) 512 (Ont. C.A.), at para. 34, leave to appeal refused, [2006] S.C.C.A. No. 211.


Section <mask> of the Criminal Code creates a summary conviction offence that prohibits jurors from disclosing information about what took place in the jury room while the jury was absent from the courtroom that was not later disclosed in open court. The prohibition is not restricted to information disclosed during deliberations and is subject to an exception for an investigation of and testimony about an alleged offence under s. 139(2) of the Criminal Code in relation to a juror.


Section <mask> of the Criminal Code gives the appellant the right to be present in court during the whole of his trial subject to exceptions that do not apply in this case. Closing arguments are part of an accused's trial, and thus are subject to the requirement that the accused be present. This right gives effect to the principle of fairness and openness that are fundamental values in our criminal justice system. Presence gives the offender the opportunity of acquiring first-hand knowledge of the proceedings leading to the eventual result. The denial of that opportunity may well leave the offender with a justifiable sense of injustice, which is the "implicit and overriding principle underlying" the right to be present: see R. v. Hertrich (1982), 67 CCC (2d) 510, at para. 81 .


The email communications and requests by the trial judge would seem to have been a deliberate choice of a method of communication other than that required by section <mask> of the Criminal Code . Perhaps the trial judge was concerned about ensuring adherence to a schedule provided to the jury about the concluding aspects of the trial. Certainty is desirable. The progress of a trial in its waning moments should not be unduly delayed. But the solution is not to ignore mandatory statutory requirements such as section 650(1) of the Criminal Code . There is no email exception.


Section <mask> of the Criminal Code provides that an accused must be "present in court during the whole of his ... trial". In the context of s. 650(1), "trial" carries a broad meaning, although generally the trial proper does not commence until after a plea is entered. Martin J.A. explained the broad interpretation of "trial" for s. 650(1) purposes at para. 50 of R. v. Hertrich (1982), 67 C.C.C. (2d) 510 (Ont. C.A.):


Procedural incidents of the trial process, such as pre-charge conferences, are part of an accused's trial. It follows from the statutory requirement of section <mask> of the Criminal Code , as well as every accused person's constitutional entitlement to be present at their trial, that the appellant was entitled to be present for the pre-charge conference. The entire pre-charge conference when the availability of the statutory partial defence of provocation was discussed. No statutory exception permitted his exclusion when the subject of the availability of provocation was discussed and decided. Exclusion of the appellant from this discussion contravened section 650(1) of the Criminal Code .


See, E. (F.E.) , at para. 30. Provided the conditions precedent to the operation of the section have been met, the section may save harmless a breach of section <mask> of the Criminal Code : Simon , at para. 122; E. (F.E.) , at para. 31. See also, R. v. Cloutier (1988), 43 C.C.C. (3d) 35 (Ont. C.A.), at p. 49, leave to appeal refused, [1989] S.C.C.A. No. 194.


This is not the first case in which an appellant has challenged the use of email to conduct substantive discussions about the contents of the charge to the jury. In prior decisions we have indicated that the use of email to provide counsel with copies of proposed jury instructions does not offend section <mask> of the Criminal Code . In those same decisions, we have made it equally clear that discussions about the content of those draft instructions are not to take place by email. These discussions, whether they solicit or offer submissions about charge content, affect and involve the vital interests of the accused and must take place in the actual presence of the accused. Section 650(1) requires it: Simon , at para. 137; Hassanzada , at paras. 130-131.


Section <mask> of the Criminal Code provides that, subject to certain exceptions (that are not material here), the accused "shall be present in court during the whole of his or her trial." Section 650(1) protects the interest in allowing the accused to "hear the case made out against him and, having heard it, have the opportunity of answering it" and the interest in fairness and openness, which is advanced by allowing the accused "the opportunity of acquiring first-hand knowledge of the proceedings leading to the eventual result of the trial": R. v. Hertrich (1982), 67 C.C.C. (2d) 510 (Ont. C.A.), at para. 81. In light of these interests, the words - "the whole of his or her trial" - in s. 650(1) should be given an expansive reading: R. v. Barrow , [1987] 2 S.C.R. 694, at para. 14. A proceeding will be characterized as a part of the trial for the purposes of s. 650(1) where the accused's absence would "prejudic[e] their opportunity of defending themselves" or would violate "his right to be present so that at all times he may have direct knowledge of anything that transpires in the course of his trial which could involve his vital interests": R. v. Hertrich, at para. 82.


