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 possess a prohibited device, a cartridge  magazine that is capable of containing more than 10 cartridges of the type  for which the magazine was originally designed and that is designed or manufactured  for use in a semi-automatic handgun that is commonly available in Canada,  while not being the holder of a licence under which he may possess it, contrary  to Section <mask> of the Criminal Code.


I differ from my colleague in one other respect. He would balance the mitigating factors against two significant aggravating factors: (1) the appellant was on bail for an unspecified charge at the time of the shooting and the terms of his bail prohibited him from possessing any firearm; and (2) the shooting was part of a course of conduct during which the appellant displayed a blatant disregard for the safety of those around him. The trial judge adverted to what in my view is a third significant aggravating factor: the firearm was a prohibited weapon. Section <mask> of the Criminal Code provides for a three year minimum sentence merely for possessing a loaded prohibited firearm. This case is very different than one involving an accident with a hunting rifle.


(1) Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under <mask>section 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.


(iii) an offence under <mask>section 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code , chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or


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.


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.


[21] Additionally, I have some concern as to whether or not the court has jurisdiction under the Family Relations Act to in fact vary the agreement. In my view this is an unfortunate quirk of the Family Relations Act . The Family Relations Act only allows the Supreme Court to enforce the terms of an agreement filed pursuant section <mask>, not in fact vary it.


I do not accept this submission. Section <mask> of the CYFSA is clear that, subject to ss. 122(4) and (5), which address deemed and court-ordered extensions, "the court shall not make an order for interim society care" (emphasis added) that results in a child being in the care and custody of a society for more than 12 months, if the child is younger than six on the day the court makes the order. The 12-month time limit for an order under s. 122(1)(a) is plain on the face of the provision. The unfortunate practical reality that children do sometimes remain in interim society care for longer than this does not render the statutory time limit optional. Courts at all levels have stressed "the importance of reaching a speedy resolution of matters affecting children": Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.) , [1994] 2 S.C.R. 165, at p. 206; see also Children's Aid Society of Oxford County v. W.T.C. , 2014 ONCA 540, 46 R.F.L. (7th) 290, at para. 10; Children's Aid Society of Toronto v. C.J.W. , 2017 ONCJ 212, at para. 90.


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> is inherently linked to s. 515(10). It is duty-based and risk- based. It promotes the proper functioning of the bail system by providing an enforcement mechanism. At interest is not only protection of the public and maintaining confidence in the administration of justice but also enabling a court to control its own process thereby maintaining dignity, respect, and integrity of the justice system: R. v. Patko , 2005 BCCA 183 at para. 23. The purpose of the section is to mitigate the risks of releasing an accused person into the community by imposing a minimum uniform standard of conduct having regard to societal interests rather than personal standards of conduct. A failure to comply with court-imposed conditions of release, which under s. 515 (10) must be minimal, reasonable, and necessary, thwarts or defeats the bail system and public confidence in the administration of justice.


First, the duty-based offences discussed in A.D.H. ----ss. 215, 216, 217, and 217.1---expressly include the word "duty". Section <mask> does not, and the omission is a significant one. In A.D.H. the majority concluded that s. 218 (child abandonment) imported a subjective standard and was distinguishable from the other objective fault offences noted above because s. 218 was not defined in terms of failure to perform specified legal duties: at paras. 66, 68. That was found to be so despite the nature of the offence which could be described as imposing a duty on caregivers to behave in a particular way -- just as persons released on bail have a duty to comply with the conditions of their release.


A continuing relationship can be preserved where the society applies for an openness order under s. 145.9(1) of the CFSA .  Subsection <mask> of the CFSA provides that the court may make an openness order in respect of a child if the court is satisfied of the following: that it is in the best interests of the child; that the openness order will permit the continuation of a relationship with a person that is beneficial and meaningful to the child; and that the society, the person who will be permitted to communicate with or have a relationship with the child if the order is made, and the person with whom the society has placed or plans to place the child for adoption, have all consented.


Second, the Divisional Court concluded the Tribunal erred in law by taking a limited view of its remedial jurisdiction. The Divisional Court focused on the Tribunal's remark that it was "not in a position to alter the decision of the Director, or to substitute its opinion for that of the Director." The Divisional Court said this statement was plainly wrong because it is clearly contradicted by the express wording of s. 145.2.1(4)(c). Section <mask> authorizes the Tribunal to "alter the decision of the Director, and, for that purpose, the Tribunal may substitute its opinion for that of the Director."


One of the grounds for making an order under section <mask> appears to require nothing more than the existence of an investigation order, or the intention to issue one. However, a freeze order generally has far more serious and immediate consequences than an investigation order. Property of the alleged wrongdoers is immediately affected and the property of innocent third parties can be captured in the freeze. The Commission must therefore consider the seriousness of the allegations and the evidence supporting them so it can weigh the threat to the public interest against the potential consequences of the order.


7. (4.1) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that if committed in Canada would be an offence against section <mask>, 152, 153, 155 or 159, subsection 160(2) or (3), section 163.1, 170, 171, 171.1, 172.1, 172.2 or 173 or subsection 286.1(2) shall be deemed to commit that act or omission in Canada if the person who commits the act or omission is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act .


[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.


150.1 (1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under section <mask> or 152 or subsection 153(1), 160(3) or 173(2) or is charged with an offence under section 271, 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.


[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.


(3) If an accused is charged with an offence under section <mask>, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order.


(1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under section <mask> or 152 or subsection 153(1), 160(3) or 173(2) or is charged with an offence under section 271, 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.


276 (1) In proceedings in respect of an offence under section <mask>, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant


In approaching the issue of reasonable hypotheticals, I note that Parliament contemplates that the s. 151 offence can be committed in various ways, some of which are punishable by a mandatory minimum sentence of 90 days' imprisonment. Section <mask> provides for such a sentence where the Crown proceeds summarily (even though the elements of the offence are exactly the same as proceeding by indictment).


An examination of s. 152 and its relationship to s. 150.1(4) reveals none of the features driving the interpretation of s. 172.1(1) in cases in which it is alleged the accused was speaking with someone he believed to be underage. Section <mask>, unlike s. 172.1(1), does not criminalize conduct well preliminary to the achievement of any ultimate harmful criminal object. Section 152 prohibits conduct of an overtly sexual nature directed at persons under 16. An invitation or incitement to engage in sexual activity, which the person who is the subject of the invitation is incapable of consenting to on account of their age, is inherently harmful conduct.


The legislative history also assists in understanding the interaction of s. 152 and s. 150.1(4). Both sections were introduced in the same amendments to the Criminal Code : see An Act to Amend the Criminal Code and the Canada Evidence Act , S.C. 1987, c. 24. Section <mask>, along with several other sections, criminalized various kinds of sexual activity with persons under the prescribed age. Prior to these amendments, apart from a provision criminalizing sexual intercourse with females under 14 (s. 146), there were very few offences specifically targeting sexual activity with children. Section 146 was repealed in the same legislation that enacted s. 152.


The "reasonable belief" standard set out in certain provisions of s. 156(1) also governs the provincial officer's authority to issue contravention orders under s. 157 of the EPA . Section <mask> provides that a provincial officer may, among other things, issue an order to any person that he or she "reasonably believes" is contravening the provisions of the Act or regulations, or another order made under the Act. The order may require the person to comply with any directions related to achieving compliance with the Act or regulations.


... However, I would add that even if I had come to the conclusion that there was encroachment, I would have come to the conclusion that section <mask> of the Canada Shipping Act only touches a very limited aspect of the relationship between seamen and captain, being the signature of a contract of engagement. Sections 163 and 165 contain no substantive clause relating to work conditions and does not frame in any manner the bargaining of work conditions for seamen. In this regard, the encroachment is, to say the least, modest and touches no fundamental aspect of the power of the provinces in relation to property and civil rights (92(13) Constitution Act, 1867 ).


