R. v. Luciano (M.),

• Jurisdiction: Ontario
• Judge: Feldman, Rouleau and Watt, JJ.A.
• Neutral Citation: 2011 ONCA 89
• Citation: 2011 ONCA 89,(2011), 273 O.A.C. 273 (CA),267 CCC (3d) 16,273 OAC 273,(2011), 273 OAC 273 (CA),273 O.A.C. 273
• Date: 01 February 2011
• Court: Court of Appeal (Ontario)

R. v. Luciano (M.) (2011), 273 O.A.C. 273 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. FE.007

Her Majesty The Queen (respondent) v. Michael Luciano (appellant)

(C43989)

Her Majesty the Queen (respondent) v. Michael Luciano (appellant)

(C42706; 2011 ONCA 89)

Indexed As: R. v. Luciano (M.)

Ontario Court of Appeal

Feldman, Rouleau and Watt, JJ.A.

February 1, 2011.

Summary:

The accused, his estranged wife, and a friend (Cooper) were drinking together. The wife was stabbed to death. The accused and Cooper disposed of the body. The next day, Cooper and the accused fought. Cooper was strangled to death. The accused was charged with first degree murder (Cooper) and second degree murder (wife). The two counts were severed. The first degree murder trial proceeded first. The accused claimed that Cooper killed his wife and that he assisted in disposing of the body out of fear for what Cooper would do to him and his children. The accused admitted killing Cooper, but claimed self-defence or accidental strangulation during a lawful consensual fight. Alternatively, the accused claimed that intoxication limited his criminal culpability to manslaughter. The jury heard evidence respecting both killings and found the accused guilty of first degree murder. Months later, the second degree murder trial proceeded. The jury heard only evidence respecting the wife's death. Evidence respecting Cooper's death and why he was not present to testify was not admitted. The jury acquitted the accused of second degree murder. The accused appealed the first degree murder conviction on the ground that the trial judge made a number of errors in instructing the jury. The Crown appealed the second degree murder acquittal on the ground that the trial judge erred in refusing to admit evidence respecting Cooper's death or at least evidence that Cooper did not testify because he was dead.

The Ontario Court of Appeal dismissed both appeals.

Criminal Law - Topic 1270

Murder - General principles - First degree murder - Meaning of "planned" and "deliberate" - The Ontario Court of Appeal stated that "evidence of intoxication is relevant to proof of the requirement of deliberation in prosecutions for planned and deliberate first degree murder. ... Evidence of intoxication that falls short of what may be required to negate the intention and foresight requirements in the definition of murder in s. 229(a) [Criminal Code] may raise a reasonable doubt about whether a murder was planned and deliberate on the part of the person charged. ... Despite the decisions in Reynolds and Howard, which require an express instruction that planning and deliberation may be negatived by a degree of intoxication less than that required to negate the intent requirement of s. 229(a)(i) and the knowledge and foresight components of s. 229(a)(ii), a majority of the Supreme Court of Canada held in Wallen that no such express instruction need be given" - See paragraphs 81 to 82.

Criminal Law - Topic 1299

Murder - Defences - Jury charge (incl. intent and drunkenness) - The Ontario Court of Appeal stated that "in prosecutions for murder, it is commonplace for the prosecutor to rely on the common sense inference of intention from conduct. ... Where the prosecutor relies on the common sense inference and evidence of advanced intoxication is adduced, we require jury instructions expressly to link the evidence of intoxication to the common sense inference. The jury must be told to take into account the evidence of alcohol or drug consumption, along with the rest of the evidence relevant to the intent or foresight requirement, in determining whether to draw the common sense inference in all the circumstances ... Where expert evidence is introduced to support a claim of intoxication, a trial judge should avoid drawing inferences from or interpreting the evidence for jurors in final instructions. Any review of expert testimony, and the relation of it to relevant issues, should not expressly or impliedly remove the determination of the critical facts from the jury's consideration." - See paragraphs 79 to 80.