As we have said in the past and reiterate today, no breach of section <mask> of the Criminal Code occurs by email transmission to counsel of drafts of proposed jury instructions. But as we have also said in the past and repeat today with emphasis, initiating and receiving by email submissions about the subject-matter contained in or omitted from final instructions does offend section 650(1) of the Criminal Code . The reason is simple. Pre-charge conferences under section 650.1 of the Criminal Code , indeed any discussions about what should be explained to the jury and the choice of instructions to be given, affect an accused's vital interests, thus are part of the accused's trial. Section 650(1) is engaged. The accused must be present unless an applicable exception applies. Use of email is not an exception. The message is in the medium. Open court. On the record. In the presence of the accused.


The respondent begins with a submission that any email communications occurred within permissible limits. For the most part, the email exchanges involved providing counsel with successive drafts of the proposed instructions, pointing out changes made and explaining that each version would serve as the working copy for their in-court discussions. The preliminary nature of these discussions did not offend section <mask> of the Criminal Code and, in any event, did not cause or contribute to a miscarriage of justice.


For the most part, admissions are made by the party against whom they are offered in evidence. But they may also be made by an agent within the scope of their authority: R. v. Strand Electric Ltd ., [1969] 2 C.C.C. 264 (Ont. C.A.), at p. 268; Metro Conference Centre Inc. v. Hunter , 2016 ABCA 83, at para. 42. Counsel acting for an accused may also make admissions on behalf of the accused: English v. Richmond , [1956] S.C.R. 383, at paras. 4-5. Section <mask> of the Criminal Code expressly authorizes counsel to "admit any fact alleged...for the purpose of dispensing with proof thereof".


Section <mask> of the Criminal Code permits conviction of an accused of an offence included in the indictable offence charged where the evidence fails to prove the principal offence, but does prove the included offence. The included offence of which the accused may be convicted may be punishable on summary conviction. Once again, however, it is the nature of the proceedings, not the nature of the conviction that determines appellate rights.


Section <mask> of the Criminal Code required the Hospital to notify the Board that it had, for a period exceeding seven days, significantly increased the restrictions on Mr. Chaudry's liberty. The Hospital failed to give the Board the required notice. According to Dr. Ward, this failure was due to inadvertence on the Hospital's part when a key member of its staff was away on holidays.


Section <mask> of the Criminal Code provides that where a court imposes a sentence of imprisonment on a dual status offender, "that sentence takes precedence over any prior custodial disposition, pending any placement decision by the Review Board." The scheme therefore prioritizes the most recent custodial order, presumably on the basis that the most recent order best reflects the offender's current state of psychiatric health. Where the criminal conduct was found to have been committed wilfully and resulted in a conviction, it is more likely that the offender's mental disorder was not acute at that time.


Section <mask> of the Criminal Code provides that an appeal against a disposition order shall be "based on a transcript of the proceedings and any other evidence that the court of appeal finds necessary to admit in the interests of justice." In R. v. Owens , 2003 SCC 33, the court indicated that fresh evidence concerning events that postdate the disposition order may be admitted "where the evidence is trustworthy and touches on the issue of risk to public safety" (paras. 48-61 and 71). The fresh evidence is not limited to the appellant. All parties may proffer fresh evidence: see R. v. Furlan , 2014 ONCA 740, at paras. 8-10.


Section <mask> of the Criminal Code provides that an appeal against a disposition order shall be "based on a transcript of the proceedings and any other evidence that the court of appeal finds necessary to admit in the interests of justice". Fresh evidence concerning events that postdate the disposition order may be admitted where the evidence "is trustworthy and touches on the issue of risk to public safety": Owen , at paras. 48-61, 71.


Section <mask> of the Criminal Code provides that a court of appeal may set aside a Board disposition if it is, inter alia , "unreasonable or cannot be supported by the evidence". In R. v. Owen , 2003 SCC 33, at para. 33, the court said that this standard means that the Board's reasons must be able to withstand a "somewhat probing examination" to determine whether the decision is justifiable, transparent and intelligible.


We agree with the submission of all counsel, including the Crown, that the Board erred in its interpretation of this court's July 20, 2010 order. Section <mask> of the Criminal Code gives this court the power to refer a matter back to the review board for a rehearing "in whole or in part, in accordance with any directions that the Court of Appeal considers appropriate". The July 20, 2010 order was made pursuant to that power. The Board erred by, in effect, reviewing that order by purporting to engage in a full scale review of the appellant's situation. The Board's action was not only contrary to the order made by this court; it also denied procedural fairness to the appellant who was not on notice that such a hearing would be held. Moreover the Board's insistence that the appellant's annual review be postponed to July 2011 denied the appellant the right to a mandatory annual review pursuant to s. 672. 81 of the Criminal Code .