171 If the commission, the executive director or a designated organization considers that to do so would not be prejudicial to the public interest, the commission, executive director or designated organization, as the case may be, may make an order revoking in whole or in part or varying a decision the commission, the executive director or the designated organization, as the case may be, has made under this Act, another enactment or a former enactment, whether or not the decision has been filed under section <mask>.


(3) In proceedings in respect of an offence under section <mask>, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.


(3) In proceedings in respect of an offence under section <mask>, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way .


(3)In proceedings in respect of an offence under section <mask>, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.


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.


An excluded driver is defined at s. 224(1) of the Act as "a person named as an excluded driver in an endorsement under section <mask>." Section 249 provides that an insured "may stipulate by endorsement to a contract evidenced by a motor vehicle liability policy that any person named in the endorsement is an excluded driver under the contract." In this context, s. 227(1) provides that an insurer shall not use a form for an endorsement unless the form is approved by the Superintendent.


Section <mask> uses the term "including" to make clear that the expressed illustrations are not exhaustive. Both the natural meaning of the phrase, "a manner that is dangerous to the public", and the purpose of the provision of criminalizing dangerous driving, capture any circumstances that enhance the dangerousness to the public of the manner of driving. We see no error in the trial judge's finding that Mr. Bradley drove in "a manner dangerous to the public" when he engaged in the pattern of driving that he did, with unbuckled passengers.


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.


(3) Where a peace officer believes on reasonable and probable grounds that a person is committing, or at any time within the preceding three hours has committed, as a result of the consumption of alcohol, an offence under section <mask> [impaired operation of a motor vehicle], the peace officer may, by demand made to that person forthwith or as soon as practicable, require that person to provide then or as soon thereafter as is practicable


(2) Subject to subsections (3) and (4), no person shall use, disclose or allow the disclosure of the results of physical coordination tests under paragraph 254(2)(a), the results of an evaluation under subsection <mask>(3.1), the results of the analysis of a bodily substance taken under paragraph 254(2)(b), subsection 254(3), (3.3) or (3.4) or section 256 or with the consent of the person from whom it was taken after a request by a peace officer, or the results of the analysis of medical samples that are provided by consent and subsequently seized under a warrant, except


In Lemieux , supra , at 328 O.A.C., the court agreed with the Crown's submission that "the gravamen of the offence under s. 254(2) and (5) of the Criminal Code is failure or refusal to comply with the demand of a peace officer": see also McCauley , supra . It is the failure or refusal to comply with the demand to provide the breath sample that is at the core of the infraction, not the failure or refusal to provide the breath sample "forthwith". The word "forthwith" in subsection <mask> does not define the substance of the offence. Rather, it imposes on the person to whom the demand is made an obligation to comply in a timely fashion, and on the authorities an obligation to conduct the test in a timely fashion once the request is honoured in order that the detainee's right to counsel under s. 10(b) of the Charter are minimally impaired. [Emphasis added.]


A timely demand is validly made pursuant to subsection <mask>, in my opinion, where (a) the individual to whom the demand is made has been operating a motor vehicle, or has care or control of that vehicle, (b) the peace officer who makes the demand reasonably suspects that the individual to whom the demand is being made has alcohol in his or her body, and (c) the police officer is ultimately in a position to require that the breath sample be provided before there is any realistic opportunity to consult counsel. Where, as here, there has been an outright refusal to provide a breath sample, it is not a prerequisite to such a demand that the Crown establish the approved screening device was present at the scene, tested and ready to accept a sample, or that the police officer presented the device to the driver and explained the purpose of the test and the consequences of a failure to provide a sample.


(2) Subject to subsections (3) and (4), no person shall use, disclose or allow the disclosure of the results of physical coordination tests under paragraph 254(2)(a), the results of an evaluation under paragraph 254(3.1)(a), the results of the analysis of a bodily substance taken under paragraph 254(2)(b) or (c), subsection <mask>, (3.3) or (3.4) or section 256 or with the consent of the person from whom it was taken after a request by a peace officer, or the results of the analysis of medical samples that are provided by consent and subsequently seized under a warrant, except


The Crown appellant submits that in Alex , the Supreme Court of Canada rejected the "plain meaning" approach to the common opening words in former ss. 258(1)(c) and (g): "where samples of the breath of the accused have been taken pursuant to a demand made under subsection <mask>, ...". The provisions of ss. 258(1)(c) and (g) are evidentiary shortcuts. They are intended to streamline proceedings in alcohol-driving cases by dispensing with the need to call two extra witnesses - the qualified technician and a forensic toxicologist - in every prosecution for offences involving excess blood alcohol concentration. The only preconditions to be met to invoke these presumptions are those concerned with the reliability of the test results and relating those results to the blood-alcohol concentration of the accused at the time of the offence. A valid breath demand has nothing to do with these scientific criteria and reliability guarantors.


To obtain a conviction for first degree murder under s. 231(6) of the Code , the Crown had to prove beyond a reasonable doubt the underlying offence of criminal harassment under s. 264, and the added mental element under s. 231(6). Section <mask> has two branches: the Crown had to show that the appellant engaged in harassing conduct by repeatedly following or communicating with Eugena, or watching her or engaging in threatening conduct towards her; and that this harassing conduct caused her to fear for her safety. Section 231(6) required the Crown to show that the appellant intended to cause Eugena to fear for her safety.


Counsel's complaint, as I understand it, is that the trial judge "used up" six months of time served on two of the criminal harassment counts (three months on count 17 and three months on count 44); this time served would otherwise have been available to credit against other counts properly considered by the trial judge. There is little, if any, merit in this submission. Section <mask> of the Code sets out the elements of criminal harassment, including "engaging in threatening conduct". It was open to the trial judge, having thoroughly reviewed the evidence, to find that the elements of criminal harassment were satisfied. I also note that the credit at issue was effectively credit of 3-to-1, a product of the trial judge having been 'very generous'. In my view, his focus was on the global sentence, so that even if there were no criminal harassment convictions, there would not have been any impact on the overall sentence.


First, Sim's submission is inconsistent with s. 264(1) of the Code and thus is contrary to Parliament's express intent. Subsection <mask> specifies that the mens rea component of criminal harassment can be met by an accused's knowledge or recklessness. To suggest that the actus reus of threatening conduct requires a specific intent to instil fear is contrary to the plain language of s. 264(1).


With respect to the second element, in R. v. LeBlanc , [1989] 1 S.C.R. 1583, the Supreme Court approved the trial judge's ruling that whether the threatener intends to carry out the threat is irrelevant to determining if a conviction can be maintained. It is the element of fear instilled in the victim by the issuer of the threat at which the criminal sanction is aimed. Section <mask> provides that the threat must be knowingly uttered or conveyed by the accused. Thus the Crown is required to establish that the accused intended to threaten the victim with death.


Assault causing bodily harm in s. 267(b) is distinguished from aggravated assault by virtue of the type of harm caused. Section <mask> must be read in conjunction with s. 2 of the Criminal Code , a provision of general application, which defines "bodily harm" as "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature."


Section <mask> was designed to reduce insurance costs and the cost of doing business for leasing and rental companies in the automotive arena - an industry of significant importance in Ontario - and hence those of the consumer. This was the legislative context. The legislative objective was clearly expressed in s. 267.12 by the introduction of the cap on liability available to a lessor or lessors.


Under s. 277(1.1) of the Insurance Act , a lessee's policy is required to respond first and if that policy provides coverage of $1 million or more, access to the lessor's policy is precluded if s. 267.12 of the Insurance Act is applicable. McEwen J. determined that s. 267.12 did apply and did not permit an unnamed insured access to the lessor's excess coverage. Section <mask> commenced with the phrase "[Despite] any other provision in this Part". This language reflected both the primacy of the section and legislative intent.


