R. v. Laporte (P.L.R.), (2016) 326 Man.R.(2d) 217 (CA)

• Judge: Monnin, Hamilton and Pfuetzner, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 09, 2015
• Jurisdiction: Manitoba
• Citations: (2016), 326 Man.R.(2d) 217 (CA);2016 MBCA 36

R. v. Laporte (P.L.R.) (2016), 326 Man.R.(2d) 217 (CA);

      664 W.A.C. 217

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. AP.020

Her Majesty The Queen (respondent) v. Peter Lloyd Roger Laporte (accused/appellant)

(AR 13-30-08044; 2016 MBCA 36)

Indexed As: R. v. Laporte (P.L.R.)

Manitoba Court of Appeal

Monnin, Hamilton and Pfuetzner, JJ.A.

April 13, 2016.

Summary:

The accused was charged with sexual assault arising out of a December 2007 attack. The complainant provided the police with a videotaped statement the day after the alleged offence. A preliminary hearing commenced on May 12, 2008. The complainant fell ill and the hearing was adjourned. On July 2, 2008, the complainant continued her testimony and was cross-examined by defence counsel for a short time before she became ill and was taken to hospital. Before the hearing could be continued, the complainant suffered a severe brain injury as a result of a seizure. She was not expected to emerge from her "vegetative" state and was not able to communicate at any meaningful level. The Crown directed a stay of proceedings. The charges, which had been stayed, were reinstated after the accused's arrest in 2008 arising out of three attacks that took place in November of that year. A new Information was sworn and a second preliminary inquiry was commenced. The Crown sought to admit the complainant's videotaped statement to police and the interrupted preliminary hearing audiotape of July 2, 2008, and transcript thereof pursuant to the principled approach to hearsay.

The Manitoba Provincial Court, in a decision reported at (2010), 249 Man.R.(2d) 157, held that the videotaped statement and the preliminary inquiry tapes were admissible. The accused now faced a total of nine counts arising from alleged sexual assaults on December 15, 2007 (counts one and two) and November 23, 2008 (counts three to nine). Various motions and applications were brought.

The Manitoba Court of Queen's Bench, in a decision reported at (2012), 283 Man.R.(2d) 9, found that the taking of penile swabs from the accused in 2007 and 2008 constituted a breach of s. 8 of the Charter. The court allowed the accused's application under s. 24(2) of the Charter to exclude the evidence of the 2008 swabs only. The 2007 swabs were admitted into evidence.

The Manitoba Court of Queen's Bench, in a decision reported at (2012), 283 Man.R.(2d) 29, allowed the Crown's application to tender the evidence of the first complainant's 911 call, her videotaped statement to police and the transcript of her evidence at the preliminary hearing under the principled exception to the hearsay rule.

The Manitoba Court of Queen's Bench, in a decision reported at (2012), 283 Man.R.(2d) 33, denied the accused's motion to sever counts one and two regarding the first complainant (i.e., sexual assault in stairwell (count 1) and unlawful confinement in same building's laundry room (count two)).

The Manitoba Court of Queen's Bench, in a decision reported at (2012), 283 Man.R.(2d) 39, allowed the Crown's application to have the court admit by way of similar fact evidence, the evidence of each count to be considered as evidence in the other counts. The accused was convicted on all counts, except count four.

The Manitoba Court of Queen's Bench, in a decision reported at (2013), 297 Man.R.(2d) 226, allowed the Crown's application to have the accused declared a dangerous offender. The accused appealed his convictions. His grounds of appeal pertained to the trial judge's rulings denying his motion to sever the counts pertaining to the first complainant; allowing the Crown to introduce similar fact evidence; admitting hearsay evidence from the first complainant; and refusing to exclude penile swab DNA evidence arising from the December 2007 attack. He also sought leave to appeal his sentence and, if leave was granted, appealed his designation as a dangerous offender and the sentence of an indeterminate term of incarceration.