In a case such as this, where the trial judge has already entered a conviction, one institutional concern is the fact that Parliament has established a generous appeal process that is primarily responsible for reviewing criminal adjudications. Section <mask> of the Criminal Code , R.S.C. 1985 c. C-46 gives an accused convicted of an indictable offence a right of appeal on questions of law alone and, with leave, on questions of mixed fact and law or fact alone, or on any other sufficient ground of appeal. A defendant convicted of a summary conviction offence has similarly broad rights of appeal. As the Supreme Court of Canada said, albeit in a different context, in Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3 at para. 79:


The circumstances under which this court can intervene to overturn an acquittal are narrow. Section <mask> of the Criminal Code restricts the Crown's right of appeal from an acquittal of an indictable offence to "any ground of appeal that involves a question of law alone." So long as the trial judge took a legally correct approach to the evidence, the Crown cannot argue that the verdict is unreasonable: R. v. Rudge , 2011 ONCA 791, 108 O.R. (3d) 161 , at para. 35 , leave to appeal refused, [2012] S.C.C.A. No. 64; R. v. Curry, 2014 ONCA 174, 317 O.A.C. 329, leave to appeal refused, [2014] S.C.C.A. No. 185, at para. 37. As the Supreme Court of Canada observed in R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 33: "[T]he concept of 'unreasonable acquittal' is incompatible with the presumption of innocence and the burden which rests on the prosecution to prove its case beyond a reasonable doubt."


Subsection <mask> of the Criminal Code , R.S.C. 1985, c. C-46, provides that the Crown's right of appeal against acquittals is restricted to questions of law alone. Jurisprudence establishes that such questions include the following: misinterpretation or misapplication of salient legal standards, including the elements of the offences; assessing evidence based on erroneous legal principles; making findings of fact not based on the evidence; failing to give legal effect to findings of fact or of undisputed facts; failing to consider all the evidence bearing on guilt or innocence; failing to properly admit evidence; and, failing to provide adequate reasons: R. v. Fitton ,


Section <mask> of the Criminal Code authorizes a panel or judge of a court of appeal to extend the time within which notice of an application for leave to appeal may be given. Rule 7 of the Criminal Appeal Rules , SI/93-169, permits an extension to be granted before or after the expiration of the 30-day period prescribed by r. 4(2). Neither the Criminal Code nor the Criminal Appeal Rules frames a test to be applied or describes any factors to be considered in deciding whether the extension should be granted.


Section <mask> of the Criminal Code provides, in my opinion, a clear standard against which the correctness of any decision granting or denying bail pending appeal can be reviewed. The concerns reflecting public interest, as expressed in the case-law, relate both to the protection and safety of the public and to the need to maintain a balance between the competing dictates of enforceability and reviewability. It is the need to maintain that balance which is expressed by reference to the public image of the criminal law, or the public confidence in the administration of justice. The "public interest" criterion in s. 679(3)(c) of the Code requires a judicial assessment of the need to review the conviction leading to imprisonment, in which case execution of the sentence may have to be temporarily suspended, and the need to respect the general rule of immediate enforceability of judgments.


Section <mask> of the Criminal Code provides that a bail review is to be conducted by a panel of this court where directed by the Chief Justice or Acting Chief Justice. A review is warranted where it is arguable that the judge committed material errors of fact or an error of law in arriving at the decision, or that the decision was clearly unwarranted in the circumstances: R. v. Oland , 2017 SCC 17,


Section <mask> of the Criminal Code requires a trial judge, at the request of the Court of Appeal, to report on "the case or on any matter relating to the case that is specified in the request." The form letter sent to the sentencing judge in this case asked whether there were any rulings that appeared relevant to the appeal, and if so, to attach any relevant and available transcripts.


Subsection <mask> of the Criminal Code authorizes this Court to receive fresh evidence where it is in the interests of justice to do so. Pursuant to the test articulated in Palmer v. The Queen , [1980] 1 S.C.R. 759, in addition to the requirement that fresh evidence comply with general rules of evidence, the relevant criteria considered on an application to adduce fresh evidence on appeal are as follows (at 775):


Section <mask> of the Criminal Code accords appellate courts a broad discretion to receive fresh evidence when the court considers it in the interests of justice to do so. When fresh evidence is proposed for admission on appeal the court must undertake a context-sensitive inquiry, taking cognizance of all the circumstances of the case. This encompasses not only the appellant's interests in fully pursuing his appellate remedies, but also the broader, long-term interests of the administration of justice: R. v. T.S., 2012 ONCA 289, 284 C.C.C. (3d) 394, at para. 114; Snyder , at para. 44; Truscott (2007), at para. 81.


Section <mask> of the Criminal Code permits, but does not require, appellate courts to receive the evidence, if tendered, of any witness, including an appellant, if the court considers that it is in the interests of justice to do so. The ubiquitous phrase, "in the interests of justice", is unconfined in the sense that the provision furnishes no list of factors, whether illustrative or exclusive, to inform its application.