The appellant appeals from the dismissal of his application for a declaration that two provisions of the Insurance Act R.S.O. 1990, c. I.8, relating to automobile accident claims - ss. 267.5(1) and 280 - violate ss. 7 and 15 of the Charter and that s. 280 contravenes s. 96 of the Constitution Act, 1867 . Section <mask> places limits on the recovery of pre-trial income loss and s. 280 confers jurisdiction over statutory accident benefits disputes to an administrative tribunal.


The appellant begins his argument on this ground of appeal by pointing out that neither the CJA nor the Rules provide for interest to be applied to anything other than the judgment as issued and entered. He then points to s. 267.5(9) of the Act and says there is nothing in it that creates an entitlement to notional pre-judgment interest. Section <mask> reads as follows:


The plaintiffs, respondents on appeal, brought a motion before trial to determine whether their action was statute barred by s. 267.6(1) of the Insurance Act, R.S.O. 1990, c. I.8. Section <mask> provides that a person is not entitled to recover damages for bodily injury or death arising from the use or operation of an automobile if, at the time of the incident, the person was operating an uninsured motor vehicle on a highway contrary to section 2(1) of the Compulsory Automobile Insurance Act , R.S.O. 1990, c. C.25.


These two forms of compensation — SABs and tort damages — are independent of one another. It is inevitable, however, that there will be overlap between the compensation provided to an accident victim by no-fault SABs and the award of damages to that person in a civil tort action. Section <mask> of the Insurance Act contains provisions designed to address this overlap and to prevent double recovery. It reflects the principle that victims should be fairly compensated, but not over-compensated. Automobile insurers, who provide first-party benefits through SABs insurance, should not be required, when wearing their fault based liability insurer hats, to compensate an accident victim twice for the same losses. In preventing double recovery, the statutory regime modifies the common law "collateral source" rule — that insurance or other benefits available to the injured plaintiff do not reduce the amount for which the tortfeasor is liable: see Boarelli v. Flannigan , [1973] 3 O.R. 69 (C.A.).


Section <mask> of the Insurance Act , provides that pecuniary damages awarded in a tort action "shall be reduced" by payments that the plaintiff received as collateral benefits, such as statutory accident benefits including payments for health care expenses and other pecuniary losses. Since the defendant would benefit, the onus is on the defence to show whether and how the reductions should be made: Bannon v. McNeely (1998) , 38 O.R. (3d) 659, 159 D.L.R. (4th) 223 (C.A.), at para. 74.


In our view, these considerations apply equally in assignment cases. Section <mask> is integrated in the sense that, together, its provisions are meant to ensure fair compensation and prevent double recovery. There is no principled or technical reason why a different matching regime should apply to SABs received after trial. While Bannon can be distinguished as being based on a prior statutory regime, and the result in Gilbert was based on its unique facts, to the extent that both cases support a strict matching approach under the current statutory scheme, they should be overruled in light of Gurniak . The silo approach is to be applied to s. 267.8 as a whole.


Section <mask> also incorporates the principle that the plaintiff’s damages reflect the liability of all responsible parties involved in the incident. Subsection 267.8(20), specifically provides that "[f]or the purposes of subsections (1), (3), (4) and (6), the damages payable by a person who is a party to the action shall be determined as though all persons wholly or partially responsible for the damages were parties to the action even though any of those persons is not actually a party" (emphasis added). The purpose of this subsection is to ensure that the liability of a defendant, for the purpose of calculating its entitlement to deduct SABs from the judgment against it, is based on its proportionate liability, regardless of whether other defendants, protected or not, are parties to the proceeding and regardless of whether other defendants have settled with the plaintiff or on what basis. To construe the words "damages to which a plaintiff is entitled" as net several damages after apportionment between tortfeasors fails to give effect to that explicit direction by ignoring the settling defendant’s proportionate responsibility for the loss.


It is well established that the legislative purpose of s. 267.8 is to promote fair compensation to injured plaintiffs and prevent double recovery. As this court observed in Cadieux v. Cloutier, 2018 ONCA 903, 429 D.L.R. (4th) 468, leave to appeal refused [2019] S.C.C.A. No. 63 , at para. 17: " Section <mask> of the Insurance Act contains provisions designed to address [the overlap between tort damages and collateral benefits] and to prevent double recovery. It reflects the principle that victims should be fairly compensated, but not over-compensated."


Section <mask> of the Insurance Act codifies the common-law principle that a plaintiff should not recover twice for the same kind of loss arising from the same incident. The particular benefits that are to be deducted, held in trust or assigned are described in the legislation only in broad categories. For example, s. 267.8(1) requires that benefits for income loss and loss of earning capacity be deducted from damages for income loss and loss of earning capacity. Likewise, s. 267.8(4) requires that health care expense payments be deducted from damages for health care costs. While the Insurance Act does not, on its face, further distinguish particular statutory benefits on a qualitative or temporal basis, several cases have imposed those requirements by requiring strict matching between common-law heads of damage and the specific type of SABs benefit received.


In Carroll and Cadieux , companion appeals, a five-member panel of this court adopted the "silo" approach to the treatment and matching of SABs to tort damages under section <mask> of the Insurance Act . The panel held that the "strict matching" approach, developed in Bannon v. McNeely (1998), 38 O.R. (3d) 659 (C.A.), was no longer to be followed. One of the stated benefits of the silo approach was that it would promote greater efficiency in motor vehicle accident litigation.


Section <mask> of the Insurance Act modified the common law on the deductibility of benefits from tort awards. I begin with a brief review of the common law principles. I do so to show that the CPP and HOOP benefits Ms. Demers receives would not be deductible at common law. Their non-deductibility at common law provides the context for assessing the impact of s. 267.8 of the Insurance Act .


Mr. El-Khodr took the position that the matching approach should be followed and that "[t]he trial judge granted the assignments which she was able to match with the jury verdict, and denied those which she could not match for each collateral benefit listed in Section <mask> of the Insurance Act ". This was in accordance with the approach adopted by this court in Bannon v. McNeely .


As noted in Basandra v. Sforza , 2016 ONCA 251 , 130 O.R. (3d) 466, at para. 21, affirmed in Cadieux , the statutory scheme sets up benefits silos: " Section <mask> of the Insurance Act creates several categories of statutory accident benefits to be taken into account as possible reductions in a jury award: [the first silo is] income loss and loss of earning capacity (s. 267.8(1)); [the second silo is] health care expenses, which includes attendant care costs by definition under s. 224(1) of the Act (s. 267.8(4)); and [the third silo is] other pecuniary losses such as housekeeping costs (s. 267.8(6))." The tort award is to be reduced by the amount of statutory accident benefits received by the plaintiff on the basis of these three silos.


Section <mask> of the Insurance Act , R.S.O. 1990, c. I.8, therefore provides that tort awards must be reduced by corresponding categories of SABs received. This is accomplished by deducting those SABs received before trial from the damages awarded and by either holding in trust those SABs received after trial or by assigning the SABs benefits payable after trial to the tortfeasor or his insurer.


The parties brought a motion on an agreed statement of facts and on consent under rule 21.01(1)(a) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, to determine whether as a matter of law the CPP and HOOP disability benefits would be deductible under s. 267.8(1)2 of the Insurance Act , R.S.O. 1990, c. I-8, from any award for loss of income or loss of earning capacity, and if so, whether the deduction should be gross or net of income tax. Section <mask>2 provides:


Under s. 267.8(9)(ii), prior to any assignment under ss. 267.8(12)(a)(ii), a successful plaintiff must hold " payments in respect of the incident that the plaintiff receives after the trial of the action for income loss or loss of earning capacity ... under an income continuation benefit plan" in trust (emphasis added). Subsection <mask> requires the plaintiff who holds money in trust under subsection (9) to "pay the money to the persons from whom damages were recovered in the action, in the proportions that those persons paid the damages".