Criminal Law - Topic 1299

Murder - Defences - Jury charge (incl. intent and drunkenness) - The accused was convicted by a jury of first degree murder in the strangulation death of the victim - The accused, who had a blood-alcohol level of .30 or higher, appealed on the ground that the trial judge failed to properly instruct the jury on intoxication and intent - The Ontario Court of Appeal reviewed the instructions respecting intoxication and dismissed the appeal - The jury instructions were adequate - See paragraphs 83 to 98.

Criminal Law - Topic 1299

Murder - Defences - Jury charge (incl. intent and drunkenness) - [See Criminal Law - Topic 1270 ].

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - The Ontario Court of Appeal stated that "a trial judge is under a duty to review the substantial parts of the evidence adduced at trial and to relate that evidence to the issues that are for the jury to decide, thereby to ensure that the jurors appreciate the value and effect of the evidence ... A trial judge is under no obligation, however, to review all the evidence. Indeed, a colourless rendition of all the evidence, culled from the trial judge's bench book, is more apt to numb jurors into catatonia than to help them to do their job." - See paragraph 72.

Criminal Law - Topic 4353

Procedure - Charge or directions - Jury or judge alone - Directions regarding corroboration - [See Criminal Law - Topic 4354 ].

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The Ontario Court of Appeal stated that "the purpose of a Vetrovec caution is to alert the jury to the danger of relying on the unsupported evidence of an unsavoury witness and to explain why special scrutiny of this evidence is required. ... The content of the caution is controlling, not the particular word formula followed ... Where a Vetrovec caution has been given, a trial judge, in appropriate cases, should also direct the jurors' attention to evidence capable of supporting or confirming material parts of the suspect witness's evidence ... Jury instruction about potentially confirmatory evidence must make clear the type of evidence capable of offering support. Although the items of potentially confirmatory evidence are to be illustrative and not exhaustive, a trial judge must not simply turn the jury loose to rummage about the evidence adduced at trial in search of whatever it feels confirms the truth of a witness's testimony, without any instructions about the essential qualities of confirmatory evidence." - See paragraphs 133 to 135.

Criminal Law - Topic 4355

Procedure - Charge or directions - Jury or judge alone - Directions regarding included offences - The Ontario Court of Appeal stated that "the obligation of a trial judge to instruct jurors about the availability of a verdict of an included offence is not absolute, rather is conditional upon an air of reality in the evidence adduced at trial to permit a reasonable jury, properly instructed, to conclude that the essential elements of the included offence have been established. ... Sometimes ... counsel may not want a particular included offence ... which may lead to an intermediate verdict, left with the jury. The reasons vary, but are often laced with tactical and practical considerations. Incompatibility with a primary defence. Presumed risk of a 'compromise' verdict. An unpalatable alternative in the circumstances disclosed by the evidence. To determine whether failure to instruct on an included offence reflects error, appellate courts take into account the position of counsel at trial, especially defence counsel. ... After all, an accused has a constitutional right, not without limits, to control his or her own defence." - See paragraphs 75 to 77.

Criminal Law - Topic 4369

Procedure - Charge or directions - Jury or judge alone - Directions regarding motive or design - [See Criminal Law - Topic 5494 ].

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - [See Criminal Law - Topic 4354 ].

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - A trial judge gave the jury an "honest witness" instruction, telling them that "there is a presumption in law that a witness comes to court to tell his or her honest recollections" - The Ontario Court of Appeal held that the trial judge erred, as "the law recognizes no presumption of honesty among witnesses summoned to testify in a criminal trial" - See paragraphs 141 to 147.