Robinson also rejected the American jurisprudence on which the appellant relies. The accused seeks to distinguish Robinson on the basis that "[t]he Alberta Court of Appeal did not address the conflict raised here between the express language of section 10(b) with section <mask> of the Criminal Code ." I disagree that Robinson can be distinguished on this basis. The accused in Robinson initially sought the appointment of counsel under s. 684(1), and the issue before the court was whether, when ss. 7, 10(b), 11(d) and 15 of the Charter are considered, s. 684(1) is unconstitutional. That is precisely the question before this court.


DEWITT-VAN OOSTEN J.A. : Shaun Costello applies for the appointment of legal counsel to represent him on an appeal from sentence for aggravated assault. Section <mask> of the Criminal Code , R.S.C. 1985, c. C‐46 authorizes an appointment of counsel where doing so is "desirable in the interests of justice" and the appellant does not have "sufficient means" to obtain the assistance of a lawyer.


Section <mask> of the Criminal Code , R.S.C., 1985, c. C-46, permits a court of appeal to allow an appeal from conviction if the court is satisfied that the verdict is unreasonable or cannot be supported by the evidence received at trial. The question, as framed by the enabling provision, is whether the verdict is unreasonable on the evidence admitted at trial, not whether it is unjustified on that same evidence: R. v. Corbett , [1975] 2 S.C.R. 275, at p. 282. See also, R. v. Yebes , [1987] 2 S.C.R. 168, at pp. 185-186.


Section <mask> of the Criminal Code bestows a duty on an appellate court to set aside a verdict "that is unreasonable or cannot be supported by the evidence." A conviction is reasonable if the verdict is one that a properly instructed jury or judge could reasonably have rendered: Corbett v. The Queen , [1975] 2 S.C.R. 275, at p. 282; R. v. Yebes , [1987] 2 S.C.R. 168, at p. 185; R. v. Biniaris , 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 37. In applying that test, a "[c]ourt must re-examine and to some extent reweigh and consider the effect of the evidence": R. v. Sheppard , [2002] 1 S.C.R. 869, 2002 SCC 26, at para. 34 (citing Yebes , at p. 186).


Section <mask> of the Criminal Code empowers this court to allow an appeal against a conviction when it is of the opinion that the verdict is unreasonable or cannot be supported by the evidence. When the verdict is delivered by a jury, this power is to be exercised within markedly narrow confines. A court of appeal is required to examine the whole of the evidence to determine whether the verdict could have been reasonably rendered by a properly instructed jury acting judicially. Although the court cannot simply substitute its own view of the facts, the task does require it to re-examine and re-weigh the evidence within the limits of appellate disadvantage: R. v. Yebes , [1987] 2 S.C.R. 168 at p. 186; R. v. Biniaris ,


Finally, there remains the matter of remedy. Section <mask> of the Criminal Code gives this court the jurisdiction to set aside a conviction and find the appellant not criminally responsible on account of mental disorder. Indeed when the NCRMD defence is raised for the first time on appeal this, rather than a new trial, would appear to be the presumptive course. Major J. said this at para. 65 of Warsing :


We start with the powers of a court on appeal. Section <mask> of the Criminal Code , RSC 1985, c C-46 provides that when the court allows an appeal from conviction, it shall quash the conviction and either order a new trial or direct a judgment or verdict of acquittal to be entered. Section 686(8) provides that when the court exercises any of the powers conferred by s. 686(2), it may make any order, in addition, that justice requires.


Section <mask> of the Criminal Code provides that where a court of appeal allows an appeal from conviction, it may direct an acquittal or order a new trial. Where a conviction is set aside on the ground that the verdict is unsupported by the evidence, the court of appeal, absent legal errors in respect of the admissibility of evidence, will usually enter an acquittal. As noted by Doherty J.A. in R. v. Harvey (2001), 160 C.C.C. (3d) 52 (Ont. C.A.), at para. 30, "[a]n acquittal is the appropriate order because it would be unfair to order a new trial and give the Crown a second opportunity to present a case on which a reasonable trier of fact could convict."


On appeals against sentences passed by trial courts in proceedings on indictment, courts of appeal hear submissions from the parties about the fitness of the sentence imposed at trial. Section <mask> of the Criminal Code requires a court of appeal to consider the fitness of the sentence against which the appeal is taken and permits the court to dismiss the appeal or to vary the sentence within the limits prescribed by law for the offence of which the accused has been convicted.