In my view, the language of s. 267.8(12) does no more than clarify the mechanism of the assignment of the appellant's rights to the payments within the scheme of s. 267.8. This means that by virtue and for the term of the assignment, the respondent's insurer has all the appellant's rights and is subject to all the provisions under the plan, including, subject to the plan [2] , the ability to deal directly with Sun Life and to contest the deduction of income taxes from the payments. But, while s. 267.8(12)(a) refers to "all rights in respect of all payments to which the plaintiff who recovered damages is entitled " rather than "payments received by the plaintiff", as was the case in Bapoo , it does not entitle the respondent's insurer to receive payments greater than those the appellant receives. Subsection <mask> does not refer to payments "received", because the focus of this provision is not on the entitlement to payments , but rather on the broader entitlement to the plaintiff's underlying rights , which includes a right to payment, among others.


Subsection <mask> empowers this court to impose conditions on assignment orders. We would do so in this case to prevent the unsuccessful appeal of the conditional assignment order from defeating the benefit of that order. We would impose an additional condition on the assignment order requiring Ms. Carroll to disclose to Aviva the amount that she has received by way of SABs payments in respect of medical and rehabilitation benefits and attendant care benefits


Section <mask> of the Insurance Act recognizes that an award may include damages "for expenses that have been incurred [past] or will be incurred [future] for health care". It provides that the sum of those awards must be reduced by the amount of payments "the plaintiff has received or that were available before the trial of the action for statutory accident benefits in respect of the expenses for health care". The plaintiff's entitlement to future, that is, post-trial, collateral benefits for health care is addressed in ss. 267.8 (9) - (13) of the Insurance Act .


Section <mask> of the Insurance Act , R.S.O. 1990, c. I.8, provides that a plaintiff who recovers damages for loss of income or for expenses that will be incurred for health care shall hold in trust for the defendants "[a]ll payments in respect of the incident that the plaintiff receives after the trial of the action" for loss of income under the laws of any jurisdiction or under any income continuation benefit plan and for statutory accident benefits in respect of expenses for health care.


In Cadieux , we noted that the language of the deduction provisions which directs that "all payments" within each of the described silos will reduce a tort award, is inconsistent with offsetting some SABs payments within the designated silos against damages, but not others. Like those provisions, s. 267.8(12) requires the assignment of all rights in respect of all payments with respect to the enumerated categories of SABs. Subsection <mask>, which requires the payment of SABs to be held in trust, also specifically includes this "all payments" language.


If optional statutory accident benefits are purchased and are applicable to a person ... and the person claims SABS under this policy ... and agrees not to make a claim for SABS under another policy, we agree that we will not deny the claim, for both mandatory and optional statutory accident benefits coverage purchased, on the basis that the priority of payment rules in Section <mask> of the Insurance Act may require that the person claim SABS under another insurance policy.


Section <mask>(5.2) does not apply to the facts of this case. It stipulates that if a person is a named insured under more than one policy and was, at the time of the incident, an occupant of an automobile in respect of which the person is a named insured (or the spouse or a dependant of the named insured), the person must claim SABS against the insurer of the automobile in which the person was an occupant. As noted, Mr. Ekstein was a pedestrian, or "non-occupant", when struck by the pick-up truck.


The OPCF 47 provides that if optional accident benefits are purchased and are " applicable " to a person under the policy, the insurer will permit the insured person to claim both mandatory accident benefits and optional accident benefits under that policy . The insurer will not deny benefits on the basis that the priority of payment rules set out in section <mask> of the Act provide that another insurer is liable to pay the mandatory accident benefits.


Section <mask> of the Insurance Act , R.S.O. 1990, c. I-8, deals with statutory accident benefits in motor vehicle liability policies. Section 268(1) provides that every such policy "shall be deemed to provide for...statutory accident benefits". For cases where an individual might seek benefits under more than one policy, s. 268(2) sets out priority rules. As the Claimants were occupants of a vehicle at the time of the accident, the following rules apply:


[T]he net result is that the obligation for the mandatory benefits ultimately rests with the insurer having the highest ranking under section <mask> of the Insurance Act . This is entirely appropriate. It supports the legislative intention of making optional benefits available at reasonable cost. Any other interpretation would have the effect of unduly loading costs onto the optional benefit insurers and would discourage individuals from purchasing that coverage for their protection. [Emphasis added.]


On or about the 5 th day of May in the year 2010 at the City of Ottawa in the East/De L'Est Region did, in committing an assault on Cst. Earl COOK, wound, maim, disfigure, or endanger the life of the said Cst. Earl COOK by using a weapon, namely a knife, and thereby commit an aggravated assault, contrary to section <mask>, subsection (2) of the Criminal Code of Canada .


If optional statutory accident benefits are purchased and are applicable to a person under this policy, and the person claims SABS under this policy as a result of an accident and agrees not to make a claim for SABS under another policy, we agree that we will not deny the claim, for both mandatory and optional statutory accident benefits coverage purchased, on the basis that the priority of payment rules in Section <mask> of the Insurance Act may require that the person claim SABS under another insurance policy.


Section <mask> of the Insurance Act , R.S.O. 1990, c.I.8. (the "Act") sets out priority of payment rules specifying the insurer against which a SABS claimant may have recourse for SABS in particular circumstances. Under ss. 268(5) and (5.2) of the Act, if a SABS claimant is a "named insured" under more than one policy, the SABS claimant may decide from which insurer to claim SABS .


This endorsement is part of your policy. It has been made because persons who are entitled to receive optional statutory accident benefits under this policy may, by the priority of payment rules in Section <mask> of the Insurance Act , be required to claim under another policy that does not provide them with the optional statutory accident benefits that have purchased under this policy. This endorsement allows these persons to claim Statutory Accident Benefits (SABS) under this policy, including the optional statutory accident benefits provided by this policy, provided they do not make a claim for SABS under another policy.


(1) The insurer responsible under subsection <mask> for the payment of statutory accident benefits to such classes of persons as may be named in the regulations is entitled, subject to such terms, conditions, provisions, exclusions and limits as may be prescribed, to indemnification in relation to such benefits paid by it from the insurers of such class or classes of automobiles as may be named in the regulations involved in the incident from which the responsibility to pay the statutory accident benefits arose.


275. (1) The insurer responsible under subsection <mask> for the payment of statutory accident benefits to such classes of persons as may be named in the regulations is entitled , subject to such terms, conditions, provisions, exclusions and limits as may be prescribed, to indemnification in relation to such benefits paid by it from the insurers of such class or classes of automobiles as may be named in the regulations involved in the incident from which the responsibility to pay the statutory accident benefits arose. [Emphasis added.]


The insurer responsible under subsection <mask> for the payment of statutory accident benefits to such classes of persons as may be named in the regulations is entitled, subject to such terms, conditions, provisions, exclusions and limits as may be prescribed, to indemnification in relation to such benefits paid by it from the insurers of such class or classes of automobiles as may be named in the regulations involved in the incident from which responsibility to pay the statutory accident benefits arose. [Emphasis added.]


275. (1) The insurer responsible under subsection <mask> for the payment of statutory accident benefits to such classes of persons as may be named in the regulations is entitled, subject to such terms, conditions, provisions, exclusions and limits as may be prescribed, to indemnification in relation to such benefits paid by it from the insurers of such class or classes of automobiles as may be named in the regulations involved in the incident from which the responsibility to pay the statutory accident benefits arose. 1993, c. 10, s. 1.


(4) If a dispute involves a statutory accident benefit that the insurer is required to pay under subsection <mask> and no step authorized by subsection (1) has been taken within 45 days after the day mediation failed, the insurer shall pay the insured in accordance with the last offer made by the insurer before the failure until otherwise agreed by the parties or until otherwise ordered by a court, by an arbitrator acting under this Act or the


But the priority rules stipulated by s. 268 only apply if both insurers are subject to those rules. Section <mask> provides that it applies to: "Every contract evidenced by a motor vehicle liability policy." To understand what this means, one must turn to the definition of "contract" in s. 224(1). That section refers to Ontario policies (s. 224(1)(a)), and to policies issued extra-provincially by insurers who file an undertaking in Ontario (s. 224(1)(b)). The extent to which extra-provincial policies are caught by s. 224(1)(b) is generally limited by s. 226.1 to situations where the vehicle that is registered and insured extra-provincially is actually operated in Ontario. [2]


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.