The Manitoba Court of Appeal dismissed the conviction appeal, granted leave to appeal sentence and dismissed the sentence appeal. The accused had not demonstrated any error in principle with respect to the trial judge's severance, hearsay and similar fact rulings or with respect to his decision on sentence. Therefore, these decisions were entitled to deference. With respect to the DNA evidence, while the court's reasons were different from those of the trial judge, the court held that he did not err in failing to exclude the evidence.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - [See second Civil Rights - Topic 1404.2 and Criminal Law - Topic 3147 ].

Civil Rights - Topic 1404.2

Security of the person - Law enforcement - DNA samples (incl. victim's DNA from accused) - The accused was charged with sexual assaults from 2007 and 2008 - He challenged the admissibility of penile swabs that had been taken from him by police, without a warrant, in 2007 and 2008 - At the trial, counsel agreed that a warrant could be obtained under s. 487(1) of the Criminal Code (the warrant section to search "a building, receptacle or place") for penile swabs - On appeal, the Manitoba Court of Appeal stated that "We doubt that a search warrant for penile swabs is available under the current provisions of the Code. However, the availability of such a warrant was not at issue in this appeal. As noted previously, the trial judge's reasons were premised on the agreement between counsel that a warrant was available. We agree with the trial judge that there is a lack of clarity regarding whether the current warrant provisions in the Code would encompass penile swabs." - See paragraph 65.

Civil Rights - Topic 1404.2

Security of the person - Law enforcement - DNA samples (incl. victim's DNA from accused) - On December 15, 2007, the accused was arrested for a sexual assault that took place that morning - The police believed that the victim's bodily fluids were still on the accused - They took penile swabs (the 2007 swabs) without a warrant or the accused's consent - That charge was stayed when the complainant was rendered comatose in an accident - The accused was released on November 10, 2008 - On November 23, 2008, he was arrested for sexual assaults on an eight year old boy and on two women that took place that day - Police again took penile swabs (the 2008 swabs) without a warrant or the accused's consent - The accused strongly resisted the taking of the swabs and, despite numerous requests, was not allowed to contact counsel - The 2007 charge was revived - At trial, the accused asserted that the taking of the 2007 and 2008 swabs breached s. 8 of the Charter and he sought exclusion of the evidence under s. 24(2) - The trial judge found that the taking of the swabs constituted a breach of s. 8 of the Charter, but excluded the evidence of 2008 swabs only - Because of the demeaning nature of the search and the significant invasion of privacy, the breaches in both cases were serious - The impact of the police conduct on the accused's Charter-protected interests was significant in the 2007 seizure, but more significant in the 2008 seizure because of the physical nature of the search and the repeated denial of the accused's right to counsel - In connection with society's interest in the adjudication of the case on its merits, the evidence was reliable, but the importance of that evidence with respect to the 2007 charge was more significant because the complainant was unable to testify at trial - There was other evidence to support the 2008 charges - The 2007 swabs were admitted into evidence - On appeal, the Manitoba Court of Appeal held that the taking of the 2007 swabs did not violate s. 8 - They were taken as a valid search incident to arrest and the search itself was reasonable - Alternatively, the court would not have interfered with the trial judge's decision not to exclude the 2007 swabs - See paragraphs 21 to 76.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See second Civil Rights - Topic 1404.2 ].

Criminal Law - Topic 688

Sexual offences, public morals and disorderly conduct - Sexual offences - Evidence - Previous or contemporaneous sexual assaults - [See first Criminal Law - Topic 5213 ].

Criminal Law - Topic 3042.1

Special powers - Search warrants - When available - [See first Civil Rights - Topic 1404.2 ].