Crown counsel places fresh evidence before the court, arguing that it assists with demonstrating the danger that the appellant continues to pose for the future. The fresh evidence consists of a two-page police affidavit and a Parole Board decision, revoking the appellant's day parole. Section <mask> of the Criminal Code allows the court on a sentence appeal to receive evidence it thinks "fit to require or receive". The well-known criteria for admitting fresh evidence on a conviction appeal also apply on sentencing: Lacasse , at paras. 115-16; R. v. Palmer , [1980] 1 S.C.R. 759.


The complainant first disclosed conduct by the appellant, her uncle, to her mother as a result of her mother asking whether anything inappropriate had ever happened between the two of them. After that initial disclosure, the complainant gave a video-taped statement to the police. This statement, which was given when she was almost ten years old, related to incidents that had occurred when she was in grade one, up to four years earlier. The video was played before the jury, adopted by the complainant as the truth, and admitted as evidence in the trial on consent pursuant to section <mask> of the Criminal Code . The complainant also testified at trial. This was essentially the evidence led by the Crown.


Section <mask> of the Criminal Code , R.S.C. 1985, c. C-46, applies specifically to victims and witnesses under 18 who have given a video statement within a reasonable time after an alleged offence. Unless the judge is of the opinion that admission of the video statement in evidence would interfere with the proper administration of justice, the recording is admissible in evidence as part of the child's testimony in chief if, while testifying, the child adopts the contents of the video recording.


[66] In my view, he was entitled to consider these matters on sentencing. Section <mask> of the Criminal Code sets out two of the purposes of sentencing to be to denounce unlawful conduct and to deter the offender and other persons from committing offences, and s. 718.1 requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.


More importantly, the sentencing judge correctly identified deterrence, denunciation, and the appellant's Aboriginal background (addressed below) as "the most significant" principles informing sentence in this case. Section <mask> of the Criminal Code instructs sentencing judges that "[w]hen a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct." In R. v. D.


Section <mask> of the Criminal Code codifies proportionality as the fundamental principle of sentencing in the adult context. Collateral consequences are not to be applied in a manner that undermines that principle. As the Supreme Court of Canada has emphasized, collateral consequences "cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender": R. v. Suter , 2018 SCC 34, [2018] 2 S.C.R. 496,


Section <mask> of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Typically, the assessment of the seriousness of an offence and an offender's conduct involves findings of fact that attract a standard of deference: R. v. Gerk , 2016 ABCA 162, 130 W.C.B. (2d) 374, at para. 26; R. v. McLean , 2016 SKCA 93, 132 W.C.B. (2d) 96, at para. 34. A legal error may exist where the trial judge's assessment of the conduct is contrary to, or not supported by, the evidence.


The longest prison term previously imposed on the appellant was for two years less a day. A "jump" to six years is too much, having regard to the nature of the offences and the Gladue factors. Section <mask> of the Criminal Code mandates that a sentence must be proportionate both to the gravity of the offence and the degree of blameworthiness of the offender. In other words, a sentence must not "exceed what is appropriate, given the moral blameworthiness of the offender": Ipeelee , at para. 37.


As indicated above, the main issue in this appeal is whether the trial judge erred in his application of the principle of totality. Section <mask> of the Criminal Code provides that, "where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh". The Supreme Court of Canada in R. v. M.(C.A.) , [1996] 1 S.C.R. 500 at para. 42 discussed the totality principle as follows:


The parity principle requires, to the extent possible, consistency in sentencing offenders in comparable circumstances. Section <mask> of the Criminal Code provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. It is a fundamental principle of justice that like cases be treated alike: R. Cross, Punishment, Prison and the Public (London: Colin Steven and Sons, 1971), at p. 167.


Section <mask> of the Criminal Code requires a sentencing judge to take into account the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This principle is one of parity, not of equivalence. It does not require equivalent sentences. Nor does it forbid disparate sanctions for persons involved in the same offence. Were that so, it would run afoul with the fundamental principle of sentencing in s. 718.1, that of proportionality.


Section <mask> of the Criminal Code provides that where, as here, consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. The principles of totality and proportionality require a sentencing judge to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender; the cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the sentence for the most serious of the offences or if its effect is crushing: R. v. M. (C.A.) ,


Section <mask> of the Criminal Code draws no distinction between these two types of scenario, and this Court and others have recognized that the totality principle applies where the offender is serving the remainder of a previous sentence: R. v. Cathcart , [1976] O.J. No. 1225 (C.A.); R. v. Gorham (1987), 22 O.A.C. 237; R. v. Bond , [2005] O.J. No. 108 (C.A.); R. v. Reid , [2003] O.J. No. 3255 (C.A.); R. v. Evans (1975), 11 N.S.R. (2d) 91 (C.A.);