The insurer responsible under subsection <mask> for the payment of statutory accident benefits to such classes of persons as may be named in the regulations is entitled, subject to such terms, conditions, provisions, exclusions and limits as may be prescribed, to indemnification in relation to such benefits paid by it from the insurers of such class or classes of automobiles as may be named in the regulations involved in the incident from which responsibility to pay the statutory accident benefits arose. [Emphasis added].


The insurer responsible under subsection <mask> for the payment of statutory accident benefits to such classes of persons as may be named in the regulations is entitled, subject to such terms, conditions, provisions, exclusions and limits as may be prescribed, to indemnification in relation to such benefits paid by it from the insurers of such class or classes of automobiles as may be named in the regulations involved in the incident from which the responsibility to pay the statutory accident benefits arose.


I am mindful that Mr. [H.] went on to add that what [J.] had told the police was not true. [Defence counsel] asked him, "Okay. And what's your answer?" Mr. [H.] replied, "No". This was an entirely different answer than Mr. [H.] had given just seconds before. In my view, and notwithstanding the response given my - by Mr. [H.] to [defence counsel's] question in reply, that horse was already out of the barn. If Mr. [H.] had not done the act complained of, then there could only be one answer to the question posed by [Crown counsel], a question which Mr. [H.] confirmed he understood. That answer is, and should have been, an, an emphatic "no". Instead, Mr. [H.] paused and answered that he didn't know. Well, certainly only Mr. [H.] could know the answer to this question. Accordingly, whatever doubt existed up until that point in the evidence was erased by Mr. [H.]'s answer to that question posed by [Crown counsel] and as a result, the court is left with no reasonable doubt and accordingly a conviction will register in relation to the count of sexual assault contrary to section <mask>. The other charge will be stayed. [Emphasis added].


[1] The SABS-2010 also provides the insurer with other safeguards. For example, pursuant to s. 46.2(1), an insurer may also request a person who submits an invoice for payment for attendant care to provide any information required to assist the insurer, acting reasonably, to determine its liability for payment. And pursuant to s. 53, an insurer may terminate payment of benefits if the insured person has wilfully misrepresented material facts with respect to the application for the benefit and the insured has been provided with notice setting out the reasons for the termination. It should also be noted that pursuant to the Act, the insurer can refer disputes in respect of an insured person's entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled to mediation. Subsection <mask> of the Act provides that such disputes shall be resolved in accordance with ss. 280 to 283 of the Act and the Statutory Accident Benefits Schedule . Pursuant to those sections of the Act, either the insured or the insurer may refer the issue in dispute to a mediator and, if the mediation fails, the parties jointly or the mediator may refer the issue in dispute to a person appointed by the Director for an evaluation of the probable outcome. If the issue is not thereby resolved, the insured may then bring a court proceeding, refer the issue to an arbitrator under s. 282, or the insured and the insurer may agree to submit the matter in dispute to any person for arbitration in accordance with the Arbitration Act, 1991 , S.O. 1991, c. 17.


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:


[183] The word exploitation in section <mask>1 does not possess its general or common definition, which would simply be to use someone in an unjust manner. If that was the definition to be applied there is no doubt A.A. exploited G.M.S. but in section 279.011 the word has two very specific legal definitions: one for providing labour or a service and one for organ or tissue removal. It is of course the first one that we are concerned with in this case. The labour or service involved is dancing in the clubs.


Section <mask> instructs us that one person exploits another if they cause that other person to provide labour by doing something that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide the labour. On a straight-up reading of this definition of exploitation, three conclusions emerge:


The indictment charged the appellant in the following language: that Michael Manley "did, on or about the 19 th day of October, 2006, at the City of Quinte West ... use a firearm, to wit: a sawed off shotgun, in robbing Colleen Tracey of cash monies contrary to Section <mask> (a) of the Criminal Code". The count on the second robbery was framed in the same terms.


The mandatory minimum in issue does not apply to all frauds over $5,000. Subsection <mask>(1.1) provides that when a person is convicted of fraud, the court shall "impose a minimum punishment of imprisonment for a term of two years if the total value of the subject-matter of the offences exceeds one million dollars." The "value of the subject-matter of the offences" refers to the amount of the loss or risk of loss suffered by the victim.


The policy reasons for restricting the circumstances in which municipal tax sales might be challenged (certainty, finality and the integrity of the sale process, including interests of third parties) are not engaged when dealing with the surplus under s. 380. [7] The taxpayer is not challenging the sale process, but asserting a claim to the surplus. Section <mask> operates after the municipality has recovered its tax arrears and its costs, at a time when its claim against the property is spent, and without affecting the rights or interests of third party purchasers. At issue under s. 380 is entitlement to the surplus, not the property itself. As such, there is no prospect of interfering with or undermining the municipal tax sale process.


[7] While the Municipality in its factum raises concerns about certainty, in particular as to how the treasurer should proceed in the face of a late application and whether and to whom additional notice would be required, these concerns are misplaced. Section <mask> requires payment into court of the surplus and from that point on, any determinations of entitlement, forfeiture and relief from forfeiture, are for the court.


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.


At the commencement of the offence in 2003, the maximum penalty for fraud pursuant to s. 380 of the Criminal Code was ten years. On September 15, 2004, the legislation was amended and the maximum penalty increased to 14 years. At the same time, s. 380.1 came into force, which codified aggravating circumstances for the purpose of sentencing in fraud cases. Section <mask> was amended again on November 1, 2011, adding more aggravating circumstances, one of which was relied on by the sentencing judge and is set out below:


Section <mask> creates the offence of intentionally or recklessly causing damage to property by fire. The provision creates a pure property offence that contains no additional mens rea requirement. The section does not require proof that anyone was harmed or endangered by the fire. Section 434 does not, however, apply if the person causing the damage by fire wholly owns the damaged property. A person who intentionally or recklessly causes damage by fire to property that he wholly owns does not commit an offence under s. 434. [1]


Section <mask> applies to an accused who intentionally causes damage by fire to their own property, or to someone else's property, if that fire seriously threatens the health, safety, or property of another person. For example, in this case, count two alleged a breach of s. 434.1. The Crown relied on the evidence of the threat to the safety and property of the other residents in the townhouse complex to establish the appellant's liability under s. 434.1. The threat posed to the police and firefighters who responded to the fire could also justify a conviction under s. 434.1.


Section <mask> seeks to deter offenders from using firearms in the commission of crimes and to protect the public's life, liberty and security interests from the modern scourge of gun-related violence. It does so by creating a new offence of "use of a firearm" and by imposing a more severe form of punishment on those who commit indictable offences that may - but do not necessarily - involve the use of a firearm when they are committed in the more aggravated fashion. Section 265(1)(c) is designed to prevent interference with a person's liberty and security interests by creating the offence of assault where that goal is accomplished by accosting or impeding the person with a weapon - not necessarily a firearm - present but not necessarily used. As Doherty J.A. observed in R.K. , at para. 39:


On October 30, 2007, the applicant brought a motion before a provincial judge to extend the time in which to appeal his first three convictions, pursuant to section <mask> of the Provincial Offences Act . It is not clear from the record why the applicant did not bring this motion with respect to all four convictions, but this dishevelled approach seems to be consistent with his mental state. The applicant's motion was dismissed.


The Commission investigators set forth their apprehensions that the information outlined in the Memoranda raised significant concerns that [Mr. Z] may have been acting as an unreported de facto director of Yco and, if so, Yco had failed to comply with section <mask> of the Act and [Mr. Z] had failed to file insider trading reports for the trading in securities of Yco that the Applicant and Xco had made. Furthermore, if [Mr. Z] were a de facto director of Yco, given [Mr. Z]'s involvement with Yco summarized above, Yco's public filings may have contained misrepresentations. [At paras. 15-16; emphasis added.]