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - The Manitoba Court of Appeal held that the taking of penile swabs fell within the existing general framework of the common law power of a search incident to arrest - The court concluded "that the following are required for a penile swab to be a lawful search incident to arrest: 1) The police have reasonable and probable grounds justifying the arrest; 2) The police have reasonable and probable grounds justifying the penile swab search incident to arrest. In other words, the police have reasonable and probable grounds to believe that the penile swab will provide relevant evidence related to the arrest; and 3) The police have conducted the penile swab in a manner that complies with s. 8 of the Charter. In this regard, the following questions provide a framework not only for the police, but also a court called upon to address the Charter compliance of the search. 1. Was the penile swab conducted at the police station and if not, why not? 2. Was the penile swab conducted in a manner that ensured the health and safety of all involved? 3. Was the penile swab authorized by a police officer acting in a supervisory capacity? 4. Were the police officers carrying out the penile swab of the same gender as the person being searched, and if not, why not? 5. Was the number of police officers involved no more than necessary in the circumstances? 6. Was the minimum force that was necessary used to conduct the search? 7. Was the penile swab carried out in a private area such that no one other than the individuals engaged in the search can observe the search? 8. Was the penile swab conducted as quickly as possible and in a way that ensures that clothing removal or exposure is restricted to that necessary to complete the swab? 9. Was the accused person given the opportunity to swab himself and if not, why not? 10. Was the procedure recorded in a respectful manner? For example, was the camera turned away during the swab procedure or directed at the accused person's back to avoid genital exposure? and 11. Was a proper record kept of the reasons for and the manner in which the penile swab was conducted?" - For a penile swab not to take place in a police station, exigent circumstances were required - See paragraphs 35 to 64.

Criminal Law - Topic 3587

Preliminary inquiry - Evidence - Admission at trial of evidence taken at a preliminary inquiry - [See Evidence - Topic 1527 ].

Criminal Law - Topic 4375.3

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior consistent statements - [See Evidence - Topic 1031 ].

Criminal Law - Topic 4737.1

Procedure - Information or indictment - Charge or count - Indictable offences - Severing counts in an indictment - The accused lived in an apartment building - The Crown alleged that, on December 15, 2007, the accused sexually assaulted a complainant in the building's stairwell (count one) and unlawfully confined her in a laundry room in the building (count two) - Those charges were stayed when the complainant was left comatose after a car accident - The accused was released from custody on November 10, 2008 - He moved back into the building - The Crown alleged that on November 23, 2008, the accused sexually assaulted an eight year old boy in the stairwell of a nearby apartment building and, on the same day, sexually assaulted two separate women, one in the elevator and one in the stairwell of the accused's apartment building (counts three to eight) - Count nine alleged that the accused assaulted a police officer while under arrest on November 23, 2008 - Counts one and two were revived - The accused moved to sever counts one and two - The Manitoba Court of Queen's Bench denied the motion - There was a strong factual connection among the counts - There was a nexus between legal issues arising from the taking of penile swabs from the accused - There was a reasonable prospect of the court admitting similar fact evidence - If severance was granted, there was a risk of inconsistent verdicts and the complainants, including the child, would be called again - As there was no jury, there was no risk of moral or reasoning prejudice - Where no serious prejudice would be done to the accused, a multiplicity of proceedings was to be avoided - The Manitoba Court of Appeal applied a deferential standard and held that the trial judge did not err on this issue - There was no requirement of "an overlap in transaction" in order to establish a factual nexus - Further, the trial judge was entitled to take into account facts that could also be considered in a similar fact evidence application - The trial judge did not confuse the two principles - A trial judge was not required to determine whether similar fact evidence was admissible at the time of a severance motion - Rather, the trial judge only needed to assess whether the similar fact evidence application had some possibility of success in order for this factor to be given weight - Nor did the trial judge err in discounting the accused's indication that he might wish to testify respecting the 2007 counts - See paragraphs 101 to 127.

Criminal Law - Topic 4853

Appeals - Indictable offences - Grounds of appeal - Grounds raised for the first time on appeal - [See Evidence - Topic 1527 ].

Criminal Law - Topic 5204.3

Evidence and witnesses - General - Admissibility - Evidence of disposition or propensity of accused - [See both Criminal Law - Topic 5213 ].

Criminal Law - Topic 5212

Evidence and witnesses - Admissibility and relevancy - Similar acts - General (incl. procedure) - [See first Criminal Law - Topic 5213 ].