Section <mask> of the Criminal Code directs sentencing judges to give particular attention to the circumstances of Aboriginal offenders when considering "all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community". Given that public protection is the primary objective of the dangerous offender scheme, and the available sanctions are limited to sentences of imprisonment as set out in s. 753(4), this court has noted that the application of Gladue factors in this context may be limited:


Section <mask> of the Criminal Code provides that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered, with particular attention to the circumstances of aboriginal offenders. As a general matter, this appeal raises the issue of whether a non-custodial sentence is reasonable, to use the language of s. 718.2(e), in circumstances where the paramount sentencing objectives are denunciation and deterrence . More specifically, this appeal must determine whether the trial judge properly applied s. 718.2(e) when sentencing the appellant. [Emphasis added.]


In Gladue , the Supreme Court stated, at para. 67, that "[y]ears of dislocation and economic development have translated, for many aboriginals, into low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation". These conditions, together with bias and systemic racism, have contributed to what the Court described, at para. 64, as a "crisis" in Canada's criminal justice system: the grossly disproportionate incidence of crime and incarceration amongst Aboriginal peoples. Section <mask> of the Criminal Code, which directs sentencing judges to consider alternatives to imprisonment for all offenders but "with particular attention to the circumstances of aboriginal offenders", was interpreted in Gladue , at para. 33, as a "direction to sentencing judges to undertake the process of sentencing aboriginal offenders differently". The Court held that a different approach was required to meet what it had described in R. v. Williams , [1998] 1 S.C.R. 1128, at para. 58, as widespread bias against aboriginal people within Canada and "evidence that this widespread racism has translated into systemic discrimination in the criminal justice system". In Gladue , the Supreme Court


Section <mask> of the Criminal Code provides that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered by a sentencing judge, with particular attention to the circumstances of Aboriginal offenders. This provision encourages the consideration and application of restorative justice principles in sentencing, and has at its core a remedial purpose: Gladue , at para. 48; Wells, at para. 36.


(b) Section <mask> of the Criminal Code allows for the imposition of a term of imprisonment that is more than the maximum term of imprisonment provided for the offence in circumstances involving repeat intimate partner violence. In specific, s. 718.3(8)(c) allows for a maximum term of 10 years imprisonment to be increased to 14 years imprisonment in circumstances involving repetitive conduct as defined in that provision. The CLA argues that any accused who is given informal notice of the Crown's intention to invoke s. 718.3(8)(c) at the sentencing stage of the proceedings, should a conviction flow, should also be entitled to a preliminary inquiry .


Section <mask> of the Criminal Code , R.S.C. 1985, c. C-46, gives a court discretion to consider pre-sentence custody in determining the sentence. Section 719(3.2) requires the court to give reasons for any credit granted for pre-sentence custody, while s. 719(3.3) requires the court to state the amount of time spent in custody, the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and the sentence imposed. The Supreme Court has stated that this is "not a particularly onerous requirement, but plays an important role in explaining the nature of the sentencing process, and the reasons for giving credit, to the public": R. v. Summers , 2014 SCC 26, [2014] 1 S.C.R. 575, at para. 74. This same obligation to give reasons applies when the sentencing judge refuses to give credit for pre-sentence custody: see R. v. Evans , 2019 ONCA 715, 147 O.R. (3d) 577, at para. 290.


Section <mask> of the Criminal Code provides that before determining the sentence, the court "shall" give the prosecutor and the offender the opportunity to make submissions with respect to any facts relevant to the sentence imposed, and "shall" hear any relevant evidence presented by the prosecutor and the offender. Further, s. 726.1 provides that in determining the sentence, a court "shall" consider any relevant evidence placed before it. Nevertheless, in my view, a trial judge at sentencing should exclude otherwise relevant evidence proffered by the Crown where the prejudicial effect of the evidence outweighs its probative value.


Second, the appellant's submission that the sentencing judge failed to review the evidence adduced at trial and to make relevant findings of fact essential for sentencing purposes falls on barren ground. In jury trials, s. 724(2)(a) requires the sentencing judge to accept as proven all facts, express or implied, essential to the jury's guilty verdict. Section <mask> of the Criminal Code permits , but does not require, a sentencing judge to find any other relevant facts proven on the basis of evidence adduced at trial or presented by either party on the sentencing hearing. The language of s. 724(2)(a) is mandatory; that of s. 724(2)(b), permissive.


Furthermore, the Criminal Code makes clear that, if it is possible and appropriate, sentencing judges ought to impose a sentence on each count as opposed to simply imposing one global sentence. Section <mask> of the Criminal Code states that a court "shall consider, if it is possible and appropriate to do so, any other offences of which the offender was found guilty by the same court, and shall determine the sentence to be imposed for each of those offences."