The Commission investigators set forth their apprehensions that the information outlined in the Memoranda raised significant concerns that [Mr. Z] may have been acting as an unreported de facto director of Yco and, if so, Yco had failed to comply with section <mask> of the Act and [Mr. Z] had failed to file insider trading reports for the trading in securities of Yco that the Applicant and Xco had made. Furthermore, if [Mr. Z] were a de facto director of Yco, given [Mr. Z]'s involvement with Yco summarized above, Yco's public filings may have contained misrepresentations. [At para. 16.]


Section <mask>, and its predecessor s. 83, have survived a number of constitutional attacks, although none has focussed specifically on the identical issue we face here - the constitutionality of the mandatory one-year minimum sentence imposed by s. 85(3)(a). The Supreme Court of Canada upheld the validity of the overall licensing and registration provisions of the Firearms Act , S.C. 1995, c. 39, in Reference re Firearms Act (Can.) , 2000 SCC 31, [2000] 1 S.C.R. 783. In three cases, the s. 85(4) requirement (previously the s. 83(2) requirement) that the mandatory minimum sentence be served consecutively to the sentence imposed for the underlying offence has been held not to violate s. 12 of the Charter : see R. v. Brown , [1994] 3 S.C.R. 749; R. v. Spark, [1986] O.J. No. 1001 (C.A.); R. v. Wheatle , [1993] O.J. No. 2747 (C.A.); and R.K. .


Section <mask> of the FLA defines excluded property not subject to division as (a) "property acquired by a spouse before the relationship between the spouses began". Section 84(1)(a) identifies "family property" as, on the date of separation, (i) "property that is owned by at least one spouse", or (ii) "a beneficial interest of at least one spouse in property". Pursuant to s. 84(2)(g), family property includes "the amount by which the value of excluded property has increased since the later of the date (i) the relationship between the spouses began, or (ii) the excluded property was acquired."


I agree with this interpretation. The use of the plural "liens" in s. 85(3)(a), which provides that registration of a lien essentially consolidates all of the corporation's liens against the unit that have not expired, indicates that a corporation can have multiple liens against the same unit. The wording of s. 85(1) provides that an unregistered lien arises upon default automatically. In my view, the proper reading of s. 85 is that a corporation has a lien that arises upon each default. This accords with the wording of s. 85(1) and, otherwise, there is no explanation for the use of the plural in s. 85(3)(a). Subsection <mask> provides that the lien expires three months after the default that gave rise to it unless it is registered. It follows that registration consolidates only those liens that arose in the three months before registration. Delayed registration does not invalidate all liens, just those that arose from defaults that occurred more than three months before the registration.


The second issue was whether a conviction for possession of a weapon for a purpose dangerous to the public peace can constitute the predicate offence necessary for a conviction under s. 85(2) of the Code . Section <mask> provides that it is an offence to use an imitation firearm "while committing an indictable offence". Pursuant to s. 85(4), the sentence for a conviction under s. 85 is to be served consecutively to the sentence for the predicate indictable offence.


Parliament's intention that Kienapple should not apply to preclude multiple convictions in these circumstances is also reinforced by its decision to impose heavier penalties for aggravated forms of committing the predicate indictable offence through ss. 85(3) and (4) of the Criminal Code . Section <mask> provides for a mandatory minimum sentence of one year's imprisonment for a first conviction under s. 85, and three years for a second or subsequent conviction. Section 85(4) provides that a sentence imposed on a conviction under subsections 85(1) or (2) is to be served consecutively to any other punishment imposed for an offence arising out of the same event or series of events and to any other sentence to which the person convicted is subject at the time the sentence is imposed for those convictions.


Released: "RPA" October 30, 2012 "Janet Simmons J.A." "I agree Robert P. Armstrong J.A." "I agree S.E. Pepall J.A." Appendix A Health Professions Procedural Code , being Schedule 2 to the Regulated Health Professions Act, 1991 , S.O. 1991, c. 18 Investigators 75. (1) The Registrar may appoint one or more investigators to determine whether a member has committed an act of professional misconduct or is incompetent if, (a) the Registrar believes on reasonable and probable grounds that the member has committed an act of professional misconduct or is incompetent and the Executive Committee approves of the appointment; (b) the Executive Committee has received a report from the Quality Assurance Committee with respect to the member and has requested the Registrar to conduct an investigation; or (c) the Executive Committee has received a written complaint about the member and has requested the Registrar to conduct an investigation. Appendix B Regulated Health Professions Act , 1991 , S.O. 1991, c. 18 Confidentiality 36. (1) Every person employed, retained or appointed for the purpose of the administration of this Act, a health profession Act or the Drug and Pharmacies Regulation Act and every member of a Council or committee of a College shall preserve secrecy with respect to all information that comes to his or her knowledge in the course of his or her duties and shall not communicate any information to any other person except, (a) to the extent that the information is available to the public under this Act, a health profession Act or the Drug and Pharmacies Regulation Act ; (b) in connection with the administration of this Act, a health profession Act or the Drug and Pharmacies Regulation Act , including, without limiting the generality of this, in connection with anything relating to the registration of members, complaints about members, allegations of members' incapacity, incompetence or acts of professional misconduct or the governing of the profession; (c) to a body that governs a health profession in a jurisdiction other than Ontario; (d) as may be required for the administration of the Drug Interchangeability and Dispensing Fee Act, the Healing Arts Radiation Protection Act, the Health Insurance Act, the Independent Health Facilities Act, the Laboratory and Specimen Collection Centre Licensing Act, the Ontario Drug Benefit Act, the Narcotic Control Act (Canada) and the Food and Drugs Act (Canada); (d.1) to a police officer to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result; (e) to the counsel of the person who is required to preserve secrecy; or (f) with the written consent of the person to whom the information relates. Reports required under Code (1.1) Clauses (1) (c) and (d) do not apply with respect to reports required under section <mask> or 85.2 of the Code. Definition (1.2) In clause (1) (d.1), "law enforcement proceeding" means a proceeding in a court or tribunal that could result in a penalty or sanction being imposed. Limitation (1.3) No person or member described in subsection (1) shall disclose, under clause (1) (d.1), any information with respect to a person other than a member. No requirement (1.4) Nothing in clause (1) (d.1) shall require a person described in subsection (1) to disclose information to a police officer unless the information is required to be produced under a warrant. Not compellable (2) No person or member described in subsection (1) shall be compelled to give testimony in a civil proceeding with regard to matters that come to his or her knowledge in the course of his or her duties. Evidence in civil proceedings (3) No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.


He also accepted the respondents' position that the Code, which is a schedule under the Act, provides a complete code to Pouget's claims except for wrongful dismissal. In particular, he noted that SEHC was mandated under s. 85.5(1) of the Code to report Pouget's termination, and s. 85.6 of the Code provides immunity for reports made in good faith: "No action or other proceeding shall be instituted against a person for filing a report in good faith under section <mask>, 85.2 or 85.5." The motion judge observed that under s. 26(4) of the Code, a panel can choose not to proceed with a complaint if it is found to be frivolous, vexatious or made in bad faith or otherwise an abuse of process. Section 53 of the Code authorizes the panel to order the College to pay all or part of a member's legal costs if it is of the opinion that the commencement of proceedings was unwarranted.


Section <mask> of the CYFSA applies to hearings held under Part V of the Act dealing with child protection. Section 87(8) states that "[n]o person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family."


The Legislation Act, 2006 , by its terms, does not apply to municipal by-laws. The Legislation Act, 2006 applies to "Acts and regulations". A municipal by-law is not an Act and the definition of "regulation" under the Legislation Act, 2006 specifically excludes municipal by-laws. Section <mask> defines "regulation" as "a regulation that is filed under Part III (Regulations)". In Part III, s. 17(a) provides that "regulation" does not include "a by-law of a municipality". Section 49 extends the definition of certain provisions of the Act to "every document that is made under an Act but is not a regulation". However, none of those provisions assist Burlington in the context of this case.