Criminal Law - Topic 4378

Procedure - Charge or directions - Jury or judge alone - Judicial review of - The Ontario Court of Appeal stated that the parties in a criminal case were entitled to a properly instructed jury, not "perfectly instructed juries" - The court stated that "what matters is the substance of the instructions, not their adherence to or departure from some prescriptive formula. The language used and sequence followed fall within the firmly embedded discretion of the trial judge, to be exercised in accordance with the demands of justice in each case ... Failure to tell jurors everything they might have been told is not misdirection. Misdirection occurs when the judge tells the jury something that is wrong, or tells them something that would make wrong what the judge has left the jury to understand. Non-direction, without more, is not misdirection. ... Appellate courts are to read jury instructions as a whole. We are not forensic pathologists dissecting the corpus of a charge in search of a disease process, much less to assay its effect on the survival of the body. Our task is to administer justice, to deal with valid objections and to determine whether those claims have led to a miscarriage of justice" - See pargraphs 69 to 71.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - [See Criminal Law - Topic 5449 ].

Criminal Law - Topic 4382

Procedure - Charge or directions - Jury or judge alone - Misdirection - What constitutes - [See Criminal Law - Topic 4378 ].

Criminal Law - Topic 5202

Evidence and witnesses - General - Admissibility - Whether relevant and material - The Ontario Court of Appeal stated that "to be relevant, an item of evidence need not prove conclusively the proposition of fact for which it is offered, or even make that proposition of fact more probable than not. What is essential is that the item of evidence must reasonably show, by the application of everyday experience and common sense that the fact is slightly more probable with the evidence than it would be without it ... To make its way into a criminal trial, an item of evidence must also be material. Evidence is material if what it is offered to prove or disprove is a fact in issue. What is in issue is determined by and a function of the allegations contained in the indictment and the governing procedural and substantive law. If the fact the evidence is offered to prove is not in issue, for example because of an admission, the evidence is immaterial" - See paragraphs 206 to 207.

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - The accused's estranged wife was stabbed to death - The accused and Cooper disposed of the body and cleaned up the murder site - The next day, Cooper was strangled to death by the accused - The accused was charged with first degree murder (Cooper) and second degree murder (wife) - Severance was granted - The first degree murder trial proceeded first - The jury heard evidence respecting both killings and found the accused guilty - Months later, the second degree murder trial proceeded - Evidence that the accused murdered Cooper and Cooper was absent at trial because he was dead was ruled inadmissible on the ground that the prejudicial effect of the evidence outweighed its probative value - The Crown appealed on the ground that the trial judge erred in refusing to admit the evidence - The Crown claimed that the evidence was admissible as after-the-fact conduct or post-offence conduct: "i. to establish the identity of [the wife's] killer (because only her killer would need to dispatch a witness to his crime); ii. to rebut any claim that [the accused] might advance that he was only an innocent bystander when Cooper killed [the wife]; iii. to complete the narrative of what was, despite the order for severance, a single transaction; iv. to avoid jury speculation about the whereabouts of James Cooper; or v. to rebut the inference that only Cooper was capable of the violence necessary to kill [the wife]" - The Crown submitted that the probative value of this relevant evidence exceeded its prejudicial effect - The Ontario Court of Appeal dismissed the appeal - The post-offence conduct evidence was both relevant and material to the issue of the identity of the wife's killer - Whether the trial judge erred in finding that the prejudicial effect of the evidence outweighed its probative value was "not entirely clear" and "it is far from clear that this admissibility ruling, made in an evidentiary desert before jury selection, would have been different had the trial judge started with the presumption that jurors follow limiting instructions. Second, the principal basis of admissibility advanced on appeal ... was not the basis upon which the case for admissibility was advanced at trial. ... Third, the prosecutor never renewed the application made at the outset of the trial to have the evidence ... admitted. ... Finally, admissibility in this case depended upon an assessment of probative value, prejudicial effect, and of where the balance fell between them. These assessments are notoriously fact-specific. Absent clear error, these decisions should rest with their primary constituency - the trial judge" - See paragraphs 172 to 265.