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - The accused faced a total of nine charges, relating to assaults that took place on December 15, 2007, against complainant one (adult female) and on November 23, 2008, against complainants two (eight year old boy), three (adult female) and four (adult female) - Regarding complainant one, the charges were sexual assault causing bodily harm (count one) and unlawful confinement (count two) - Regarding complainant two, the charges were unlawful confinement (count three), aggravated sexual assault (count four) and sexual assault causing bodily harm (count five) - However, the parties agreed that the evidence fell short of establishing aggravated assault - Regarding complainant three, the charges were forcibly seizing (count six) and assault while armed with a knife (count seven) - Count eight was a charge of sexual assault causing bodily harm on complainant four - Count nine alleged that the accused assaulted a police officer - Complainant one was unable to testify due to serious brain injuries suffered in an unrelated car accident - The Crown applied to have the court admit by way of similar fact evidence, particularly for the assaults on complainants one and four, the evidence of each count to be considered as evidence in the others - The trial judge allowed the application - There was proximity in time and place - All of the events took place within or near the accused's apartment building - During the intervening 11 months, the accused had been in custody - There were strong similarities in details - The circumstances provided relevant cogent evidence of the accused's modus operandi which provided circumstantial evidence that complainants one and four had not fabricated their evidence nor consented to the accused's sexual demands and that the accused had overcome their resistance by violence or threat of violence - The accused was convicted on all counts, except count four - On appeal, the accused argued, inter alia, that the trial judge should not have admitted the similar fact evidence - The Manitoba Court of Appeal held that the review standard was whether the trial judge had committed an error in principle in deciding to admit the similar fact evidence (i.e., the decision was unreasonable, or undermined by legal error or misapprehension of material evidence) - In this case, the issues related to the likelihood of fabrication or consent (i.e., whether the actus reus occurred), not the identity of the assailant - Accordingly, the similar fact evidence did not have to be highly distinctive, show a "signature" or be strikingly similar - The circumstances described by the trial judge were capable of supporting the required double inferences that: 1) the accused had a specific propensity to take vulnerable persons into stairwells in and around his apartment building and to use force or threats to attain sexual gratification; and 2) he acted in conformity with that propensity in each of the charges before the court - This propensity evidence was capable of assisting with the issues of consent and fabrication - The trial judge did not err in his prejudice analysis, concluding that the risk was reduced due to the absence of a jury - The accused also argued that the trial judge should have given his decision on the admissibility of similar fact evidence before the accused was asked to present his defence - Although arguably this was the preferred procedure, failure to follow it would not necessarily be a reversible error - What had to be considered in each case was whether the accused had suffered any prejudice or unfairness when the decision was delayed - In this case, he did not - See paragraphs 130 to 178.

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - The Manitoba Court of Appeal stated that "Similar fact evidence is evidence of misconduct by the accused which is outside of the subject matter of the offence under consideration. ... Such evidence is presumptively inadmissible. The policy for this general exclusionary rule is that, while the propensity of the accused to commit an offence inferable from similar facts may be relevant in some cases, its potential for prejudice is very great, and will often outweigh the probative value of the evidence. ...  There are two types of prejudice that may arise from the admission of similar fact evidence. Reasoning prejudice arises if the jury is confused or distracted by the evidence of other misconduct and the time it takes to hear it, and the jury puts more weight on it than is warranted. Moral prejudice arises if the jury convicts based on its conclusion that the accused is a bad person. ...  Despite this general exclusionary rule, it has also been recognized that similar fact evidence may be so highly probative of an issue in the trial that its admission will outweigh the potential prejudice to the accused. ...  [T]he issue for trial judges is how to assess the probative value and the potential prejudice of the similar fact evidence in a given case." - See paragraphs 137 to 142.

Criminal Law - Topic 5214

Evidence and witnesses - Admissibility and relevancy - Similar acts - Where indictment includes several counts - [See first Criminal Law - Topic 5213 ].

Criminal Law - Topic 5214.4

Evidence and witnesses - Admissibility and relevancy - Similar acts - To prove propensity - [See both Criminal Law - Topic 5213 ].

Criminal Law - Topic 5420

Evidence and witnesses - Witnesses - Out of court statements (incl. videotaped statements) - [See Evidence - Topic 1527 ].

Criminal Law - Topic 5420.1

Evidence and witnesses - Witnesses - Admissibility of evidence previously taken where witness unavailable or unable to testify - [See Evidence - Topic 1527 ].

Criminal Law - Topic 6503

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Dangerous offender - Defined - [See second Criminal Law - Topic 6552 ].

Criminal Law - Topic 6552

Dangerous or long-term offenders - Detention - Protection of the public - Pattern of repetitive behaviour - The accused appealed his designation as a dangerous offender - The Manitoba Court of Appeal stated that "The accused's position is essentially that 'the offence for which he or she has been convicted' encompasses all of the offences before the Court, meaning that there are no other offences with which to form a pattern. However, existing jurisprudence supports the contrary view that the pattern required by subss. 753(1)(a)(i) and (ii) [of the Criminal Code] can arise solely from the offences before the court without regard to whether there are prior convictions." - See paragraph 200.

Criminal Law - Topic 6552

Dangerous or long-term offenders - Detention - Protection of the public - Pattern of repetitive behaviour - The accused appealed his designation as a dangerous offender - There were four complainants - The first charges arose out of 2007 incident involving complainant 1 - The other charges arose out of 2008 incidents which all occurred on the same day and involved three other complainants - The Manitoba Court of Appeal dismissed the appeal - The accused was convicted of sexual assault causing bodily harm against Complainant 4, a serious personal injury offence, which could properly be considered to be the predicate offence - There were four similar violent attacks, rather than a significant number of non-identical crimes - The 2007 offences showed that the 2008 offences were not an isolated incident, but a continuation and escalation of the accused's previous violent behaviour - The accused demonstrated repetitive behaviour in committing violent offences against vulnerable victims in semi-private common areas within apartment buildings - He failed to restrain that behaviour and the complainants were injured as a result - The fact that the accused committed three similar assaults after being released following the 2007 offences showed a likelihood of injury or severe psychological damage to other persons though the failure to restrain his behaviour in the future - The trial judge's findings that the requisite pattern was established under both ss. 753(1)(a)(i) (pattern of repetitive behaviour) and (ii) (pattern of persistent aggressive behaviour) of the Criminal Code were unassailable - See paragraphs 200 to 210.

Criminal Law - Topic 6562

Dangerous or long-term offenders - Detention - Protection of the public - Persistent aggressive behaviour - [See both Criminal Law - Topic 6552 ].

Evidence - Topic 1031

Relevant facts - Relevance and materiality - Admissibility - Prior consistent statements - The Crown alleged that the accused sexually assaulted the complainant in an apartment building stairwell and then unlawfully confined her in a laundry room, from which she escaped when the accused fell asleep - The complainant called 911 from an adjacent store - She gave police an unsworn video statement - At the preliminary hearing, the complainant's cross-examination could not be completed because she became ill - Before the hearing reconvened, the complainant suffered serious brain damage in an unrelated car accident and was left comatose - The Crown sought to tender the evidence of the complainant's 911 call, her videotaped statement to police and the transcript of her evidence at the preliminary hearing under the principled exception to the hearsay rule - The trial judge admitted the evidence - On appeal, the accused argued, inter alia, that the trial judge allowed the introduction of the hearsay statements without considering whether to do so would offend the common law principle against admission of prior consistent statements - The Manitoba Court of Appeal held that the fact that the complainant was not a witness at the trial was a complete answer to the argument - By definition, a statement could not be a prior consistent statement unless the maker of the statement was a witness at the trial - Furthermore, defence counsel made detailed comparisons of the complainant's three versions of events to illustrate what defence counsel argued to be significant inconsistencies between those versions - Defence counsel relied on the inconsistencies in an attempt to impugn the complainant's credibility and the reliability of the evidence - See paragraphs 84 to 88.

Evidence - Topic 1256

Relevant facts - Relevance and materiality - Similar acts - To prove criminal conduct - [See both Criminal Law - Topic 5213 ].

Evidence - Topic 1526

Hearsay rule - Hearsay rule exceptions and exclusions - Testimony given in previous proceedings - [See Evidence - Topic 1527 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The Crown alleged that the accused sexually assaulted the complainant in an apartment building stairwell and then unlawfully confined her in a laundry room, from which she escaped when the accused fell asleep - The complainant called 911 from an adjacent store - She gave police an unsworn video statement - At the preliminary hearing, the complainant's cross-examination could not be completed because she became ill - Before the hearing reconvened, the complainant suffered serious brain damage in an unrelated car accident and was left comatose - The Crown sought to tender the evidence of the complainant's 911 call, her videotaped statement to police and the transcript of her evidence at the preliminary hearing under the principled exception to the hearsay rule - The trial judge admitted the evidence - There was a sufficient quality of evidence to compensate for the lack of a full cross-examination - With the benefit of other evidence including videotape of the accused approaching the building and the complainant entering and escaping the building, the court was in a position to assess the complainant's credibility without a complete cross-examination - The evidence met the threshold test of reliability - Further, as this was not a jury trial, there was no risk that moral and reasoning prejudice would outweigh the evidence's probative value - The Manitoba Court of Appeal held that it was open to the trial judge to conclude that the evidence met the requirement of threshold reliability - While it might have been preferable for the trial judge to have considered the hearsay statements individually, he committed no reversible error in the manner in which he proceeded, for two reasons: 1) admissibility should be considered in the context of the other evidence tendered in the trial; and 2) the trial judge's ruling must be viewed in the context of the trial and how it unfolded - Defence counsel did not object to the manner in which the admissibility voir dire proceeded - While the failure to object was not determinative of the issue, it served "as a yardstick against which to measure the contrary position now advanced for the first time on appeal" - See paragraphs 89 to 100.

Police - Topic 3185

Powers - Search - Following arrest or detention - [See second Civil Rights - Topic 1404.2 and Criminal Law - Topic 3147 ].

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 24].

R. v. Golden (I.V.), [2001] 3 S.C.R. 679; 279 N.R. 1; 153 O.A.C. 201; 2001 SCC 83, appld. [para. 26].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, dist. [para. 27].

R. v. Farrah (D.) (2011), 268 Man.R.(2d) 112; 520 W.A.C. 112; 2011 MBCA 49, refd to. [para. 34].

R. v. Saeed (A.H.) (2014), 577 A.R. 143; 613 W.A.C. 143; 2014 ABCA 238, refd to. [para. 35].

R. v. Pun (R.J.N.C.), [2012] O.T.C. Uned. 5305; 2012 ONSC 5305 (Sup. Ct.), refd to. [para. 35].

R. v. B.A.P. (2013), 456 Sask.R. 23; 2013 SKQB 14, refd to. [para. 35].

R. v. Hodgson, [2008] O.J. No. 4748 (C.J.), refd to. [para. 35].

R. v. Amey, 2013 ONSC 5108, refd to. [para. 35].

R. v. Harasemow (C.), [2014] B.C.T.C. Uned. 2287; 2014 BCSC 2287, refd to. [para. 35].

R. v. Fearon (K.), [2014] 3 S.C.R. 621; 465 N.R. 205; 326 O.A.C. 1; 2014 SCC 77, appld. [para. 38].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 42].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 47].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241, refd to. [para. 53].

R. v. Monney (I.), [1999] 1 S.C.R. 652; 237 N.R. 157; 119 O.A.C. 272, refd to. [para. 53].

R. v. T.G.H. (2014), 326 O.A.C. 92; 2014 ONCA 460, refd to. [para. 65].

R. v. H.-G., 2005 QCCA 1160, refd to. [para. 65].

S.F. v. Canada (Attorney General) et al. (1997), 47 O.T.C. 321 (Sup. Ct.), revsd. (2000), 128 O.A.C. 329 (CA.), refd to. [para. 65].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, appld. [para. 68].

R. v. Mian (M.H.), [2014] 2 S.C.R. 689; 462 N.R. 1; 580 A.R. 1; 620 W.A.C. 1; 2014 SCC 54, refd to. [para. 75].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 78].