I find no error in the judge's reasons with respect to the issue of child support. Section <mask> of the Family Relations Act , R.S.B.C. 1996, c. 128 provides that "'child' includes a person who is 19 years of age or older and, in relation to the parents of the person, is unable, because of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life." The chambers judge recognized that the daughter required at least a brief transition period after leaving school in order to be capable of obtaining the necessaries of life on her own. In my view, the period of two months that the chambers judge applied was a transition period that was not unreasonable on the evidence in this case. I find no error on the part of the judge in choosing that period.


A person who contravenes subsection <mask> or 134 (11) (publication of identifying information) or an order prohibiting publication made under clause 87 (7) (c) or subsection 87 (9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.


142(3) A person who contravenes subsection <mask> or 134 (11) (publication of identifying information) or an order prohibiting publication made under clause 87 (7) (c) or subsection 87 (9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.


142 (3) A person who contravenes subsection <mask> or 134 (11) (publication of identifying information) or an order prohibiting publication made under clause 87 (7) (c) or subsection 87 (9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.


Section <mask> of the CYFSA sets out that a hearing shall be held in the absence of the public, subject to subsection (5), unless the court orders that the hearing be held in public after considering both the wishes and interests of the parties; and whether the presence of the public would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding. Section 87(8) of the CYFSA sets out that no person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.


-- A person who contravenes subsection <mask> or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.


142(3) Offences re publication -- A person who contravenes subsection <mask> or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to bo th.


Using actual names will always present a much higher risk of offending subsection <mask> [of the CYFSA ]. Once the names of the parties are revealed in a court decision, it will be difficult, if not impossible, for the court to know what additional facts included in the judgment may still point to or identify the persons protected by subsection 87(8). Even the use of initials is potentially compromising, particularly where it can be discovered that the full names of the same parties have been used in another related proceeding.


142 (3) Offences re publication -- A person who contravenes subsection <mask> or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both .


- A person who contravenes subsection <mask> or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.


142 (3) Offences re publication -- A person who contravenes subsection <mask> or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.


Section <mask> of the FLA provides that the net value of the family property (here the increase in value of the excluded property less the family debt) must be based on its fair market value as of the date of an agreement between the parties or the hearing before the court on the division of property. In this case, there was no agreement and therefore the relevant date for the valuation of the net family property was the date of hearing.


The respondent submits that this does not matter because, in effect, the Administrative Judge should be considered a provincial court judge. The CJA provides that her qualifications and compensation for the position are the same as a provincial court judge. Section <mask> provides that the Administrative Judge must meet "the qualifications set out in subsection 42(2) ", which are the qualifications for a provincial court judge. Section 87.2(7) of the CJA provides that the Administrative Judge is "deemed to be a provincial judge" for purposes of compensation:


Section <mask> was meant to be a cost- efficient mechanism to deter contraventions of the Act. A review of the debates prior to enactment suggests there were serious concerns about non-compliance and the costs and delays of enforcing the Act. Legislators discussed expensive and time-consuming proceedings that left electors with unsatisfactory results sometimes years later after considerable sums in legal fees had been incurred.


In a prosecution under s. 92, if the judge finds that the candidate, acting in good faith, committed the offence inadvertently or simply made an error in judgment (together referred to as "the good faith exception"), the penalties described in subsection <mask> do not apply: s. 92(2). The good faith exception affords additional protection in circumstances where a candidate faces greater jeopardy from penalties that can be imposed upon conviction for a s. 92 Act offence.


The words in s. 88.23 are clear: " if a document filed under section <mask> shows on its face that the candidate has incurred expenses exceeding what is permitted under section 88.20 ... the candidate forfeits any office to which he or she was elected and the office is deemed to be vacant and until the next regular election has taken place, the candidate is ineligible to be elected or appointed to any office to which this Act applies."


In the cross-appeal, the City urges the court to draw a distinction between the deliberative component of the proceedings of the Audit Committee and the Standards Committee, and other aspects of their processes. Given the finding that neither is a "local board", that distinction is unnecessary. We also note that on April 1, 2018, the Municipal Elections Modernization Act , 2016, s. 65 came into force and repealed subsection <mask> of the Municipal Elections Act . The new provision, which applies to the Audit Committee, reads:


[3] Section <mask> is one of four offences presently found in the Criminal Code with respect to which the Crown has an election and for which there is a mandatory minimum if the Crown proceeds by indictment, but no mandatory minimum if the Crown proceeds summarily: see s. 96 (possession of weapon obtained by commission of offence), s. 102 (making an automatic handgun) and s. 333.1 (theft of a motor vehicle).  None of those offences have a "gap" between the mandatory minimum if the Crown proceeds by indictment and the maximum penalty if the Crown proceeds summarily.


Section <mask> does not depend on the commission of a predicate offence or the breach of any statutory or other order. Section 95, like the importing offence in Smith , prohibits a broad range of conduct. Upon reflection, I am satisfied that it would be no more appropriate to consider the constitutionality of s. 95 by reference only to the more egregious form of conduct captured by s. 95 than it would have been in Smith to consider the constitutionality of the mandatory minimum by reference only to the crime of importing the more harmful narcotics such as cocaine into Canada.


Section <mask> differs from other firearm possession offences that carry a minimum penalty in another respect. Unlike, for example, the offences created by ss. 85, 96, 100, and 279, there is no requirement in s. 95 that the Crown prove that the possession of the firearm was connected to some other unlawful activity or intended unlawful activity. Possession is criminal under s. 95 even if it is entirely untainted by any other unlawful activity.


Section <mask>, the section in issue, came into force in December 1998: S.C. 1995, c. 39, s. 139. It prohibits the possession of a loaded prohibited or restricted firearm, or the possession of an unloaded prohibited or restricted firearm "together with readily accessible ammunition that is capable of being discharged in the firearm". The offence applies to anyone in possession of a prohibited or restricted firearm who does not have an authorization or a licence to possess the firearm at the specific place in issue and a registration certificate for the firearm.


In this case, the information particularized the offence as possession of a "loaded prohibited firearm, namely a rifle, contrary to section <mask>, subsection (2) of the Criminal Code". As I have indicated, the evidence showed that the firearm was not in fact loaded but that the ammunition was found alongside it in the same tennis racquet case. At trial, the Crown chose not to seek an amendment of the information to conform to the evidence.


I differ from my colleague in one other respect. He would balance the mitigating factors against two significant aggravating factors: (1) the appellant was on bail for an unspecified charge at the time of the shooting and the terms of his bail prohibited him from possessing any firearm; and (2) the shooting was part of a course of conduct during which the appellant displayed a blatant disregard for the safety of those around him. The trial judge adverted to what in my view is a third significant aggravating factor: the firearm was a prohibited weapon. Section <mask> of the Criminal Code provides for a three year minimum sentence merely for possessing a loaded prohibited firearm. This case is very different than one involving an accident with a hunting rifle.


I have, however, concluded that the Crown and the Attorney General for Canada's approach of considering all potential applications of s. 95 is correct. Section <mask> is a different kind of offence than the offences considered in Goltz and Brown .  In those cases, the offence that carried the minimum penalty depended on the commission of a predicate offence or the breach of some other statutory provision or order. The seriousness of the offence attracting the minimum penalty depended to some degree on the nature of the predicate offence, or the nature of the conduct giving rise to the prior order.


The reality that the vast majority of s. 95 offenders will be engaged in conduct that would be classified as dangerous and criminal under any definition does not alter the reach of the section as drawn by Parliament. Section <mask> applies not only to offenders like the appellant, whose conduct poses an immediate and serious risk to the public, but also to persons whose conduct cannot be said to pose any real risk to the public. The potential application of the mandatory minimum to persons at what I have called the regulatory end of the s. 95 spectrum figures prominently in the s. 12 analysis.