Criminal Law - Topic 5211

Evidence and witnesses - Admissibility and relevancy - Flight and other post-offence behaviour of accused - [See Criminal Law - Topic 5209 ].

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - Either the accused or his friend (Cooper) were guilty of murdering the accused's estranged wife - The accused claimed that Cooper killed her and that he only helped dispose of the body and clean up the murder scene - The next day, Cooper was strangled by the accused - The accused claimed self-defence or accidental death during a consensual fight or, alternatively, that he was so intoxicated that his criminal liability should be limited to manslaughter - The jury heard evidence respecting the estranged wife's death and the accused's involvement - That evidence was relevant, material and admissible to the issue of a motive to kill Cooper - The accused adduced evidence of Cooper's general propensity for violence - The accused appealed his first degree murder conviction on the ground that the trial judge failed to properly instruct the jury against general propensity reasoning, specifically that the evidence respecting the accused's involvement in disposing of his wife's body and helping clean the murder scene could not be used to infer that he was guilty of murdering Cooper the next day - The Ontario Court of Appeal stated that "where an accused advances a defence that a third party committed the offence with which the accused is charged and adduces evidence of the third party's disposition or propensity as circumstantial evidence of the third party's conduct, the prosecutor may be permitted to adduce responsive evidence of the accused's disposition or propensity. ... Jury instructions must guide the jury away from prohibited reasoning, but the actual language of which the instruction is composed may vary ... What is prohibited is general propensity reasoning. What is permitted is situation-specific propensity reasoning." - The court reviewed the jury instructions and found them adequate - The trial judge instructed the jury, in unqualified language, not to infer that the accused killed Cooper merely because of his involvement in his wife's death - See paragraphs 99 to 125.

Criminal Law - Topic 5494

Evidence and witnesses - Motive or design - Admissibility - Either the accused or his friend (Cooper) were guilty of murdering the accused's estranged wife - The accused claimed that Cooper killed her and that he only helped dispose of the body and clean up the murder scene - The next day, Cooper was strangled by the accused - The accused, charged with the first degree murder of Cooper, claimed self-defence or accidental death during a consensual fight or, alternatively, that he was so intoxicated that his criminal liability should be limited to manslaughter - The jury heard evidence respecting the estranged wife's death and the accused's involvement - The Ontario Court of Appeal agreed that the evidence of the wife's death was admissible as relevant and material to the issue of the accused's motive to kill Cooper - The court stated that "although motive is not an essential element of an offence, evidence of motive may assist in proof of an accused's participation in an offence and of the state of mind with which the offence was committed. ... Sometimes, evidence of motive discloses the commission of other offences or other disreputable conduct. Where motive involves the commission of other offences or extrinsic disreputable conduct, the traditional limiting instructions associated with such misconduct may not be required." - See paragraphs 113 to 114.

Cases Noticed:

R. v. MacKinlay (1986), 15 O.A.C. 241; 28 C.C.C.(3d) 306 (C.A.), refd to. [para. 57].

R. v. Canute (S.J.) (1993), 25 B.C.A.C. 277; 43 W.A.C. 277; 80 C.C.C.(3d) 403 (C.A.), refd to. [para. 57].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4, refd to. [para. 69].

R. v. Daley (W.J.) - see R. v. W.J.D.

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 69].

R. v. Demeter (1975), 25 C.C.C.(2d) 417 (Ont. C.A.), affd. [1978] 1 S.C.R. 538; 16 N.R. 46, refd to. [para. 70].

Abrath v. North Eastern Railway Co. (1883), 11 Q.B.D. 440, refd to. [para. 70].

R. v. Cohen and Bateman (1909), 2 Cr. App. R. 197 (C.C.A.), refd to. [para. 71].

Azoulay v. R., [1952] 2 S.C.R. 495, refd to. [para. 72].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1, refd to. [para. 75].