The sentencing hearing took place on October 30, 2015, shortly after certain amendments to the Criminal Code were brought into force by the Victims Bill of Rights Act , S.C. 2015, c. 13. These amendments included adding section <mask> of the Criminal Code, governing how restitution requests can be made and creating Forms 34.1 ("Statement of Restitution") and 34.2 ("Victim Impact Statement") in Part XXVIII of the Criminal Code . Section 737.1(4) provides that, for purposes of restitution, the court may use Form 34.1 or "any other method approved by the court." Section 737.1(5) further provides that if a victim seeks restitution, and the court does not make a restitution order, it shall include in the record its reasons for not doing so.


FINCH C.J.B.C. : The Crown appeals a sentence ordering a custodial sentence and a conditional sentenced to be served concurrently, because the order did not conform to the provisions of Section <mask> of the Criminal Code which says that a conditional sentence, if imposed in conjunction with a sentence for another offence, must be suspended until any period of imprisonment for the other offence has been served. The sentence as pronounced was not lawful.


Section <mask> of the Criminal Code provides that a judge may increase parole ineligibility above the normal ten-year period for an offender convicted of second degree murder up to 25 years, having regard to: the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendation of the jury, if any. To justify such an order, the court may consider the future dangerousness of the offender and denunciation, as well as deterrence: R. v. Shropshire , [1995] 4 S.C.R. 227.


From an institutional perspective, we think the parole board exercising its jurisdiction under section <mask> of the Criminal Code is in a much better position than a trial court to make the necessary assessments. There would be many problems associated with a new dangerous offender hearing so many years after the relevant events, not the least of which would be the possibility of re-traumatizing all of the victims through the need to appear and testify at a new hearing.


The position of the OPS is straightforward. It was a party before the motion judge, a third party record-holder entitled to challenge the jurisdiction of the trial judge to make the order by pursuing the extraordinary remedy of certiorari . The motion was dismissed. Section <mask> of the Criminal Code , R.S.C., 1985, c. c-46, authorizes an appeal from a decision refusing the relief sought in proceedings by way of certiorari . Case closed.


Not so with third parties who can invoke two procedural avenues to appeal court orders affecting them before the end of the trial: L.L.A. v. A.B. , [1995] 4 S.C.R. 536, at para. 23. Where the order is that of a provincial court judge, a third party may challenge it through an enlarged writ or an order in lieu of certiorari . Further appeals to the provincial appellate court and Supreme Court of Canada follow the regular channels of our judicial system: L.L.A. v. A.B. , at para. 24. Section <mask> of the Criminal Code authorizes an appeal to this court "from a decision granting or refusing the relief sought in proceedings by way of certiorari ".


The summary conviction appeal judge found that the trial judge erred by amending the counts. Section <mask> of the Criminal Code governs summary conviction proceedings and reads: "[n]o proceedings shall be instituted more than six months after the time when the subject-matter of the proceedings arose, unless the prosecutor and the defendant so agree." The summary conviction appeal judge reasoned that the amendments had the effect of instituting new proceedings and were, therefore, statute barred by virtue of s. 786(2). He set aside the convictions and entered acquittals.


First, the offences to which the appellant pleaded guilty after the Crown's re-election to proceed summarily were summary conviction offences. Section <mask> of the Criminal Code requires that summary conviction proceedings be tried, determined and adjudged by a summary conviction court. Section 785 exhaustively defines "summary conviction court". Neither the "superior court of criminal jurisdiction", as defined in s. 2, nor a judge of that court is included in the definition of "summary conviction court" in s. 785 of the Criminal Code .


Section <mask> of the Criminal Code ensures that this discretion remains intact, despite the enactment of the Criminal Code , at least to the extent that it is not altered, varied, modified or affected by the Criminal Code or other federal enactment. But this discretion or inherent jurisdiction cannot be invoked as authority for any order that contravenes a specific Criminal Code requirement: Noureddine , at para. 38; Murray , at para. 47; Swite , at para. 28; R. v. V. (W.), 2007 ONCA 546, at para. 22, leave to appeal refused, 386 N.R. 391 (note).


Section <mask> of the Criminal Code allows the Crown to appeal the trial judge's decision to the summary conviction appeal court upon questions of law alone, questions of mixed fact and law, or questions of fact: R. v. Labadie, 2011 ONCA 227, 275 C.C.C. (3d) 75, at para. 50. Despite the breadth of the statutory appeal, deference is owed to the findings of fact of a trial judge. Here, the appeal judge relied on errors in the trial judge's analysis in interfering with her conclusion the appellant had not created a realistic risk of danger.


While the trial judge described "the exact same factual foundation" as forming the basis for liability on each count, this simply recognized that proof of the same factual circumstances, the same series of events, supported Mr. Ahmed's conviction for both offences. Section <mask> of the Criminal Code mandates consecutive sentences, for offences "arising out of the same event or series of events", where otherwise consideration would have been given to the imposition of concurrent sentences. Concurrent sentences are typically imposed where the multiple charges are part of the same event or transaction, and are appropriate where the charges have a sufficiently close nexus, or where "the gravamen of the offences" is the same: Wozny , at para. 21. Here Parliament has directed that concurrent sentences are not available for terrorism offences arising out of the same events.


Section <mask> of the Criminal Code provides that an appeal against a decision of a Summary Conviction Appeal Judge may, with leave of this court, be taken on any ground that involves a question of law alone.  Leave is, however, granted sparingly. The court may grant leave: 1) where the merits of the proposed question of law are arguable and it has significance to the administration of justice beyond the specifics of the case; or 2) where there appears to be a clear error of law and the interests of justice require that this court review the decision: R. v. R.R. , 2008 ONCA 497, 90 O.R. (3d) 641 .


Section <mask> of the Criminal Code , R.S.C., 1985, c. C-46, provides that a decision of the SCAC may, with leave of this court, be appealed on any ground that involves a question of law alone. In R. v. R.R. , 2008 ONCA 497, 90 O.R. (3d) 641, this court said, at para. 32, that leave may be granted in two different categories of case. First, where the merits of the proposed question of law are arguable, even if not strong, and the question of law has significance to the administration of justice beyond the particular case. Second, where there appears to be a clear error, even if that error does not have significance beyond the specific case.


Section <mask> of the Criminal Code limits appeals to this court from decisions of summary conviction appeal courts to grounds involving questions of law alone and requires that leave to appeal be granted by this court. This second level of appeal in summary conviction proceedings is an appeal from the decision of the summary conviction appeal court, not a second appeal from the decision of the trial court. The appeal is limited to questions of law alone and does not extend to questions of fact alone or of mixed fact and law, as do appeals to the summary conviction appeal court from decisions made at trial. Second appeals in summary conviction proceedings are the exception, not the rule: R. v. R.(R) , 2008 ONCA 497, 90 O.R. (3d) 641, at para. 25.


Section <mask> of the Criminal Code provides an exhaustive definition of "import" for the purposes of Part III of the Criminal Code (Firearms and Other Weapons) . For those purposes, the term means "import into Canada and, ..., includes the importation of goods into Canada that are shipped in transit through Canada and exported from Canada". Sophisticated firearms importing schemes succeed because of the different roles played by various participants in the scheme. A definition of importing that would exclude some because their actions are not sufficiently linked to the event of border-crossing would fail to address the practical heart of the offence. Those who have the mens rea for the offence and whose actions are part of the process of moving the contraband to the intended recipient are properly convicted of importing. This is so regardless of the time of their involvement or the role they played concerning border-crossing arrangements.


The role of a justice commissioning an oath comes into play only by virtue of the wording of Form 1. Section 32 of the Interpretation Act , R.S.C. 1985, c. I-21, provides that "[w]here a form is prescribed, deviations from that form, not affecting the substance or calculated to mislead, do not invalidate the form used." Section <mask> of the Criminal Code permits forms in the Criminal Code to be "varied to suit the case". That is what has happened in this case. Form 1 has been amended in the Kitchener area (as it has been amended in other regions in Ontario and elsewhere in Canada) to permit commissioners of oaths to commission ITOs. This is entirely appropriate and does not alter the essential point of s. 487(1), namely, that a justice must consider and issue the search warrant based on sworn evidence.


Norman Monty Porter, between the 16 th day of May, 2002 and  the 4 th day of November, 2002, inclusive, at or near Central Saanich,  in the Province of British Columbia, did contravene a regulation made under  paragraph 117(h) of the Firearms Act, respecting the storage of non-restricted  firearms in that they were not stored in a manner that rendered them inoperable  or stored in a container, receptacle, or room that is kept securely locked  and that is constructed so that it cannot readily be broken into and had readily  accessible ammunition, contrary to Section <mask> of the Criminal Code.


Norman Monty PORTER between the 16 th day of May, 2002 and the  4 th day of November, 2002, inclusive, at or near Central Saanich,  in the Province of British Columbia, did contravene a regulation made under  paragraph 117 (h) of the Firearms Act, respecting the storage of restricted  firearms in that they were not stored in a manner that rendered them inoperable  or stored in a container, receptacle, or room that is kept securely locked  and that is constructed so that it cannot readily be broken into and had readily  accessible ammunition, contrary to Section <mask> of the Criminal Code.