R. v. Head (J.B.) (2014), 306 Man.R.(2d) 186; 604 W.A.C. 186; 2014 MBCA 59, refd to. [para. 81].

R. v. R.T.K. (2014), 575 A.R. 51; 612 W.A.C. 51; 2014 ABCA 167, refd to. [para. 85].

R. v. D.B. (2013), 310 O.A.C. 294; 2013 ONCA 578, refd to. [para. 85].

R. v. Sylvain (W.) (2014), 575 A.R. 59; 612 WA.C. 69; 310 C.C.C.(3d) 1; 2014 ABCA 153, refd to. [para. 85].

R. v. Nicholas (E.S.) (2004), 184 O.A.C. 139 (C.A.), refd to. [para. 92].

R. v. Mullings (D.) (2014), 327 O.A.C. 256; 2014 ONCA 895, leave to appeal dismissed [2015] S.C.C.A. No. 253, refd to. [para. 93].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81, refd to. [para. 93].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 94].

R. v. Thomas (R.J.) (2009), 245 Man.R.(2d) 155; 466 W.A.C. 155; 2009 MBCA 85, refd to. [para. 95].

R. v. Woodard (J.) (2009), 240 Man.R.(2d) 24; 456 W.A.C. 24; 2009 MBCA 42, refd to. [para. 95].

R. v. C.E.S. (2009), 240 Man.R.(2d) 107; 456 W.A.C. 107; 2009 MBCA 61, refd to. [para. 95].

R. v. M.N.P. (2014), 303 Man.R.(2d) 67; 600 W.A.C. 67; 2014 MBCA 2, refd to. [para. 95].

R. v. G.N.D. (1993), 62 O.A.C. 122; 81 C.C.C.(3d) 65 (C.A.), refd to. [para. 97].

R. v. Rockey (S.E.), [1996] 3 S.C.R. 829; 204 N.R. 214; 95 O.A.C. 134, refd to. [para. 98].

R. v. Phillips (C.) (2001), 139 O.A.C. 282 (C.A.), refd to. [para. 99].

R. v. S.G.T., [2010] 1 S.C.R. 688; 402 N.R. 24; 350 Sask.R. 14; 487 W.A.C. 14; 2010 SCC 20, refd to. [para. 99].

R. v. Last (G.E.), [2009] 3 S.C.R. 146; 394 N.R. 78; 255 O.A.C. 334; 2009 SCC 45, refd to. [para. 103].

R. v. J.C.L., [2012] O.T.C. Uned. 6603; 2012 ONSC 6603, disagreed with [para. 109].

R. v. Ticknovich (N.M.) (2003), 353 A.R. 8; 2003 ABQB 597, refd to. [para. 110].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, refd to. [para. 111].

R. v. Blacklaws (F.O.) (2013), 440 N.R. 104; 331 B.C.A.C. 35; 565 W.A.C. 35; 2013 SCC 8, reving (2012), 322 B.C.A.C. 107; 549 W.A.C. 107; 2012 BCCA 217, refd to. [para. 112].

R. v. Mastronardi (K.W.R.) (2014), 358 B.C.A.C. 264; 614 W.A.C. 264; 2014 BCCA 302, refd to. [para. 117].

Cartier v. R., 2015 QCCA 329, leave to appeal denied, [2015] S.C.C.A. No. 473, refd to. [para. 117].

R. v. Gamble (I.A.) (2014), 442 Sask.R. 300; 616 W.A.C. 300; 2014 SKCA 101, refd to. [para. 117].

R. v. Blea (A.J.), [2012] A.R. Uned. 17; 287 C.C.C.(3d) 444; 2012 ABCA 41, refd to. [para. 117].

R. v. Waudby (J.), [2011] O.A.C. Uned. 628; 2011 ONCA 707, refd to. [para. 117].

R. v. Ward (B.) (2010), 272 O.A.C. 64; 2010 ONCA 806, refd to. [para. 117].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, appld. [para. 131].

R. v. Shearing (I.), [2002] 3 S.C.R. 33; 290 N.R. 225; 168 B.C.A.C. 161; 275 W.A.C. 161; 2002 SCC 58, refd to. [para. 136].

R. v. Cresswell (K.), [2009] O.A.C. Uned. 51; 2009 ONCA 95, refd to. [para. 136].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 144].

R. v. Carpenter (No. 2) (1982), 142 D.L.R.(3d) 237 (Ont. C.A.), refd to. [para. 149].

R. v. T.L.M. (2011), 307 Nfld. & P.E.I.R. 262; 954 A.P.R. 262; 271 C.C.C.(3d) 148; 2011 NLCA 24, revd. [2012] 1 S.C.R. 233;(2012), 427 N.R. 1; 319 Nfld. & P.E.I.R. 354; 992 A.P.R. 354; 2012 SCC 6, refd to. [para. 163].

R. v. T.B. (2009), 250 O.A.C. 177; 243 C.C.C.(3d) 158; 2009 ONCA 177, refd to. [para. 163].

R. v. West (J.B.) (2015), 376 B.C.A.C. 301; 646 W.A.C. 301; 2015 BCCA 379, refd to. [para. 163].

R. v. Innerebner (T.L.) (2013), 539 A.R. 382; 561 W.A.C. 382; 2013 ABCA 9, refd to. [para. 163].

R. v. Arason (R.H.) and Derosier (G.L.) (1992), 21 B.C.A.C. 20; 37 W.A.C. 20 (C.A.), refd to. [para. 163].

R. v. L.W. (2004), 191 O.A.C. 22 (C.A.), refd to. [para. 163].

R. v. deKock (C.R.) (2009), 454 A.R. 102; 455 W.A.C. 102; 2009 ABCA 225, refd to. [para. 163].

R. v. MacCormack (C.J.) (2014), 245 O.A.C. 271; 2009 ONCA 72, refd to. [para. 163].

R. v. J.M. (2010), 258 O.A.C. 81; 2010 ONCA 117, refd to. [para. 163].

R. v. Poon (E.) (2014), 399 Sask.R. 89; 2012 SKCA 76, refd to. [para. 163].

R. v. Villeda (G.M.) (2011), 502 A.R. 83; 517 W.A.C. 83; 2011 ABCA 85, refd to. [para. 164].

R. v. Allgood (G.M.) (2015), 465 Sask.R. 120; 649 W.A.C. 120; 327 C.C.C.(3d) 196; 2015 SKCA 88, refd to. [para. 164].

R. v. T.B.L. (2003), 173 O.A.C. 159 (C.A.), refd to. [para. 174].

R. v. Michaud (R.) (2012), 397 N.B.R.(2d) 219; 1028 A.P.R. 219; 2012 NBCA 77, refd to. [para. 164].

R. v. B.F.A. (2012), 288 Man.R.(2d) 80; 564 W.A.C. 80; 2012 MBCA 117, refd to. [para. 188].

R. v. Young (G.) (1998), 159 Nfld. & P.E.I.R. 136; 492 A.P.R. 136 (Nfld. C.A.), leave to appeal denied (1998), 229 N.R. 400; 167 Nfld. & P.E.I.R. 358; 513 A.P.R. 358 (S.C.C.), agreed with [para. 201].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 203].

R. v. Hatchwell, [1976] 1 S.C.R. 39; 3 N.R. 571, refd to. [para. 204].

R. v. Langevin (1984), 3 O.A.C. 110 (C.A.), refd to. [para. 205].

R. v. Hogg (D.A.) (2011), 287 O.A.C. 82; 2011 ONCA 840, refd to. [para. 206].

R. v. Knife (F.J.) (2015), 460 Sask.R. 287; 639 W.A.C. 287; 2015 SKCA 82, leave to appeal denied [2015] S.C.C.A. No. 382, refd to. [para. 207].

R. v. Toutsaint (J.) (2015), 467 Sask.R. 248; 651 W.A.C. 248; 2015 SKCA 117, refd to. [para. 217].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 753(a)(i), sect. 753(a)(ii) [para. 196].

Counsel:

L.C. Robinson and K.D. Minuk, for the appellant;

N.M. Cutler, D.L. Carlson and D.A. Mann, for the respondent.

This appeal was heard on October 9, 2015, by Monnin, Hamilton and Pfuetzner, JJ.A., of the Manitoba Court of Appeal. Hamilton and Pfuetzner, JJ.A., delivered the following reasons for decision for the court on April 13, 2016.