R. v. Chalmers (J.) (2009), 247 O.A.C. 250; 243 C.C.C.(3d) 338 (C.A.), refd to. [para. 75].

R. v. Sarrazin (R.) et al. (2010), 268 O.A.C. 200; 259 C.C.C.(3d) 293 (C.A.), refd to. [para. 75].

R. v. Aalders, [1993] 2 S.C.R. 482; 154 N.R. 161; 55 Q.A.C. 161, refd to. [para. 75].

R. v. Murray (E.E.) (1994), 73 O.A.C. 321; 20 O.R.(3d) 156 (C.A.), refd to. [para. 77].

R. v. Squire, [1977] 2 S.C.R. 13; 10 N.R. 25, refd to. [para. 77].

R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321, refd to. [para. 77].

R. v. MacDonald (P.D.) (2008), 239 O.A.C. 199; 236 C.C.C.(3d) 269 (C.A.), refd to. [para. 77].

R. v. Lomage (1991), 44 O.A.C. 131; 2 O.R.(3d) 621 (C.A.), refd to. [para. 77].

R. v. Levert (S.) (1994), 76 O.A.C. 307 (C.A.), refd to. [para. 77].

R. v. Seymour (J.), [1996] 2 S.C.R. 252; 197 N.R. 81; 76 B.C.A.C. 1; 125 W.A.C. 1, refd to. [para. 79].

R. v. Cooper, [1980] 1 S.C.R. 1149; 31 N.R. 234, refd to. [para. 80].

R. v. Mitchell, [1964] S.C.R. 471, refd to. [para. 81].

R. v. Wallen, [1990] 1 S.C.R. 827; 107 N.R. 50; 107 A.R. 114, refd to. [para. 81].

R. v. Reynolds (1978), 44 C.C.C.(2d) 129 (Ont. C.A.), refd to. [para. 81].

R. v. Howard (1986), 15 O.A.C. 255; 29 C.C.C.(3d) 544 (C.A.), affd. [1989] 1 S.C.R. 1337; 96 N.R. 81; 34 O.A.C. 81, refd to. [para. 81].

R. v. Robinson (D.), [1996] 1 S.C.R. 683; 194 N.R. 181; 72 B.C.A.C. 161; 119 W.A.C. 161, refd to. [para. 88].

Plomp v. R. (1963), 110 C.L.R. 234 (H.C.), refd to. [para. 113].

R. v. Griffin (J.) et al., [2009] 2 S.C.R. 42; 388 N.R. 334, refd to. [para. 113].

R. v. Candir (E.) (2009), 257 O.A.C. 119; 250 C.C.C.(3d) 139 (C.A.), refd to. [para. 113].

R. v. Jackson (1980), 57 C.C.C.(2d) 154 (Ont. C.A.), refd to. [para. 114].

R. v. Krugel (N.R.) (2000), 129 O.A.C. 182; 143 C.C.C.(3d) 367 (C.A.), refd to. [para. 114].

R. v. Holtam (D.J.) (2002), 168 B.C.A.C. 278; 275 W.A.C. 278; 165 C.C.C.(3d) 502 (C.A.), refd to. [para. 114].

R. v. Mullins-Johnson (W.) (1996), 96 O.A.C. 212; 112 C.C.C.(3d) 117 (C.A.), affd. [1998] 1 S.C.R. 977; 226 N.R. 365; 110 O.A.C. 1, refd to. [para. 115].

R. v. L.E.D., [1989] 2 S.C.R. 111; 97 N.R. 321, refd to. [para. 116].

R. v. G.T. (2004), 191 O.A.C. 144; 72 O.R.(3d) 401 (C.A.), refd to. [para. 116].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201, refd to. [para. 117].

R. v. Dooley (E.A.) (2009), 257 O.A.C. 150; 249 C.C.C.(3d) 449 (C.A.), refd to. [para. 117].

R. v. C.B. (2003), 167 O.A.C. 264; 171 C.C.C.(3d) 159 (C.A.), refd to. [para. 122].

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31, refd to. [para. 133].

R. v. Chenier (P.) et al. (2006), 207 O.A.C. 104; 205 C.C.C.(3d) 333 (C.A.), refd to. [para. 139].

R. v. Thain (C.) (2009), 247 O.A.C. 55; 243 C.C.C.(3d) 230 (C.A.), refd to. [para. 147].

R. v. Lewis, [1979] 2 S.C.R. 821; 27 N.R. 451, refd to. [para. 164].

R. v. Cloutier, [1940] S.C.R. 131, refd to. [para. 165].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, refd to. [para. 188].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 200].

R. v. Cloutier, [1979] 2 S.C.R. 709; 28 N.R. 1, refd to. [para. 205].

R. v. Underwood (G.R.) (2002), 320 A.R. 151; 288 W.A.C. 151; 170 C.C.C.(3d) 500 (C.A.), refd to. [para. 205].

R. v. McMillan (1975), 7 O.R.(2d) 750 (C.A.), affd. [1977] 2 S.C.R. 824; 15 N.R. 20, refd to. [para. 213].

R. v. Grandinetti (C.H.), [2005] 1 S.C.R. 27; 329 N.R. 28; 363 A.R. 1; 343 W.A.C. 1, refd to. [para. 214].

R. v. Parsons (G.) (1993), 65 O.A.C. 61; 84 C.C.C.(3d) 226 (C.A.), refd to. [para. 216].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 216].

R. v. Robertson, [1987] 1 S.C.R. 918; 75 N.R. 6; 20 O.A.C. 200, refd to. [para. 221].

R. v. Morris, [1983] 2 S.C.R. 190; 48 N.R. 341, refd to. [para. 221].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 221].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 221].

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 34 O.R.(3d) 620 (C.A.), refd to. [para. 224].

R. v. Figueroa (N.) et al. (2008), 233 O.A.C. 176; 232 C.C.C.(3d) 51 (C.A.), refd to. [para. 224].

R. v. L.B.; R. v. M.A.G. (1997), 102 O.A.C. 104; 35 O.R.(3d) 35 (C.A.), refd to. [para. 228].

R. v. James (B.T.) (2006), 216 O.A.C. 27; 84 O.R.(3d) 227 (C.A.), refd to. [para. 234].

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, refd to. [para. 234].

R. v. Sauvé (J.) et al. (2004), 182 O.A.C. 58; 182 C.C.C.(3d) 321 (C.A.), refd to. [para. 235].

R. v. Emms (J.) (2010), 272 O.A.C. 248; 2010 ONCA 817, refd to. [para. 235].

R. v. Yaeck (1991), 50 O.A.C. 29; 68 C.C.C.(3d) 545 (C.A.), refd to. [para. 240].

R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268, refd to. [para. 259].

R. v. Sutton (K.M.), [2000] 2 S.C.R. 595; 262 N.R. 384; 230 N.B.R.(2d) 205; 593 A.P.R. 205, refd to. [para. 260].

R. v. Vezeau, [1977] 2 S.C.R. 277; 8 N.R. 235, refd to. [para. 260].

R. v. Underwood (G.R.), [1998] 1 S.C.R. 77; 221 N.R. 161; 209 A.R. 276; 160 W.A.C. 276, refd to. [para. 264].

Authors and Works Noticed:

McCormick on Evidence (6th Ed. 2006), p. 733, para. 185 [para. 206].

Wigmore, John Henry, Evidence in Trials at Common Law (Tillers Rev. 1983), pp. 1723 to 1724, para. 139 [para. 213].

Counsel:

James K. Stewart, for the Crown;

Michael Dineen, for Michael Luciano.

These appeals were heard on May 18, 2010, before Feldman, Rouleau and Watt, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was delivered by Watt, J.A., and released on February 1, 2011.