Section <mask> criminalizes a broad range of conduct. Mr. Morris's actions fall at the "true crime" end of the spectrum of the conduct prohibited by s. 95. As this court and, more importantly, the Supreme Court of Canada have indicated, crimes like those committed by Mr. Morris call for denunciatory sentences. In most cases, penitentiary terms will be required. In some situations, where there are strong mitigating factors, sentences at or near the maximum reformatory sentence (two years, less a day), may be imposed: see Smickle , at para. 30; Nur (ONCA) , at paras. 6, 17-23 and 206; and Nur (SCC) , at para. 82.


There is considerable force to counsel's submissions. However, the scheme of s. 95 compels me to reject that argument. Section <mask> creates a hybrid offence. The Crown may proceed by indictment or summarily. If the Crown proceeds summarily, there is no minimum penalty and the accused may receive a non-custodial sentence or even an absolute discharge: e.g. see Snobelen .  The essential elements of the offence are, of course, the same whether the Crown proceeds by indictment or summarily. By making s. 95 a hybrid offence, Parliament has acknowledged that the appropriate penal response for the criminal conduct prohibited by s. 95 runs the full gamut of sentencing options from an absolute discharge to 10 years in the penitentiary. That sentencing range tells me that Parliament must have anticipated prosecutions under s. 95 at what I have referred to as the regulatory end of the spectrum. The reasonable hypothetical I have constructed is consistent with that view of the offence.


The level of moral blameworthiness, however, as with the blameworthiness that knowledge of the possession of a narcotic imputes, depends on a number of variables, all of which fall within the broad scope of the offence as defined in s. 95. Knowledge that one has an unloaded restricted firearm safely stored in one's cottage with useable ammunition readily accessible in the next room, coupled with the knowledge that under the terms of one's licence, the firearm should be kept in one's dwelling, attracts a very different level of moral blameworthiness than does the knowledge of the person standing on the street corner with a loaded gun in his back pocket for which he knows he has no kind of authorization and which he intends to use as he sees fit. Section <mask> is written so broadly as to capture offenders with both levels of moral blameworthiness. My reasonable hypothetical focuses on the less blameworthy category of potential offender.


Section <mask> seeks to protect the public by criminalizing the possession of potentially dangerous firearms in circumstances that increase the danger posed to the public by the possession of those firearms. By criminalizing possession simpliciter , the criminal law can intercede before someone is actually harmed and before criminal activity, so often associated with the possession of these kinds of firearms, actually occurs or is attempted.


A departure from the presumptive date for valuation of family property is effectively a reapportionment or unequal division of the family property, which can only be done under s. 95 of the FLA. Section <mask> expressly provides for the reapportionment of net family property if an equal division would be "significantly unfair." Under the former FRA, a change in the valuation date from the date of hearing was determined to be an effective reapportionment of the family assets. See Martelli v. Martelli (1981), 33 B.C.L.R. 145 at para. 28 (C.A.); Toth v. Toth (1995), 13 B.C.L.R. (3d) 1 at para. 55 (C.A.); McPhee v. McPhee (1996), 22 R.F.L. (4 th ) 302 at paras. 10-13 (B.C.C.A.); and Fisher v. Fisher, 2009 BCCA 567 at para. 61. The same reasoning, in my opinion, should be applied to the comparable provisions of the FLA. Any departure from the presumptive equal division of net family property under s. 81 of the FLA must therefore be made pursuant to s. 95(1) of the FLA , which imposes a threshold finding that an equal division of the net family property would be "significantly unfair" before any reapportionment of the net family property can be ordered.


Section <mask> is a hybrid offence punishable by a maximum of 10 years if the Crown proceeds by indictment. Initially, the offence carried a one-year minimum sentence if the Crown proceeded by indictment and a one-year maximum penalty if the Crown proceeded summarily. In May 2008, the minimum sentence was increased to three years for a first offence and five years for a subsequent offence if the Crown proceeded by indictment: S.C. 2008, c. 6, s. 8. The one- year maximum if the Crown proceeded summarily was not changed.


Section <mask> casts a "wide net": MacDonald , at para. 47. Unlike some firearm offences that carry a substantial minimum penalty ( e.g. manslaughter, at s. 236(a), and criminal negligence causing death, at s. 220(a)), s. 95 does not require proof of any harm, or even any risk of harm, to any other person as a result of the possession of the firearm. Nor, unlike other sections carrying a mandatory minimum ( e.g. discharging a firearm at a person with intent to wound, at s. 244(2)), does s. 95 require proof of an intention to cause any harm, recklessness as to the potential for harm flowing from the possession, or even criminally negligent behaviour relating to the firearm. It is irrelevant to a charge under s. 95 that the accused took all necessary precautions to ensure the safety of others.


According to s.120(1) of the RTA , "No landlord may increase the rent charged to a tenant, or to an assignee under section <mask>, during the term of the tenancy by more than the guideline ..." [emphasis added] subject to certain inapplicable exceptions. The guideline is established by the Minister of Municipal Affairs and Housing each calendar year and shall not be more than 2.5%. Under s.119, a landlord may only increase the rent once every 12 months.


The respondent submits that, as a matter of logic and common sense, if a prohibited firearm is loaded with ammunition then that person possesses a firearm "together with readily accessible ammunition". Section <mask> describes two ways of committing one offence. It is an offence to possess a loaded prohibited firearm or an unloaded prohibited firearm with readily accessible ammunition. Both modes of committing the offence are found within the same subsection of the Criminal Code with the latter mode being an included offence in the first.


Persons, like the appellant, convicted under s. 95(1) are subject to minimum penalties. In the case of a first offence, the minimum penalty is three years, and in the case of second or subsequent offences, the minimum penalty is five years: s. 95(2) of the Criminal Code . An offence is a "second or subsequent offence" if within the 10 years prior to the conviction for which the accused is being sentenced, he or she was convicted of any of the offences enumerated in s. 84(5). Section <mask> is one of the enumerated offences. Consequently, and setting aside the YCJA provisions for the moment, the appellant's conviction under s. 95(1) in November 2007 made this conviction on a s. 95(1) charge a "second or subsequent offence" and triggered the five-year minimum penalty in s. 95(2).


[43] The determination of whether an equal division would be significantly unfair is also guided by a more precise identification of relevant factors than was found in the FRA . Importantly, the Legislature did not include in s. 95(2) the principle of relative contribution found in s. 65(1)(f) of the FRA . Under s. 65(1)(f), a court could consider circumstances relating to the acquisition, preservation, maintenance, improvement or use of property. Section <mask>, by comparison, refers rather narrowly to career contributions (95(2)(c)) and to post-separation increases in value beyond market trends caused by one spouse (95(2)(f)). I agree with the judge's view that if relative contribution to the acquisition, preservation, maintenance or improvement of family property during the relationship was intended to be a significant factor or one frequently relied on in justifying the conclusion that the equal division of family property is significantly unfair, the Legislature would have said so. Allowing relative contribution to become a regular consideration in the context of s. 95 would likely create uncertainty and complexity. This would be contrary to the legislative objectives discussed earlier that underlie the FLA division of property regime.


Section <mask>(ii) of the Code provides that, upon conviction for possession of a loaded restricted or prohibited firearm and where the Crown proceeds by indictment, the offender faces a five-year minimum sentence of imprisonment where the conviction is a "second or subsequent offence". Under s. 84(5) of the Code , an offence under s. 117.01(1) - possession of a weapon contrary to a weapons prohibition order - constitutes a "second or subsequent offence" for the purpose of s. 95(2)(a)(ii).


Section <mask> is a general term, allowing consideration of "any other factor ... that may lead to significant unfairness." As a general term preceded by a list of specific items, the rule of statutory interpretation known as ejusdem generis ("of the same kind"), or the limited class rule, may apply. In National Bank of Greece (Canada) v. Katsikonouris , [1990] 2 S.C.R. 1029, La Forest J. explained the rule thusly at 1040: