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COURT OF APPEAL FOR ONTARIO CITATION: Graff v. Network North Reporting and Mediation, 2020 ONCA 319 DATE: 20200527 DOCKET: M51025 (C64831) Rouleau, van Rensburg and Roberts JJ.A. BETWEEN Marie Graff Plaintiff (Appellant/Moving Party) and Network North Reporting and Mediation, Nadine Kuehnhold, Johnson Insurance, Unifund Insurance, Dutton Brock LLP, Ryan St. Aubin, Kahler Personal Injury Law Firm Professional Corporation, Deborah J. Lewis, Brennan Kahler, Longley Vickar, Louis Brent Vickar, Fox Psychological Services, Allan Walton, Dr. Valentin, Dr. Paula B. Williams Medicine Professional Corporation and Dr. Paula Williams Defendants (Respondents/Responding Parties) Marie Graff, acting in person Jay Stolberg, for the responding parties Network North Reporting and Mediation and Nadine Kuehnhold Mark M. O’Donnell, for the responding parties Johnson Inc. and Unifund Assurance Company Visnja Jovanovic, for the responding parties Dutton Brock LLP and Ryan St. Aubin, making no submissions Brian Pickard, for the responding parties Kahler Personal Injury Law Firm Professional Corporation, Deborah J. Lewis and Brennan Kahler Alan L. Rachlin, for the responding parties Longley Vickar and Louis Brent Vickar Joel Reinhardt, for the responding parties Fox Psychological Services and Allan Walton Monika S. Korona, for the responding party Dr. Valentin Andrew Porter, for the responding parties Dr. Paula B. Williams Medicine Professional Corporation and Dr. Paula Williams, making no submissions Heard: May 20, 2020 by videoconference REASONS FOR DECISION A. Overview [1] The appellant moves to set aside the order of a single judge of this court (the “motion judge”). The motion judge dismissed her motion to set aside the administrative dismissal of her appeal. [2] For the following reasons, we dismiss her motion. B. Background [3] On December 13, 2017, Favreau J. of the Superior Court of Justice issued comprehensive reasons granting summary judgment and dismissing the underlying action: Graff v. Network North Reporting and Mediation , 2017 ONSC 7451, 75 C.C.L.I. (5th) 70. More than two years have passed since the appellant filed her notice of appeal in January 2018. The appeal has yet to be perfected. [4] The appeal has been administratively dismissed twice. The first dismissal came after the appellant had been given two extensions but failed to meet the deadlines imposed. After the first dismissal was set aside the appellant missed the new deadline imposed by the court for perfecting the appeal. Her motion to set aside this second administrative dismissal of her appeal was dismissed by the motion judge. [5] This motion to review the motion judge’s decision was brought out of time. The appellant was granted an extension of time to bring this review motion. C. SUBMISSIONS OF THE PARTIES [6] On this review motion the appellant has filed extensive written submissions and materials. In these materials, and in her oral submissions, the appellant submits that someone has tampered with her materials and that the respondents did not provide her with the documents required to perfect her appeal. She maintains that she has demonstrated conviction in pursuing the perfection of this appeal and that the respondents have contributed to the delay. She also argues that the motion judge erred in concluding that the appeal had no merit. [7] The respondents explain that they presented evidence before the motion judge demonstrating that all material that the appellant needed to perfect her appeal had been supplied to her well in advance of the scheduled perfection date. In their submission, that evidence was accepted by the motion judge and nothing before us suggests that this conclusion is unreasonable or wrong. D. Analysis [8] On a motion to set aside a dismissal order, the motion judge must assess the justice of the case, which includes consideration of the merits of the appeal and factors analogous to those typically considered on a motion to extend the time to appeal: Sickinger v. Sickinger , 2017 ONCA 760, at para. 13. [9] After careful review of the record, consideration of the merits of the appeal, and taking into account the extensive delay and repeated failure to meet deadlines, the motion judge exercised his discretion not to set aside the dismissal and refused to extend the time for perfection. We see no basis to interfere. [10] Regarding the appellant’s claims that someone has tampered with her materials, possibly the respondents, there is no proof of these serious accusations. Nor is there a basis to conclude that the respondents have not reasonably assisted her in assembling documentation. These claims were not accepted by Doherty J.A., who heard an earlier motion brought by the appellant, and were rejected by the motion judge. We see no basis to interfere with these findings. [11] The appellant’s stated commitment to perfecting the appeal is an insufficient basis to interfere with the motion judge’s decision. This action was initiated over four and a half years ago and the respondents are entitled to closure. The delays here and below have been extensive. Although the respondents may have contributed to some of the delay, the justification for the appellant’s failure to perfect the appeal given the repeated and generous extensions of time is unconvincing. [12] In any event, as found by Favreau J., the underlying action is related to prejudice allegedly caused to the appellant in the context of her outstanding action for injury she suffered in a 2006 motor vehicle accident, which has yet to go to trial. That action remains outstanding and nothing in the record suggests that the respondents’ alleged actions and negligence, if established, caused damage to the appellant. E. Disposition [13] For these reasons, the motion is dismissed. [14] Costs of this motion, and of the motion to extend the time to bring this motion, are awarded to the following responding parties: · Network North Reporting and Mediation and Nadine Kuehnhold: in the amount of $750 collectively; · Johnson Inc. and Unifund Assurance Company: in the amount of $750 collectively; · Kahler Personal Injury Law Firm Professional Corporation, Deborah J. Lewis and Brennan Kahler: in the amount of $2,500 collectively; · Dr. Valentin: in the amount of $750. [15] Costs of this motion are also awarded to the following responding parties: · Longley Vickar and Louis Brent Vickar: in the amount of $500 collectively; · Fox Psychological Services and Allan Walton: in the amount of $500 collectively. [16] All amounts are inclusive of disbursements and applicable taxes. “Paul Rouleau J.A.” “K. van Rensburg J.A.” “L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Kazen v. Whitten & Lublin Professional Corporation, 2020 ONCA 325 DATE: 20200526 DOCKET: C67805 Gillese, Brown and Jamal JJ.A. BETWEEN Samuel Kazen Plaintiff (Appellant) and Whitten & Lublin Professional Corporation, Daniel Asher Lublin, David Alan Whitten, Marc Warren Kitay, Stephen Clifford Wolpert and Gauri Jalota Defendants (Respondents) R. Lee Akazaki, for the appellant Gavin Tighe and Lauren Rakowski, for the respondents Whitten & Lublin Professional Corporation, Daniel Asher Lublin, David Alan Whitten, Marc Warren Kitay and Stephen Clifford Wolpert Heard and released orally: May 25, 2020 by Videoconference On appeal from the order of Justice Paul B. Schabas of the Superior Court of Justice, dated November 15, 2019. REASONS FOR DECISION [1] The appellant is a lawyer. He sued the respondents, a law firm and individuals connected to it (the “Action”). The cause of action is an alleged breach of solicitor-client privilege arising from the respondent law firm having provided the appellant with legal advice several years earlier. The alleged breach is said to have occurred on a motion in an unrelated lawsuit (the “earlier proceeding”). [2] The respondents moved to have the Action struck. By order dated November 15, 2019, the motion judge struck the Action on the basis of issue estoppel. The appellant appeals against the order. [3] For the reasons that follow, the appeal is dismissed. [4] In the Action, the appellant raised substantially the same alleged breach of solicitor-client privilege as had been dealt with in the earlier proceeding. In a motion on the earlier proceeding, the Master ruled against the appellant on the matter of solicitor-client privilege. The Master found, among other things, that if any privilege had existed, it had been expressly waived. [5] As the motion judge set out, relying on Angle v. Minister of National Revenue , [1975] 2 S.C.R. 248, the test for issue estoppel consists of three parts: i. the same question has been decided; ii. the judicial decision which is said to create the estoppel was final; and iii. the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised [or] their privies. [6] We begin by noting that there is no real question that the second and third parts of the test are met. The appellant appealed the Master’s decision but later withdrew the appeal. Accordingly, the Master’s decision on solicitor-client privilege was a final decision. And, on the Motion before the Master relating to the issue of solicitor-client privilege, the parties or their privies were the appellant and the respondents. [7] The appellant’s primary contention on this appeal focusses on the first part of the test for issue estoppel. He argues that the Master did not decide the question of solicitor-client privilege. In making this argument, he relies on a narrow reading of one sentence in para. 23 of the Master’s decision, where the Master refers to a legal consultation. We do not accept this argument. A fair and full reading of the Master’s reasons as a whole show that the issue of solicitor-client privilege was squarely before the Master and that she found that the appellant had “expressly waived” that privilege. Thus, the same question was decided by the Master as that which the appellant raised in the Action. [8] Accordingly, the motion judge did not err in finding that the Action was barred by issue estoppel or in striking the statement of claim without leave to amend. [9] The appeal is dismissed with costs to the respondents fixed in the amount of $8,000, inclusive of disbursements and applicable taxes. “E.E. Gillese J.A.” “David Brown J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Khan v. Law Society of Ontario, 2020 ONCA 320 DATE: 20200526 DOCKET: C67445 Feldman, Lauwers and Nordheimer JJ.A. BETWEEN Omar Shabbir Khan Plaintiff (Appellant) and Law Society of Ontario, Law Society Tribunal, David Wright, Raj Anand, Margaret Leighton, Barbara Laskin , Deborah McPhadden, Glenn Stuart, Leslie Maunder, Nina Iwanowich, Doctor Michael Colleton, Michael Colleton Medicine Professional Corporation, Legal Aid Ontario, Victor Matanovic, Hamilton Police Service and Kevin Dhinsa Defendants ( Respondents ) Omar Shabbir Khan in person Susan M. Sack for the respondents, Law Society Tribunal, David Wright, Raj Anand, Margaret Leighton and Barbara Laskin Gillian Kerr and Ljiljana Stanic for the respondents, Doctor Michael Colleton and Michael Colleton Medicine Professional Corporation Gideon Forrest and Mitch Stephenson for the respondents, Legal Aid Ontario and Victor Matanovic Colleen E. Robertshaw for the respondents, Hamilton Police Service and Kevin Dhinsa Heard: in writing (on consent) On appeal from the order of Justice Clayton Conlan of the Superior Court of Justice, dated August 23, 2019, with reasons reported at 2019 ONSC 4974. REASONS FOR DECISION [1] On April 15, 2019, the appellant commenced an action in Milton against 16 defendants (the “Milton action”). On August 23, 2019, the motion judge dismissed the Milton action as against 11 of the 16 defendants under r. 2.1, on the basis that it was frivolous, vexatious or an abuse of process. The other five defendants had not sought a dismissal. For the following reasons, we would allow the appeal in part. [2] The appellant was the subject of a complaint to the Law Society of Ontario (“LSO”) regarding alleged billing irregularities and alleged forged documents. In September 2018, upon making a finding that the appellant had committed professional misconduct, the LSO revoked his licence to practice. [3] The 16 defendants in the Milton action include the LSO, the Law Society Tribunal, various individuals who were involved in the proceedings that resulted in the revocation of the appellant’s licence, Dr. Colleton, a psychiatrist who provided evidence to the Tribunal regarding the appellant’s mental health, Legal Aid Ontario (“LAO”) which was the complainant in the appellant’s disciplinary case, and the Hamilton Police Service, who the appellant says undertook an investigation of him at the behest of the LAO. [4] The statement of claim in the Milton action is a lengthy document that advances a myriad of claims and seeks a wide variety of damages, all arising from the events surrounding the revocation of the appellant’s licence to practice. [5] On that latter point, certain other facts are important. One is that the appellant has appealed the decision of the Law Society Tribunal by which the revocation of his licence was upheld. Another is that the appellant has an outstanding application for judicial review respecting a ruling made in the course of the Tribunal’s hearing. Yet another is that the appellant had earlier commenced another action in Hamilton (the “Hamilton action”) against LAO arising out of this same matter. Analysis [6] We begin our analysis by focussing on the proper application of r. 2.1. Its use is restricted to “the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading”: Scaduto v. The Law Society of Upper Canada , 2015 ONCA 733 at para. 8. [7] In particular, r. 2.1 is not intended to replace other Rules in the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 by which actions can be struck out, or other procedural irregularities dealt with, summarily: Simpson v. The Chartered Professional Accountants of Ontario , 2016 ONCA 806 at para. 43. These include motions to dismiss an action for failure to disclose a cause of action or because the action is an abuse of process. For example, Rule 21 provides a procedure for dealing with actions that are defective in a number of different respects. [8] Further, r. 2.1 is intended to be a streamlined process for dealing with cases where the frivolous or abusive nature of the proceeding is clear on the face of the pleading. We suggest that if, after requesting submissions from the plaintiff as to why the action should not be dismissed under r. 2.1, the court feels it necessary to seek submissions from the defendants (who are seeking the dismissal), the fact that these additional submissions are needed ought to be a good indication that the situation is not one of those clearest of cases where the Rule should be invoked. [9] The appellant submits that the motion judge erred in referring to pleadings from other proceedings, since evidence is not permitted on a r. 2.1 motion. We do not agree. It may be necessary to review reasons and pleadings from other proceedings in order to make a determination whether the instant case is abusive. The case here is a good example of that. [10] There was argument advanced in this case as to the appropriate standard of review. We accept that a decision made under r. 2.1 is a discretionary decision and, as such, is entitled to deference. That said, discretionary decisions may be set aside where the court misdirects itself or comes to a decision that is so clearly wrong that it amounts to an injustice: Penner v. Niagara (Regional Police Services Board) , [2013] 2 S.C.R. 125 at para. 27. [11] We do not see any misdirection in the motion judge’s conclusion that the action against the Law Society Tribunal, and the individual defendants associated with it, is an abuse of process in light of the outstanding appeal that the appellant has from the Tribunal’s decision. To advance a claim arising out of a decision that is, itself, not final, because of an outstanding appeal, is on its face abusive. [12] Similarly, we do not see any misdirection in the motion judge’s conclusion that the Milton action against LAO is abusive in light of the outstanding Hamilton action that the appellant has against LAO. The mere fact that the appellant has also sued an individual, not named in the Hamilton action, in the Milton action does not change that conclusion. A multiplicity of proceedings is often a hallmark of abusive litigation. [13] However, we do find that the motion judge misdirected himself with respect to the claim against Dr. Colleton and his corporation. This is not an obviously abusive claim. The fact that Dr. Colleton relies on the legal principle of absolute privilege in defence of the claim is a good indicator that the issue is not a simple one where it would be appropriate to invoke r. 2.1. We note on this point, as well, that the motion judge chose to limit the appellant’s opportunity to reply to the submissions of the various respondents. This meant that the appellant did not have a full opportunity to make submissions as to whether Dr. Colleton’s claim of absolute privilege was correct or not in the particular circumstances of his case. This fact highlights the inappropriate application of r. 2.1. The issue ought to have been left to be determined on a proper motion under Rule 21 with all the procedural safeguards such a motion includes. [14] We reach the same conclusion regarding the claim against the Hamilton Police Service and the associated individual defendant in the Milton action. The motion judge purported to determine various legal issues involving the claim against the police, including the parameters for claims of negligent investigation and for defamation respecting press statements issued by the police. These are not matters that should be determined on a r. 2.1 motion. Further, the fact that these claims in the Milton action may overlap claims in the Hamilton action does not preclude a separate claim being made against the police when they are not parties to the Hamilton action. [15] We reiterate that judges should be cautious about allowing parties to have recourse to r. 2.1 except where it is plain and obvious on the face of the pleading that the action is frivolous, vexatious or an abuse of process. There are many other remedies provided for in the Rules of Civil Procedure by which parties can deal with cases that are not clear on the face of the pleading. Conclusion [16] The appeals are allowed with respect to the claims made against Dr. Michael Colleton, Michael Colleton Medicine Professional Corporation, Hamilton Police Service, and Kevin Dhinsa, without prejudice to any subsequent motion that those parties may choose to bring under an appropriate Rule to summarily deal with the claims advanced. The appeals are otherwise dismissed. We make no order as to costs. “K. Feldman J.A.” “P. Lauwers J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Kitchen v. Brian Garratt (Garratt’s Garage), 2020 ONCA 309 DATE: 20200522 DOCKET: C67729 Lauwers, Huscroft and Thorburn JJ.A. BETWEEN John Kitchen and Nancy Kitchen Plaintiffs (Respondents) and Brian Garratt c.o.b. as “Garratt’s Garage” Defendant (Appellant) Brian Garratt, acting in person Scott McMahon, for the respondents Heard: In Writing On appeal from the judgment of Justice Gary W. Tranmer of the Superior Court of Justice, dated August 12, 2019. REASONS FOR DECISION [1] The respondents hired the appellant in 2000 to conduct a partial restoration of their 1974 Corvette. The appellant also had possession of other vehicles owned by the respondents. The respondents claim they paid the appellant about $79,000 over a 15-year period to restore the 1974 Corvette. In 2016, the parties fell out and the respondents brought an action seeking the return of the Corvette and damages. The appellant brought a counterclaim for unpaid accounts and storage fees, but it was dismissed because of his failure to deliver an affidavit of documents. The respondents obtained an order compelling the return of the Corvette and purported to discover that very little work had been completed. [2] A trial date was adjourned at the appellant’s request on the day of the trial, and the respondents were permitted to bring a motion for summary judgment. Although he had been represented by counsel in the past, at the return of the summary judgment motion, the appellant was self-represented. He did not file any affidavit evidence on the motion, although he did arrive with some photographs of the vehicle in hand, which he proferred. [3] The motion judge granted the motion for summary judgment, awarding $78,565.16 to the respondents as a return of monies paid to the appellant to restore their 1974 Corvette, plus pre-judgment interest and costs for a total of $103,949.79. [4] In his endorsement, the motion judge noted: The defendant did not seek an adjournment today. He did not file affidavit evidence or a factum. I heard his submissions that he wants a trial permitting him to file Exhibit 1 (photographs of the automobile). The motion materials clearly support that there is no genuine issue for trial. The defendant had the vehicle for 15 years, the plaintiffs paid $79,000. The evidence is that the work agreed upon was not done. [5] However, contrary to the assertion made by the motion judge, there were photographs before him that depicted work done on the Corvette including painting and polishing. Those photographs were made an exhibit at the hearing. The respondents conceded that some, albeit they say “very little”, work was done, which implies that the return of all funds paid to the appellant might not have been warranted. [6] The conflict in the evidence was not resolved. We therefore allow the appeal, set aside the order of the motions judge granting summary judgment and costs, and remit the case back for trial. [7] Mr. Garratt had several opportunities to file evidence in support of his position that he did work on other vehicles and or stored other vehicles for the respondents and did not do so. By his failure to do so, Mr. Garratt has wasted the time of counsel for the respondents and must pay some costs thrown away on the summary judgment motion. [8] We fix costs of the motion thrown away to be paid by Mr. Garratt to the respondents in the amount of $5,000 within 30 days of the date of this decision. Costs of this appeal, which we also fix at $5,000, will be costs in the cause reserved to the judge who finally disposes of the matter. The respondents are free to bring another summary judgment motion on proper evidence. “P. Lauwers J.A.” “Grant Huscroft J.A.” “Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Laski v. BMO Nesbitt Burns Inc., 2020 ONCA 300 DATE: 20200515 DOCKET: C66956 Pepall, van Rensburg, and Paciocco JJ.A. BETWEEN Wayne S. Laski and the Estate of Harold Morton Laski Plaintiffs ( Appellant ) and BMO Nesbitt Burns Inc. , Louis-Jacques Menard, Charyl A. Galpin, Peter Hinman, William Darryl White, Richard L. Mills, Patrick Cronin, Connie Stefankiewicz, Gilles Gerard Ouelette and Norman Yu Defendants ( Respondents ) Wayne S. Laski, acting in person Andrew Parley and Jonathan Chen, for the respondents Heard: In writing On appeal from the order of Justice Sandra Nishikawa of the Superior Court of Justice, dated April 23, 2019. REASONS FOR DECISION OVERVIEW [1] Harold Laski died on March 13, 2012. His three adult children – Brian Laski, Wendi Laski, and the appellant, Wayne Laski – were all named as co-executors of his estate. In his will, he left his estate to Wendi and to Wayne, Brian already having received significant assets during his father’s lifetime. His will contained a clause that said that Wendi owned some assets jointly with her father with a right of survivorship. Shortly before his death, by way of an irrevocable direction, more than $400,000 in securities owned by Harold Laski were transferred into a BMO Nesbitt Burns Inc. (“BMO”) joint account, in the names of Harold Laski and Wendi Laski. This had the effect of giving Wendi Laski the right of survivorship to the securities and removing them from Harold Laski’s estate where they would have also benefited the appellant. [2] The appellant, a lawyer, was of the view that the transfer was fraudulent, that Wendi Laski exercised undue influence over Harold Laski, and that BMO was complicit in Wendi’s misconduct. Litigation ensued, with multiple proceedings commenced by the parties. The appellant commenced an application (the “Estate Application”) for various determinations under Harold’s will, including whether joint accounts in the name of Wendi Laski and Harold formed part of Harold’s estate, or whether they passed by right of survivorship to Wendi. Wendi Laski sued the appellant (the “Wendi Action”), among other things, for partition and sale of a condominium jointly owned by Harold, Wayne and Wendi. These proceedings were consolidated (the “Consolidated Proceedings”).  Both in his personal capacity and as a co-executor of Harold Laski’s estate, the appellant also sued BMO, along with various BMO directors and a former BMO investment advisor, Norman Yu, claiming that the defendants either engaged in negligent misrepresentation relating to the transfer or breached a duty of disclosure (the “BMO Action”) owed to him. He later discontinued the claim against the directors, leaving the action to proceed against the respondents to this appeal, BMO and Mr. Yu. [3] On January 28, 2016, Conway J. granted summary judgment against the appellant in the Consolidated Proceedings, ordering that the securities did not form part of Harold Laski’s estate and that they passed to Wendi Laski by right of survivorship. The appellant, who served a late Notice of Appeal, was denied an extension of time to appeal to this court. [4] On April 23, 2019, Nishikawa J. (the “motion judge”) granted the respondents’ motion to strike the BMO Action. The claim the appellant purported to bring on behalf of Harold Laski’s estate was struck for non-compliance with r. 9.01(3) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, because the appellant had failed to join the non-consenting co-executors as defendants to the action.  The appellant has not pointed to any error in the motion judge’s application of r. 9.01.(3) to dismiss the action brought on behalf of Harold’s estate. Accordingly, we see no basis to interfere with this ruling. [5] The motion judge also struck the appellant’s personal claim against the respondents under the issue estoppel branch of the doctrine of res judicata as having been previously determined by Conway J. in the Consolidated Proceedings. In the alternative, she held that the appellant’s action should be stayed as a “collateral attack … and an abuse of process”, and in the further alternative, that it should be stayed because the appellant’s claim disclosed no reasonable cause of action as the respondents did not owe him a duty of care, and he sustained no damages. THE ISSUES [6] The appellant appeals the motion judge’s decision to strike his personal action against the respondents. He raises the following issues: A. Did the motion judge err in not adjourning the respondents’ motion and proceeding in the appellant’s absence? B. Did the motion judge err in granting the respondents’ motion on the merits? [7] We would not give effect to the appellant’s arguments on either ground of appeal. ANALYSIS A. The Adjournment Ruling [8] On April 12, 2018, Chiappetta J. established a timetable for the respondents’ motion to strike. Dates in July were set for filing materials.  There was to be no viva voce evidence and the motion was set for September 19, 2018. [9] On September 18, 2018, D. Wilson J. adjourned the motion at the appellant’s request and with no objection from the respondents. The appellant filed a medical note that failed to say why he could not proceed nor when he would be able to argue the motion. Wilson J. fixed February 11, 2019 for the hearing of the motion, peremptory to the appellant, and ordered that he was to file his materials by November 2, 2018. [10] On January 28, 2019, Nishikawa J. adjourned the February 11, 2019 motion to April 23, 2019. The appellant was to serve his materials by March 22, 2019. The appellant had provided a medical note saying he was unable to work for six months. In granting that adjournment, Nishikawa J. said: No further adjournments will be allowed unless the Plaintiff [now the appellant] provides more specific information regarding his medical and health limitations on proceeding with his action from a qualified medical doctor. [11] No responding materials were filed by the appellant by the deadline set by Nishikawa J., or at all. Moreover, although the appellant sent an email to opposing counsel stating that he had been hospitalized and released on April 18, 2019, he did not comply with the direction to provide “more specific information regarding his medical and health limitations on proceeding with his action from a qualified medical doctor”. [12] The appellant did not appear on April 23, 2019, the date fixed for the return of the motion. The motion judge treated the email sent to opposing counsel as the appellant’s request for an adjournment. In denying the adjournment, the motion judge noted that, while a recent release from hospital would normally warrant an adjournment, the motion had been pending for almost a year, the appellant had failed to respond, and that the only medical documentation he had provided was a note stating that he could not work for six months. [13] The determination of whether it is in the interests of justice to grant an adjournment is discretionary, and “the scope of appellate intervention is correspondingly limited”: Khimji v Dhanani (2004), 69 O.R. (3d) 790, at para. 14 (C.A.); Turbo Logistics Canada Inc. v. HSBC Bank Canada , 2016 ONCA 222, at paras. 16-28. We see no error in the motion judge’s decision to exercise her discretion and proceed with the hearing of the motion. This was the third date set for argument of the motion. The motion judge was familiar with the history of the matter, and the terms of the previous adjournments, each requested by the appellant. Furthermore, the appellant knew that there would be no further adjournments in the absence of a medical note providing more specific information about his limitations. This was not forthcoming.  In these circumstances, the motion judge properly proceeded to hear the motion. [14] We have considered the additional medical evidence the appellant has produced in this appeal. He has not brought a motion for fresh evidence, and even on its face this information fails to explain why the responding materials were not filed as directed, or why the unsupported, last minute adjournment was required. This ground of appeal must be dismissed . B. The Merits [15] In the BMO Action, the appellant alleged that the respondents negligently mispresented the circumstances surrounding the transfer of the securities into the joint account of Wendi and Harold, or alternatively, that they breached a duty of disclosure by failing to disclose to him that Harold had changed his mind about leaving the contents of the account to Wendi. [16] The former claim is premised on the contention that Mr. Yu furnished false information after conspiring with Wendi. As the motion judge pointed out, Conway J. concluded that there was no conspiracy between Wendi and Mr. Yu. This finding fully addresses and disposes of the negligent misrepresentation claim. [17] The latter claim, that the respondents breached their duty of disclosure,  is based on the contention that, if the circumstances surrounding the transfer that were disclosed during the Wendi Action are true, the respondents should have disclosed that information to the estate trustees in a timely manner after Harold’s death, and not after the passage of many years. Even if the respondents owed the appellant a duty of disclosure, an issue we need not decide, this claim cannot succeed. This is because, as the motion judge pointed out, the appellant pleaded in his statement of claim that, shortly after Harold died, Mr. Yu had advised him that his father had changed his mind and had left the money in issue to Wendi.  The motion judge also found that the appellant sustained no damages, and the appellant has offered no basis for interfering with that determination, which is fatal to this cause of action. [18] In conclusion, we would not disturb the motion judge’s decision. In any event, the motion judge offered various bases for staying the action including collateral attack and abuse of process, both of which are firmly grounded in the evidence. The order striking the appellant’s action was inevitable. DISPOSITION [19] For these reasons, the appeal is dismissed. The parties may make costs submissions in writing, not to exceed three written pages each, within 30 days. “S.E. Pepall J.A.” “K. van Rensburg J.A.” “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: MCC Mortgage Holdings Inc. v. Mundulai, 2020 ONCA 312 DATE: 20200521 DOCKET: M51539 ( C68332 ) Pardu J.A. (Motion Judge) BETWEEN MCC Mortgage Holdings Inc. Plaintiff (Respondent/Responding Party) and Aliamisse Omar Mundulai and Ying Huang Defendants ( Appellant / Moving Party ) Jeffrey Kukla, for the responding party Aliamisse Omar Mundulai, acting in person Heard: May 12, 2020, by teleconference REASONS FOR DECISION [1] Mr. Mundulai brings this motion on short notice on the ground of urgency. Because of this urgency I indicated at the teleconference hearing that the motion was dismissed, with reasons to follow. These are those reasons. Background [2] Mr. Mundulai, a defendant mortgagor, brings this motion to prevent the proposed sale of real property that was scheduled to close on the date this motion was heard. The responding party, the plaintiff mortgagee, wishes to sell the property to realize the amounts owing on the mortgage, long in default. Mr. Mundulai seeks a stay pending appeal of enforcement of a writ of possession, a stay which was refused by the Superior Court. He proposes to appeal to this court from that decision and also asks to extend the time to appeal from a July 23, 2019 decision of the Superior Court refusing to set aside default judgment against him. [3] The plaintiff mortgagee recovered possession of the property the day before this motion was heard, when the writ of possession was executed for a second time. [4] The mortgage is dated May 31, 2016, given by Mr. Mundulai and his then spouse, Ying Huang. The original term was for two years. It is a second mortgage. [5] Default in payment on the mortgage occurred on July 1, 2018 and continues. Property taxes are in arrears in the sum of $29,562.15, a further event of default under the mortgage. [6] The mortgage matured on June 1, 2019 and has not been discharged. [7] The mortgagee issued a statement of claim on August 22, 2018, seeking judgment for payment of the amounts owing and possession. It was served on Mr. Mundulai on October 25, 2018, by an alternative to personal service. The mortgagors did not defend the action and default judgment issued on February 12, 2019, for the sum of $218,025.47 plus interest and for possession of the mortgaged property and costs. A copy of the default judgment was delivered to the mortgagors’ lawyer on February 20, 2019. [8] The Superior Court granted leave to the mortgagee to issue a writ of possession on April 12, 2019, and the writ of possession was issued on April 26, 2019. [9] Mr. Mundulai brought a motion to set aside the default judgment, which was dismissed on July 23, 2019. McCarthy J. found that there was no explanation for the delay in bringing the motion to set aside the default judgment, and that the mortgagors had been well aware of the substance of the claim and would have had time to formulate a defence. He found that the mortgagors had no arguable case on the merits. He found that service of the statement of claim was made properly under the rules and came to the attention of the defendants. He noted that the defendants had no evidence that the amounts set out in the discharge statement were inaccurate or not amenable to calculation as a liquidated sum by the registrar. There was no subsequently concluded agreement arriving at a compromise amount. He found that the mortgagee would be prejudiced by an order setting aside a properly obtained default judgment and doubted that the mortgagors had the ability to pay the amounts owing. [10] The writ of possession was enforced and the mortgagee took possession on January 8, 2020. Mr. Mundulai was asked to remove his personal belongings. He did not do so and the belongings were placed in storage by the mortgagee. Mr. Mundulai was not then living in the property, having separated from the co-defendant, his spouse. She agreed to leave the property and has not participated in this motion nor in the earlier motion brought by Mr. Mundulai to set aside the writ of possession. [11] The mortgagee entered into an agreement of purchase and sale of the property with a closing date set for May 12, 2020. The proposed purchasers sold their property in anticipation of acquiring this new home. [12] The mortgagee discovered that the locks had been changed by Mr. Mundulai on or about April 4, 2020. From correspondence sent by Mr. Mundulai to the mortgagee’s lawyer, it appears that he asserts a right to possession of the property despite the judgment and the writ of possession. He acknowledged to the motion judge that he re-occupied the property at some point after March 29, 2020. He broke the existing locks on the property to effect entry. The mortgagee changed the locks again but discovered that Mr. Mundulai changed them a second time. [13] Competing motions were brought in the Superior Court. The plaintiff mortgagee sought a further writ of possession and removal of Mr. Mundulai from the property. Mr. Mundulai sought an order staying mortgage enforcement proceedings, setting aside the default judgment, and discharging the mortgage upon payment into court. By order of April 30, 2020, Boswell J. dismissed Mr. Mundulai’s motion and granted the mortgagee’s motion. Mr. Mundulai proposes to appeal from that order, and also seeks to extend the time to appeal from the order of McCarthy J. refusing to set aside the default judgment of July 23, 2019. Boswell J. concluded that there was no merit to Mr. Mundulai’s position, that he was stalling to take advantage of the temporary suspension of evictions resulting from the COVID crisis, that he unlawfully broke into the premises, and that his claim to pay $190,388.90 into court was disingenuous. The motion judge doubted that he had the funds available or that they would be sufficient to discharge the amount now owing, estimated at $240,000 plus the unpaid costs from the refusal of the motion to set aside the default judgment. [14] For some time, Mr. Mundulai and the mortgagee’s counsel engaged in discussions over the amount owing. Mr. Mundulai’s issues with the amounts claimed related mostly to certain ancillary charges such as renewal and administration fees, costs and interest after maturity. There is no dispute that the mortgage is in default. At one point in May or June 2019 they were close to agreement that $185,777.75 would discharge the mortgage, but the discussions fell apart when Mr. Mundulai asserted entitlement to a credit for a further $3,988.86 beyond what the mortgagee was prepared to accept by way of compromise. The mortgagee has lost faith that Mr. Mundulai can truly raise the money to discharge the mortgage or that any further discussions would be fruitful. Arguments on the motion [15] Mr. Mundulai argues that the amounts claimed by the mortgagee for ancillary matters such as renewal fees, administrative costs and interest after maturity are excessive. He says these amount to roughly 10% of the principal amount of the mortgage and are significant. He argues that Boswell J. erred by failing to consider ss. 12, 22 and 23 of the Mortgages Act , R.S.O. 1990, c. M.40, and erred by failing to allow him to pay money into court on account of the mortgage. He argues that the mortgagee acted in bad faith and has asserted claims for which there is no contractual or legal foundation. He submits that the Notice of Power of Sale was invalid. He says there is no evidence the mortgagee has obtained market value for the property by the proposed sale. He submits that, by virtue of an exit clause in the agreement of purchase and sale with the proposed purchaser, the mortgagee would not be prejudiced if the sale could not proceed. He submits that to deny a stay would allow an overreaching mortgagee to benefit from its conduct and deny him any remedy, rendering his appeal moot. He says that the mortgagee would not be prejudiced if this court grants a stay of enforcement of the writ of possession because it could simply give a new notice that it was exercising its power of sale rights. [16] The mortgagee asserts that the amount owing on the mortgage has been conclusively settled by the default judgment, and that no appeal has been taken for over nine months from the decision refusing to set aside the default judgment. Extension of time to appeal from that decision should not be granted. The mortgagee argues that the sections of the Mortgages Act cited by the moving party are of no assistance to him, and that Boswell J. exercised his discretion properly in refusing to stay enforcement of the writ of possession. Analysis [17] I begin with the request for an extension of time to appeal from the decision of McCarthy J. of July 23, 2019 refusing to set aside the default judgment. [18] The relevant factors are: 1. Whether the appellant had an intention to appeal within the relevant period 2. The length of the delay and the explanation for the delay 3. Any prejudice to the respondent 4. The merits of the appeal 5. Whether the justice of the case requires granting an extension The governing principle is whether the justice of the case requires that an extension be granted: see Chandra v. Canadian Broadcasting Corporation , 2016 ONCA 448, 349 O.A.C. 93, at paras. 13-14. [19] Here there is no evidence the appellant intended to appeal within the relevant period. The delay, close to ten months, is substantial and there is no explanation for it. Mr. Mundulai is a former practicing lawyer and would have been aware of the importance of acting promptly. The prejudice to the mortgagee is substantial. It has taken steps to sell the property to realize the money owed to it. No payments have been made since September 2018. The municipal taxes are in substantial arrears and there is no indication as to how these would be paid. It is not possible to conclude that there is merit to the appeal. It is possible that if he had acted with dispatch and with a proper evidentiary foundation the appellant might have reduced the mortgagee’s claims by some amount, but there is no dispute that the principal is outstanding. The appellant has not resided in the home since January 2019, until he broke into the premises around March and April of 2020, in the face of a judgment for possession in favour of the mortgagee. His former spouse takes no part in these proceedings. [20] It follows that the motion to extend time to appeal from the decision of July 23, 2019, is dismissed. That judgment therefore conclusively settles the amount owing on the mortgage and the mortgagee’s right to possession of the property. [21] I now turn to the request for a stay of the writ of possession pending the appeal to this court from the decision of April 30, 2020. [22] The factors to be considered are: 1. Is there a serious issue to be tried? 2. Will the appellant suffer irreparable harm if the stay is not granted? 3. Does the balance of convenience favour granting a stay? See RJR-MacDonald Inc. v. Canada (Attorney General) , [1994] 1 S.C.R. 311. [23] Given that the amount owing on the mortgage has been conclusively determined by a final decision from which there is no appeal, I am not satisfied that there is a serious issue to be tried as to the amount owed on the mortgage. Given that the accuracy of the money judgment was previously litigated, Boswell J. was correct to decline to embark on a re-consideration of the same issue. [24] Further, I see no error in Boswell J.’s exercise of discretion to refuse to stay enforcement of the writ of possession. He did not err in considering that the appellant’s actions in twice breaking into the premises in the face of a judgment for possession in favour of the mortgagee was a factor weighing against the granting of the stay. [25] Given the appellant’s limited occupation of the property since January 2019, I am not satisfied that he will suffer irreparable harm if the stay is not granted. His spouse and co-owner agreed to vacate the property and appears to have no interest in holding onto it. [26] The balance of convenience does not favour granting a stay, given the appellant’s long, unexplained delay. It is unlikely he can raise the funds to discharge the mortgage. The mortgage commitment he has filed has not been executed by his former spouse and it appears unlikely that she will do so. Default has continued for a long time and the mortgagee should be permitted to realize the money owed to it. [27] For these reasons the motion was dismissed. [28] There will be an order for costs of this motion in favour of the mortgagee in the sum of $3,300.00 inclusive of taxes and disbursements. Released: May 21, 2020 “G. Pardu J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Bailey, 2020 ONCA 315 DATE: 20200522 DOCKET: M51537 ( C66676 ) Pardu J.A. (Motion Judge) BETWEEN Her Majesty the Queen Respondent and Jeremy Bailey Appellant (Applicant) Breanna Vandebeek , for the applicant Jeremy Streeter , for the respondent Heard: May 14, 2020 by audio and videoconference REASONS FOR DECISION [1] This application for bail pending appeal was heard remotely by video and audio communication . [2] The applicant was convicted by a jury of conspiracy to import heroin, possession of heroin for the purpose of trafficking, and conspiracy to possess heroin for the purpose of trafficking, and was sentenced to five years’ imprisonment. Before conviction and sentence, he was released on bail. While on bail, further charges were laid for trafficking cocaine and other drugs, and for possession of proceeds of crime. He was released on bail for those matters in 2018, which have yet to proceed to a preliminary inquiry. [3] The applicant was granted bail pending appeal to this court by a judge of this court on December 9, 2019. The applicant’s father agreed to act as surety and pledged $10,000 to secure his son’s compliance with the terms of release pending appeal, which required that the applicant live with his surety and that he not possess illegal drugs. [4] However, on April 23, 2020, the applicant was charged with new offences of possessing and trafficking in fentanyl and breaches of the conditions of his release. His father withdrew as surety. His outstanding bail pending trial was revoked. [5] On April 29, 2020, the applicant was granted further bail pending trial after these new charges. He proposed a plan with new sureties: his brother and sister-in-law. They pledged $68,000, an amount equal to the equity in their home, to secure the applicant’s compliance with conditions of release. The applicant would be subject to house arrest and electronic ankle monitoring. The Justice of the Peace presiding over the bail hearing in the Ontario Court of Justice was satisfied that the sureties were reliable and that the GPS monitoring would ensure detection if the applicant left their home, though he was “mindful of the Ontario Court of Appeal’s decision that must be made in the days ahead.” [6] Now the applicant again seeks release pending appeal for the matters before this court. The offences under appeal [7] The offences under appeal are serious. Police executed a controlled delivery of a package that was mailed from Malaysia to the address occupied by the applicant and his girlfriend but was addressed to a third party. The package contained a table that concealed 347.2 grams of heroin mixed with caffeine, which the police replaced with a control sample of heroin. The girlfriend accepted the package, saying the third party was her cousin who was residing there. When police entered the apartment, the table appeared to have been dismantled and the sample removed. The drugs were worth between $42,000 and $104,100 depending on whether it was sold by the ounce or in individual doses. [8] The applicant left the apartment about 15 minutes after the controlled delivery. When police approached him, he fled. The applicant was convicted by a jury. The new offences [9] The new offences are also drug related. Police observed the applicant attend at an Oakville address believed to be associated with drug trafficking on five occasions and engage in activity consistent with trafficking drugs. Police observed the applicant coming and going from an address in Etobicoke throughout the period of surveillance, even though he was obliged to reside at his father’s address elsewhere under the terms of his release in this court. When police searched the applicant, they found 3.7 grams of fentanyl concealed within a body cavity, plus 4 cell phones and $2,610 in cash in his possession. The applicant’s girlfriend was apparently living at the Etobicoke address he frequented, even though under his conditions of release he was to have no contact with her except in the presence of counsel. A search of the Etobicoke address revealed 677 grams of another substance believed to be a drug. [10] These very recent allegations of drug trafficking and breaches of recognizance are troubling in light of this court’s recently granted bail, the underlying drug convictions, and the outstanding 2018 drug charges that were laid while the applicant was on bail. Positions of the parties [11] The applicant submits that concerns about public safety can be mitigated by the strictures of the proposed plan, the high quality of the sureties and the significant amounts they are prepared to pledge, and the information provided by electronic ankle monitoring. [12] The Crown’s position is that the grounds of appeal are weak but not frivolous and that the applicant will likely surrender into custody when required. However, the Crown takes the position that public safety and confidence in the administration of justice compel the continued detention of the applicant, citing s. 679(3)(c) of the Criminal Code , R.S.C., 1985, c. C-46. [13] The Crown expresses concerns that the sureties may not be able to provide continuous surveillance when they are obliged to leave their home to go to work, and that the applicant may still find ways to engage in drug trafficking from within his brother’s home. The applicant bears the onus of establishing that his detention is not necessary in the public interest. On this application, he does not benefit from the presumption of innocence for the charges which are appealed to this court. He has been convicted on those matters. This is different from the bail hearing before the Justice of the Peace on the newest charges, where the applicant still benefited from the presumption of innocence. Seriousness of the offence [14] These offences are serious. Drug trafficking of the kind at issue here has devastating effects in the community. Strength of the grounds of appeal [15] I turn to a consideration of the strength of the grounds of appeal. [16] The applicant submits that the verdict of the jury was unreasonable. There was no documentary evidence in the apartment linking him to Malaysia, the source country for the drugs. The applicant’s fingerprints were not found on the packaging or the table in which the drugs were concealed.  His flight from police may have been for reasons unconnected to the drugs. [17] A police witness gave evidence that “he had not heard of a circumstance in which a controlled delivery of drugs had been intercepted by someone before it reached the destination address, but anything is possible.” The applicant submits that this amounts to inadmissible anecdotal expert evidence, a Sekhon error: see R. v. Sekhon , 2014 SCC 15, [2014] 1 S.C.R. 272. [18] The applicant further argues that the trial judge erred in telling the jury that they could consider his impecuniosity on the issue of whether he had a motive to traffic drugs. [19] The Crown responds that the jury had an ample basis to return with a guilty verdict. The applicant was inside his apartment when the package was delivered to his address. While the applicant was within the apartment, the table was dismantled to reveal where heroin was hidden, and the applicant left the apartment within 15 minutes of its delivery. His flight from police, the Crown says, pointed convincingly to his guilt. It cannot be said that a jury could not reasonably convict him. The statement by the police officer regarding interception of a controlled delivery before reaching the destination address was tangential: in this case there was no such interception of the package as it was accepted and opened at the destination address. The Crown submits that the jury charge was fair and balanced in its treatment of the presence or absence of a motive to deal drugs. [20] I keep in mind the comments from paragraph 45 of R. v. Oland , 2017 SCC 17, [2017] 1 S.C.R. 250: In the end, appellate judges can be counted on to form their own “preliminary assessment” of the strength of an appeal based upon their knowledge and experience. This assessment, it should be emphasized, is not a matter of guesswork. It will generally be based on material that counsel have provided, including aspects of the record that are pertinent to the grounds of appeal raised, along with relevant authorities. In undertaking this exercise, appellate judges will of course remain mindful that our justice system is not infallible and that a meaningful review process is essential to maintain public confidence in the administration of justice. Thus, there is a broader public interest in reviewability that transcends an individual’s interest in any given case. [21] I have before me the draft jury instructions, submitted by the applicant. Keeping in mind the limits of assessment of the strength of the grounds of appeal at this stage of the proceedings, I would simply say that the grounds of appeal are not strong, although they are arguable. Final balancing [22] How then to weigh these factors to determine whether the applicant should once again be released pending appeal? As noted in Oland , at para. 47: Appellate judges are undoubtedly required to draw on their legal expertise and experience in evaluating the factors that inform public confidence, including the strength of the grounds of appeal, the seriousness of the offence, public safety and flight risks. However, when conducting the final balancing of these factors, appellate judges should keep in mind that public confidence is to be measured through the eyes of a reasonable member of the public. This person is someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values: R. v. St-Cloud , 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 74-80. In that sense, public confidence in the administration of justice must be distinguished from uninformed public opinion about the case, which has no role to play in the decision to grant bail or not. [23] There is no suggestion of a flight risk. There is no reason to believe the hearing of the appeal will be delayed. [24] I would not conclude there is a substantial likelihood the applicant will commit further offences if released, given the strictures of the proposed terms. The quality of his sureties and the use of a GPS monitoring device substantially reduce the likelihood of further offences. But at the same time, given the determination and ingenuity demonstrated by the applicant in dealing in drugs, there is a lingering public safety concern. GPS monitoring has been described as a risk management tool, rather than crime prevention tool: see R. v. Jesso , 2020 ONCA 280, at paras. 24-27. His father’s recent pledge of $10,000 as surety did not prevent drug trafficking charges only months later. Even accepting the honesty of the new sureties and the amount they are willing to pledge, there are lingering concerns about the effect this will have on his behaviour. [25] I conclude that public confidence in the administration of justice would be undermined by release of the applicant on bail pending appeal in these circumstances. The convictions are serious, and there are lingering public safety concerns. The applicant was released on bail pending appeal on December 9, 2019. Within months he was charged with possessing and trafficking fentanyl and breaching conditions of release, and further he appeared to be staying with his co-accused girlfriend in Etobicoke even though the conditions of his release required him to reside with his surety in Milton and avoid contact with her except in the presence of counsel. Such flagrant and almost immediate violations of the conditions of release, if proven, would cause a thoughtful, dispassionate, informed person respectful of society’s values to seriously question whether the applicant should again be released on bail pending appeal, in light of the other factors including the strength of the appeal, the risk of re-offence, the protection that would be afforded by the surveillance of the sureties, and the time until the appeal can be heard. [26] On balance, the need for enforcement of the verdict outweighs the interests of reviewability. [27] I recognize that in Oland , the court said that the public confidence component will rarely play a role, much less a central role, in the decision to grant or deny bail pending appeal. However, the alleged breaches of the conditions of release go to the heart of the need to protect public safety. These are not minor breaches of curfew, or consumption of alcohol by an alcoholic, or failures to appear in court or report as required, the latter of which are akin to administrative offences. Denial of bail pending appeal in these circumstances is not to punish the applicant for alleged violations of conditions of release, but relates to public safety and public confidence in the administration of justice. The public safety component and public confidence component are not treated as silos in the analysis; residual public safety concerns remain relevant and should be considered in the public confidence analysis: see Oland , at para. 27. [28] Accordingly, for these reasons, the application for release pending hearing of the appeal is dismissed. Released: May 22, 2020 “G. Pardu J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Becker Bros. Trucking Inc., 2020 ONCA 316 DATE: 20200522 DOCKET: M51388 Paciocco J.A. (Case Management Judge) BETWEEN Her Majesty the Queen (as represented by the Ministry of Transportation) Moving Party and Becker Bros. Trucking Inc. Responding Party Patrick Moore, for the moving party James Manson, for the responding party Heard: May 21, 2020 by teleconference REASONS FOR DECISION [1] Becker Bros. Trucking Inc. (“Becker Bros.”) was convicted of an offence contrary to s. 84(1) of the Highway Traffic Act , R.S.O. 1990, c. H.8, after a trial before a Justice of the Peace. That conviction was set aside on appeal by a Justice of the Ontario Court of Justice. Pursuant to s. 131 of Provincial Offences Act , R.S.O. 1990. c. P.33 (the “ POA ”), Her Majesty the Queen (the “Crown”) now seeks leave to appeal that decision to this court. Becker Bros. takes the position that this motion for leave to appeal must be made in writing, and not orally as the Crown contends. It therefore sought a case management hearing to determine the proper procedural mechanism to be followed on motions for leave to appeal under s. 131 of the POA . I have conducted the case management hearing and I am directing that the hearing be conducted orally. [2] The Rules of the Court of Appeal in Appeals Under the Provincial Offences Act , O. Reg. 721/94 (the “ POA Rules ”), specifically rr. 3 and 4, apply to motions for leave to appeal under s. 131 of the POA . Rule 3 governs the Crown’s motion for leave in this case since the Crown is represented by counsel. It provides that such motions for leave to appeal are to be brought in Form 1. Motions for leave to appeal brought in inmate appeals or where the moving party is not represented by counsel are to be brought under r. 4, in Form 2. [3] The POA Rules do not provide a complete code. Rule 2(1) of the POA Rules provides: 2(1) Except where otherwise provided by the Act, another statute or these rules, the Rules of Civil Procedure apply, where appropriate and with necessary modifications, to appeals under sections 131 and 139 of the Act. [4] Rule 61.03.1 is the rule from the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, that applies to motions for leave to appeal to the Court of Appeal. It directs that, unless the court orders an oral hearing, motions for leave to appeal to the Court of Appeal are to be “heard in writing, without the attendance of the parties or lawyers”: r. 63.03.1(1). If the POA or the POA Rules do not otherwise provide, r. 63.01.1 of the Rules of Civil Procedure would govern the mode of the hearing for leave to appeal brought under s. 131 of the POA , and the hearing would presumptively be in writing. [5] It is not contested that the POA Rules otherwise provide for the mode of hearing where the leave to appeal motion is brought in an inmate appeal, or by an unrepresented moving party, since Form 2, applicable in such leave motions, invites the moving party to request that their leave motion be heard in person, or in writing. However, as indicated, in this case the Crown is represented, so r. 3 of the POA Rules and Form 1 apply. Becker Bros. argues that neither r. 3 nor Form 1 address whether the hearing is to be oral or in writing. Therefore, r. 63.03.1 of the Rules of Civil Procedure fills the gap, requiring this leave to appeal motion to presumptively be in writing. [6] Becker Bros. submits that this outcome is reinforced by r. 2(2) of the POA Rules , which specifies that r. 61.03 of the Rules of Civil Procedure , dealing with motions for leave to the Divisional Court, does not apply to appeals under s. 131 of the POA . Since r. 2(2) of the POA Rules does not oust r. 61.03.1 of the Rules of Civil Procedure applicable to motions for leave to appeal to the Court of Appeal, by implication r. 61.03.1 is meant to fill the gaps in r. 3 of the POA Rules . [7] Becker Bros. urges that the application of r. 61.03.1 is further supported by the fact that neither r. 3 of the POA Rules nor Form 1 provide for the exchange of facta , a gap that is filled by r. 61.03.1, further confirming its application. [8] Notwithstanding the able arguments made, I am persuaded that motions for leave to appeal brought under s. 131 of the POA are presumed to be heard orally. As Becker Bros. concedes, this is the settled practice in the Court of Appeal: see, e.g., York (Regional Municipality) v. Irwin , 2020 ONCA 44, 97 M.P.L.R. (5th) 189; Ontario (Environment, Conservation and Parks) v. Thomas Cavanagh Construction Limited , 2019 ONCA 686, 28 C.E.L.R. (4th) 48; Antorisa Investments Ltd. v. Vaughan (City) , 2012 ONCA 586, 1 M.P.L.R. (5th) 240. Although the POA Rules could have been clearer, I am persuaded that r. 3 supports this practice by providing for an oral hearing. [9] Specifically, r. 3.7 directs, “A motion for leave to appeal shall be heard by a judge.” I recognize that the phrase “heard by a judge” could embrace a written hearing, but the use of the term “heard” strongly suggests an oral hearing. If the intention was to require leave motions to be in writing instead of orally, other language would have been used. For example, r. 4(1) of the POA Rules , which invites written motions, provides that the moving party “may present the case for leave to appeal and argument in writing”. [10] Form 1 supports this conclusion. The Form 1 notice of motion notes that “a motion will be made before the presiding judge at Osgoode Hall, 130 Queen Street West, Toronto, Ontario, on (day), (date) at (time) or as soon thereafter the time as the motion can be heard…”. The phrase “made before” connotes or suggests an appearance. So, too, does the fact that the moving party must specify a time, date and location for the hearing. It is noteworthy that r. 61.03.1 of the Rules of Civil Procedure , pursuant to which leave motions are presumed to be in writing, does not require the moving party to specify a time or date for the leave motion. [11] It would be curious if r. 4 of the POA Rules were to specify a mode of hearing but r. 3 of the POA Rules did not. Why would the mode of hearing be addressed for leave motions in inmate appeals and by those who are not represented, but not addressed for leave motions by represented moving parties? Reading r. 3 consistent with the usual meaning of the terms used resolves this curiosity. [12] It is not surprising that r. 4 of the POA Rules and Form 2 are more explicit and clearer about the mode of hearing. Rule 4 of the POA Rules and Form 2 are to be used by those who are unrepresented and require more precise direction. As the practice in this court demonstrates, for lawyers, familiar with the strong legal tradition of oral hearings, the language used in r. 3 and Form 1 can readily be understood to provide for oral hearings, removing the need to fall back on the Rules of Civil Procedure . [13] I do agree with Becker Bros. that there is a gap in r. 3 relating to the exchange of facta . In this context, r. 61.03.1 of the Rules of Civil Procedure does assist, and its provision for the exchange of facta applies. [14] I am therefore directing that this motion for leave pursuant to s. 131 of the POA shall be heard orally. I do not foreclose the possibility that the court may, in an appropriate case, hear a motion for leave to appeal where the moving party is represented by counsel in writing. In this case, however, I am not persuaded to depart from the court’s usual practice of hearing such motions orally. The parties have agreed on a timetable, including the exchange of facta . The motion for leave is returnable on June 18, 2020. Costs in this appearance are reserved until the motion for leave is determined. “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Davis, 2020 ONCA 326 DATE: 20200528 DOCKET: C64420 Strathy C.J.O., Tulloch and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and Garth Davis Appellant Howard Rubel, for the appellant Vanita Goela, for the respondent Heard: In Writing On appeal from the conviction entered on November 2, 2016 by Justice Michael Harpur of the Ontario Court of Justice. REASONS FOR DECISION A. INTRODUCTION [1] The appellant is a permanent resident and has lived in Canada for over 21 years. A deportation order was issued against him on May 29, 2007, due to prior criminal convictions. However, the Immigration Appeal Division of the Immigration and Refugee Board (“IAD”) granted a stay of the order based on humanitarian and compassionate grounds. The IAD warned the appellant that further convictions for specific types of criminal offences would lift the stay and subject him to removal from Canada. [2] In April of 2014, the appellant was charged with 33 offences that included drug offences and the unauthorized use of credit card data. The appellant retained counsel and he elected to contest the charges. He elected a trial in Superior Court by judge and jury and requested a preliminary hearing. [3] On November 2, 2016, the seventh day of his preliminary hearing, the Crown and the appellant’s trial counsel concluded plea negotiations. They agreed to propose a joint submission as to sentence if the appellant pleaded guilty to three offences. It is not disputed that the joint submission, a non-custodial sentence of probation with no reporting conditions, was lenient. The appellant decided to re-elect to be tried in the Ontario Court of Justice and pleaded guilty. [4] Prior to entering the plea, the trial judge conducted a plea inquiry, as required by s. 606(1.1) of the Criminal Code , R.S.C., 1985, c. C-46. During the inquiry, the appellant advised the trial judge that: (1) he was voluntarily entering pleas of guilty; (2) by pleading guilty, he was aware that he was giving up his right to a trial; and (3) he was aware that the trial judge was not bound by any joint submission as to sentence advanced by counsel. The trial judge then arraigned the appellant and he pleaded guilty to two drug offences (contrary to ss. 4 and 5 of the Controlled Drugs and Substances Act , S.C. 1996, c. 19) and one count of unauthorized use of credit card data (contrary to s. 342(3) of the Criminal Code ). [5] On December 7, 2016, the appellant was sentenced to a period of probation for one year with conditions. [6] The appellant now seeks to introduce fresh evidence to support his claims that his guilty plea was uninformed and that he received ineffective assistance from his counsel, amounting to a miscarriage of justice. The fresh evidence consists of the appellant’s affidavit and accompanying cross-examination, affidavits from defence and Crown trial counsel, and a letter of opinion from the appellant’s immigration counsel. [7] According to the appellant, prior to entering his pleas of guilty, trial counsel told him that the resulting convictions and the proposed sentence would not lead to any immigration consequences. This advice played a significant role in his decision to plead guilty. However, on August 30, 2017, he was summoned to a hearing before the IAD. During that hearing, he discovered that the stay of deportation had been lifted because of the convictions, and he was now subject to removal from Canada. [8] The respondent does not oppose the introduction of the fresh evidence. However, the respondent contends that the appeal should be dismissed because the pleas of guilty were voluntary, informed, and unequivocal, and the appellant was fully aware that conviction of specific offences would affect his immigration status. [9] We would admit the fresh evidence because it is in the interests of justice to do so: Criminal Code , s. 683(1); R. v. Sangs , 2017 ONCA 683, at para. 7. After reviewing the fresh evidence, we are persuaded that the appellant was provided with erroneous information about the immigration consequences that would occur if he pleaded guilty. As a result of the convictions, the appellant has suffered prejudice. Therefore, we are allowing the appeal, setting aside the guilty pleas, and ordering a new trial on all counts of the information. B. ANALYSIS [10] A guilty plea must be voluntary, unequivocal, and informed: R. v. T. (R.) (1992), 10 O.R. (3d) 514 (C.A.), at p. 519. A plea is an informed one if the accused is aware of the effects and consequences of the plea. In this case, there are collateral consequences that bear upon serious legal interests of the accused, such as deportation: R. v. Wong , 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 4; R. v. Girn , 2019 ONCA 202, 373 C.C.C. (3d) 139, at para. 52. [11] To set aside his plea, the appellant must establish that: (i) he was unaware of a legally relevant consequence of the plea at the time of pleading guilty; and (ii) he suffered subjective prejudice: Girn , at paras. 65-66, citing Wong , at paras. 6, 9, and 19. [12] In his affidavit and cross-examination, the appellant does not deny that he was aware that certain types of convictions would put his immigration status in jeopardy when he was charged. According to the appellant, he informed trial counsel that he was highly concerned about potential immigration consequences at the beginning of the retainer and throughout the proceedings. However, trial counsel assured him there was “nothing to worry about” because they “could beat the charges”. The appellant further asserts that, before he decided to plead guilty on November 2, 2016, trial counsel erroneously advised him that pleading guilty would not affect his immigration status. We accept this assertion. [13] Trial counsel, in his affidavit, acknowledges that the appellant raised his immigration status with him at the outset of the retainer, and that the appellant was concerned about the effect the charges could have on that status. [14] According to trial counsel, on November 2, 2016, the trial Crown took it upon herself to research the issue of immigration consequences. Trial counsel states that the trial Crown explained to him that the proposed sentence would not lead to any immigration consequences for the appellant, and since he did not practice immigration law, he accepted this representation. Trial counsel states that the appellant proceeded to plead guilty based on a misapprehension that there would be no immigration consequences. [15] The trial Crown denies that she researched any immigration issues or discussed immigration consequences with trial counsel. [16] We need not resolve this conflict in the evidence because, regardless of the source of the erroneous information, the evidence of trial counsel is that the appellant was under the misapprehension that he would suffer no immigration consequences by pleading guilty. [17] We do not accept the respondent’s argument that the appellant has provided inconsistent evidence about whether trial counsel advised him about immigration consequences. In his affidavit, the appellant stated that trial counsel advised him that pleading guilty would not impact his immigration status. The appellant was thoroughly cross-examined by the respondent on this point. A fair reading of his cross-examination discloses that he only decided to plead guilty after trial counsel advised him, on November 2, 2016, that there would be no immigration consequences. [18] The consequences of the appellant’s pleas of guilty are extremely serious. The appellant has received an opinion from his immigration lawyer that, as a result of the credit card data conviction, his stay of deportation will be cancelled by operation of law, his appeal will be terminated, and he will be removed from Canada. [19] In summary, on the basis of the fresh evidence, we are satisfied that trial counsel told the appellant that there would be no immigration consequences if he pleaded guilty. The appellant relied on this advice in coming to the decision to plead guilty. The advice was wrong. In fact, the opposite is true. We are satisfied that the appellant was not aware of the collateral consequences when he entered his pleas of guilty and the pleas were not informed. [20] We also accept that the appellant has demonstrated subjective prejudice. The appellant contends that, had he known the information he was being given was erroneous, he would have continued with his preliminary hearing and proceeded to trial. We must assess the veracity of his statement with objective contemporaneous evidence. In our view, the appellant’s claim is credible. [21] First, we note that the appellant has been living in Canada for at least 21 years and has three children. During the sentencing hearing, the trial judge was told that one of the children was living with him. It is clear that he has an interest in remaining in Canada. It is highly unlikely that he would have pleaded guilty knowing he would be deported. [22] Second, his pleas of guilty occurred in the middle of a preliminary hearing, a proceeding designed to test the strength of the Crown’s case. A Crown witness was scheduled to provide evidence on the day he pleaded guilty. Although we have no evidence as to the strength of the Crown’s case against the appellant, the timing of the plea suggests that, had he known that he would be removed from Canada by pleading guilty, he likely would not have done so. Instead, he likely would have continued with the preliminary hearing, and he may have taken the matter to trial in the Superior Court, if the preliminary hearing judge had committed him for trial. [23] On the basis of the fresh evidence, we are satisfied that the appellant’s guilty pleas should be set aside because the appellant was uninformed. [24] In light of our conclusion, it is not necessary to deal with the appellant’s second argument that his trial counsel provided ineffective assistance, resulting in a miscarriage of justice. However, we do have serious reservations about trial counsel’s conduct, given his position that he relied on the Crown’s research about the appellant’s immigration consequences in assisting his client with the pleas of guilty. Neither the trial counsel or the trial Crown were cross-examined on their affidavits filed as fresh evidence on this appeal, and we do not have a sufficient record to make definitive findings on this issue. That said, assuming trial counsel’s affidavit is accurate, we are troubled by his position. It is trial counsel who had a duty to the appellant, and it was his responsibility to ensure the accuracy of any advice he gave to his client about immigration consequences. [25] In Wong , the Supreme Court of Canada recognized that it is a well-established matter of practice that “defence counsel should inquire into a client’s immigration status and advise the client of the immigration consequences of a guilty plea”: at para. 73. Similarly, in R. v. Shiwprashad , 2015 ONCA 577, 328 C.C.C. (3d) 191, at para. 64, leave to appeal refused, [2017] S.C.C.A. No. 40, this court reviewed literature that suggests that if there are potential immigration issues, counsel should conduct their own research or discuss the immigration consequences of matters with a member of the immigration bar. Trial counsel’s own affidavit reveals that this was not done. [26] Finally, during the plea inquiry, the trial judge did not ask the appellant if he was aware of any collateral consequences that could occur if he pleaded guilty, such as immigration. In fairness to the trial judge, he did not have the benefit of the Supreme Court of Canada’s decision in Wong or this court’s decision in Girn . However, it is now beyond dispute that awareness of collateral immigration consequences forms part of an informed guilty plea: Wong , at para. 4; Girn , at para. 51. Although there is no standard format for conducting a plea inquiry, in our view, it is good practice for trial judges to canvass with the accused during a plea inquiry if there are any potential immigration issues. By doing that, trial judges can direct the accused and counsel to turn their minds to the issue, and it will likely assist the judge in determining whether the plea of guilty is informed. C. DISPOSITION [27] For these reasons, we admit the fresh evidence, set aside the appellant’s pleas of guilty and consequent convictions, and order a new trial on all counts. “G.R. Strathy C.J.O.” “M. Tulloch J.A.” “S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Hayes, 2020 ONCA 284 DATE: 20200504 DOCKET: C64333 Feldman, Tulloch and Jamal JJ.A. BETWEEN Her Majesty the Queen Respondent and Mathew Hayes Appellant James Harbic and Robert Harbic, for the appellant Sean Horgan and Craig Harper, for the respondent Heard: December 5, 2019 On appeal from the conviction entered by Justice M. Gregory Ellies of the Superior Court of Justice, sitting with a jury, on December 14, 2016. Tulloch J.A.: I. OVERVIEW [1] On June 4, 2013, at approximately 7:30 a.m., Christopher Parsons’ body was found by his roommate, Laura Heavens. He was naked, lying face down on the floor, with a pool of blood under his head. There was blood spatter surrounding his body, including on the walls and ceiling. [2] Forensic analysis revealed that Mr. Parsons had suffered at least seven blows to his head, a sharp force injury to his neck, as well as lacerations to his forehead, face, and scalp. There were also minor injuries consistent with a physical altercation. The murder weapon was not identified or located. [3] The appellant, Mr. Hayes, a friend of Mr. Parsons, was charged and subsequently convicted of first-degree murder in his death. [4] Mr. Hayes now appeals his conviction. For the reasons that follow, I would dismiss the appeal. II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY The day before the murder [5] Mr. Parsons worked at a gas station in Haileybury, Ontario. On the day before the murder, he worked a shift from 2:00 p.m. to 10:00 p.m. After his shift ended, he met up with his roommate, Laura Heavens, and friends, Caitlin Willard, and the appellant. He drove them to various locations and eventually dropped Ms. Heavens off at a friend’s house, where she spent the night. He dropped Ms. Willard and the appellant off at the Silverland Motel in Cobalt, Ontario, which is about an eight minute drive from Haileybury. At some point during the car ride, Mr. Parsons mentioned that he was receiving money in his bank account that night. [6] The appellant and Ms. Willard spent the night at the Silverland Motel. Earlier that day, they had moved their belongings out of their motel room with the help of Ms. Heavens. Both the appellant and Ms. Willard were unemployed and were being forced to leave their room at the Silverland due to their inability to pay rent. At trial, Ms. Heavens described them as in dire financial circumstances, “[a]lmost starving broke.” She testified that the appellant had asked her if she would drive the car while he robbed the gas station where Mr. Parsons worked. She thought he was joking. [7] At trial, Ms. Willard acknowledged the occurrence of this discussion between the appellant and Ms. Heavens. She stated that the two also discussed the possibility of robbing Mr. Parsons, and that Ms. Heavens had mentioned that Mr. Parsons kept his bank PIN on the back of his bank card. The day of the murder [8] At approximately 7:30 a.m. on June 4, 2013, Ms. Heavens returned to her and Mr. Parsons’ apartment after spending the night at her friend’s house. At 7:36 a.m., Ms. Heavens called 911 to attend to her apartment where she found Mr. Parsons lying on the floor in his bedroom. [9] A few hours prior, at 5:23 a.m., the appellant was identified on video surveillance leaving the Silverland Motel. He appeared to be carrying something in his hand. [10] At 5:37 a.m., he was again observed on video, this time at a convenience store. He was carrying a white plastic bag. The video appears to show a rigid object inside the bag. [11] Later, at 6:17 a.m., the appellant was seen on video using Mr. Parsons’ bank card to withdraw $160 from an ATM. [12] At approximately 6:41 a.m., the appellant was seen again on video at the convenience store. He no longer appeared to be carrying the white bag with the rigid object inside. [13] At trial, Ms. Willard claimed that, before he left that morning, the appellant told her that he was going to rob Mr. Parsons. She testified that he left their room and, when he returned, told her that Mr. Parsons had not been home, but that he had run into his father, who had given him some money. [14] The appellant testified at trial. He claimed that he arrived at Mr. Parsons’ house around 5:50 a.m. to ask whether he had left his morphine pills in Mr. Parsons’ car. He testified that he went early in the morning because he was worried that someone else would find the pills. He hitchhiked from Cobalt to Haileybury. He was dropped off at a convenience store. He then walked to Mr. Parsons’ house, taking an indirect route. When he got to Mr. Parsons’ house, he knocked but there was no answer. He then went into Mr. Parsons’ car, which was unlocked, and took Mr. Parsons’ wallet and his own morphine pills. He then used the card at an ATM, withdrawing $160, before hitchhiking back to Cobalt. [15] With regards to the white plastic bag and the apparent object inside, he testified that he was a regular cannabis user and that the bag contained a bong. He claimed that, on his return trip, he put the bong up his coat sleeve and no longer carried the bag. [16] At approximately 7:14 a.m., the appellant was seen on camera walking back to the Silverland Motel after being dropped off nearby. [17] Later that day, at approximately 2:10 p.m., the appellant was again seen on camera walking with a black garbage bag. [18] The appellant’s DNA was not found at the apartment, nor on any of the items seized from it. At trial, however, a forensic scientist testified to the fact that the absence of evidence (of someone being present) was not evidence of absence. The days following the murder [19] On or about June 8, 2013, a few days after Mr. Parsons was killed, the appellant and Ms. Willard took a trip together to Kirkland Lake. Ms. Willard testified that, during the trip, they got into an argument while they were intoxicated. She claimed that, during the fight, the appellant told her that he had murdered “Crispy”, the name by which she knew Christopher Parsons. In her eventual statement to police, Ms. Willard noted that the appellant had told her that he had killed Mr. Parsons with a hammer and a pocket knife. At trial, she initially could not remember any details of what he had told her, other than that he had killed Mr. Parsons. Crown counsel then presented her with her police statement for the purpose of refreshing her memory. She then testified that the appellant had told her that he had used a hammer and a pocket knife as weapons. A hammer in the appellant’s possession was later recovered. Blood was not detected on it and no DNA testing was performed. [20] Ms. Willard also testified that she believed the appellant had communicated to her that he had burned the clothes he was wearing on the day of the murder. He did not say this to her explicitly but, when she asked him about his clothing, he communicated it through a motion of setting something on fire with a lighter. [21] The appellant denied confessing to Ms. Willard that he killed Mr. Parsons. He agreed that they had gone to Kirkland Lake together and had a fight. He also agreed that he had burned his clothes from the day of the murder, but denied that this was because there was blood residue on them. Instead, he testified that, after Ms. Willard was shown a picture of him at a bank machine during a meeting with a police officer on June 7, 2013, she told him he would get blamed for the murder because he had stolen Mr. Parsons’ bank card, and that he should burn his clothes. He ended up burning the clothes along the shoreline of Cobalt Lake and throwing the remains in the water. The appellant’s arrest and statement to police [22] The appellant was arrested on July 10, 2014, and gave a statement to the police on October 7, 2014. The interview lasted approximately five hours. In the interview, he told the police that he did not use Mr. Parsons’ bank card to take money out of his bank account. [23] At trial, the Crown sought to introduce the statement the appellant made to the police denying that he had withdrawn money from Mr. Parsons’ account as a form of after-the-fact conduct: 2016 ONSC 6178. The appellant argued that it should be excluded because it was obtained in oppressive circumstances, using police trickery and was therefore involuntary. Among other things, he argued that the police officer undermined his right to counsel by telling him a story about Al Capone’s lawyer, which was designed to, and had the effect of, undermining the appellant’s confidence in his own lawyer. [24] The trial judge granted the application to include the statement, finding that the story was not told for the purpose of undermining the appellant’s confidence in his own lawyer, nor did it have such an effect. In context, it appeared to be a story about the lawyer’s moral duty to his children, told to convince the appellant to confess for the sake of his own children. Crimestoppers tip [25] In February 2015, the Crown was advised that the police had received an anonymous Crimestoppers tip relating to the murder of Mr. Christopher Parsons. The tip had been submitted anonymously in writing through an online portal called “Webtip”. On March 11, 2015, the Crown informed defence counsel that a tip had been received and that it suggested that someone other than the appellant was responsible for Mr. Parsons’ murder. The tip also suggested a motive for the commission of the murder. However, the Crown noted that it did not intend on disclosing the wording of the tip, because doing so could reveal the identity of the person who provided it. Neither the police nor the Crown were aware of the identity of the tipster. [26] Prior to trial, the appellant brought an application seeking an order compelling the Crown to disclose the wording of the tip on the basis that his innocence was at stake: 2015 ONSC 6366. The application judge denied the application, finding that the appellant had failed to meet the threshold test to trigger the innocence at stake exception to informer privilege. The appellant failed on the basis that there was other evidence with which he could raise a reasonable doubt as to his guilt. Specifically, there was circumstantial evidence on which the appellant could raise an alternate suspect defence. Third-party suspect application [27] Prior to trial, the appellant sought to introduce alternate suspect evidence against three people: Laura Heavens (Mr. Parsons’ roommate), Roger Busch (his neighbour), and Vanessa Tracey (his friend): 2016 ONSC 6103. [1] The trial judge allowed the application with respect to Ms. Tracey, but denied it for Ms. Heavens and Mr. Busch. The appellant argued that Ms. Heavens had a motive to kill Mr. Parsons because he had reported her for welfare fraud a few days earlier. Mr. Busch had a motive, either out of greed to fund a drug habit or out of jealousy because Mr. Parsons lived with Ms. Heavens, who was Mr. Busch’s former girlfriend. The trial judge found that there was no air of reality to Ms. Heavens as an alternate suspect, as there was no evidence that she knew that the victim had reported her for welfare fraud until after he was murdered. He similarly found that there was no evidence connecting Mr. Busch to the murder and no coherent evidence of motive or animus. Jury trial and verdict [28] The appellant was tried before a jury and found guilty of first-degree murder. III. ISSUES [29] The appellant appeals his conviction and raises the following nine issues: 1) Did the trial judge err by not excluding the appellant’s statement to the police on the basis of police trickery? 2) Did the trial judge err in denying the third-party suspect applications against Laura Heavens and Roger Busch? 3) Did the trial judge err in failing to order the disclosure of the Crimestoppers tip? 4) Did the trial judge err in not directing a verdict of acquittal on the charge of first-degree murder? 5) Did the trial judge err in his W.(D.) instructions about the proper use of the evidence of the white plastic bag? 6) Did the trial judge err in his instructions to the jury on circumstantial evidence? 7) Did the trial judge err in failing to correct the Crown’s misstatement of evidence in its closing address? 8) Did the trial judge err in failing to correct the accidental disclosure of bad character evidence? 9) Did the trial judge err in accidentally informing the jury that the appellant was in custody during the trial? IV. ANALYSIS 1) Did the trial judge err by not excluding the appellant’s statement to the police on the basis of police trickery? [30] After the appellant was arrested, he was transported from the North Bay Jail (where he was in custody for another matter) to the North Bay Detachment of the Ontario Provincial Police. He spoke twice with legal counsel. He was later transported to the Temiskaming Detachment where he was interviewed on October 7, 2014, by Detective Sergeant Darren Miller. The interview began around 12:49 p.m. and ended at 5:55 p.m., lasting approximately five hours. [31] Approximately four hours into the interview, Detective Miller began telling the appellant the story of “Easy Eddie” O’Hare, who, according to Detective Miller, was Al Capone’s lawyer. According to the story, after the birth of his son, O’Hare had a change of heart about representing Capone. O’Hare subsequently went to the authorities and betrayed Capone’s confidence, thereby breaching his solicitor-client relationship. [32] The relevant portion of the exchange is captured below: Detective Miller: no well Easy Eddie was a lawyer for Al CAPONE so you can imagine what kinda lawyer that would be right he’d definitely be aware of the corruption and murder and everything else involved with the mafia obviously but he was a really good lawyer and he was really really well taken care of by the mafia and Al CAPONE and all his mafia ya know tonnes of money flashy cars nice house everything else and um well everything was wonderful he had a really good looking woman that he hooked up with who was attracted to him and you know what they ended up falling in love and she ended up having a baby well after they had a baby and he now had a son it was a baby boy um it changed for him and he looked ya know as the baby was growing and developing as a baby he looked and went ya know I don’t want this lifestyle this is not what I wanna bring my child into ya know and and learn from me ya know like parents watch their parents learn from their parents children sorry learn from their parents right uh at all ages right out even through adulthood let’s face it like we still talk to our parents right we still learn from em or or people we like or respect uncles aunts it doesn’t matter not just parents grandparents right that continues all through life so anyway Easy Eddie who was the best lawyer there was got CAPONE off on numerous things decided ya know what I can’t do this what’s more important for me is my son to learn the importance of of good being good so he made a very big decision to turn against Al CAPONE and kinda come forward with all the things that he was aware of and he knew what that would in in result in ya know and I don’t even think I have to spell it out we’re talking mafia with the worst of the worst right so you know it’s gonna be his demise but he made that decision Mat now I’m gonna tell you another story you know the O’Hare airport in Chicago Detective Miller: but the thing is ya know do you see where I’m going with that though do you understand because this is an opportunity for you The appellant: I understand I understand what you’re trying to do yeah Detective Miller: but but the last thing you wanna do Mat the last thing you wanna do is send a message to your kids ya know they’re not going anywhere they’re gonna be here your got a lotta life left but it goes that far ya know how I said like outside impact and stuff but you can show your kids that people make mistakes but the last thing you wanna show them is to le ya know and to take responsibility and admit that they own mistakes [33] Prior to trial, the Crown brought an application to have the videotaped interview admitted as evidence. The Crown argued that the statements made by the appellant during the interview, including his lie about the use of Mr. Parsons’ bank card, were voluntary. Defence counsel disagreed, arguing that the “Easy Eddie” story amounted to police trickery, and that the effect of the story was to undermine the appellant’s confidence in his lawyer to maintain confidentiality. [34] The trial judge held that, while a police attack on an accused’s willingness to trust in their lawyer could constitute police trickery, the “Easy Eddie” story was not told for the purpose of undermining the appellant’s relationship with his lawyer. Rather, Detective Miller had “told the story in an attempt to persuade Mr. Hayes to tell the truth for the sake of [his] children”: 2016 ONSC 6178, at para. 46. None of the comments during the exchange can be reasonably construed as suggesting that the appellant’s lawyer would betray his confidence and there was no evidence to suggest that the appellant interpreted the story that way. [35] On appeal, the appellant submits that the trial judge erred in his interpretation of the story. The true purpose of the “Easy Eddie” story was to suggest to the appellant that, despite any assurances made to him by counsel regarding privilege, there was a real possibility that his lawyer would share privileged information against his best interest. The appellant points to the case of R. v. Jackson (2009), 190 C.R.R. (2d) 72 (Ont. S.C.), in which one of the accused, Mr. Serieaux, was charged with first-degree murder. During an interview with police, an officer stated that, “Your lawyer has given you your rights and told you not to say anything but also your lawyer’s not the one that first facing [sic] the First Degree Murder charge either so I’m not sure if he took the time and I don’t want to know”: at para. 75. The officer then suggested that the “right thing” would be to give a statement. The trial judge found that the comment by the officer “was made to induce the defendant to make a statement contrary to the advice of the defendant’s lawyer” and was “tantamount to him saying that giving a statement would make things better for him in the trial process than following his lawyer’s advice to remain silent”: at para. 79. He found that the “effect of that statement was to undermine the client/lawyer relationship and hence, the balance of the statement should not be admitted into evidence”: at para. 80. [36] The appellant argues that the comments made in this case are comparable, as a reasonable person in his situation would have drawn the inference that his lawyer could betray his trust. [37] I do not agree. [38] The confessions rule, as outlined by the Supreme Court of Canada in R. v. Oickle , 2000 SCC 38, [2000] 2 S.C.R. 3, establishes that, whenever a person in authority questions a suspect, any statement made can only be admitted where the Crown can demonstrate, beyond a reasonable doubt, that it was made voluntarily: at para. 30. The rule is animated by “[o]ne of the overriding concerns of the criminal justice system” – that “the innocent must not be convicted”: at para. 36. [39] Where the voluntariness of an accused’s statement is at issue, a trial judge must engage in a contextual analysis, with an eye to a number of relevant factors, including: 1) whether there were any threats or promises; 2) whether there were any oppressive circumstances; 3) whether the accused had an operating mind; and 4) whether there were any instances of police trickery: Oickle , at paras. 47-71. [40] Where, as here, there are allegations of police trickery, the trial judge must engage in an inquiry which, while “related to voluntariness”, has a “more specific objective [of] maintaining the integrity of the criminal justice system”: Oickle , at para. 65. While the police may resort to tricks or other forms of deceit in order to legitimately pursue their investigations, a confession induced by the use of police trickery will not be admissible where the conduct of the police would “shock the community”: at para. 66, citing Rothman v. The Queen , [1981] 1 S.C.R. 640, at p. 697 per Lamer J. (concurring); R. v. Collins , [1987] 1 S.C.R. 265, at p. 286-287. [41] Overall, in undertaking the confessions rule analysis, the trial judge “should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all aspects of the rule”: Oickle , at para. 71. If a trial judge “properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for ‘some palpable and overriding error which affected [the trial judge’s] assessment of the facts’”: at para. 71, citing Schwartz v. Canada , [1996] 1 S.C.R. 254, at p. 279 (emphasis in Schwartz ). [42] In determining whether the use of the story of “Easy Eddie” amounted to police trickery, the trial judge considered the appropriate test as outlined in Oickle . His decision regarding the voluntariness of the appellant’s statement was, therefore, a finding of fact. Absent a palpable and overriding error, his decision is subject to deference. In reading the exchange between Detective Miller and the appellant, it is clear that the purpose of the story was to attempt to persuade the appellant to admit to the murder of Mr. Parsons for the sake of his children, as the trial judge found. Detective Miller suggested that “Easy Eddie”’s decision to turn against Al Capone for the sake of his son was the right thing to do and that, likewise, it would be good for Mr. Parsons to act honestly and be a model for his children. In this way, the story is clearly dissimilar to the comment made by the police in Jackson , where the thrust was to impugn the accused’s lawyer and their advice. There was no error. 2) Did the trial judge err in denying the third-party suspect applications against Laura Heavens and Roger Busch? [43] Prior to his trial, the appellant brought an application to introduce evidence of alternate suspects in the death of Mr. Parsons. Specifically, the appellant sought to introduce evidence with respect to Vanessa Tracey, Roger Busch, and Laura Heavens. [44] The trial judge allowed the application with respect to Ms. Tracey, finding that there was evidence of a sufficient connection between her and the crime. Regarding Mr. Busch and Ms. Heavens, however, the trial judge found that there was insufficient evidence to establish an air of reality to the claim that either one of them was involved in the killing of Mr. Parsons: 2016 ONSC 6103. [45] Mr. Busch, who was Mr. Parsons’ neighbour, was a drug dealer and, at the time of the murder, was serving a conditional sentence that required him to remain in his place of residence, except for certain brief periods of time. He testified, along with another woman, Tessa Mercier, that they were at his apartment on the night of June 3, 2013. Mr. Busch had previously been in a romantic relationship with Ms. Heavens, who was living with Mr. Parsons at the time. The defence argued that Mr. Busch killed Mr. Parsons either as a result of jealousy over his relationship with Ms. Heavens, or because he wanted or needed Mr. Parsons’ money. [46] The trial judge found, however, that there was no evidence that Mr. Busch was ever in Mr. Parsons’ apartment, that he had ever sold drugs to Mr. Parsons, or that he was jealous of Mr. Parsons’ relationship with Ms. Heavens. The trial judge also noted that, if Mr. Busch had killed Mr. Parsons for money, there was no evidence to explain why the appellant had been the one attempting to use Mr. Parsons’ bank card, as opposed to Mr. Busch. [47] With respect to Ms. Heavens, she was living with Mr. Parsons at the time of his murder. Prior to his death, Mr. Parsons reported Ms. Heavens to the welfare authorities on allegations of fraud. On the night of June 3, 2013, she spent the night at the home of her friend, Rene Dumais. She found Mr. Parsons the next morning in their apartment. The defence contended that she had been involved in a plan with Mr. Busch to kill Mr. Parsons. The trial judge disagreed, finding that there was no evidence of any plan. Ms. Heavens was also without a key to Mr. Parsons’ apartment and was staying with Mr. Dumais the night before the murder (the door was unlocked when she arrived that morning). The trial judge also found that there was no evidence to refute that Ms. Heavens was unaware of the fact that Mr. Parsons had reported her to the welfare authorities until after his death. [48] The appellant argues that the trial judge erred in dismissing the application to allow him to adduce evidence against Mr. Busch and Ms. Heavens. Ms. Heavens had a motive to kill Mr. Parsons, as he had recently reported her to the welfare authorities for two incidents of fraud. She was also alleged to have previously stolen money from him. At the time of the murder, Ms. Heavens was living with Mr. Parsons. She also had been in a prior relationship with Mr. Busch, a drug dealer with a criminal record for violence. His alibi for the night of June 3, 2013 was only corroborated by one person, Ms. Mercier. As such, there was an air of reality to the proposition that either of Ms. Heavens or Mr. Busch was involved in the death of Mr. Parsons. [49] I do not agree. [50] Where an individual is charged with an offence, it is open to the accused, as part of the defence, to adduce evidence to prove that someone else, in fact, committed the offence: R. v. Grandinetti , 2005 SCC 5, [2005] 1 S.C.R. 27, at para. 46. In Grandinetti , the Supreme Court identified the circumstances in which an accused may raise such evidence. The evidence must be relevant and have sufficient probative value, such that there is “a sufficient connection between the third party and the crime”: at para. 47. The evidence connecting the third party to the offence “may be inferential, but the inferences must be reasonable, based on the evidence, and not amount to speculation”: at para. 47. In other words, the “defence must show that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence”: at para. 48, citing R. v. Fontaine , 2004 SCC 27, [2004] 1 S.C.R. 702, at para. 70. If the accused cannot establish a sufficient connection, “the defence of third party involvement will lack the requisite air of reality”: at para. 48, citing R. v. Cinous , 2002 SCC 29, [2002] 2 S.C.R. 3. A determination as to the existence of an air of reality is a legal one and therefore subject to a standard of review of correctness: R. v. Tran , 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 40; Cinous , at para. 55. [51] In this case, the trial judge made a finding that there was no air of reality to either of these two proposed alternative suspects. I see no error in his ruling. The trial judge properly applied the law governing third-party suspect evidence. Unlike with Ms. Tracey, there was no coherent evidence to connect Ms. Heavens or Mr. Busch to the death of Mr. Parsons. Both had alibis for the night before Mr. Parsons death and neither had a compelling motive for murder. The trial judge was correct to conclude that, outside of mere speculation, there was no evidentiary basis upon which a reasonable jury, properly instructed, could conclude that either Mr. Busch or Ms. Heavens were involved in Mr. Parsons’ death. 3) Did the trial judge err in failing to order the disclosure of the Crimestoppers tip? [52] Before trial, the appellant brought an application for an order compelling the Crown to disclose a Crimestoppers tip relating to the death of Mr. Parsons. The appellant argued that, without the disclosure of the tip, he would be unable to raise an alternate suspect defence. The Crown disagreed, arguing that the appellant would likely be able to adduce evidence about the possible involvement of Laura Heavens, Roger Busch, Chantal Bujold, and others. [53] The application judge held that, based on the evidentiary record, there was a likelihood of the appellant being able to adduce evidence against third parties and, therefore, it would be “inaccurate to say that, without the privileged information, the [appellant] is unable to raise a reasonable doubt about his guilt”: 2015 ONSC 6366, at para. 47. The appellant thus failed to meet the threshold test for piercing informer privilege. [54] On appeal, the appellant argues that, while the innocence at stake exception is exceedingly narrow, it is appropriate in this case. As a result of the rulings on third-party suspects, the appellant could only lead evidence relating to Ms. Tracey and Ms. Bujold as alternate suspects. The information within the tip could have established additional third-party suspects or strengthened the evidence against Ms. Tracey or Ms. Bujold. Even if the application judge did not err, this court should assess the significance of the tip. It came after the appellant was arrested for first-degree murder and the informant provided an alternate perpetrator and motive. The court may be able to provide some limited information without breaching privilege. [55] In response, the Crown argues that the application judge correctly found that, as the appellant had other evidence that could raise a reasonable doubt, the innocence at stake exception is not met. [56] I agree with the Crown. [57] As outlined in the Supreme Court’s decision in R. v. Durham Regional Crime Stoppers Inc. , 2017 SCC 45, [2017] 2 S.C.R. 157, informer privilege is a class privilege “that prohibits the disclosure of an informer’s identity in public or in court”: at para. 11. The rationale for the protection is that, as informers play an essential role in the investigation of crime through the passing on of pertinent and otherwise inaccessible information, it is in the public interest to ensure their anonymity is secure: at para. 12. Informer privilege is particularly important for anonymous informers, as it is “the promise of anonymity which allays the fear of criminal retaliation which otherwise discourages citizen involvement in reporting crime”: R. v. Leipert , [1997] 1 S.C.R. 281, at para. 11, quoting People v. Callen , 194 Cal. App. 3d 558 (1987). The only exception to informer privilege is where the innocence of an accused is at stake: Crime Stoppers , at para. 14. [58] The innocence at stake exception is operative where the disclosure of privileged information could raise a reasonable doubt as to the guilt of an accused: R. v. McClure , 2001 SCC 14, [2001] 1 S.C.R. 445; R. v. Brassington , 2018 SCC 37, [2018] 2 S.C.R. 617. In order for the exception to apply, the following test must be met: 1) the accused must establish that the information sought is not available from any other source and they are unable to raise a reasonable doubt as to their guilt in any other way; 2) if the first threshold is met, the accused must then provide some evidentiary basis upon which to conclude that the information could raise a reasonable doubt about the guilt of the accused (mere speculation will be insufficient); and 3) if there is such evidence, the judge must examine the privileged information to determine whether it is likely to raise a reasonable doubt as to the guilt of the accused. If this final stage is met, the judge should order the production of the privileged information: McClure , at paras. 48-61; Brassington , at paras. 36-38. However, the court “should only reveal as much information as is necessary to allow proof of innocence”: Leipert , at para. 33. [59] In this case, the application judge correctly applied the test as outlined above. The appellant was permitted to adduce evidence against two individuals as third-party suspects in the death of Mr. Parsons. This evidence could have raised a reasonable doubt as to the appellant’s guilt, thus defeating his claim at the threshold stage of the innocence at stake test. While the tip may well have contained exculpatory details regarding the appellant’s role in the murder, informer privilege can only be pierced where the information is the accused’s sole means of raising a reasonable doubt. As expressed by Major J. in R. v. Brown , 2002 SCC 32, [2002] 2 S.C.R. 185, at para. 54: I stress again that the trial judge should only allow the McClure application if and when she is of the view that the accused will be unable to raise a reasonable doubt without the evidence protected by the privilege. If there is or may be some evidence upon which a reasonable jury, properly instructed, could acquit, the McClure application should be denied or postponed. [60] Here, there was such evidence. This ground of appeal is dismissed. 4) Did the trial judge err in not directing a verdict of acquittal on the charge of first-degree murder? [61] After the close of the calling of evidence, the appellant brought a motion for a directed verdict of acquittal on the charge of first-degree murder. He argued that there was insufficient evidence of planning and deliberation. The motion was denied by the trial judge on the basis that there was evidence that the appellant had in his possession a long, hard object in a white plastic bag, that he attended Mr. Parsons’ residence, and that he no longer possessed the bag or the object when he was later seen again at the convenience store. It would not be impermissible speculation for the jury to infer that the object in the bag was a weapon used to cause the blunt force injuries or lacerations that were inflicted on Mr. Parsons. The fact that the weapon could have been used for robbery instead of murder does not disentitle the jury from considering murder. [62] On appeal, the appellant argues that the trial judge erred in denying the motion. As there is no direct evidence of planning and deliberation, the trial judge was required to weigh the reasonableness of the inferences to be drawn from the circumstantial evidence. In weighing that evidence, the trial judge erred in finding that it reasonably supported an inference of planning and deliberation. Properly considered, the evidence suggested an absence of planning and deliberation. The appellant hitchhiked to and from Mr. Parsons’ residence (an unreliable form of transportation); he volunteered his name to the woman who gave him a ride; and he did not bring a change of clothes or wear clothes that would make him difficult to recognize. Even taking the Crown’s case at its highest, there was no evidentiary basis upon which a properly instructed jury could reasonably infer guilt. [63] In response, the Crown argues that the trial judge was correct to find that there was sufficient evidence to instruct the jury on first-degree murder. The Crown identifies a number of pieces of evidence that could support inferences of planning and deliberation, including: the appellant was known to Mr. Parsons; the appellant was in a stressful financial situation; the appellant had discussed robbing Mr. Parsons the day prior to his murder; the appellant was aware that Mr. Parsons kept his PIN on the back of his bank card and that he had money in his account; the appellant was aware that Ms. Heavens would not be sleeping at her and Mr. Parsons’ apartment; the appellant took an indirect route to Mr. Parsons’ apartment; at 5:37 a.m., the appellant was seen at a convenience store, carrying an object in a white plastic bag that appeared long and hard enough to be used as a weapon to inflict blunt force injuries; at 6:41 a.m., after leaving Mr. Parsons’ residence, the appellant was no longer in possession of the object in the white plastic bag; at 2:10 p.m., the appellant was seen walking with a black garbage bag that may have contained clothes; the clothing the appellant was wearing on June  4, 2013 was never seen again; and the appellant told Ms. Willard that he killed Mr. Parsons using a hammer and a pocket knife. The trial judge correctly recognized that this evidence was sufficient to infer that the appellant may have armed himself, attended the deceased’s residence, and disposed of the weapon that could have caused the injuries to the deceased. When considered in the context of the entirety of the evidence, it was appropriate for the trial judge to have left the issue of first-degree murder with the jury. [64] I agree with the submissions of the Crown and reject the appellant’s position on this issue. [65] When an accused brings a motion for a directed verdict of acquittal, “the trial judge must decide whether there is any evidence on the basis of which a reasonable jury, properly instructed, could return a verdict of guilty” for the offence in question: R. v. Tomlinson , 2014 ONCA 158, 307 C.C.C. (3d) 36, at para. 151. To this end, the Crown “must adduce some evidence of culpability for every essential element of the offence for which the Crown has the evidential burden”: at para. 151. Where the Crown’s case is circumstantial, the trial judge must engage in a limited weighing of the evidence in order to determine whether it is “reasonably capable of supporting the inferences the Crown seeks to have the jury draw”: at paras. 153-154. The test to be met is “whether the evidence, if believed, could reasonably support an inference of guilt”: at para. 154. A trial judge’s decision on a motion for a directed verdict of acquittal is to be reviewed on a standard of correctness: at para. 155. [66] Where the offence at issue is first-degree murder under s. 231(2) of the Criminal Code , R.S.C. 1985, c. C-46, the essential elements are: 1) culpable homicide; 2) an intent to cause death or an intent to cause bodily harm that is likely to cause death, while being reckless as to whether or not death ensues; and 3) planning and deliberation. [67] In R. v. Robinson , 2017 ONCA 645, 352 C.C.C. (3d) 503, at para. 34, Doherty J.A. outlined the requirements for a murder to be planned and deliberate: A murder is planned if it is the product of “a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed”.  A murder is “deliberate” if it is “‘considered,’ ‘not impulsive’ … implying that the accused must take time to weigh the advantages and disadvantages of his intended action”.  Murder, as defined in either s. 229(a)(i) or s. 229(a)(ii), can be planned and deliberate. [68] Applying these legal principles to the case at bar, the trial judge was correct to put the issue of first-degree murder before the jury. There was direct evidence, via Ms. Willard’s testimony, that the appellant had murdered Mr. Parsons using a hammer and a pocket knife. There was also circumstantial evidence, including the early morning trip to Mr. Parsons’ apartment and the hard object in the white bag, that the appellant had visited Mr. Parsons with the intention of robbing and killing him. While it was not necessary for the jury to have concluded that the appellant did, in fact, attend Mr. Parsons’ apartment that morning with the intention of murdering him, there was sufficient evidence for them to so find. 5) Did the trial judge err in his W.(D.) instructions about the proper use of the evidence of the white plastic bag? [69] In his charge, the trial judge instructed the jury regarding the proper use of the evidence of the white plastic bag the appellant was carrying. The instruction was as follows: Mr. Hayes had with him a white plastic bag when he left. When he is seen at the One-stop on his way to Haileybury, he places that bag on the counter. When he picks it up, he does so in a way that could lead one to believe that the object inside is long and hard. He does not have this bag with him when he again stops at the One-stop on the way back to Cobalt. If you do not accept his evidence that the bag contained his bong, or are not left with a reasonable doubt by it, this evidence is evidence of planning and deliberation . [Emphasis added]. [70] The appellant submits that this instruction was a clear misdirection. The instruction erroneously suggested that if the jury did not accept the appellant’s explanation for the bag, they could jump to the conclusion that it was evidence that the appellant planned to murder the deceased. The trial judge failed to explain that the jury were not obliged to accept either explanation and that there was a third alternative where they could have a reasonable doubt. The jury did not have to “accept” anything that the appellant said for there to be reasonable doubt. The appellant submits that this instruction was not sufficient to meet the W.(D.) standard, as the trial judge incorrectly implied that the appellant had the burden of proof, when the burden of proof rests with the Crown. The appellant further submits that this error cannot be cured by the curative proviso because the error is not trivial and there is no overwhelming body of evidence that would suggest to this court that, by ordering a new trial, the appellant would surely be convicted again. [71] After reviewing the charge, I agree that the trial judge’s instruction on the proper use of the white bag was problematic, as he failed to instruct the jury that, even if they did not accept the appellant’s evidence, they could have been left in reasonable doubt as to whether the white bag contained a weapon and was therefore evidence of planning and deliberation. However, in light of the charge as a whole, I am not convinced that the jury would have misunderstood that the burden was on the Crown to prove the element of planning and deliberation beyond a reasonable doubt. [72] When assessing an alleged error in a trial judge’s jury instructions, an appellate court “must examine the alleged error in the context of the entire charge and of the trial as a whole”: R. v. Araya , 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 39. The instructions must not be held to a standard of perfection and appellate courts “should not examine minute details of a jury instruction in isolation”: at para. 39. Rather, what matters is the “overall effect of the charge”: at para. 39, quoting R. v. Daley , 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 31. [73] Here, the alleged error pertains to a W.(D.) instruction. Pursuant to the Supreme Court’s decisions in R. v. W.(D.) , [1991] 1 S.C.R. 742, and R. v. J.H.S. , 2008 SCC 30, [2008] 2 S.C.R. 152, the W.(D.) framework “unpacks for the benefit of the lay jury what reasonable doubt means in the context of evaluating conflicting testimonial accounts” and alerts them to a “credibility contest” error: J.H.S., at para. 9. It requires that trial judges “impress on the jury that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt”: at para. 9. [74] In this case, the trial judge set out the correct instructions on reasonable doubt on three separate occasions and indicated seven times that the burden of proof was on the Crown. In his instruction on planning and deliberation, he explained that “Crown counsel must prove beyond a reasonable doubt not only that Mr. Hayes murdered Mr. Parsons, but also that the murder was both planned and deliberate.” He instructed the jury that, in deciding the issue, they “should consider all the evidence.” The impugned instruction then came during the trial judge’s identification of evidence relevant to the issue. Defence counsel did not object to the instruction. [75] In these circumstances, I am not satisfied that the oversight by the trial judge would have mislead the jury as to their obligations in assessing the evidence and determining the issue. After hearing the whole of the charge, it would have been clear to the jury that they could only find that the murder had been planned and deliberate if, on the basis of all the evidence, the Crown proved the element beyond a reasonable doubt. 6) Did the trial judge err in his instructions to the jury on circumstantial evidence? [76] At trial, the Crown’s case relied almost exclusively on circumstantial evidence. Consequently, in his final charge to the jury, the trial judge provided an instruction regarding the proper treatment of such evidence. On appeal, the appellant argues that part of the instruction, reproduced below, was erroneous: Because of the fundamental principle that the Crown is required to prove a person’s guilt beyond a reasonable doubt, in order to find Mr. Hayes guilty on the basis of circumstantial evidence alone, you must be satisfied beyond a reasonable doubt that his guilt is the only rational inference that can be drawn from the whole of the evidence. If there is any other rational inference available, you cannot find Mr. Hayes guilty. The only direct evidence of Mr. Hayes’ involvement in this crime is that of Caitlin Willard, who testified that Mr. Hayes confessed to her. I will have more to say about her evidence later. For now, what I wish to convey to you is that, if you do not believe Mr. Hayes’ evidence that he did not kill Mr. Parsons, which, of course, is direct evidence, if you are not left with a reasonable doubt by Mr. Hayes’ evidence, and if you do not believe Caitlin Willard’s evidence that Mr. Hayes confessed to her, then you are left only with circumstantial evidence. In that case, you must be satisfied beyond a reasonable doubt by the rest of the evidence that the only rational inference is that Mr. Hayes is guilty of first or second degree murder , as I will explain those offences to you. [Emphasis added.] [77] The appellant argues that the instruction contains an error in that it suggests that the jury should compartmentalize the circumstantial evidence from the appellant’s testimony. The instruction is problematic because the jury could not properly determine whether the appellant’s evidence raised a reasonable doubt without simultaneously considering the circumstantial evidence. This is the same error as in R. v. Miller (1991), 5 O.R. (3d) 678 (C.A.), in which the trial judge instructed the jury to consider the evidence in different stages. In Miller , this court held that the effect of the instruction was to eliminate from the jury’s consideration evidence which was neither accepted nor rejected and therefore prevent a consideration of the evidence as a whole. The appellant submits that this error cannot be cured by the curative proviso . [78] I disagree. [79] Where the Crown’s case rests entirely or substantially on circumstantial evidence, the standard of proof requires that the trier of fact be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference to be drawn from the evidence as a whole: R. v. Lights , 2020 ONCA 128, at para. 36; R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 20. [80] In this case, I am satisfied that the trial judge’s instruction on circumstantial evidence was correct. Contrary to the position of the appellant, I do not agree that the instruction directed the jury to consider the evidence in different stages, as occurred in Miller . When read in its entirety, the instruction was clear that the evidence needed to be assessed as a whole. The impugned instruction merely attempted to safeguard the appellant’s presumption of innocence by highlighting that, if the jury did not accept the direct evidence of his confession, they could only be satisfied of his guilt on the circumstantial evidence if there was no other rational inference available. Further, the fact that no objection was taken to the charge on this issue during the pre-charge or post-charge submissions is indicative of the absence of any meaningful issue. There was no error. 7) Did the trial judge err in failing to correct the Crown’s misstatement of evidence in its closing address ? [81] During the Crown’s closing address, Crown counsel argued that a soaking wet towel, found in Mr. Parsons’ bathroom, had been used to wash away any blood that had sprayed onto the appellant’s clothing. The Crown argued that the fact that the towel was still soaked a few days after the murder suggested that a lot of water had been used to remove any staining: Now, you’ll recall Mike Cruickshank testified that the red and white towel in the bathroom was soaked with water. And here you have a couple of pictures. That picture and the next slide are two pictures that show that towel. You’ll recall that he testified that it was still soaked with water some three days or so after June 4th. In our view, this is indicative that this towel was used to wash something. It is our view that it was used to wash away the splatter that may have been on the jacket, may have been on the clothing. And as a matter of common sense, when you’re washing away blood or wine or something that stains a lot, [you’ll use] a lot of, you’ll end up using a lot of water. You’ll soak the item so that all of the staining is away. And that, in our submission, is consistent with that towel being used to wash away blood. [82] The appellant argues that the trial judge erred by failing to provide a corrective instruction to the jury with regards to the Crown’s misstatement that the towel was wet and had Mr. Parsons’ DNA on it. The statement was misleading because the towel was not tested for DNA and it did not have blood on it (though there was blood near it). According to the appellant, it impacted his fair trial rights and to rectify this, the trial judge should have provided a curative instruction to the jury: R. v. Bolus , [2002] O.J. No. 386 (C.A.), at para. 2. [83] In response, the Crown argues that Crown counsel at trial submitted that the wet towel had been used by the appellant to wipe away blood spatter on his jacket. Crown counsel did not, however, state that the towel had blood or DNA on it. The jury was aware that the deceased’s blood or DNA was not found on any of the items seized by police. They also were aware that the appellant had admitted to burning his clothes after police had spoken to Ms. Willard. The comment did not prejudice the appellant’s fair trial rights. However, if the trial judge did err in not addressing the issue, the curative proviso should be applied. [84] In my view, there was no need for a corrective instruction by the trial judge.  While the appellant is correct to suggest that the Crown’s statement regarding the red and white towel may have implied that blood or DNA was found on it, the Crown’s emphasis on the towel being “soaked” suggested that, even if it had blood or DNA on it at one point, the blood and DNA would have been washed away by the water. In effect, the Crown’s position was that the towel had no blood or DNA on it because it had been thoroughly washed. This, in my view, was not a misstatement of the evidence and no corrective instruction was required. 8) Did the trial judge err in failing to correct the accidental disclosure of bad character evidence? [85] On or about June 8, 2013, a few days after Mr. Parsons was killed, the appellant and Ms. Willard were in Kirkland Lake, visiting a friend. After they missed their bus to return to Cobalt, they got into a heated argument. Ms. Willard testified that it was during this argument that the appellant confessed to her that he had killed Mr. Parsons. [86] The appellant and Ms. Willard returned to Cobalt the next day. Shortly after returning, Ms. Willard was at a friend’s house with two other women, Chelsey Leonard and Shaylee Beaulieu. Ms. Willard had been texting the appellant, as they were in an argument. Ms. Willard and Ms. Leonard testified that during the evening, a man wearing a ski mask entered the apartment with a lighter and a container of oil, some of which he poured in the apartment and on Ms. Willard’s lap. He attempted to take Ms. Beaulieu’s cell phone, but did not succeed. Ms. Willard and Ms. Leonard testified that the appellant was the man in the ski mask. The man then left. The lighter was never lit. [87] Prior to the trial, the Crown brought an application to introduce evidence of the incident as post-offence conduct. The Crown argued that the appellant’s threat to set fire to Ms. Willard showed the appellant’s consciousness of guilt because it demonstrated his concern that Ms. Willard might reveal his confession. It also provided an explanation as to why Ms. Willard did not come forward with the information about the alleged confession until March 2015. [88] The trial judge denied the application, finding that the evidence was not probative. He also found that the evidence constituted bad character evidence and that, even if it was probative, its prejudicial effect would outweigh any probative value: 2016 ONSC 5209. [89] At trial, Detective Sergeant Carrie Morgan Bertoncello testified regarding her dealings with Ms. Willard. During her testimony, the following exchange occurred: Q. And specifically do you have the dates of roughly when you were trying to get a hold of [Ms. Willard]? A. Yeah, so the first time I was asked to speak to her was actually on the 5th of June, but I didn’t speak with her that day. The first time I did speak with her is the 11th of June, and I saw her actually just outside the courthouse. Q. This courthouse here? A. That’s right. She was on the street in Haileybury. She was sitting on a retaining wall with another female, and myself and another detective approached her and were – were trying to get her to come in and provide a statement, both in regards to the homicide as well as an – in regards to the investigation into the domestic situation that had happened between her and Matt Hayes . Q. Okay, we can’t get into that. A. Okay, sorry. [Emphasis added.] [90] The appellant argues that Detective Sergeant Bertoncello’s testimony regarding “the domestic situation that happened” between Ms. Willard and the appellant was in direct violation of the trial judge’s exclusionary ruling. Regardless of whether the evidence was tendered intentionally or accidentally, the fairness of the trial was impacted and a new trial should be ordered. [91] The Crown argues that there was no error. Following the instruction by Crown counsel that “we can’t get into that”, there was no further testimony regarding the domestic situation. Counsel for Mr. Hayes did not seek a limiting instruction. The comment was ambiguous, innocuous and had little, if any prejudice to the accused. [92] I agree with the submissions of the Crown. Although Detective Sergeant Bertoncello mistakenly mentioned the domestic situation between the appellant and Ms. Willard, there was no prejudice to the appellant due to Crown counsel’s immediate action to quell the line of testimony. The reference to a “domestic situation” was vague and would not have left the jury with any basis to engage in propensity reasoning. The absence of an objection or a request for a corrective instruction is also indicative of the absence of prejudice. There was no error. 9) Did the trial judge err in accidentally informing the jury that the appellant was in custody during the trial? [93] At the end of proceedings on December 13, 2016, the trial judge accidentally mentioned to the jury that the appellant was in custody: Long day. Thanks very much for your efforts today. I’ve discussed it with counsel, and in light of the fact that Mr. Hayes is being kept in North Bay and brought every day here , I thought we should convene tomorrow at nine-thirty. And so that’s what I’m going to order. You know you’re going to the hotel tonight and that you’ll be brought there and back, and you’ll begin your deliberations again tomorrow at nine-thirty. Mr. Hayes will be here, as will counsel and I. Okay? I bid you goodnight, ladies and gentlemen. Thank you very much. [Emphasis added.] [94] The next morning, in response to defence counsel’s concerns that the remark could result in prejudice against the appellant, the trial judge provided a limiting instruction to the jury: I also wanted to mention one thing that I spoke of last night. Last night I, as we wrapped up, I said that Mr. Hayes is being kept in North Bay. And counsel, I think quite rightly, pointed out to me afterward that that would convey something to you that you might not be aware of, and that is that Mr. Hayes is in custody. That fact might be obvious to many of you given that there are police officers sitting on either side of him and that there were police officers who moved up and back with him as he gave his evidence. It’s important, though, for you to understand that you should take nothing from that. It’s very common that someone charged with murder would be kept in custody pending the result of the trial. A person can be kept in custody for a lot of reasons, including simply the seriousness of the offence. And so, please, I ask you to take nothing from that, it’s irrelevant to your considerations. Okay? [95] The appellant argues that the trial judge undermined trial fairness when he mentioned to the jury that the appellant was being kept in North Bay during their deliberations. By stating that the appellant was in custody, the trial judge caused prejudice to the appellant. He failed to adequately address the error. The presumption of innocence was not protected. [96] The Crown argues in response that any prejudice arising from the jury’s knowledge of the appellant being in custody was addressed by the instruction given to the jury before it resumed deliberating. Counsel for the appellant was satisfied by the instruction and did not bring an application for a mistrial. [97] Again, I agree with the Crown’s response. Once the issue was raised with the trial judge by defence counsel, the trial judge immediately responded with a corrective instruction to the jury. [98] The trial judge correctly noted that he mistakenly commented to the jury that the appellant was in custody. He then gave a corrective instruction which had been approved by defence counsel. Defence counsel made no further submissions. In all the circumstances, it would have been clear to the jury that they could not consider the fact that the appellant was in custody during their deliberations. In addition, throughout the charge, the jury was instructed that the appellant was presumed innocent and that the burden of proving his guilt rested on the Crown. There was no error. V. DISPOSITION [99] In all the circumstances, I would dismiss the appeal. Released: “K.F.” May 4, 2020 “M. Tulloch J.A.” “I agree. K. Feldman J.A.” “I agree. M. Jamal J.A.” [1] T he appellant also brought another application, during trial, to adduce evidence with respect to Chantal Bujold. This application was allowed. It is, however, not directly relevant to the issues on appeal: 2016 ONSC 7607.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Herlichka, 2020 ONCA 307 DATE: 20200522 DOCKET: C64615 van Rensburg, Miller and Fairburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Jessy Herlichka Appellant Delmar Doucette, Zahra Shariff and Nicolas Rouleau, for the appellant Amy Alyea, for the respondent Heard: January 15, 2020 On appeal from the conviction entered on May 1, 2015 by Justice Alfred J. Stong of the Superior Court of Justice, sitting with a jury. Fairburn J.A.: A. OVERVIEW [1] Lorraine Ashkanase worked at Dino’s Restaurant. She and her coworkers were in the process of closing the restaurant for the night when Jessy Herlichka, the appellant, and Paul McClung approached the back door. Claiming that he wanted “salad”, the appellant attempted to open the door. [2] Ms. Ashkanase’s partner, Andrew Mixemong, was waiting outside of the restaurant for her to finish work. When he saw the disturbance, he approached the appellant and Mr. McClung, telling them that there were no salads and to get away from the door. Over the next several minutes, the appellant punched, kicked, and stomped on Mr. Mixemong so badly that he died in the hospital a few hours later. Mr. McClung stood by, encouraging the appellant and ensuring that other horrified onlookers remained at bay. [3] The appellant and Mr. McClung were tried together before a jury on the charge of second-degree murder. As the appellant pled guilty to manslaughter on the first day of trial, the jury had only one issue to focus upon in relation to the case against him: did the appellant have the requisite state of mind for murder? The appellant said that his degree of intoxication should have given rise to a reasonable doubt as to whether he formed that state of mind. The jury disagreed, returning a verdict of guilty to second-degree murder. Mr. McClung was convicted of manslaughter. [4] This appeal is brought by Mr. Herlichka alone. Accordingly, these reasons focus upon the case against him. [5] The appellant suggests that the trial judge erred in three respects in that he: (a) gave flawed instructions on the defence of intoxication; (b) refused to qualify a proposed defence expert in a specific area of expertise; and (c) provided an inadequate curative instruction after a Crown witness suggested that the appellant murdered Mr. Mixemong. [6] For the reasons that follow, I would dismiss the appeal. B. FIRST GROUND OF APPEAL: THE INSTRUCTIONS ON INTOXICATION (1) Overview [7] As the unlawful killing by the appellant was not in dispute, the central issue for the jury’s determination was whether he had the state of mind for murder pursuant to either s. 229(a)(i) or (ii) of the Criminal Code , R.S.C. 1985, c. C-46 . There was evidence supporting both paths to the intention for murder: (a) a specific intention to kill Mr. Mixemong (s. 229(a)(i)); and (b) an intention to cause Mr. Mixemong bodily harm that the appellant knew was likely to cause death and being reckless whether death ensued (s. 229(a)(ii)). The Crown did not need to prove both paths and the jurors did not have to agree on the same path. Provided that each juror was satisfied that one of those paths had been proven beyond a reasonable doubt, then a second-degree murder conviction would be the only available verdict. If the jurors had a reasonable doubt in relation to both paths to intention, then a manslaughter conviction would be the only available verdict. [8] The appellant ran a straight intoxication defence. There was no dispute at trial that he was intoxicated at the time. Rather, the dispute was over the degree of his intoxication and the effect that it had on his state of mind. The appellant maintained that he was so intoxicated by alcohol and drugs that there was a reasonable doubt as to whether he formed the state of mind for murder. Indeed, as will be discussed later, the appellant went so far as to suggest to the jury that he was so intoxicated that he was incapable of forming that state of mind. [9] On appeal, the appellant argues that the trial judge erred in a number of respects in his instructions to the jury on the defence of intoxication and how it interacts with the state of mind for murder. Before turning to the alleged errors made by the trial judge with respect to the defence of intoxication, I first review the evidentiary context relating to the appellant’s degree of intoxication and its impact on his state of mind. (2) Evidence Relevant to Level of Intoxication and State of Mind [10] Multiple sources of evidence were capable of shedding light on the appellant’s level of intoxication and its impact on his state of mind at the time of the offence. [11] For instance, the injuries suffered by Mr. Mixemong had the potential to inform the question of state of mind for murder. They demonstrated the brutality of the attack, both in terms of the sheer force of the blows and the spread of the attack over different parts of the body, which spoke to the appellant’s foresight of likely death under s. 229(a)(ii).  Those injuries included, but are not limited to: (a) extensive fracturing of the upper and lower jawbone area, with the upper maxilla, which the teeth insert into, having come completely disconnected from the skull; (b) bruising and lacerations to the head; (c) patterned imprints on the skin of the face and chest; (d) multiple broken and displaced ribs, one of which perforated the victim’s diaphragm; (e) significant damage, including tears, to the mesentery attaching to the abdomen and to which the intestines are attached; and (f) 1.2 litres of blood flowing freely in the abdomen. [12] As well, some of the interaction at the back door of the restaurant was caught on videotape, as was a significant portion of the beating. This video allowed the jurors to see for themselves the appellant’s level of coordination during the offence and the length of time over which it occurred, both of which could inform his state of mind at the time of the attack. [13] Much of the attack was also caught on a 9-1-1 recording, allowing the jurors to listen to the terrified reactions of onlookers to the events and their pleas to the appellant to stop the attack. [14] In addition, there was a good deal of evidence about the appellant’s consumption of intoxicants over the course of the day leading up to the attack. The appellant’s testimony was largely consistent with what he told the defence expert - that in the lead-up to the attack he had consumed about 12 beers, large parts of a total of 100 oz. of vodka, two Percocets and four OxyNeo tablets. Other defence witnesses also testified about the appellant’s very heavy consumption of alcohol and drugs on the day in question and just prior to the killing. Importantly, both the Crown and defence experts testified that it was unlikely that the appellant could have consumed as much alcohol as he and his then girlfriend suggested at trial because, if he had, he would have been, at best, unconscious, and more likely dead. [15] There was also evidence from eyewitnesses to the events, leading up to, during and following the attack, each of whom was able to speak to some degree about various subjects, including the appellant’s apparent ability to comprehend what was happening around him, his responsiveness to others, his ability to communicate his thoughts, and his level of physical coordination during that period of time. For instance: (a) A young female employee of the restaurant testified about being approached by the appellant and Mr. McClung just prior to the attack. They harassed her and suggested she was an “angel”. She thought that they were only “possibly” drunk. (b) Another witness testified that, just prior to the attack, the appellant asked to “bum a cigarette” from him, while extending his hand for a handshake. This witness testified that the appellant was not slurring his words, not falling over and had no problem communicating. He seemed only “slightly intoxicated.” (c) Witnesses tried to physically intervene to offer assistance to Mr. Mixemong. A woman came to his assistance and told the appellant, “don’t do this, he’s an old man.” The appellant pushed the woman away and continued the attack. Mr. Mixemong’s girlfriend, who had recovered her dog’s leash from Mr. Mixemong, testified that she pounded the appellant in the back to try to get him to stop. The  appellant responded by telling her that he was going to “kill [her] fucking dog.” (d) Another witness described the attack as so brutal and prolonged that it “wasn’t just a fight, he was killing him, beating him to death.” (e) A cyclist who was passing by testified that he saw a short man (McClung) say “let’s go”. The men then walked away but the appellant returned to kick the unconscious man a few more times in the ribs. (f) Another witness who was waiting for his wife at the bank testified that he saw the appellant move away from the body for a bit and then return to stomp on him. [16] Police officers also testified about the appellant’s ability to communicate, respond and perform coordinated actions at the scene of the crime. They explained that, when they arrived on the scene, the appellant walked away with a “strut”. When they ordered him to the ground, he responded with a “fuck that” and continued walking. He was able to effectively resist arrest and run away, quickly, capably and in a straight line. One of the officers testified that, while attempting to arrest him, the appellant spoke clearly, seemed strong and “quite capable”. The appellant was eventually captured and subdued, but only with the use of pepper spray. [17] Things seemed very different once the appellant arrived at the police station. The jurors also had that video available for their consideration. During that period of time, the appellant was exhibiting clear difficulty with his movements, including difficulty standing up from the ground after he fell from the backseat of the police cruiser upon arrival at the station. The appellant refused help from the police to clean the pepper spray from his eyes. He was largely non-responsive to questioning and engaged in highly unusual behaviour, including putting his face in the toilet and stumbling around his cell. The trial Crown claimed that the difference in the appellant’s actions and appearance, between the crime scene and the police station, were accounted for by the fact that he had been pepper sprayed just prior to being taken to the police station. [18] Defence expert Dr. Julian Gojer, a forensic psychiatrist, testified that the video from the police station suggested that the appellant was “ataxic”, meaning he did not have full control of his bodily movements. According to Dr. Gojer, this was a clear indication of an extreme level of intoxication. Although the appellant may have appeared more coordinated at the crime scene, Dr. Gojer opined that this was because of a “fight or flight” response the appellant may have been experiencing, despite the fact that he was in a “severe” state of intoxication that would have put him closer to the end of the “spectrum of severe intoxication that would have put him in a state of an automaton.” (3) Appellant’s Objections on Appeal [19] The appellant maintains that the sole question for the jury’s consideration was whether, taking into account the evidence of the consumption of alcohol and drugs, along with all of the other evidence shedding light on the appellant’s state of mind, the Crown had proven beyond a reasonable doubt that he had the state of mind for murder. He argues that there were three cascading errors in the jury instructions – the first in his original instructions to the jury, the second in the original decision tree, and the third in the revised decision tree and accompanying instruction - that combined to create confusion and reversible error on this point. [20] I will address each alleged error in turn. (a) Objection to the Original Charge [21] The appellant maintains that the trial judge erred in his original instructions to the jury, when he departed from the standard specimen instruction on the defence of intoxication and told the jury that it was for them to decide the effect of intoxication on the appellant’s “ability” to form the intention for murder. The appellant maintains that this instruction incorrectly focused the jury on whether the appellant had the capacity to form the intention for murder, rather than whether he actually formed that intention. [22] The appellant’s objection is rooted in the following passage from the original jury charge, where the trial judge instructed the jury as follows: It is for you to decide the extent of the consumption of alcohol and drugs involved by [the appellant] and the effect it had on his ability to form an intention either to kill Andrew Mixemong or mean to cause him bodily harm with the foresight that the likely consequence was death, and was reckless whether death ensued or not. [Emphasis added.] [23] There was a time when juries were instructed in terms of capacity to form intention. However, leaning heavily upon R. v. Daley , 2007 SCC 53, [2007] 3 S.C.R. 523, the appellant suggests that those days have passed. He submits that the instruction is erroneous and, at a minimum, it would have injected serious confusion into the deliberation process in that it focused on the appellant’s capacity to form the requisite intention rather than his actual intention. The appellant argues that the confusion would have been aggravated by the fact that there was no equivalent instruction when it came to how the jury was told to approach their deliberations about Mr. McClung’s state of mind for murder. [24] The respondent disagrees, pointing out that a capacity instruction is not fatally defective, provided it is given in conjunction with a roadmap on how to properly determine whether the appellant actually formed the requisite intention for the crime. The respondent encourages the court to look at the impugned instruction within its proper context. The surrounding instructions were legally correct. Taking that context into account, the jury would have understood the impugned instruction as nothing more than a reminder to reflect upon the amount of drugs and alcohol the appellant had consumed on the night in question and the impact of those intoxicants on whether he formed the intention for murder. [25] As I will explain, having regard to the law on capacity and the record as a whole, I see no error in what the jury was told in the original jury instructions. (i) Case Law: Capacity to form intention [26] The appellant is right that in Daley , the Supreme Court recommended to trial judges that they move away from instructing juries in terms of capacity to form intention “in all future charges on intoxication”: Daley , at para. 102. This does not mean, though, that a capacity instruction will inevitably lead to error: R. v. Chretien , 2014 ONCA 403, 309 C.C.C. (3d) 418, at para. 90. To explain why this is so, requires a brief review of the law leading up to the Daley pronouncement. [27] The genesis of the debate over whether to give or not give an instruction on the relationship between intoxication and an accused’s capacity to form intention is rooted in two decisions: R. v. MacKinlay (1986), 28 C.C.C. (3d) 306 (Ont. C.A.), and R. v. Canute (1993), 80 C.C.C. (3d) 403 (B.C.C.A.). [28] In MacKinlay , Martin J.A. recommended the following two-step approach to deliberations relating to the state of mind for murder where the defence of intoxication is raised: (a) did the “accused [have] the capacity to form the necessary intent?”; and, if so, (b) “taking into account the consumption of liquor and the other facts” has the prosecution “satisfied [the jury] beyond a reasonable doubt that the accused in fact had the required intent?”: at p. 322. [29] A number of years following MacKinlay , a new one-step approach to the defence of intoxication emerged, dubbed the Canute approach, in which the British Columbia Court of Appeal concluded that instructing a jury to first consider the question of capacity was redundant: “What reason could there be for requiring a jury to struggle with the elusive concept of ‘capacity to form an intent’, when at the end of that exercise they will only be required to turn their consideration to the real legal issue, namely, the actual intent of the accused”: at pp. 418-419. Accordingly, Canute took the second step from MacKinlay , and made it the sole step for consideration when intoxication is in issue. [30] A few years after Canute , the Supreme Court of Canada decided three cases dealing with jury instructions relating to the defence of intoxication: R. v. Robinson , [1996] 1 S.C.R. 683; R. v. Seymour , [1996] 2 S.C.R. 252 ; R. v. Lemky , [1996] 1 S.C.R. 757. In Robinson , while Lamer C.J. commended the one-step approach as a “useful model for trial judges”, he did not jettison the two-step MacKinlay - type approach: at para. 49. He noted that there are particular cases where a capacity instruction may still be appropriate, such as where “it is difficult to conceive of a successful intoxication defence unless the jury is satisfied that the accused was so drunk that he or she was not capable of forming an intent to kill”: Robinson , at para. 52. He gave the example of an accused shooting someone in the head at point blank range, as a situation where anything short of incapacity may not succeed. Equally, Lamer C.J. noted that there may be situations where expert evidence or a defence position justifies reverting to a two-step approach: Robinson , at para. 53. See also: Seymour , at para. 17; Lemky , at para. 15. [31] Daley was decided about ten years following the trilogy, where Bastarache J. observed that leaving the “door open” to a two-step approach had become somewhat problematic in that it had permitted after-the-fact complaints on appeal as to whether a one- or two-step instruction should have been given. Accordingly, it was in the interests of “simplicity and clarity”, that a one-step approach was recommended for all future cases: Daley , at para. 102. [32] This historical review demonstrates that there is nothing inherently wrong with giving a capacity instruction. This is particularly true where the factual backdrop for the killing is one where, to use Lamer C.J.’s words from Robinson , “it is difficult to conceive of a successful intoxication defence unless the jury is satisfied that the accused was so drunk that he or she was not capable of forming an intent to kill”, and/or where an expert uses capacity-like language and/or where the defence makes capacity to form intention a live issue at trial. [33] It is undoubtedly preferable to keep jury instructions as streamlined and straightforward as possible, focussing on only those issues that require determination. While the recommendation in Daley to forgo the two-step MacKinlay approach meets that objective, and is therefore a commendable goal, I do not accept that injecting capacity-like language into a jury instruction will necessarily constitute legal error. It may just reflect what was going on at trial. Despite appellant counsel’s compelling submissions, that is precisely what I conclude led to the injection of the now impugned passage into the jury charge in this case. (ii) The defence position led to the instruction [34] The now impugned jury instruction was entirely consistent with the defence position at trial, which was rooted in the suggestion that the appellant did not have the capacity to form the intention for murder. Indeed, the defence closing submissions repeatedly referred to the appellant’s lack of “capacity”. A few examples taken from the defence closing make the point: “It is for you to decide what brought on [the appellant’s] fit of rage, and whether or not he understood or appreciated what it was that he was doing, or even because of the alcohol and the drugs that he had ingested, if he had the ability at the time to understand and appreciate the consequences of his actions .” “If you have a doubt about [the appellant’s] state of mind, his intent or his capacity to form intent , you must not conclude that he intended or meant to bring about the death of Andrew Mixemong.” “Ask yourself, if despite his cons, his, his intoxication you feel that he did have the capacity to see and foresee what he was doing , were his actions so fuelled by that alcohol that he failed to realize and to think about the consequences of his actions.” [Emphasis added.] [35] Accordingly, the appellant’s defence at trial was not simply that he did not form the state of mind for murder, but that he was so intoxicated that he did not have the capacity to do so. The position taken by the appellant’s experienced trial counsel is an entirely understandable one when considered against the factual underpinnings for the killing. While Lamer C.J. gave an example of an accused shooting a victim in the head as a situation where it is difficult to conceive of an intoxication defence succeeding short of incapacity to form the intent to kill, this case arguably fell within that same category of gravity. [36] This case is unlike more typical murder cases involving the defence of intoxication, where the victim is injured by a simple push to the sidewalk, resulting in a strike to his or her head, or single kick to the head. In those cases, even in the absence of intoxication, foreseeability of likely death is a trickier subject for a jury’s consideration. That was not this case. Like a bullet to the head at close range, the blistering, vicious and unrelenting nature of the attack on Mr. Mixemong had the unmistakable markings of death. Indeed, this would have been why the jury was instructed under both ss. 229(a)(i) and (ii) of the Criminal Code . So brutal and prolonged was the attack that the specific intention to kill was an available path to the state of mind for murder. Experienced defence counsel no doubt spoke in terms of capacity because he no doubt understood that anything short of the appellant’s inability to appreciate what everyone else witnessing the attack appreciated would have little traction with the trier of fact. [37] Moreover, the defence expert witness’ evidence supported this approach. While not entirely clear on the point, recall that Dr. Gojer testified that the appellant, while not in the state of an automaton, was in such a “severe” state of intoxication that it would have put him “closer to the end of the spectrum of severe intoxication that would have put him in a state of an automaton.” [38] Accordingly, the circumstances surrounding the killing, the defence position and the expert evidence combine to explain the trial judge’s reference to the appellant’s “ability to form” the intention for murder. It also explains why there was no objection to the now impugned instruction.  Indeed, defence counsel specifically turned his mind to the now impugned instruction and assisted the trial judge with tailoring it to even better meet the defence position. In my view, this is the best indication that the defence wanted the jury instructed in this fashion and that it was a strategic call, one that was not legally incorrect. (iii) The impugned passage considered in context [39] Jury instructions must be considered as a whole, against the backdrop of the entire trial and the positions of counsel, asking the ultimate question as to whether the jury was properly equipped to render a true verdict: R. v. Srun , 2019 ONCA 453, 146 O.R. (3d) 307, at para. 54; R. v. Calnen , 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 8; Daley , at para. 30.  At the end of the day, the core question is whether the jury understood its ultimate task: whether, taking into account the evidence of the consumption of alcohol and drugs, along with all of the other evidence shedding light on the appellant’s state of mind, the jury was satisfied beyond a reasonable doubt that the accused had the state of mind for murder. Reading the charge as a whole, I am satisfied that this jury understood that task. [40] The appellant acknowledges that, aside from the impugned passage about the “ability to form” the intention for murder, the balance of the original instructions to the jury relating to the defence of intoxication, and how it intersects with the state of mind for murder, largely tracks the specimen jury instructions taken from Watt’s Manual of Criminal Jury Instructions , 2nd ed. (Toronto: Thomson Reuters, 2015), Final 69A, Intoxication. He takes no objection to those instructions. [41] Accordingly, the appellant fairly accepts that the instructions that preceded and followed the impugned instruction are legally correct. They clearly reminded the jury that, before convicting the appellant of second-degree murder, the jury had to be satisfied beyond a reasonable doubt that the appellant had the actual state of mind for murder. They also linked intoxication to the formation of that state of mind. Among other things, the instructions highlighted that: Crown counsel must prove beyond a reasonable doubt that [the appellant] intended either to kill Andrew Mixemong or to cause him bodily harm with the foresight that the likely consequence was death. To decide whether [the appellant] had either intent, you should take into account the evidence about his consumption of alcohol and drugs, along with the rest of the evidence that throws light on his state of mind at the time the offence was allegedly committed. [42] As well, the trial judge was careful to instruct the jury that, while a sane and sober person usually knows the predictable consequences of his or her actions and means to bring them about, the appellant’s degree of intoxication may work to remove that otherwise available inference. [43] Taken as a whole, I am satisfied that this jury was well equipped to properly deliberate on whether the appellant had the state of mind for murder. (iv) Conclusion re: Original Charge [44] The appellant’s objection to the charge proper comes down to a single paragraph that: (a) he did not object to at trial; (b) he implicitly endorsed at trial by adding to it; (c) was understandable in light of the circumstances surrounding the killing; (d) was consistent with the appellant’s position at trial, including that of the defence expert witness; and (e) was surrounded by instructions that properly explained the relationship between intoxication and the state of mind for murder.  I would not accede to this ground of appeal. (b) The Original Decision Tree and Amplifying Instructions [45] The appellant raises a second objection: he argues that the original decision tree and amplifying instructions were wrong because they suggested to the jury that the intention for murder could be considered separate and apart from intoxication. Although he acknowledges that this error alone would not constitute reversible error, this error is pointed out to show how the errors relating to the defence of intoxication built, each on the other, to make for a very confusing picture. [46] The original decision tree contained three boxes. Owing to the plea of guilty to manslaughter, the questions in the first two boxes on the decision tree were not in dispute at trial: (a) whether the appellant caused Mr. Mixemong’s death; and (b) whether he did so unlawfully. [47] The third box related to the sole issue in dispute at trial: the state of mind for murder. Two questions were placed within the third box: (1) “Did [the appellant] have a state of mind required for murder?”; and (2) “Taking into account the evidence of consumption of alcohol along with the rest of the evidence that throws light on his state of mind, did he have the state of mind required for murder?” [48] Before they retired to deliberate, the trial judge instructed the jury to approach the questions in the third box on the decision tree as follows: · if the jury had a reasonable doubt about the first question, then they were to acquit of murder and convict of manslaughter. · if the jury was satisfied beyond a reasonable doubt about the first question, then they were to move to the second question. · if the jury had a reasonable doubt about the second question, then they were to acquit of murder and convict of manslaughter. · only if the jury was satisfied beyond a reasonable doubt about the second question, were they to convict of murder. [49] The appellant argues that it was wrong and confusing for the jury to separate the essential element relating to the appellant’s state of mind for murder into two questions. He contends that the second question was the only question that the jury had to decide. [50] Despite the superfluous nature of the first question in the third box on the original decision tree, no harm resulted. Again, the core question that needed to be decided was whether, taking into account the evidence of the consumption of alcohol and drugs, along with all of the other evidence shedding light on the appellant’s state of mind, the jury was satisfied beyond a reasonable doubt that the accused had the state of mind for murder . Despite the presence of the first question in the third box on the decision tree, the central issue for the jury’s consideration was nicely covered off in the second question: “Taking into account the evidence of consumption of alcohol along with the rest of the evidence that throws light on his state of mind, did he have the state of mind required for murder?” [51] Accordingly, there is nothing about the first decision tree that would have diverted the jury from the critical question for determination at trial and I see no prejudice having arisen from the superfluous first question having been left. [52] In any event, the jury did not use that first decision tree in its deliberations.  As I will now explain, that decision tree was replaced by a new one, a replacement adopted at the request of counsel. (c) The Replacement Decision Tree and Accompanying Instructions (i) The Context for the Objections on Appeal [53] The appellant argues that the trial judge also erred when he called the jury back after they had already commenced their deliberations and replaced the original decision tree with another one. [54] After the jury originally retired to deliberate, counsel for the appellant raised concerns about the original decision tree, specifically the third box containing the two questions. He apologized for not having seen the issue before. In a bit of a twist, though, the objection at trial is not what is objected to on appeal. [55] Trial counsel did not object to the existence of the two questions or to the manner in which the questions were phrased. Rather, he objected to the order in which the questions appeared within the third box on the decision tree. Trial counsel asked that the questions be separated into two boxes and reversed in order. In making that submission, trial counsel again used capacity-type language. For instance, he made the following submissions: If you’re intoxicated you can’t have the intent. So you can’t put intent and then go down to intoxication. You have to put the intoxication and then go down to intent. Was he capable of forming the intent necessary for murder? If he was, then did he have the intent necessary for murder? If he did have the intent necessary for murder, then he’s guilty. It just doesn’t make sense to me that you would be able to form the intent and then you would never get to intoxication because if you’re intoxicated you can’t form the intent if you lack the capacity . [Emphasis added.] [56] Although the trial Crown’s position fluctuated, it appears that Crown counsel at trial also eventually came around to the defence view: “There’s a logic to that. If he doesn’t [have] capacity he can’t form intent.” The trial Crown ultimately agreed with the defence proposal to change the decision tree as requested by the defence. [57] After lengthy discussions about how to approach the matter, the decision tree was amended and the jury was brought back into the courtroom. In explaining why the decision trees were being replaced, the trial judge said that he had “acceded to the observations of counsel”. [1] He also said that the new decision tree should be considered in conjunction with his original jury instructions. [58] Notably, the replacement decision tree is not available on appeal as it was never marked as an exhibit and the parties have been unsuccessful in recovering it. Despite its absence from the record on appeal, I am satisfied that we know how the replacement decision tree read. The transcript reveals a clear defence request to separate into different boxes the questions that were previously contained within box three of the original decision tree and to reverse their order: “switch what you have there”. All indications are that this request was acceded to, and there is no suggestion on the record that the wording of the questions was changed. [59] The appellant also highlights the jury instructions that accompanied the replacement decision tree, suggesting that they aggravated the error contained within the tree. In particular, he points to places in those instructions where the trial judge is said to have decoupled the evidence of intoxication from a determination of the state of mind for murder. [60] In short, the appellant argues that everything is wrong with how this issue unfolded after the jury originally retired to deliberate, including that counsel’s submissions were wrong about what the problem was with the original decision tree and how it should be remedied; the replacement decision tree was wrong in that it left the ultimate question of the state of mind for murder detached from the defence of intoxication; and the instructions accompanying the replacement decision tree were wrong in that they left the incorrect impression that the jury should consider intoxication separately from the state of mind for murder. (ii) The content of the replacement decision tree [61] When considering the alleged error contained within the replacement decision tree, it is important to recall that this is not simply a case involving a failure to object to an alleged misdirection: R. v. Jacquard , [1997] 1 S.C.R. 314 , at para. 38; Daley , at para. 58. Nor is it a case where counsel expressed satisfaction with an instruction that is later said to be erroneous: R. v. Patel , 2017 ONCA 702, 356 C.C.C. (3d) 187, at para. 82. Rather, this is a case where the exact change advocated for by defence counsel was acceded to by the trial judge. That the defence specifically asked for what is now objected to on appeal properly sets the context within which the overall “seriousness of the alleged misdirection” should be considered: Jacquard , at para. 38. [62] Like the first decision tree, I see no harm arising from having instructed the jury to consider two separate questions in relation to the state of mind for murder. While only the first question on the replacement decision tree was necessary, there is no reasonable possibility that the jury was misled by the existence of the two questions. [63] At the end of the day, the correct question was left with the jury: “[t]aking into account the evidence of consumption of alcohol along with the rest of the evidence that throws light on his state of mind, did he have the state of mind required for murder?” Accordingly, the jurors knew that unless they were satisfied beyond a reasonable doubt that the answer to the now first question – the right question – was “yes”, they must acquit and find the appellant not guilty of murder. [64] If anything, as pointed out by the respondent, reversing the order of the questions may well have inured to the benefit of the appellant. After all, if the now first question was answered in the affirmative – that the jury was satisfied that “[t]aking into account the evidence of consumption of alcohol along with the rest of the evidence that throws light on his state of mind”, the appellant had the state of mind required for murder – then a verdict of guilty of second-degree murder was the only available option. Requiring the jury to go on and answer a second question before arriving at that verdict – “Did [the appellant] have a state of mind required for murder?” – simply reminded the jury that even if the defence of intoxication failed, before convicting the appellant of murder they had to be satisfied beyond a reasonable doubt that the appellant had the state of mind for murder. The second question acted as nothing more than an unnecessary, but defence friendly, safety valve before proceeding to a finding of guilt on murder. (iii) The instructions accompanying the replacement decision tree [65] The appellant objects to the following instructions that accompanied the delivery of the replacement decision tree. After the trial judge informed the jury that he had moved the reference to the “consumption of alcohol” up into the third box, he said: So the first consideration in your process is to consider the consumption of alcohol. Now, you’re satisfied that alcohol played no role in this , then you drop down to – you still have to consider whether there was intent to commit murder. That’s still open. So that’s why I separated the two boxes so that you would follow your thinking process in that order and not be confused about where you go. [Emphasis added.] [66] He concluded his instructions in relation to the replacement decision tree by saying: So what I’ve basically done at the suggestion of counsel is separate the consideration of the effect of alcohol and drugs from the overall consideration that you have so that you can make sure that you are considering each factor on its own as well so you come to the conclusion without realizing that in the absence of alcohol or drugs you still have to determine whether there’s specific intent . [Emphasis added.] [67] The appellant argues that these instructions would have led the jury to think that the evidence of intoxication was to be considered separate and apart from the state of mind for murder. He argues that this is particularly true given that there was no reality to the suggestion that alcohol played “no role” in the offence. After all, even the trial Crown accepted that the appellant was intoxicated. The appellant contends that the direction to “separate the consideration of the effect of alcohol and drugs” from their “overall consideration” constitutes clear reversible error and, combined with all of the other confusion that came before, would have left the jury without the correct legal tools to determine if the appellant had the state of mind for murder. [68] Taken on their own, I agree that the instructions that accompanied the replacement decision tree could have been somewhat confusing. They must not, though, be considered in a silo. The exercise on appeal is not to parse the words for legal perfection, but to strive to understand them in context, with a mind to how the jury would have understood those instructions. Taken in context, I am satisfied that the jury would have understood the legally correct way to approach the essential element of the state of mind for murder. [69] First, the impugned instructions were given while the jury was looking at the replacement decision tree that trial counsel had asked for. Accordingly, when the trial judge referred to their “first consideration” being the “consumption of alcohol”, he was referring to the box on the decision tree that stated the legally correct question that they had to ask themselves: “Taking into account the evidence of consumption of alcohol along with the rest of the evidence that throws light on his state of mind, did he have the state of mind required for murder?” Read within that context, the instruction makes sense. [70] Second, I disagree that by suggesting to the jury that they may conclude that “alcohol played no role in this”, the trial judge injected confusion. While the appellant is right that the trial Crown accepted that the appellant was intoxicated, the trial Crown did not accept that alcohol played a “role” in the appellant’s state of mind for murder. Indeed, the trial Crown was careful to point out that important distinction, suggesting to the jury that an intoxicated person can still form the intention for murder. This was reinforced by the trial judge in his instructions to the jury, when he said: “Intoxication that causes a person to cast off restraint and to act in a manner in which he would not act, if sober, is no excuse for committing an offence if he had the state of mind required to commit the offence. An intoxicated state of mind is nonetheless a state of mind.” [71] Although the trial judge may have chosen different wording to convey the idea, I am satisfied that the jury would have understood his reference to “alcohol play[ing] no role in this”, as meaning that, despite the appellant’s level of intoxication, the jury was still satisfied beyond a reasonable doubt that he had formed the intention for murder. [72] Finally, I do not accept that the trial judge caused any harm when he told the jury that, “at the suggestion of counsel”, he had separated the “consideration of the effect of alcohol and drugs from the overall consideration”. Read in isolation, the passage appears problematic. Read in context, it creates no harm. [73] What the trial judge was doing in this impugned passage was giving the jury an explanation as to why the two questions in the first decision tree had been separated into two separate boxes in the replacement decision tree. Due to the ordering of those boxes, he referred to the last box as the “overall consideration”. But remember that the jury had the replacement decision tree in front of them. They knew the questions they had to answer. Importantly, as a result of the original jury instructions and the way that the questions were put on the replacement decision tree, what is critical, is that they knew that they could not bring back a verdict of guilty to second-degree murder unless they were satisfied beyond a reasonable doubt that, having taken into account the evidence of consumption of alcohol along with the rest of the evidence that throws light on his state of mind for murder, the appellant had that state of mind under either ss. 229(a)(i) or (ii) of the Criminal Code . (4) Conclusion relating to the instructions on intoxication [74] For these reasons, I would dismiss this ground of appeal. C. SECOND GROUND OF APPEAL: THE REFUSAL TO QUALIFY THE EXPERT IN A SPECIFIC AREA (1) Appellant’s Position [75] Dr. David Rosenbloom, a pharmacist and professor in McMaster University’s Department of Medicine, was offered by the defence as an expert witness on the “effects of alcohol and narcotics on the function of the brain, particularly with respect to cognition, memory and behaviour .” The trial judge refused to qualify him in that particular area of expertise, but allowed that he could testify in relation to “the absorption, distribution and elimination of alcohol in other words, the physical effects of those items on the human body.” In the end, the defence chose not to call him. [76] The appellant contends that the trial judge erred in limiting the subject areas upon which Dr. Rosenbloom could opine. The appellant says that the ruling was rooted in the trial judge’s finding that Dr. Rosenbloom was not objective and could not perform the proper role of an expert in this case. He maintains that the trial judge erred in coming to that conclusion. [77] In limiting the expert’s opinion to a particular subject area, the appellant argues that the trial judge removed a major prong of his defence, an ability to demonstrate to the jury that alcohol can be mechanistically selective, meaning that it can impact the brain and motor functions differently and at different rates. He maintains that this could have provided an explanation for the jury as to why the appellant may have demonstrated good motor skills in and around the time of the murder, but may not have had the foresight of likely death when he was killing Mr. Mixemong. [78] In my view, the trial judge did not error in limiting the area of expertise. (2) The Expert Opinion Was Properly Limited [79] I start with the standard of review relating to a ruling on the admissibility of an expert witness’ opinion. Unless the decision is “clearly unreasonable, contaminated by an error in principle or reflective of a material misapprehension of evidence”, deference applies: R. v. Shafia , 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 248; R. v. Mills , 2019 ONCA 940, at para. 47. I would defer to the trial judge’s conclusion in this case. [80] There is a two-stage framework for the admission of expert opinion evidence. At the threshold stage, four questions are asked: (i) relevance; (ii) necessity; (iii) the absence of an exclusionary rule; and (iv) the need for a properly qualified expert: White Burgess Langille Inman v. Abbott and Haliburton Co. , 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 19; R. v. Abbey , 2017 ONCA 640, 140 O.R. (3d) 40, at para. 48. [2] [81] White Burgess , decided shortly after the ruling in this case, determined that at the first admissibility stage, and as part of determining whether the expert is properly qualified, the court must take into account the proposed expert’s ability to understand and to fulfill his or her duty to the court to provide impartial, independent and unbiased evidence: White Burgess , at para. 53; Abbey , at para. 48. The appellant emphasizes that expert evidence should only be excluded on that basis in “rare” and “very clear cases”: White Burgess , at para. 49; Mills , at para. 42. [82] At the second admissibility stage – the gatekeeper stage – the trial judge exercises a residual discretion to exclude the evidence after having considered whether the benefits of admitting it outweigh its potential risks: Mills , at para. 44; Abbey , at para. 49. The trial judge must continue to take into account any concerns respecting the expert’s independence and impartiality at the gatekeeping stage: White Burgess , at para. 54; Mills , at para. 45. Accordingly, the expert’s impartiality, independence and willingness to provide an unbiased opinion is considered at both of the admissibility stages. [83] Although I do not agree that the sole reason for limiting the expert’s opinion in this case rested on bias, it was undoubtedly a significant factor in the trial judge’s decision limiting the area of Dr. Rosenbloom’s expertise. As noted by the trial judge: Doctor Rosenbloom might ordinarily in another case qualify as an expert because he does possess knowledge beyond the scope of that enjoyed by laypersons. However, having reviewed his report and listened to his evidence, I am satisfied that he does not qualify in these circumstances to give evidence as an expert or give his opinion …. [84] The trial judge then went on to give numerous reasons for why he found Dr. Rosenbloom was not an appropriately neutral expert witness in relation to the disputed subject area. The appellant argues that the trial judge erred in relation to each of those reasons. [85] The appellant says that the trial judge overstated the matter when he said that Dr. Rosenbloom’s choice of language was more befitting an “advocate than an expert”. However, this was an issue for the trial judge to determine and there are examples supporting his conclusion. For instance, Dr. Rosenbloom saw his role as critiquing the Crown expert’s opinion, as evidenced in the use of a heading in his report: “Critique of Rachelle Wallage’s Report.” Under that section, Dr. Rosenbloom said he “would like to take issue with a number of the points raised” in the Wallage report. He further stated in his report that he would “strongly argue” a certain point. These are no doubt some of the comments that concerned the trial judge, and for good cause. [86] The appellant also expresses concern that the trial judge failed to provide examples for why he concluded that there was a loss of objectivity during the cross-examination. While he may not have pointed to examples in his mid-trial ruling from the bench, there is much to support that comment. For instance, Dr. Rosenbloom claimed in-chief that he had been qualified as an expert in all but one case. In cross-examination he admitted that he had not been qualified in particular areas on at least three prior occasions, at least two of which related to the subject area he was proffered to opine on here. He also admitted that he had never authored an unfavourable report for someone who had retained him. He had no first-hand knowledge of how people act on certain drugs and his last opportunity to obtain that knowledge was over 30 years ago. These are just examples. [87] The appellant further argues that the trial judge’s reference to the fact that Dr. Rosenbloom did not even mention the intervening event between the homicide and the police station, involving the appellant having been pepper sprayed, is a misapprehension of evidence as there is no suggestion that Dr. Rosenbloom even knew about the pepper spray. That may be so, but the point is that Dr. Rosenbloom admitted that he had only spent 20 minutes with the appellant and had relied largely upon two handwritten pages of notes he made during conversations with trial counsel to opine on the matter. That alone should have given rise to concern about how much the expert actually knew before he was prepared to offer such a definitive opinion. [88] The appellant also expresses concern over the trial judge’s dissatisfaction with Dr. Rosenbloom’s intrusion upon the role of the jury. The appellant says that, to the extent that Dr. Rosenbloom’s report crossed the line, he should have been extended the same courtesy as other experts who had been offered the opportunity to amend problematic aspects of their reports. The difficulty is that Dr. Rosenbloom opined that: “Under the circumstances described, I think it is highly unlikely that [the appellant] had in[s]ight or awaren[e]ss of his actions and could not form the intent to commit the attack”. This was not a simple crossing of the line. It was a giant leap across the expert line, clearly and unequivocally exposing the proffered expert as someone who did not understand the fundamental role of an expert. [89] In the end, the trial judge performed his role as a gatekeeper in limiting the scope of Dr. Rosenbloom’s expert evidence. He articulated why the witness could not opine on the area he was offered to opine upon. I would defer to the trial judge’s decision in that regard. [90] Moreover, and as a final observation, I do not accept that the defence was left at such a significant deficit as suggested. While the defence did not have Dr. Rosenbloom’s evidence on the point, Dr. Gojer more than made up for what was lost. [91] Dr. Gojer gave an expert opinion explaining how alcohol does not always have the same impact on bodily functions as it does on the brain. In other words, he explained to the jury how intoxication can impact motor and brain functions differently. He referred to this as “fight or flight”, something that could explain an apparent level of physical coordination at the crime scene, despite a severe cognitive deficit. While Dr. Gojer’s explanation for the potential difference between physical and cognitive functioning was not the same as Dr. Rosenbloom’s, the fact remains that the appellant was not left empty-handed on this point. The jurors received an expert explanation as to how the appellant’s behaviours in and around his attack of Mr. Mixemong could still be consistent with a failure to foresee the likelihood of death. [92] For these reasons, I would dismiss the appellant’s second ground of appeal. D. THIRD GROUND OF APPEAL: THE CURATIVE INSTRUCTION [93] The appellant argues that the trial judge failed to adequately address a problem that arose during a civilian witness’ evidence, where that witness said in cross-examination that the appellant “murder Andrew.” [94] Unfortunately, after the witness made reference to the “murder”, the appellant’s second counsel decided to wade into the matter, exploring the witness’ understanding of the legal meaning of the term murder. The following exchange occurred: Q … I know you believe he murdered .. A. … and I saw Q. Mr. Mixemong, sir, but whether he did it, murdered or not, which is a legal word, that will be left to the jury A. What do you mean it’s a legal Q. … do you understand that? A. … what you mean a legal Q. Well murder means A. … you just said a legal Q. … murder means that there has to be intent, sir A. … He, he did intends Q. … right, whether there A. … he was drunk Q. … whether Mr A. … and he was stupid there [95] Eventually counsel asked the trial judge for assistance. The trial judge made the observation that counsel had led the witness into the definition of murder and that the witness was not qualified to answer those questions about legal definitions. [96] Counsel asked for and received a curative mid-trial instruction. The jury was told that they would receive instructions about “the law of murder and the use of the word ‘murder’”, a legal instruction they would be required to abide by. They were told not to be “overly influenced or persuaded by a witness using the word, no matter how many times in his evidence.” The trial judge concluded by saying: “So just I caution you not to be influenced by that, because the instruction on that is going to come from me later.” [97] The appellant argues that this direction constitutes legal error. In particular, the reference to the fact that the jury should not be “overly influenced” by a witness using that term, left the suggestion that they could impute some, just not too much, of a murderous intent from the witness’ evidence. [98] I do not read the instruction in that fashion. [99] First, trial counsel was in the best position to gauge whether the instruction was fit for the task and there was no objection taken. Indeed, trial counsel expressed satisfaction with the instruction, thanking the trial judge for having given it. [100] Second, during the evidence of another witness, the jury was again reminded not to take any legal direction from witnesses’ use of legal terminology.  This second witness also made reference to a “murder” having taken place. The trial judge used this as an opportunity to remind the jury that “the terminology that a witness uses in giving evidence may or may not be consistent with the legal definition of the term used, and so to keep that in mind, that you have to take the definition from me in law as I give it to you, and I will be giving to you later, but not to be unduly persuaded by the use of the word by a witness”. Again, no objection was taken to the mid-trial instruction. [101] Third, the jury received careful final instructions. They were told that they must take the law from the trial judge and the trial judge alone. He indeed explained what constitutes murder. [102] In my view, the trial judge gave good and cautious mid-trial instructions. Any potential risk that the jury would have taken legal direction from a witness, arising simply from the use of the term “murder”, or imputed a murderous intent from the use of that terminology, was neutralized by the mid-trial and final instructions. [103] I would not accede to this ground of appeal. E. CONCLUSION [104] The appellant’s trial involved one issue – did the Crown prove beyond a reasonable doubt that he had the intention for murder? I am satisfied that the jury understood how to approach that issue. I am also satisfied that there is no reversible error demonstrated on appeal. [105] I would dismiss the appeal. Released: “K.M.v.R.” May 22, 2020 “Fairburn J.A.” “I agree. K. van Rensburg J.A.” “I agree. B.W. Miller J.A.” [1] Changes were also made to the decision tree pertaining to Mr. McClung. [2] Where applicable, the reliability of “novel or contested science or science used for a novel purpose” is also considered at the first admissibility stage: Abbey, at para. 48.

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, 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. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.  13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Hill, 2020 ONCA 292 DATE: 20200506 DOCKET: C67936 Rouleau, Zarnett and Jamal JJ.A. BETWEEN Her Majesty the Queen Respondent and Wayne Thomas Hill Appellant Wayne Thomas Hill, acting in person Nader R. Hasan, appearing as duty counsel Andrew Hotke, for the respondent Heard and released orally: May 4, 2020 by videoconference On appeal from the conviction entered by Justice Lorelei Amlin of the Ontario Court of Justice on October 31, 2019 and from the sentence imposed on October 31, 2019. REASONS FOR DECISION [1] The appellant appeals his conviction and sentence on two counts of attempted abduction of a child and two counts of breaching a prohibition order. On appeal, he raises two issues. [2] First, he seeks to vary the blanket lifetime ban for use of the internet that was ordered as part of his sentence. The Crown does not oppose varying the order to one in the nature of the order granted in the case of R. v. Brar , 2016 ONCA 724, 134 O.R. (3d) 95. [3] In our view, such a variation is appropriate in this case. We therefore vary that order to read as follows: Pursuant to s. 161(1)(d) of the Criminal Code , Mr. Wayne Thomas Hill will not use the internet or any similar communication service to: a) access any content that violates the law; b) directly or indirectly access any social media sites, social network, internet discussion forum or chatroom, or maintain a personal profile on any such service (such as Facebook, Twitter, Tinder, Instagram or any equivalent or similar service) and; c) make any post or advertisement that targets persons under the age of 16 including any advertisement for sales, services or products intended for use by persons under the age of 16. [4] The second issue raised by the appellant is the requirement for registration in the sex offender registry. [5] In our view, that aspect of the appeal cannot succeed. In the circumstances of this case, given the appellant’s previous convictions, this ground of appeal must fail. [6] The appellant did not raise any other issues with respect to the conviction appeal and the sentence appeal. [7] Apart from varying the s. 161(1)(d) prohibition order as outlined above, the appeal is dismissed. “Paul Rouleau J.A.” “B. Zarnett J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Lariviere, 2020 ONCA 324 DATE: 20200526 DOCKET: C68298 MacPherson, Pardu and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and Brian Lariviere Appellant Brian Lariviere, acting in person Gerald Chan, acting as duty counsel Andrew Hotke, for the respondent Heard: May 20, 2020 by Teleconference On appeal from the sentence entered on October 4, 2019 by Justice David J. Nadeau of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant entered pleas of guilty to four criminal offences: aggravated assault ( Criminal Code , R.S.C. 1985, c. C-46, s. 268); use of an imitation firearm in the commission of an indictable offence (s. 85(2)(a)); breach of a recognizance (s. 145(3)); and possession of a narcotic (fentanyl) ( Controlled Drugs and Substances Act , S.C. 2006, c. 19, s. 4(1)). After receiving credit for pre-sentence custody and stringent bail conditions, he was sentenced to 12 months’ imprisonment. He appeals his sentence. The Offences [2] The appellant’s offending happened in two stages. [3] On April 27, 2017, the appellant participated in a home invasion robbery with three other men. They went to the house where the victim’s apartment was located. At 3:55 a.m., while one of them stood watch outside, the appellant and two others, disguised with hoodies and balaclavas, and armed with knives and an imitation handgun, forced their way into the victim’s apartment. They demanded that he give them drugs. When the victim resisted, he was seriously assaulted and threatened with death. The firearm was pointed at him. The victim suffered serious injuries, including orbital fractures and the permanent loss of his sight in one eye. The appellant acknowledged his participation in the offences, but denied having physical possession of the imitation firearm or directly causing the victim’s injuries. [4] Shortly after the attack, the appellant and his co-accused were apprehended. The appellant was eventually released on bail. He entered a plea of guilty to these offences and remained on bail for a considerable period of time while a Gladue Report was prepared. [5] On February 22, 2019, the appellant was found unconscious in the washroom of a grocery store. He had overdosed on fentanyl. He was in possession of two more grams of the drug, in violation of his bail. This resulted in the further charges, to which he also pled guilty. The Circumstances of the Appellant [6] At the time of sentencing, the appellant was 25 years old. He has a number of convictions for property offences, including break and enter (x 2), as well as a prior conviction for possession of a controlled drug (which was not fentanyl). The appellant is a member of the Dokis First Nation. His circumstances were detailed in a thorough Gladue Report prepared for the trial judge. The Sentencing Proceedings [7] The appellant served 295 days of pre-sentence custody, which was credited on a 1.5:1 basis, amounting to a total credit of 14 ½ months. [8] It was agreed between defence counsel and the Federal Crown that the appellant should receive six months’ imprisonment on the drug and breach of recognizance offences, to be served concurrently to each other, and concurrent to the robbery and imitation firearm offences. [9] The appropriate sentence for the offences related to the home invasion was contentious. The Provincial Crown submitted that an appropriate sentence would be 30 months’ imprisonment, less pre-sentence custody (i.e., an additional 15 ½ months). [10] Defence counsel submitted that, after pre-sentence custody is applied and credit for stringent bail terms taken into account, the appellant should receive a suspended sentence. [11] The trial judge agreed with the Crown’s submission that a sentence of 30 months’ imprisonment was required. He gave the appellant credit for 14 ½ months of pre-sentence custody. Applying R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.), the trial judge credited the appellant with another 3 ½ months for stringent bail conditions. The total credit was 18 months, leaving 12 months left to serve. The trial judge imposed 6 months’ imprisonment on the drug and breach offences, concurrent. He also ordered probation and made other ancillary orders. Discussion [12] The appellant submits that the sentence should be reduced as a result of the impact of the COVID-19 pandemic on the conditions of his detention. He contends that a slightly reduced sentence would remain a fit one. The Crown resists any reduction, arguing that the appellant is close to his statutory release date and that prison/parole authorities should be left to determine when it is appropriate to release the appellant back into the community. [13] We see no reason to intervene. An effective sentence of three years imprisonment was appropriate. The trial judge was well aware of the seriousness of the offence. He referred to authority from this court on the appropriate length of sentences for home invasion robberies: see, for example, R. v. Jacko , 2010 ONCA 452, 101 O.R. (3d) 1. He applied R. v. Gladue , [1999] 1 S.C.R. 688 and R. v. Ipeelee , 2012 SCC 13, [2012] 1 S.C.R. 433 to the appellant’s circumstances, recognizing the impact of the intergenerational trauma experienced by his family and how it has contributed to his drug addiction. [14] There were mitigating factors in this case. The appellant entered pleas of guilty on both sets of charges. He expressed some remorse for his role in the terrible violence inflicted on the victim. He spent his time awaiting sentencing constructively, receiving treatment for his addiction, and finishing high school. However, the trial judge found that these considerations were outweighed by the serious injuries suffered by the victim. [15] The appellant does not in any way suggest that the original sentence imposed was unfit. [16] The COVID-19 pandemic does not impel us to intervene and disturb a sentence that is fit: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089. We adopt the approach from R. v. Morgan , 2020 ONCA 279, in which this court recognized the impact of this virus on our society, at para. 8: We do, however, believe that it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission. [17] However, there is nothing about the particular circumstances of the appellant’s incarceration, nor any indication of a unique or personal vulnerability, that would justify shortening the fit sentence that was imposed. [18] We were advised that the appellant was denied parole on February 20, 2020. However, his statutory release date is fast approaching, on June 8, 2020 and he will likely be out of the prison environment by then. Disposition [19] Leave to appeal sentence is granted, but the appeal is dismissed. “J.C. MacPherson J.A.” “Gary Trotter J.A.” “G. Pardu J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Leclair, 2020 ONCA 230 DATE: 20200519 DOCKET: C66523 Hoy A.C.J.O., Nordheimer and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Appellant and Jean-Paul Leclair Respondent David Friesen, for the appellant Howard L. Krongold, for the respondent Heard: March 12, 2020 On appeal from the acquittal entered by Justice Hugh R. McLean of the Superior Court of Justice, dated January 17, 2019. REASONS FOR DECISION [1] The respondent was acquitted of three counts of fraud over $5000. The Crown appeals his acquittal in relation to the first count, which involved the construction of an arena in Edmonton. It argues that the trial judge erred in law in his approach to the mens rea for fraud. [2] The respondent was hired by Hendrix Hotel and Restaurant Equipment Supplies Ltd. (“Hendrix”) to build and install refrigeration units for the arena. He submitted an initial invoice for what the trial judge characterized as a deposit. He admitted he subsequently lied to Hendrix about his progress and then submitted further invoices, although his evidence was that the last two invoices were submitted in error. His business was facing cash flow problems and he used amounts paid by Hendrix to fund other projects. He was hoping that one of these projects would generate the funds necessary for him to stay on schedule for the arena job, but it did not. The trial judge found that the Crown had not satisfied the mens rea requirement because the respondent “felt that he could get himself out of this situation”. [3] R . v. Théroux , [1993] 2 S.C.R. 5, makes clear, at p. 20, that the mens rea of fraud is established by proof of: 1. subjective knowledge of the prohibited act, be it an act of deceit, a falsehood or some other fraudulent means; and 2. subjective knowledge that the prohibited act could have, as a consequence, the deprivation of another (which deprivation may consist in knowledge that the victim’s pecuniary interests are put at risk). [4] As McLachlin J. wrote, at pp. 23-24, a person cannot escape criminal responsibility “because of a sanguine belief that all will come out right in the end. Many frauds are perpetrated by people…who sincerely believe that their act of placing other people’s property at risk will not ultimately result in actual loss to those persons.” [5] The respondent properly concedes that the trial judge erred in law in his approach to the mens rea for fraud. However, the respondent argues that the Crown seeks to overturn the acquittal based on a different theory of guilt than what he says is the narrow basis it chose to advance at trial. [6] As the respondent argues, the Crown is barred from securing a new trial based on a new theory of liability out of concerns over fairness to the accused and the principle against double jeopardy enshrined in s. 11(h) of the Canadian Charter of Rights and Freedoms : R. v. Barton , 2019 SCC 33, 435 D.L.R. (4th) 191, at para. 47. But we are not persuaded that the Crown seeks to advance a different theory of guilt. [7] A review of the submissions as a whole indicates that both counsel tried to convey the correct approach to the mens rea for fraud, but had great difficulty in doing so because of the manner in which the trial judge was directing the discussion. The exchange between the trial judge and the Crown at the end of the submissions suggests that the Crown invited the trial judge to acquit if he had a reasonable doubt that the respondent knew that he could not complete the Hendrix contract on schedule. We do not think that this is a fair reading of the Crown’s submissions as a whole given her attempts throughout her submissions to articulate the correct approach.  We are satisfied that the Crown endeavoured to convey the correct approach to the mens rea for fraud to the trial judge, including that being “hopeful” that he could follow through on the project would not permit the respondent to evade criminal liability, and that subjective knowledge of a risk of deprivation is sufficient. [8] To set aside an acquittal, the burden is on the Crown to satisfy the court to a reasonable degree of certainty that, but for the trial judge’s error, the verdict would not necessarily have been the same: R. v. Graveline , 2006 SCC 16, [2016] 1 S.C.R. 609, at paras. 14-16; R. v. Button , 2019 ONCA 1024, at paras. 15-16. On these facts, we are satisfied to a reasonable degree of certainty that, had the trial judge not erred in his approach to the mens rea , he would not necessarily have acquitted. [9] While the Crown submits that this court should enter a conviction, we decline to do so because we are not persuaded that the factual findings of the trial judge support a conviction beyond a reasonable doubt: R. v. Katigbak , 2011 SCC 48, [2011] 3 S.C.R. 326, at paras. 50-52; R. v. McRae , 2013 SCC 68, [2013] 3 S.C.R. 931, at para. 39 . The power to substitute an acquittal for a conviction should only be used in the clearest of cases, and here, the trial judge made no clear factual findings about the respondent’s subjective knowledge of the risk of deprivation. [10] Accordingly, the appeal is allowed, and a new trial on the first count is ordered. “Alexandra Hoy A.C.J.O.” “I.V.B. Nordheimer J.A.” “Harvison Young J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, 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. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. M.D., 2020 ONCA 290 DATE: 20200514 DOCKET: C65149 Feldman, Harvison Young and Jamal JJ.A. BETWEEN Her Majesty the Queen Respondent and M.D. Appellant Howard L. Krongold, for the appellant Catherine Weiler, for the respondent Heard: November 27, 2019 On appeal from the conviction entered by Regional Senior Judge Calum U. C. MacLeod of the Superior Court of Justice on November 16, 2017, with reasons reported at 2017 ONSC 6776. Feldman J.A.: A. Overview [1] The appellant, M.D., was convicted following a judge-alone trial of one count of sexual assault, contrary to s. 271 of the Criminal Code . The central issues at trial were consent and honest but mistaken belief in consent. [2] On this appeal, the appellant raised a number of grounds of appeal relating to the trial judge’s reasons for disbelieving the appellant. It is not necessary to address all of the grounds because I would allow the appeal on the first ground and order a new trial. [3] As one reason for rejecting the appellant’s evidence, the trial judge stated that he “formed the impression” that “many of [the appellant’s] answers were tailored precisely to the evidence he knew would be forthcoming or to the forensic disclosure”: at para. 47. It was an error of law for the trial judge to criticize the appellant and impugn his credibility on the basis that his evidence responded to Crown evidence at trial (or at the preliminary hearing), when the appellant was constitutionally entitled to receive Crown disclosure and be present at his trial. B. Factual Background [4] The complainant was a 19-year-old university student who had recently been hired by the appellant, a bar manager, to work as a hostess at the bar. From the outset of the employment relationship, the appellant made sexually suggestive references toward the complainant in person and over private messages on various social media platforms, as part of a pattern of behaviour that the trial judge characterized as “predatory”: at para. 27. In text messages, the appellant requested that the complainant wear revealing clothing at work, including no underwear. Following her second shift, he asked her to send him revealing photographs of herself. [5] The complainant acknowledged flirting with the appellant, but she testified that in order to succeed in the bar industry, it was important for the bar manager to like her and staff her on more shifts. [6] The allegations forming the basis of the appellant’s criminal charges occurred on the night of February 15, 2015, during the complainant’s fifth shift at the bar. That night, the appellant gave the complainant the opportunity to train as a bartender, a much more lucrative position, during a private event. Before the shift began, the appellant texted the complainant about wearing “something hot” during her shift. Video footage of the bar shows the appellant and complainant flirting and touching throughout the night, but the footage ends before the assault allegedly occurred. [7] Because the trial turned on the credibility of the two accounts of what occurred, it is important to set out both versions. [8] The complainant testified that she consumed about ten one-ounce shots of alcohol between 10:30 p.m. and 12:30 a.m. that evening, five with the appellant. At one point he asked for her phone and she gave it to him. Shortly before 1:30 a.m., she asked the appellant for permission to go upstairs to get some candy from her coat pocket and tripped on the way up. At the top of the stairs she saw the appellant talking to another man, she went over to say hi and to get her phone back. After the other man walked away, the appellant took out the phone and went through her videos and photos, which included one of the complainant having sex with her boyfriend. She tried to grab the phone but he held it out of her reach. She then began vomiting in her mouth, and went into the washroom where she vomited into the toilet. The appellant came in behind her and shut the door. He began rubbing her back and kissing her neck. She felt drunk and sick and was not able to speak or move. Once she stopped vomiting, she closed the toilet seat. The appellant performed oral sex on her as she lay on her back on the floor, without saying anything. He then turned her over and penetrated her from behind. She was in and out of consciousness. He then stopped and told her to clean herself up; they would get back to work and finish this later. She locked the door behind him and looked for her underwear which was gone. She did not consent to the sexual activity. [9] She remained in the bathroom to gather herself, then went to the coat check to get her coat and down to the bar for her boots and purse. She saw the appellant outside, got her phone back, and took a taxi over to a nearby bar where her boyfriend was working. She arrived around 2 a.m. upset and crying. She threw up there as well. When she told her boyfriend that the appellant had forced himself on her in the bathroom, her boyfriend used her phone to text the appellant accusing him of the attack. At 5 a.m., the complainant’s boyfriend drove her to the hospital to have a sexual assault kit performed. She reported the assault to the police some weeks later. [10] The appellant testified and told a different story. He said that while they were working downstairs, he asked the complainant when he was going to see the naked photos of her on her phone. She first showed him some photos downstairs at the bar, then they went upstairs and she showed him more photos and two videos, including a video of her having sex. At that point he held the phone so he could see the video more clearly. Then she led him by the hand into the washroom. She spat a few times into the toilet, he asked if she was ok, and she said she was. [11] The appellant testified that he sat down on the toilet and the complainant pulled down her shirt to expose her breasts. She told him he was going to see what he saw in the photos, then allowed him to remove her underwear. She put her leg up onto the toilet. He inserted his finger into her vagina and engaged in cunnilingus. When she stopped responding to him, he determined that she was too drunk, like she had “hit a wall”, so he stopped. He picked up her underwear, he said, so she would not be embarrassed if someone came in and saw the underwear. He went down and brought back a bottle of water. He recalled smoking a cigarette outside and that the complainant came and asked for her phone back. He texted her later asking if she had left. He also responded to her boyfriend’s text denying that he had forced himself on the complainant. [12] As part of the complainant’s sexual assault kit, blood samples were taken at the hospital at 8 a.m. on the morning following the alleged assault. At that time, she had a blood alcohol level of 74 milligrams of alcohol in 100 milliliters of blood. The toxicologist’s evidence was that at 1:30 a.m., the level would have been between 120 and 206 milligrams of alcohol per 100 milliliters of blood. The vaginal swab showed male DNA in trace amounts belonging to someone other than the complainant’s boyfriend. The DNA found on her underwear – a new pair that she put on at her boyfriend’s house before heading to the hospital – was a match for the appellant and amylase traces were consistent with saliva. C. Reasons of the Trial Judge [13] The trial judge found that the Crown had proven beyond a reasonable doubt that the complainant was sufficiently impaired by alcohol that she was incapable of providing consent. Moreover, despite noting some problems with the complainant’s testimony, the trial judge accepted her evidence that she did not seek out the sexual encounter or consent to it. As a consequence, even if consent were possible, it was not given or was vitiated by the appellant’s position of authority. [14] The trial judge rejected the appellant’s defence of honest but mistaken belief in consent. In order to successfully invoke this defence, s. 273.2(b) of the Criminal Code requires the appellant to have taken reasonable steps in the circumstances known to him at the time to ascertain that the complainant was consenting. The trial judge found that the appellant’s circumstances included knowledge of the complainant’s level of intoxication and the power dynamic inherent in their employment relationship. He found that the appellant had made no effort, in light of these circumstances, to assess whether the complainant was sufficiently sober to consent. [15] Although he noted that the appellant described “in elaborate detail how matters unfolded and why he believed the complainant was inviting him to touch her”, the trial judge largely rejected the appellant’s evidence that the complainant initiated the sexual activity and that it was entirely consensual: at paras. 36, 45. He gave several reasons for rejecting the appellant’s evidence, at paras. 45-47: In the first place he denied seeing the complainant vomit but he did describe her as spitting into the toilet. It is hard to imagine spitting into the toilet as a prelude to a sexual encounter and his clear need to downplay the event by describing it as “spitting” did not have a ring of truth. Similarly he had no convincing explanation of why he took the complainant’s underwear. He was evasive on that point and the suggestion made by the Crown that he took the underwear as a trophy seems the most likely explanation. He had no good answer for why he could not have taken the complainant into his office which was right next to the washroom if this was consensual sexual activity. Finally his evidence that she was initially not too intoxicated to consent but then suddenly “hit a wall” and became too intoxicated is not credible and is too dependent on split second assessment as she succumbed to the effects of alcohol to have any air of reality. While credibility of evidence cannot be assessed purely [by] demeanour, observation of the accused and the manner in which he testified is a useful tool. I found the evidence of the accused to be delivered in a manner that was bordering on glib. He was clearly an intelligent and sophisticated witness who admitted that many of his activities were immoral, wrong and perhaps even illegal but he did so with no real conviction. I formed the impression that many of his answers were tailored precisely to the evidence he knew would be forthcoming or to the forensic disclosure. His vagueness about the number of drinks he knew the complainant had drunk, the precise timing of her blackout and his inability to describe what happened to the complainant after he left her alone in the bathroom left me entirely unconvinced. D. Issues [16] The appellant raises the following issues on the appeal: 1) The trial judge erred in law by rejecting the appellant’s evidence on the basis that he seemed to have tailored his testimony to the evidence he knew would be forthcoming and to the disclosure; 2) The trial judge erred by misapprehending the evidence of the appellant and the toxicologist on a number of issues; 3) The trial judge erred by applying an objective test to the appellant’s defense of honest but mistaken belief in consent; and 4) The trial judge applied uneven scrutiny to the evidence of the appellant and that of the complainant. [17] I would allow the appeal on the basis of the first ground of appeal and find it unnecessary to address the other three grounds. E. Analysis (1) The trial judge’s impugned finding [18] Among his reasons for rejecting the appellant’s evidence, the trial judge referred to his impression that the appellant’s testimony was “tailored precisely to the evidence he knew would be forthcoming or to the forensic disclosure”: at para. 47. [19] The trial judge did not elaborate on this comment with specific examples. However, the appellant had attended a preliminary inquiry, he had received Crown disclosure, and he heard the evidence of all the Crown witnesses including the toxicologist and the DNA expert. Due to a procedural anomaly, the accused first testified on a pre-trial voir dire having already heard the testimony of the toxicologist and the DNA expert. The DNA evidence confirmed that the appellant had performed oral sex on the complainant and deposited his DNA in her vagina, but not that they had had intercourse. On the voir dire , the appellant admitted in his evidence that he performed cunnilingus on the complainant and that he digitally penetrated her, but denied that he had had intercourse with her, as she claimed. The Crown suggests that the trial judge was merely referring to this procedural anomaly, which allowed the appellant to “tailor” his voir dire testimony having benefitted from knowing the DNA evidence, and to then keep his evidence consistent when he subsequently testified in the trial proper. [20] Regardless of the reason the trial judge drew this conclusion, he fell into legal error by using the appellant’s presence at his trial and his receipt of Crown disclosure against him. (2) Case law on “tailoring” [21] This court has discussed and explained this issue in a number of cases and contexts, including in R. v. G.V. , 2020 ONCA 291, released concurrently with these reasons. [22] The issue first arose in relation to Crown cross-examination of the accused regarding the disclosure, during jury trials. In R. v. White (1999), 132 C.C.C. (3d) 373 (Ont. C.A.), and in R. v. Schell (2000), 148 C.C.C. (3d) 219 (Ont. C.A.), the Crown had tried to suggest to the accused in cross-examination that his answers were formed based on his knowledge of Crown disclosure. [23] In White , Doherty J.A. acknowledged the basic logic underlying an allegation that the accused tailored his evidence to the disclosure, but explained that cross-examination of the accused suggesting such reasoning is improper and potentially prejudicial, stating, at para. 20: “That inference, no matter how logical, cannot be drawn without turning fundamental constitutional rights into a trap for accused persons.” He directed trial judges to ensure that such any such inference in cross-examination be eradicated: at para. 20. As the trial judge in that case had given immediate instructions to the jury to undercut the improper suggestion put forth by the Crown, the appeal was dismissed. [24] In Schell , the following year, Rosenberg J.A. repeated the same admonition against the Crown’s insinuation, in cross-examination and in a closing address, that the accused was tailoring his evidence to the disclosure he had received and the testimony he had heard. Rosenberg J.A. stated, at para. 57: “It was wrong and unfair for Crown counsel to attempt to exploit the appellant’s exercise of his rights.” [25] This court has applied similar reasoning in the context of judge-alone trials. In R. v. Thain , 2009 ONCA 223, 243 C.C.C. (3d) 230, the trial judge’s analysis of the credibility of the accused included the observation that the appellant’s testimony came “long after disclosure was available to him and having regard to the totality of the evidence”: at para. 15. On appeal, this court approached the case as one of first instance, given that the issue was not improper Crown use of disclosure against the accused, but improper use of it by a trial judge in his reasons. [26] In his analysis, Sharpe J.A. noted two circumstances where, contrary to the general principle, the Crown may cross-examine an accused regarding disclosure: Thain , at para. 24. One such situation arose in White , where the accused used telephone records produced prior to trial to assist with times and dates of meetings with the complainant, and the Crown was entitled to bring out that he had had access to the records before testifying: see White , at para. 22; R. v. Cavan (1999), 139 C.C.C. (3d) 449 (Ont. C.A.), at para. 45, leave to appeal refused, [1999] S.C.C.A. No. 600; R. v. Kokotailo , 2008 BCCA 168, 232 C.C.C. 279, at paras. 53-58. Similarly, the Crown may cross-examine the accused on disclosure to substantiate a claim of recent fabrication or concoction of an alibi by the accused: see R. v. Khan (1998), 126 C.C.C. (3d) 523 (B.C.C.A.), at paras. 51-52, leave to appeal refused, [2001] S.C.C.A. No. 126; R. v. Marshall (2005), 77 O.R. (3d) 81, at paras. 69-75, leave to appeal refused, [2006] S.C.C.A. No. 105. [27] Sharpe J.A. also referred to R. v. Peavoy (1997), 34 O.R. (3d) 620 (C.A.), in which the Crown argued in its closing address to the jury that the accused had concocted his evidence after receiving disclosure, but never put that proposition to the accused. The court found the Crown’s conduct unfair and prejudicial both because of the misuse of disclosure against the accused and the failure to give the accused the opportunity to respond to the charge of recent fabrication: Peavoy , at p. 625. [28] Taking this jurisprudence into account, Sharpe J.A. found that the trial judge in Thain had no legal basis to use the fact of receiving disclosure against the accused. None of the exceptions applied, nor had the Crown ever suggested to the accused that he recently fabricated his evidence. Any comment on the accused’s use of the disclosure thus first emerged in the trial judge’s reasons. In these circumstances, Sharpe J.A. concluded, at para. 29, that in a judge-alone trial, fairness is undermined if the accused has no opportunity to respond to allegations of fabrication on the basis of Crown disclosure: In my view, the fact that the accused enjoyed his constitutional right to disclosure had no bearing on his credibility in this case and the trial judge erred in law by stating that it did. Even if the disclosure might possibly have had a bearing on credibility, trial fairness demanded that the accused be confronted with the suggestion and afforded the opportunity to refute it or make submissions before being disbelieved on that account. [29] The issue arose again in R. v. Jorgge , 2013 ONCA 485, 4 C.R. (7th) 170, another sexual assault trial by judge alone. In her reasons for judgment dealing with her credibility assessment of the accused, the trial judge discounted his evidence because he had had the benefit of listening to the legal arguments presented by his counsel and by the Crown and therefore understood the issues at stake: 2010 ONSC 8038. At paras. 10-14 of her reasons, she made several comments that were the subject of the accused’s appeal to this court: Mr. Jorgge had the benefit of listening to the various arguments raised by his counsel at the voir dire . He also understands now that consent to sexual relations means more than a woman not protesting as sexual activity progresses. I conclude that this evidence given by Mr. Jorgge at the trial when he said “that unless I gave him something, I was never going to get out of there” was evidence carefully tailored to fit the arguments raised by the Crown and his counsel during the voir dire . I conclude that the evidence given by Mr. Jorgge in his statement about the sexual activity that took place on July 18, 2008, and in particular whether Ms. R. was moving or was inert as she was sleeping or passed out, is truthful. I conclude that his commentary given at the trial is simply an attempt by Mr. Jorgge to distance himself from any concessions made in the statement relevant to the issue of consent now that Mr. Jorgge has a better understanding of the issues. I conclude that his evidence given at the trial, when it conflicts with his prior statement, is an attempt to challenge the ruling as to the voluntariness of his statement after hearing the capable arguments of his counsel. In drawing this conclusion I have considered all of the statement and all of Mr. Jorgge’s evidence at this trial. [30] While this court again acknowledged that there may be a “natural temptation” to reason in the way the trial judge did, that temptation must be resisted: at para. 12. It subverts an accused’s statutory right and obligation to be present at his or her trial under s. 650(1) of the Criminal Code , which is grounded in the guaranteed Charter rights to a fair trial and to make full answer and defence: ss. 7 and 11(d). In Jorgge , this court explained that a trial judge is entitled to consider inconsistencies between an accused’s statement to police and his testimony at trial, but may not attribute any such inconsistencies to the accused’s presence at the voir dire . (3) Application of the case law [31] This case law applies with full force to the reasons given by the trial judge in this case. The trial judge fell into the same error as in the cases discussed by discounting the appellant’s credibility on the basis that he “tailored” many of his answers to the case against him, which he knew from being present during the proceedings and from the disclosure. This reasoning, as in the previous cases, turned the appellants’ constitutional rights into an evidentiary trap. [32] The Crown referred the court to two cases that it submits may contradict the other authorities: R. v. Brown , 2018 ONCA 9, and R. v. Roble , 2004 CanLII 23106 (Ont. C.A.). I do not regard either of these cases as undermining the statements of the law as articulated by the court in full reasons in White , Schell , Thain , and Jorgge . [33] Brown was a chambers decision denying a motion to appoint counsel under s. 684 of the Criminal Code . One of the issues the motion judge considered was the potential merit of the appeal, including the submission that the trial judge improperly found the appellant’s evidence was tailored to the disclosure he had received. More specifically, the trial judge said that “his answers had the air of being scripted, practiced and tailored”: Brown , at para. 14. On the s. 684 application, the motion judge commented that if the trial judge’s statement was made in response to the Crown’s closing submissions which referenced disclosure, then the trial judge’s statement could be problematic, but not “if the trial judge was referring to testimony being scripted to the Crown’s case at trial”: at para. 14. The Crown relies on the latter comment. [34] In Brown , the motion judge was acknowledging that the applicant had an arguable ground of appeal, but one that required closer examination of the record in the context of the parties’ positions and submissions at trial. I do not read his comment as intended to depart from the jurisprudence I have referred to. He was responding to the parties’ submissions, not articulating a general statement of law. [35] Roble was a brief, six-paragraph endorsement by this court. One issue was whether the trial judge applied a different standard of scrutiny to the evidence of the appellant. In rejecting that submission, the court commented that the trial judge was entitled to find that the accused was “tailoring his evidence to fit the events described” and that his specific explanations of various counts were tailored, well thought out and convoluted: at paras. 4-5. [36] In his reasons, the trial judge in Roble characterized the accused’s evidence as “ well thought out; scripted”: 2002 CarswellOnt 5994 (S.C.), at para. 41. For example, on one count, the complainant alleged that the accused butted her face and eye with a cigarette. The trial judge found the accused’s testimony that a woman with a cigarette slapped the complainant to be “incredulous and another attempt to tailor his evidence”: at para. 47. Rather than use the accused’s presence in court and access to disclosure as the starting point for impeaching his credibility, the trial judge focused on the internal implausibility of the accused’s account of the events. It cannot be said that he turned the accused’s enjoyment of his constitutional rights into a trap within the credibility analysis. Moreover, the issue on appeal was uneven scrutiny of the evidence, and this court did not consider whether the trial judge’s analysis undermined the appellant’s right to be present at the trial and to make full answer and defence. (4) Conclusion [37] For these reasons, I find that the trial judge fell into legal error when he reasoned that the appellant “tailored” his testimony “to the evidence he knew would be forthcoming or to the forensic disclosure.” That inference tainted the trial judge’s legal analysis and conclusion. [38] The Crown submits that if the court finds an error, it should apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code . The Crown argues that the tailoring point was only one of many reasons the trial judge gave for rejecting the appellant’s evidence, and that it was near the bottom of the list and therefore less significant to the trial judge’s analysis. [39] A similar request was made and rejected in Thain : at para. 38. As in Thain , I would not apply the proviso in this case, which turned on the trial judge’s credibility findings. While the tailoring issue was only one of the concerns the trial judge had with the appellant’s testimony, there is no basis to believe it was an unimportant one, particularly because the trial judge stated that many of the appellant’s answers appeared to be tailored to the disclosure and the evidence he knew was coming. This error is far from harmless. It goes to the heart of trial fairness and the right to make full answer and defence. F. Disposition [40] I would allow the appeal, set aside the conviction, and order a new trial. [41] Because of the COVID-19 emergency, the panel relieved the appellant from the term of his bail that requires him to surrender into custody prior to this decision being released. Released: “K.F.” May 14, 2020 “K. Feldman J.A.” “I agree. Harvison Young J.A.” “I agree. M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. McNeill, 2020 ONCA 313 DATE: 20200526 DOCKET: C64688 & C64907 Feldman, Tulloch and Jamal JJ.A. DOCKET: C64688 BETWEEN Her Majesty the Queen Respondent and Desiree McNeill Appellant DOCKET: C64907 AND BETWEEN Her Majesty the Queen Respondent and John Waechter Appellant Ryan Heighton, for the appellant Desiree McNeill Andrew Menchynski, for the appellant John Waechter Brendan Gluckman, for the respondent Her Majesty the Queen Heard: December 3, 2019 On appeal from the convictions entered on August 1, 2017 by Justice Robert J. Nightingale of the Superior Court of Justice, sitting without a jury, and from the sentence imposed on the appellant John Waechter on November 17, 2017. Jamal J.A.: A. overview [1] If a search warrant authorizes the police to seize and examine any cellphone found in a garage used as a hub for drug trafficking, must the police obtain a second warrant to examine a seized cellphone belonging to someone who was not a target of the investigation? That is a central issue raised in these appeals. [2] The appellants, John Waechter and Desiree McNeill, appeal their convictions of jointly possessing heroin and crystal methamphetamine for the purpose of trafficking. The police had Waechter under surveillance for suspected drug trafficking. When they executed a search warrant at a garage in Cambridge, Ontario, they found Waechter, McNeill, and three other individuals inside, together with a large quantity of drugs. [3] The search warrant expressly authorized the police to seize electronic devices from the garage and to examine them based on the drug offences under investigation. The police seized Waechter’s cellphone directly from him. They also seized what they later learned was McNeill’s cellphone from a coffee table near where she was sitting in the garage. A post-seizure examination of the phones revealed text messages confirming that both Waechter and McNeill were engaged in drug trafficking. [4] At trial McNeill applied to exclude the evidence found on her phone because she claimed that the police breached her right to be secure from unreasonable search or seizure under s. 8 of the Canadian Charter of Rights and Freedoms . While McNeill conceded that the search warrant authorized the police to seize her phone, she argued that the police needed a second warrant to examine it, because Waechter, not McNeill, was the target of the investigation and only his privacy rights had been weighed by the justice who issued the warrant. McNeill was not even known to the police officers conducting the investigation when they obtained the warrant. The trial judge rejected this argument, admitted the evidence from McNeill’s phone, and convicted both McNeill and Waechter. [5] McNeill now appeals the decision to admit the evidence from her phone, and both McNeill and Waechter appeal the reasonableness of their convictions. [6] As I explain below, I have concluded that the police did not violate McNeill’s rights under s. 8 of the Charter when they examined her phone. The information to obtain (“ITO”) in support of the warrant contained sufficient information to permit the authorizing justice to find that there were reasonable and probable grounds to believe that any electronic devices found in the garage – including what turned out to be McNeill ’s phone – would contain evidence of the drug trafficking offences under investigation. McNeill did not need to be a target of the investigation, and the police did not need to obtain a second warrant to examine her phone. [7] I have also found no basis to challenge the reasonableness of the convictions. The trial judge, acting judicially, could have been satisfied of the guilt of McNeill and Waechter as the only reasonable conclusion available on the totality of the evidence. [8] Waechter had also sought leave to appeal his sentence if this court found his convictions on some counts to be unreasonable. Because of my conclusion on the reasonableness of the convictions, I need not address this issue. [9] I would therefore dismiss both appeals. B. background The search warrant [10] The Waterloo Police Service obtained a search warrant dated November 12, 2015 under s. 11(1) of the Controlled Drug and Substances Act , S.C. 1996, c. 19 (“ CDSA ”), authorizing a search of a detached garage located on First Avenue and a house on Cedar Street, both in Cambridge, Ontario, in relation to the offences of possession for the purpose of trafficking heroin and crystal methamphetamine. [11] The warrant also authorized the police to search for and seize “Electronic Devices”. The warrant’s “Terms and Conditions” expressly authorized the police to conduct post-seizure examinations of those devices “based on the offences set out in this warrant”, in relation to the following data: · Electronic Communications between September 1, 2015 and November 12, 2015; · Incoming, outgoing, and missed call logs; · Audio, video, and still photograph files; · Any location services; · Data related to the use, ownership, and access of the phone; and · Data related to the configuration of the mobile phone, including internal and external system or program configuration. The information to obtain the warrant [12] The ITO, sworn by Constable Palubiski, set out the grounds of the police for seeking the warrant. Based on surveillance and information from five confidential informants, the police believed that Waechter was trafficking in heroin and crystal methamphetamine from a garage on First Avenue and that he was using his mother’s home on Cedar Street as a stash house to store drugs and cash. The key evidence described in the ITO can be summarized as follows: · In the summer of 2015, the police began investigating Waechter for suspected drug trafficking at an address on Lowrey Avenue, Cambridge. The police had him under surveillance and believed that they saw him conduct drug transactions at or near this address. On September 1, 2015, the police executed a search warrant at the Lowrey Avenue address, arrested six people (none of whom was Waechter), and seized crystal methamphetamine, heroin, crack cocaine, and marijuana. · In October 2015, five confidential informants told the police that Waechter was trafficking heroin and crystal methamphetamine from a trailer or garage at the First Avenue address. This information appeared to be corroborated by police surveillance in October and November 2015. · In late October 2015, over two days, the police saw at least 18 people enter and leave the First Avenue garage after a short time inside. Some of these people were known to the police from past drug investigations as drug purchasers or addicts. As a result, the police believed that the people entering and leaving the garage were buying heroin and crystal methamphetamine from Waechter. · The police also saw a woman frequenting the garage. They believed that she was Waechter’s drug courier who moved drugs and money between the garage and the suspected stash house on Cedar Street. · Three of the confidential informants told the police that Waechter had one or more cellphones. They gave the police the numbers of two of these phones. Officer Palubiski stated that, in his experience, drug traffickers use electronic devices to conduct drug deals and to store information, including contacts, photographs, videos, and debt lists. He believed that Waechter used a cellphone for drug transactions. The execution of the warrant [13] On November 12, 2015, the police executed the search warrant at the garage and the Cedar Street residence. [1] [14] The garage was cluttered and messy – a maze of furniture, piled drywall, and bicycles. A narrow passageway ran from the front of the garage to the back. Because of the clutter, it was hard to see the back of the garage from the front. [15] The police found Waechter in the front of the garage with another individual (who had heroin on him and later pleaded guilty to possession for the purpose of trafficking heroin). In the back, in an area with two couches and some coffee tables, the police found McNeill (who was unknown to the officers) and two others (both of whom have since died). At the back of the garage the police also found most of the drugs seized, including: · an open small black safe containing three bags of heroin (95.38 grams, 8.04 grams, and 13.44 grams), a bag of crystal methamphetamine (8.04 grams), empty Ziploc bags, and a weighing scale; · a dark grey plastic bag containing two bags of heroin (101.77 grams and 100.82 grams); · a container of heroin (2.56 grams); and · a bag containing crystal methamphetamine (3.83 grams), a container of heroin (1.06 grams), and Ziploc bags containing marijuana (25 grams) and cannabis resin (1.03 grams). [16] The street value of the heroin seized was between $34,600 and $97,000 and the street value of the crystal methamphetamine seized was between $1,024 to $1,281, depending on the weight at which they were sold. [17] At the back of the garage the police also found a large plastic bag containing colostomy bags. When Waechter was arrested, he had a colostomy bag attached to him because of a medical condition. In the same area the police found Waechter’s bank statement and wallet, which contained his health card and $1,862 cash. [18] The police also seized four electronic devices from the garage: Waechter’s cellphone (which he had on him); McNeill’s cellphone (which was on a coffee table in front of the couch where she was sitting, but was only confirmed as hers after it was forensically examined); a Samsung tablet; and an iPad. [19] Post-seizure forensic examinations of McNeill and Waechter’s cellphones revealed text messages – including to each other – that undeniably confirmed that both of them were engaged in drug trafficking. The voir dire ruling [20] The trial judge dismissed McNeill’s application to exclude her text messages as evidence for an alleged breach of her rights under s. 8 of the Charter . He ruled that the ITO provided reasonable and probable grounds for the warrant, including its Terms and Conditions, which authorized the police to conduct a post-seizure examination of any electronic device found during the search based on the offences set out in the warrant. He also found that the police did not need to specifically identify McNeill as a target in the ITO, nor did they need to get a second warrant to search her phone. The trial judge therefore found no breach of s. 8. [21] He added that, even had he found such a breach, he would have admitted the evidence under s. 24(2) of the Charter . The trial decision [22] The only issue at trial was whether McNeill and Waechter had constructive possession of the drugs; both conceded that, if they did, the quantity of drugs found confirmed that their possession was for the purpose of trafficking. [23] Based on the totality of the evidence, the trial judge concluded that the only reasonable inference was that McNeill and Waechter jointly possessed the heroin and crystal methamphetamine found in the garage for the purpose of trafficking: (i) Waechter conceded, and his text messages confirmed, that he had been trafficking drugs from the garage before the search; likewise McNeill conceded, and her text messages confirmed, that she had been trafficking as recently as the morning of the search; (ii) the drugs were found near McNeill and in plain view, with Waechter’s colostomy bags and wallet nearby; (iii) Waechter was observed using what looked like a key to enter the garage and text messages between him and McNeill corroborated that he had a key to the garage; and (iv) the presence of others did not detract from the only reasonable conclusion that McNeill and Waechter were jointly in constructive possession of the drugs for the purpose of trafficking. C. ANALYSIS [24] These appeals raise two main issues. The first issue arises only in McNeill’s appeal; the second issue arises in both appeals: 1. Did the examination of McNeill’s cellphone under the warrant violate s. 8 of the Charter ? 2. Were the convictions of McNeill and Waechter reasonable? [25] McNeill also argues that, if the examination of her cellphone breached s. 8 of the Charter , the evidence obtained from that examination should have been excluded under s. 24(2). Given my conclusion on the first issue, I need not address this argument. Issue 1: Did the examination of McNeill’s cellphone under the warrant violate s. 8 of the Charter ? [26] McNeill’s challenge to the search warrant is narrow. She concedes that the warrant authorized the police to seize her cellphone, but claims that the police infringed her s. 8 Charter rights by examining it after it was seized. She submits that the warrant was unconstitutionally overbroad by purporting to authorize a post-seizure examination of any electronic device found during the search, because the issuing justice could not have been satisfied that there were reasonable grounds to believe that the examination of any electronic device in the garage would afford evidence of the offences. She also claims that the issuing justice did not consider her privacy interests when issuing the warrant because she was not a target – indeed, the investigating officers did not even know about her until they searched the garage. [27] McNeill also notes that, in R. v. Vu , 2013 SCC 60, [2013] 3 S.C.R. 657, the Supreme Court held that the search of a computer requires specific pre‑authorization. To be consistent with Vu , she says that the police should have obtained a second warrant to forensically examine her phone, a two-step procedure mentioned in Vu itself. She also asserts, more broadly, that this is now constitutionally required whenever cellphones of unknown ownership are seized: a first warrant to seize a cellphone; and a second warrant to forensically examine it. [28] As I will explain, I do not accept this submission. I will first address the standard of review of the issuance of the CDSA warrant. I will then explain why the issuing justice could find that the ITO provided reasonable and probable grounds to authorize a forensic examination of any electronic device found during the search of the garage, including McNeill’s cellphone; why the ITO did not need to identify McNeill specifically as a target; and why a second warrant or two-step procedure was not constitutionally required in this case. (a) The standard of review for the issuance of the CDSA search warrant [29] McNeill asserts that the warrant was unconstitutionally overbroad on its face by purporting to authorize the post-seizure examination of any cellphone found during the search of the garage. She also asserts that the date range (September 1, 2015 to November 12, 2015) in the warrant’s Terms and Conditions for the search of electronic communications was arbitrary and overbroad. These arguments require consideration of the standard of review for a facial challenge to a search warrant. [30] As stated in R. v. Sadikov , 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 37, “[a] facial validity challenge requires the reviewing judge to examine the ITO and to determine whether, on the face of the information disclosed there, the justice could have issued the warrant” (emphasis in original). This requires the reviewing judge to consider: (i) the statutory threshold for issuing the warrant; and (ii) whether the issuing justice could have concluded that this threshold was met. [31] Here, the warrant was issued under s. 11(1) of the CDSA . This provision provides that, on ex parte application, a justice who is satisfied by information on oath that there are reasonable grounds to believe that a controlled substance or any “thing” that will afford evidence of an offence under the CDSA is in a place may issue a warrant authorizing a peace officer to search the place for such controlled substance or thing and to seize it. [32] The standard of “reasonable grounds to believe” does not require proof on a balance of probabilities, but rather only a credibly-based probability: Hunter v. Southam Inc. , [1984] 2 S.C.R. 145, at p. 167; Sadikov , at para. 81. The ITO must provide “reasonable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the proposed search. … If the inferences of criminal conduct and recovery of evidence are reasonable on the facts disclosed in the ITO, the warrant could be issued”: Sadikov , at para. 81; see also R. v. Jacobson (2006), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22. [33] In making this evaluation, the issuing justice considers the ITO as a whole, in a common sense, practical, non-technical way, and may draw reasonable inferences from its contents: Sadikov , at para. 82; Vu , at para. 16. The record on a facial challenge is limited to the ITO: Sadikov , at para. 37; R. v. Wilson , 2011 BCCA 252, 272 C.C.C. (3d) 269, at para. 39. [34] A court later reviewing the issuance of a warrant does not substitute its opinion for that of the issuing justice. It instead asks whether “there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued”: Sadikov , at para. 84; R. v. Morelli , 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40; and R. v. Araujo , 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54. This involves the reviewing court asking “whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search”: Sadikov , at para. 84; Morelli , at para. 40. [35] I now turn to apply this standard to the ITO in this case. (b) Could the issuing justice have found that the ITO provided reasonable and probable grounds to examine any electronic device found in the garage? [36] There is no debate that Vu requires the police to have specific, prior authorization to search a computer. The issue is whether the ITO provided constitutionally sufficient grounds to support the search of any electronic device found in the garage, including McNeill’s cellphone. In other words, was the warrant constitutionally sound? The answer is found in the record. To understand why this is so, it is worth recapping the salient parts of the Supreme Court’s ruling in Vu . [37] In Vu , the Supreme Court updated the traditional legal framework for search and seizure to protect the unique privacy interests raised by computer searches, including searches of cellphones. Cromwell J., writing for the Court, ruled that computers are unlike physical receptacles, such as cupboards or filing cabinets, which can be searched under a search warrant authorizing the search of a place, without specific, prior authorization to search the particular receptacle. Computer searches create particular privacy concerns that call for specific prior authorization: at paras. 2, 39, 48, 51. These privacy concerns arise because of the immense amount of personal information that computers can store, often automatically generated and retained even after a user thinks it is destroyed, and often shared by different users and stored almost anywhere in the world: at paras. 40-45. [38] Cromwell J. therefore held, at para. 2, that “[o]ne cannot assume that a justice who has authorized the search of a place has taken into account the privacy interests that might be compromised by the search of any computers found within that place.” Cromwell J. explained that this reality imposes a requirement of specific, prior authorization for computer searches, at para. 3: In practical terms, the requirement of specific, prior authorization means that if police intend to search computers found within a place with respect to which they seek a warrant, they must satisfy the authorizing justice that they have reasonable grounds to believe that any computers they discover will contain the things they are looking for . If, in the course of a warranted search, police come across a computer that may contain material for which they are authorized to search but the warrant does not give them specific, prior authorization to search computers, they may seize the device but must obtain further authorization before it is searched. [Emphasis added.] [39] The relevant principles from Vu were reiterated by this court in R. v. Nero , 2016 ONCA 160, 334 C.C.C. (3d) 148, at paras. 158-59: A computer search requires specific pre-authorization. What this means is that if police intend to search computers or mobile communication devices found within a place with respect to which they seek a warrant, they must satisfy the authorizing justice, by information on oath, that they have reasonable grounds to believe that any computer or other mobile communication device they discover will contain the things for which they are looking: Vu , at paras. 3, 24. It follows from this requirement of pre-authorization that the ITO must contain sufficient information to permit the authorizing justice to find that there are reasonable grounds to believe that any computers or communications devices they discover on execution of the search will contain what they seek: Vu , at paras. 3, 48. [40] The trial judge here applied these principles in evaluating the constitutional and statutory sufficiency of the ITO. He found that the ITO contained sufficient credible and reliable evidence to provide reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found on any electronic devices in the garage. As he explained: [T]he ITO in this case contains sufficient information to establish a reasonably grounded belief that a search of cell phones found in the garage premises would contain evidence relevant to establish the listed drug offences. The [affiant], Officer Palu[b]iski, described the basis for his belief regarding the participation of Mr. Waechter and his drug sales of heroin and crystal meth from reliable informants, recent surveillance confirming his being involved in drug sales and also confirmed the evidence from informants regarding the usage by Mr. Waechter of two phones both of which were likely cell phones to conduct his drug business. [41] I agree that the ITO contained sufficient information to permit the issuing justice to find that there were reasonable grounds to believe that any electronic devices found in the garage would provide evidence of drug trafficking. In particular: 1. The police had Waechter under surveillance since the summer of 2015, believed that they had seen him engage in drug trafficking at another location, and had found evidence of drug trafficking during a search of that location; 2. Five confidential informants mentioned in the ITO told the police that Waechter was trafficking in heroin and crystal methamphetamine, four of whom also mentioned that he was trafficking from the First Avenue location; 3. During their surveillance the police had watched Waechter interact with known drug addicts in what appeared to be drug transactions, with many people going back and forth from the garage. They had also seen him engage with someone they suspected to be a female drug courier; 4. Three confidential informants advised the police that Waechter had one or more cellphones and gave the police the phone numbers; and 5. The officer who swore the ITO explained that, in his experience, drug dealers use cellphones to do drug deals, store contacts, and other drug-related information. [42] Cumulatively, this evidence provided reasonable and probable grounds for the issuing justice to have authorized a post-seizure examination of any electronic devices found in the garage. [43] McNeill also asserts that the date range in the Terms and Conditions of the warrant for the search of electronic communications – from September 1, 2015 to November 12, 2015 – was arbitrary and overbroad. She asserts that the ITO did not provide reasonable grounds to believe that relevant electronic evidence would be found as far back as September 1, 2015. [44] I do not accept this submission. The end date, November 12, 2015, was when the warrant was executed at the garage. The earlier date, September 1, 2015, was when the police executed a search warrant at the Lowrey Avenue address, where the police believed Waechter had formerly trafficked and where they had found drugs and arrested six people. It could reasonably be assumed that after this date Waechter moved his drug trafficking activities elsewhere. Evidence related to the move and to Waechter’s new trafficking operation from the garage could reasonably be expected to be found in Waechter’s electronic communications in September 2015. The date range was therefore neither arbitrary nor overbroad. (c) Did the ITO need to identify McNeill as a target? [45] McNeill, however, says that the ITO needed to be more specific to justify a post-seizure examination of her phone. She asserts that the issuing justice did not consider her specific privacy interests at the time of issuing the warrant because the ITO never mentioned her. She was not a target of the investigation and was unknown to the investigating officers before they searched the garage. [46] I do not accept this submission. The ITO did not need to mention McNeill or identify her specifically as a target for the warrant to authorize a search of her phone (though it should have done so had such evidence been available). McNeill’s argument reflects a misconception of the statutory requirement for the warrant and the reasonable grounds standard. The police did not have to link the electronic devices to any specific target, but rather to the offences under investigation. Section 11(1)(d) of the CDSA requires the police to demonstrate reasonable grounds to believe that the “thing” sought will afford “evidence in respect of an offence under this Act ” (emphasis added). This provision does not require the police to show reasonable grounds to believe that the thing will afford evidence about a specific target or named suspect. [47] Put another way, a search warrant is an investigative tool that should be used to unearth as much evidence as constitutionally possible about the suspected offence, rather than just evidence that incriminates a particular target because that can lead to prosecutorial “tunnel vision”. As Major J. explained in CanadianOxy Chemicals Ltd. v. Canada (Attorney General) , [1999] 1 S.C.R. 743, at paras. 15, 24: On a plain reading, the phrase “evidence with respect to the commission of an offence” is a broad statement, encompassing all materials which might shed light on the circumstances of an event which appears to constitute an offence. The natural and ordinary meaning of this phrase is anything relevant or rationally connected to the incident under investigation, the parties involved, and their potential culpability falls within the scope of the warrant. It is important that an investigation unearth as much evidence as possible. It is antithetical to our system of justice to proceed on the basis that the police, and other authorities, should only search for evidence which incriminates their chosen suspect. Such prosecutorial “tunnel vision” would not be appropriate : see The Commission on Proceedings Involving Guy Paul Morin: Report , vol. 1 (1998), per the Honourable F. Kaufmann at pp. 479-82. [Emphasis added.] [48] Here, whether or not any electronic device found in the garage belonged to Waechter, the ITO provided evidence supporting a credibly-based probability that any electronic device, if found in the garage – a suspected hub of drug trafficking – would afford evidence of the drug trafficking offences identified in the warrant . [49] This evidence included, in particular, information from multiple confidential informants that Waechter used cellphones to do drug deals; that Waechter was suspected of trafficking drugs from the garage; that many suspected drug purchasers (at least 18 of them over just two days in late October 2015) were seen going into and out of the garage for what were believed to be drug transactions; and that a suspected female drug courier was believed to be transporting drugs or cash to and from the garage. [50] It is a reasonable inference that, if Waechter used cellphones to do drug deals, the cellphones of those with whom he conducted drug deals would also contain evidence of drug trafficking. Because the garage was a suspected drug trafficking hub, and nothing else, it was similarly reasonable to infer from the information provided that anyone inside the garage (to whom any of the seized cellphones would belong) was also involved in drug trafficking, whether as seller, buyer, supplier, or courier. [51] This evidence was therefore sufficient to establish reasonable grounds to believe that the electronic devices of any persons in the garage would contain evidence of the offences under investigation, thereby justifying extending the warrant to cover any cellphone found in the garage, no matter whose. The evidence in the ITO was not limited to Waechter and the warrant did not target only him, but rather targeted the offences under investigation. [52] The issuing justice was therefore not required to consider the specific privacy interests of McNeill, who was then unknown to the police. The issuing justice was, however, required to consider the privacy interests of the class of persons whose cell phones might be seized from the garage and examined in investigating the offences at issue. Here, in view of the information presented in the ITO, I am satisfied that the issuing justice did so. (d) Were the police constitutionally required to seek a second warrant? [53] Lastly, relying on Vu , McNeill asserts that the police were constitutionally required to seek a second warrant to examine her phone even if it was lawfully seized under the warrant. [54] I do not agree with this submission. [55] I first note that, for a search warrant to extend to computers, Vu does not require the police to specifically identify in advance each computer to be searched. The police do not even need to have reasonable grounds to believe that any computers will be found in the place. The police only need to have reasonable grounds to believe that “any computers they discover will contain the things they are looking for”. As Cromwell J. for the Court explained in Vu , at paras. 48-49: Specific, prior authorization means, in practical terms, that if police intend to search any computers found within a place they want to search, they must first satisfy the authorizing justice that they have reasonable grounds to believe that any computers they discover will contain the things they are looking for. They need not, however, establish that they have reasonable grounds to believe that any computers will be found in the place , although they clearly should disclose that if it is the case. If police come across a computer in the course of a search and their warrant does not provide specific authorization to search computers , they may seize the computer (assuming it may reasonably be thought to contain the sort of things that the warrant authorizes to be seized), and do what is necessary to ensure the integrity of the data. If they wish to search the data, however, they must obtain a separate warrant. [Emphasis added.] [56] As I have discussed above, in my view, the ITO met this standard, and therefore provided constitutionally sufficient grounds to support the search of any electronic devices found in the garage. [57] In support of her argument that the police needed a second warrant to search her phone, however, McNeill relies on Cromwell J.’s comments in Vu that, in some cases, authorizing justices “may find it practical to impose conditions when police first request authorization to search”, or “might prefer a two-stage approach where they would first issue a warrant authorizing the seizure of a computer and then have the police return for an additional authorization to search the device seized”: at para. 62. But I note that these comments are framed in terms of what an issuing justice may find “practical” or what they “might prefer”. They do not, on their face, impose a constitutional requirement. [58] In this case, while the issuing justice could have authorized a seizure of any electronic devices from the garage and then required the police to return for a second warrant to search any such devices, this approach was not constitutionally mandated. That is because, as I have explained above, the ITO in this case contained sufficient information to permit the issuing justice to find that there were reasonable grounds to believe that any electronic devices found in the garage would provide evidence of drug trafficking. Because of the evidence in the ITO, a one-stage approach was constitutionally sufficient in this case. [59] The search of McNeill’s cellphone was conducted in accordance with the Terms and Conditions of the warrant and the evidence obtained related to the offences specified in the warrant. This was not a case where the police lawfully searched an electronic device pursuant to a valid warrant for one offence and discovered evidence of another: see e.g., R. v. Jones , 2011 ONCA 632, 107 O.R. (3d) 241. Different circumstances may require a further warrant to comply with s. 8 of the Charter . Conclusion [60] In conclusion, McNeill’s rights under s. 8 of the Charter were not infringed. In light of the information in the ITO, the warrant was not constitutionally overbroad for permitting the police to examine any cellphone found during the search of the garage. McNeill did not need to be named in the ITO as a target of the investigation for the warrant to authorize the police to examine her phone, nor in this case did the police require a second warrant to do so. [61] In his reasons, the trial judge explained that even if he was wrong in finding no breach of McNeill’s s. 8 Charter rights, he still would have admitted the evidence under s. 24(2). Because I would find no breach of s. 8, I need not address s. 24(2). Issue 2: Were the convictions of McNeill and Waechter reasonable? [62] The trial judge found that the only reasonable inference from the totality of the evidence was that both McNeill and Waechter were guilty of the joint possession of heroin and crystal methamphetamine for the purpose of trafficking. Because neither McNeill nor Waechter had drugs in their personal possession, the trial judge relied on their joint constructive possession of the drugs in the garage. Constructive possession is where a person knowingly has anything in any place, “whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person”: Criminal Code , R.S.C., 1985, c. C-46, s. 4(3)(a)(ii). Joint possession is “where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession”, in which case “it shall be deemed to be in the custody and possession of each and all of them”: Criminal Code , s. 4(3)(b). [63] As noted, in finding joint constructive possession the trial judge relied on the following evidence: (i) Waechter conceded, and his text messages confirmed, that he had been trafficking drugs from the garage before the search; likewise McNeill conceded, and her text messages confirmed, that she had been trafficking as recently as the morning of the search; (ii) the drugs were found near McNeill and were in plain view, with Waechter’s colostomy bags and wallet nearby; (iii) Waechter was observed using what looked like a key to enter the garage and text messages between him and McNeill corroborated that he had a key to the garage; and (iv) the presence of others did not detract from the only reasonable conclusion that McNeill and Waechter were jointly in constructive possession of the drugs for the purpose of trafficking from the garage. [64] Both McNeill and Waechter now argue that their convictions were unreasonable and unsupported by the evidence. [65] An appellate court can set aside a verdict where the verdict is unreasonable, unsupported by the evidence, or both: Criminal Code , s. 686(1)(a)(i); R. v. Lights , 2020 ONCA 128, at para. 29. This may occur where a properly instructed jury or judge could not reasonably have rendered the verdict, or where the trial judge has drawn inferences or made findings of fact that are plainly contradicted by the evidence or incompatible with evidence that is not otherwise contradicted or rejected: Lights , at paras. 30-31; see also R. v. R.P. , 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9. [66] In evaluating the reasonableness of the verdicts, I am mindful of the limited grounds for appellate intervention in a wholly or largely circumstantial case such as this. It is not this court’s role to retry the case. Rather, it is the role of the trier of fact to decide whether the evidence, “when considered in light of human experience and the evidence as a whole and the absence of evidence, excluded all reasonable inferences other than guilt”: R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 69. [67] The question for the appellate court is thus “whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”: Villaroman , at para. 55. It is fundamentally for the trier of fact to decide whether another way to view the case is reasonable enough to raise a doubt, and to draw the line that separates reasonable doubt from speculation: Villaroman , at paras. 56, 71; see also Lights , at paras. 36-39. (a) McNeill [68] McNeill argues that the trial judge erred in finding that the drugs found in the garage were in her constructive possession. She says that the trial judge conflated her knowledge of the presence of the drugs in the garage with the required element of her control over them. She also says that it was a reasonable inference that she was a low-level drug dealer who merely bought her drugs from Waechter. She says that she was just “a visitor to the garage, one of many”. [69] When viewed through the lens of appellate review, I would not accede to McNeill’s argument. Her argument amounts to saying that she was simply in the wrong place at the wrong time, and ignores the totality of the evidence, including her presence close to the drugs in the open at the back of the garage; her text messages confirming that she was engaged in drug trafficking (including that very day); and her text messages to and from Waechter that suggested a joint trafficking operation. Nor did the presence of others in the garage undercut the trial judge’s basis to be satisfied that the only reasonable conclusion was that both McNeill and Waechter were drug trafficking from the garage, even though, as the trial judge noted, they were “perhaps” doing so “with others”. [70] I therefore see no basis to interfere with McNeill’s conviction. (b) Waechter [71] In a similar vein, Waechter argues that the trial judge acted unreasonably in inferring his knowledge of the presence of the drugs at the back of the garage from the drugs being in “plain view”, as he was at the front of the garage, and anyway most of the drugs were hidden from sight. Waechter acknowledges that his text messages confirm that he was engaged in drug trafficking, but argues that the last such message from his phone was on November 2, 2015 – a full 10 days before the search. By contrast, he notes, McNeill continued sending messages related to drug trafficking until shortly before her arrest. [72] I would not give effect to this argument. There was plenty of evidence on which the trial judge could be satisfied that Waechter’s guilt for possession of heroin and crystal methamphetamine for the purpose of trafficking was the only reasonable conclusion available on the totality of the evidence: Waechter’s colostomy bags were found near the drugs; his text messages confirmed that he had been drug trafficking from the garage; he had texted a drug purchaser that he was “staying in the garage”, and that the garage was “home”; and McNeill’s texts to Waechter likewise noted that she was locking “your [i.e., Waechter’s] door” to the garage and suggested that Waechter had a key to the garage (corroborating observations made during the police surveillance). [73] The trial judge was also entitled to infer Waechter’s knowledge of the presence of the drugs at the back of the garage, and his control over them, even though he was at the front of the garage when the search began. The trial judge knew that the drugs were not in a “clear container or baggie”, but emphasized that “[t]here was no attempt to hide or obstruct the drugs or the drug paraphernalia from view”. In short, the trial judge found that the drugs were out in the open, in full view, a factor that he could consider as relevant to Waechter’s knowledge. He could certainly conclude that the only reasonable inference on the totality of the evidence was that Waechter was guilty as charged. [74] I therefore see no basis to interfere with Waechter’s conviction either. D. disposition [75] For these reasons, I would dismiss both appeals. Released: May 26, 2020 (“K.F.”) “M. Jamal J.A.” “I agree. K. Feldman J.A.” “I agree. M. Tulloch J.A.” [1] At the Cedar Street residence, the police seized a digital scale and Waechter’s cellphone bill.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Morgan, 2020 ONCA 279 DATE: May 4, 2020 DOCKET: C67536 MacPherson, Benotto and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Brandon Morgan Appellant Brandon Morgan, acting in person Matthew Gourlay, appearing as duty counsel Michael Fawcett, for the respondent Heard: April 27, 2020 by teleconference On appeal from the conviction entered on May 15, 2019 by Justice Feroza Bhabha of the Ontario Court of Justice and from the sentence imposed on September 23, 2019. REASONS FOR DECISION [1] Brandon Morgan originally appealed his conviction and sentence. However, at the hearing, he abandoned his conviction appeal and proceeded solely with the sentence appeal. [2] The appellant was sentenced to two years less a day comprised of 21 months on his conviction for aggravated assault and three months consecutive on a total of three counts of failing to comply with court orders. The appellant had attacked the victim with a sword in his mother’s home. The victim was a friend of the appellant’s mother and had, in fact, acted as a surety for the appellant at an earlier point in time. [3] The appellant does not dispute that the sentence was a fit one at the time that it was imposed. Rather, the appellant submits that intervening events, namely the COVID-19 pandemic, have served to render the sentence unfit. He seeks a reduction in his sentence as a consequence of these events. [4] The appellant is currently incarcerated at the Central North Correctional Centre located in Penetanguishene, Ontario. In support of his position, the appellant refers to the fact that correctional facilities are not designed to contend with such a pandemic. It is not possible to maintain an appropriate physical distance from other inmates or from staff. The only method that the institution has to try and address physical distancing is to keep inmates confined to their individual cells. The appellant says that he spends all but three hours a day confined to his cell. Of that three hours, only 20 minutes are provided for the inmate to actually be outside in the fresh air. Meals are served to inmates in their cells. The appellant also says that there are days when even the three hours are not provided because of staff shortages. [5] The appellant says that this confinement, coupled with the inherent increased risk of contracting the virus, if it enters the inmate population, detracts from the rehabilitative goals of his sentence. The appellant notes that the rehabilitative programs that would normally be provided to inmates are all canceled because of the pandemic and the need to keep inmates in their cells. The appellant says that it is clear that the sentencing judge imposed the sentence that she did in an effort to maximize the prospect for rehabilitation and now that prospect is being thwarted. The appellant says that, had the sentencing judge been aware that these events would happen, she would have imposed a lesser sentence to accommodate the rehabilitative goal. [6] As a result, the appellant seeks a reduction of his sentence by one-third such that he would be immediately eligible for parole. This would also advance his statutory release date to July and thus ensure his almost immediate release from incarceration. The appellant is currently eligible to be considered for parole on May 23. However, the appellant says that there is no guarantee that he will get parole because he has a criminal record and because he would have difficulty showing that he has acceptable living arrangements if paroled. [7] The respondent says that the appeal should be dismissed. The respondent says that the sentence was fit at the time. Indeed, the respondent says that the sentence was a lenient one. In any event, the respondent says that the sentence remains fit, even taking into account the impact of the COVID-19 pandemic. The respondent also says that this court should not consider the submission that there is an increased risk and impact on inmates in correctional facilities, arising from the COVID-19 pandemic, without direct evidence to establish that contention. [8] In our view, it is not necessary to decide whether this court could take judicial notice of the effects of the COVID-19 pandemic to the extent to which the appellant would have us do that. We do, however, believe that it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission. [9] In our view, the appellant’s submissions fall into the category of collateral consequences for sentencing purposes. As Moldaver J. noted in R. v. Suter , [2018] 2 S.C.R. 496, at para. 48: The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. [10] However, Moldaver J. went on to make a further observation in Suter that has direct application to the case here. He said, at para. 56: I agree with the Court of Appeal that the fundamental principle of proportionality must prevail in every case - collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender. [11] In our view, the sentence imposed on the appellant was at the very low end of an acceptable range of sentence for the offence of aggravated assault. It was, indeed, a lenient sentence, given the injuries sustained by the victim and the fact that the appellant had a criminal record. To reduce the sentence any further would result in a sentence that is unfit, one that would be disproportionate to the gravity of the offence. As was observed by Wagner J. in R. v. Pham , [2013] 1 S.C.R. 739, at para. 18: It follows that where a sentence is varied to avoid collateral consequences, the further the varied sentence is from the range of otherwise appropriate sentences, the less likely it is that it will remain proportionate to the gravity of the offence and the responsibility of the offender. [12] That result does not mean that there is no potential remedy for the appellant respecting the impacts arising from the COVID-19 pandemic. We expect that the Ontario Parole Board will take into account those impacts in deciding whether the appellant should be granted parole. If the Parole Board fails to do so, the appellant has other remedies available to him to redress that failure. Conclusion [13] The conviction appeal is dismissed as abandoned. Leave to appeal sentence is granted but the appeal is dismissed. “J.C. MacPherson J.A.” “M.L. Benotto J.A.” “I.V.B. Nordheimer J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subpara. comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subpara. (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in para. (a). (2)     In proceedings in respect of the offences referred to in para. (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, 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. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Pascal, 2020 ONCA 287 DATE: 20200506 DOCKET: C53388 Watt, Miller and Fairburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Stewart Pascal Appellant Stewart Pascal, appearing via videoconference James Lockyer and Catriona Verner, for the appellant Craig Harper, for the respondent Heard: September 11-12, 2019 On appeal from the conviction entered on January 8, 2009 and the sentence imposed on June 11, 2010 by Justice Terrence A. Platana of the Superior Court of Justice, with reasons reported at 2010 ONSC 3187 . Watt J.A.: [1] S.S. and B.S. had summer jobs at a provincial park near Kenora. On a scheduled day off, they travelled to Kenora and rented a room at Luby’s Motel. [2] Sometime later, Stewart Pascal (the appellant) and his friend Dawley Dunsford, walked by the open door of S.S. and B.S.’s motel room. The appellant and Dunsford were invited in for a drink. They joined S.S., B.S. and M.B., a man whom S.S. and B.S. had earlier invited for a drink. [3] Hours later, S.S. and the appellant were alone on a picnic table by a dock near the motel. It was there, S.S. alleged, that the appellant sexually assaulted her causing injuries to different parts of her body. [4] Arrested shortly after these events, the appellant was charged with sexual assault causing bodily harm and two counts of failing to comply with the terms of a recognizance on which he had earlier been released. [5] After a trial before a judge of the Superior Court of Justice sitting without a jury, the appellant was convicted of sexual assault causing bodily harm. [1] The Crown instituted dangerous offender proceedings. The trial judge found the appellant a dangerous offender and imposed an indeterminate penitentiary sentence. [6] The appellant appeals his conviction of sexual assault causing bodily harm. He also challenges his designation as a dangerous offender and the indeterminate sentence imposed upon him. [7] These reasons explain why I would allow the appeal from conviction based on the appellant’s application to introduce fresh evidence. In these circumstances, it is unnecessary to consider the sentence appeal. The Background Facts [8] The circumstances underlying the appellant’s conviction took place over a few hours. They involve as principals, S.S. and the appellant, although other witnesses contributed to the unfolding of the narrative. The Principals and Their Relationship [9] S.S. and B.S. had summer jobs at a provincial park. With some days off, S.S. and B.S. decided to spend some time in Kenora. They rented a room at Luby’s Motel, bought some liquor and mix and returned to their room for a drink. [10] As they returned to their motel room, S.S. and B.S. noticed a man outside the room next door. The man had long hair. He was holding a baby. The room he was standing outside was occupied by his wife and two of his three children. [11] The man had his long hair in a ponytail. He and his friend were living at a treatment centre nearby. They were required to refrain from consuming alcohol and abide by a curfew. The man with the ponytail was the appellant; the other man was his friend, Dawley Dunsford. [12] A convenience store was part of the Luby’s Motel complex. Deidre Jarvis, who would later testify at the appellant’s trial, worked at the convenience store and lived on the lower level of the motel. She knew the appellant because she had seen him several times around the motel – in particular, in and around Unit 44. The Early Events [13] After having a drink in their room, S.S. and B.S. walked across the road to another motel which had video games. They remained there and had more drinks until the bar closed. They met a man, M.B., whom they invited back to their motel room for more drinks. [14] Later, as S.S., B.S. and M.B. sat around the motel room, the appellant and Dawley Dunsford stopped at their door. The appellant asked what was going on. S.S., who had seen the appellant earlier outside the room next door, invited the two men to join them. Both the appellant and Dunsford entered the room. The First Incident [15] After some initial socializing, S.S. and the appellant began demonstrating self-defence manoeuvres. The appellant accidentally struck S.S. during the course of this demonstration. [16] Soon afterwards, according to S.S. , Dawley Dunsford pushed B.S. down on one of the beds and got on top of her . When S.S. intervened, the appellant threw her down on the other bed and tried to kiss her. She pushed him away and yelled at him to get off her. M.B. helped to pull both men off the two women. S.S. ran to the bathroom. [17] M.B. told the appellant and Dunsford to leave the room. When both men came towards him, M.B. bolted from the room. He asked the clerk in the convenience store to call the police. [18] Eventually, after things quieted down, S.S. came out of the bathroom. She closed the curtains, turned off the lights and shut the door to make it appear that she and B.S. were sleeping. The First Police Response [19] In response to a 911 call, the police arrived. They spoke to S.S. and B.S. and advised them to stay in their motel room with the door locked. S.S. and B.S. followed the officers’ instructions. The police left. Later, M.B. knocked on the door. S.S. opened the door and let M.B. join them in the motel room. The Return Visit [20] As S.S., B.S. and M.B. sat in the motel room with the door locked, lights off and curtains drawn, S.S. heard a loud banging on the door and window. The banging was so forceful that S.S. thought the door might break. B.S. was crying. S.S. told B.S. and M.B. to call the police. S.S. then left the room. She saw the appellant and Dunsford, who was pounding on the door next to S.S.’s room. [21] The appellant recalled a different series of events. When M.B. went to phone the police, he and Dunsford left the motel and went into town. The appellant knew he was in breach of two conditions of his recognizance and did not want the police to find him. At some point, the appellant lost his watch. After about 45 minutes in town, the appellant and Dunsford returned to the motel. Dunsford knocked on the door next to the room occupied by S.S. and B.S. The appellant waited on the stairwell. S.S. approached the appellant and offered him a kiss. The Dock [22] S.S. told the appellant and Dunsford to leave because they were scaring B.S., who was only 18 years old. The appellant stepped towards S.S. She stepped back. With each step she moved further away from her room. The appellant extended his arms so that S.S. could not get by him to return to her room. She backed down the stairs to ground level. The appellant grabbed her around the waist, tightening his grip as she tried to walk away. [23] S.S. recalled that she and the appellant got to the picnic table at the dock. Aware that the police were likely on their way, S.S. tried to stay calm. She attempted to get the appellant to talk about his children. They sat on the picnic table smoking a cigarette. The appellant began to rub S.S.’s back. [24] The appellant said that S.S. approached him outside her room and offered him a kiss. He put his arm around her and they walked to the dock area. They chatted and giggled. S.S. was cold. The appellant put his arm around her as they sat on the picnic table. The Sexual Assault [25] S.S. testified that she got up to leave from the picnic table when the appellant began to rub her back. The appellant grabbed her around the waist and pulled her towards the end of the picnic table closest to the water. When she resisted, the appellant threw her down on the dock. She landed on her face, then rolled over onto her back. The appellant pinned her hands down above her head. She squirmed and yelled, but could not escape. He put his left hand on her breasts under her shirt. She yelled: “Don’t do this. Stop”. The appellant persisted. He got her pants and underwear down and began feeling around her pubic and vaginal areas. [26] S.S. then noticed Dawley Dunsford standing on a grassy area near the dock. The appellant got off her. S.S. pulled up her underwear and pants. She tried to escape. The appellant blocked her way. He spoke to Dunsford in a language S.S. did not understand. Dunsford walked away. [27] According to S.S., after Dunsford left, the appellant threw her onto the end of the picnic table, then picked her up again and threw her down on the dock. She landed face down. The appellant got on top of her. She grabbed his ponytail with both hands. She yelled for him to stop. He got her pants and underwear down. He removed his own pants, then tried to put his penis into her vagina. He did not fully penetrate her. She screamed loudly when she felt the appellant’s penis at her anus. The appellant then put his hand over her mouth and nose. He pinched her nose. She could not breathe. He then took his hand away from her mouth and slammed her face down twice on the dock. [28] S.S. recalled that she almost lost consciousness when the appellant slammed her face down on the dock. She went limp. She told the appellant “I’ll stop, do whatever you want. I’ll stop”. Then someone yelled “What’s going on out there?” S.S. no longer felt the appellant on top of her. She rolled over and pulled up her pants and underwear. She grabbed some things that she thought might be evidence and ran towards the motel, then to the road, yelling for help. When she saw two police officers, she ran over to the female officer (who had responded to the first 911 call) and turned over the things she had gathered as evidence. [29] The appellant denied any sexual assault or removal of S.S.’s clothing. He testified that after he had put his arm around S.S. as they sat on the picnic table, he saw Dunsford standing near some trees. He spoke to Dunsford in Ojibwe, telling him to give them (he and S.S.) a minute. Dunsford left. S.S. wanted to go back to her room, but the appellant was reluctant to do so. The police had been there earlier. S.S. grabbed his ponytail with both hands to force him to accompany her. The appellant lost his temper. He punched S.S. once and pushed her. She landed on the dock and did not move. The appellant panicked and ran to his wife’s room. [30] After the appellant had been in his wife’s room for about 15 minutes, Dunsford tried to open the door to the room. Unsuccessful, Dunsford turned and walked towards the room S.S. and B.S. shared. The Second Police Response [31] When police officers were speaking to M.B. in response to the second 911 call, they heard a scream emanating from a motel building by the area of the creek. They then saw S.S. try to flag down a vehicle on a road near the motel. She was hysterical. She was standing in the middle of the roadway yelling “Help me. Help me.” [32] When a male police officer approached S.S. to help her, she yelled “Get away from me” twice. S.S. calmed down when a female officer came towards her. S.S. turned over the items she had gathered as evidence, which included a ball cap, a wristwatch and a package of cigarettes. The Complainant’s Injuries [33] S.S. was examined and treated at a local hospital. There were bruises to the right side of her neck, and bruises and skin tears on both elbows. A superficial laceration and considerable swelling were visible on S.S.’s nose. A bruise, 2 cm x 2 cm, was apparent on S.S.’s left thigh, about 6-7 cm from her vaginal opening. Some scar tissue remained on her face at the time of trial. The Forensic Evidence [34] The appellant’s DNA was detected in fingernail scrapings from S.S.’s hands. One bloodstain from the dock contained long black hairs. [35] S.S.’s DNA was detected in bloodstains found at the dock and outside Room 44 at Luby’s Motel. Room 44 was the room occupied by the appellant’s wife and children, to which he returned after the alleged sexual assault. S.S.’s DNA was also detected on the wristwatch she turned over to police, as was DNA from at least one male contributor. The Eyewitness Evidence [36] At trial, the Crown called Deidre Jarvis, who worked at the time in the convenience store at Luby’s Motel. Ms. Jarvis also lived in the motel, in Unit 21. Her room was on the lower level and overlooked the dock area. [37] Ms. Jarvis testified that on the night in question, she was awakened around 3:00 a.m. by noises coming from the dock area. It sounded to Jarvis like a “casual, friendly conversation.” She looked out the window and saw a man – identified at trial as the appellant – sitting with a woman. Jarvis fell back asleep. Around 4:00 a.m. she was awakened again, this time by a “ruckus”. There was no more friendly conversation. This time the woman sounded distressed, as though she were trying to call for help. Jarvis went outside and yelled at the couple to “get off the dock.” At this point the man ran away, making motions which indicated to Jarvis he was pulling up his pants. [38] As discussed below, this testimony was inconsistent in several respects with an initial statement Jarvis provided to police a few days after the incident. Jarvis was cross-examined on these inconsistencies by defence counsel at trial. [39] Notwithstanding her inconsistent accounts, the trial judge ultimately accepted Jarvis’ evidence at trial and relied on it to reject the appellant’s version of events. The Appeal Against Conviction [40] The appellant advances two grounds of appeal alleging errors in the trial judge’s reasoning process. He says the trial judge erred: i. in relying on the identification evidence of Deidre Jarvis; and ii. in failing to consider the absence of evidence, thus shifting the onus of proof from the Crown to the appellant. [41] The appellant also challenges his conviction on the basis of evidence which he tenders for reception in this court. As this appeal turns on that application, and a new trial is required, it is unnecessary to consider the other grounds of appeal. Ground #1: Motion to Admit Fresh Evidence [42] The appellant invokes s. 683(1) of the Criminal Code , R.S.C., 1985, c. C-46, to introduce in this court evidence not tendered at trial. The proposed evidence targets the credibility of Deidre Jarvis and the reliability of her testimony. [43] The core of the proposed fresh evidence consists of Deidre Jarvis’ criminal record and of several charges outstanding against her when she testified at trial. Included in the latter category is evidence of her relationship with a notorious local drug dealer, Frank Novelli. The record filed in support of the application also includes evidence about Deidre Jarvis’ subsequent involvement in the criminal justice system, including charges laid and convictions entered after she testified at the appellant’s trial. [44] It is common ground that prior to and at trial, the Crown had not provided and trial counsel had not sought disclosure of any information about Jarvis’ prior convictions or outstanding charges. [45] Recall that Deidre Jarvis provided two statements to police, the second of which was far more incriminating of the appellant. More detail on Jarvis’ statements and her evidence at trial provides the backdrop essential for an understanding of this ground of appeal. The First Statement of Deidre Jarvis [46] Deidre Jarvis was first interviewed by DC Jackson of the Kenora Police Service about two days after the alleged sexual assault. Ms. Jarvis recalled having been awakened from sleep by a man and a woman talking and giggling on the dock. After about an hour, she fell back asleep. She was awakened a second time, around 4:00 a.m. The voices were loud. The man was doing most of the talking. Ms. Jarvis could not tell whether either of them appeared distressed. Jarvis heard them discussing a third individual; she was not certain of the name but mentioned B.S.’s first name as one of two possibilities. She went outside and yelled at them “I’m trying to sleep”. The man had a ponytail. She had seen him before in the convenience store and around Room 44 where his girlfriend lived. She saw the man get up, but did not see the woman. [47] DC Jackson wrote out the questions she asked Ms. Jarvis as well as the answers Ms. Jarvis provided. The statement was not audio or video recorded, nor was it sworn. It was completed and signed in 17 minutes. The Second Statement of Deidre Jarvis [48] The second statement was provided after PC Spencer had reviewed Deidre Jarvis’ first statement with her to prepare her for trial. This statement, provided on the first day of trial, was made about 17 months after the relevant events and the first statement. Like the first, the second statement consisted of questions and answers in written form, but was not audio or video recorded or sworn. It was completed in 11 minutes. [49] In its material parts, the second statement reads: Q: I have just finished reading you your statement from the 17 Aug 07. You have indicated that you have some additional information. What can you tell me? A: That the girl was distressed which is why I finally intervened. I saw him with his hand over her mouth. It sounded ok at the start but it wasn’t friendly anymore and sounded more violent. Q: Can you tell me what was being said? A: No. I just went outside because it sounded bad. I didn’t want to get too close because I didn’t know what he was capable of. When I yelled at him to get off the dock he stood up and I know he had to be pulling up his pants. At this time there was no movement from her so I went back inside. I didn’t want him coming towards me. Q: What made you say that you think he was pulling up his pants? A: Just his movement. He was putting on something. It had to be because of how he moved. Q: Can you describe his movements? A: Bent over hands near ankles and a pulling motion coming up. Q: Did you hear any yelling from the dock area? A: It was really his hand over her mouth. He was stifling her. Stopping her from yelling. The Trial Testimony of Deidre Jarvis [50] In her examination in-chief at trial, Deidre Jarvis gave evidence of her observations consistent with the substance of her second statement. She explained that she first realized a misunderstanding with her first statement when she reviewed it on the first day of trial: I realized that the end of it was wrong ‘cause it, I realized the distressed part. ‘Cause if there wasn’t distress then I would have, I would have stayed out of it, so then I, I corrected it. [51] Defence counsel cross-examined Ms. Jarvis about the discrepancies between her statements: Q. Okay ma’am, I’m going to read to you the question. Okay? Perhaps we’ll go back to it. Do you recall on the 17th day of the eighth month of 2007 that you were interviewed by a police officer by the name of Jackson? A. Yes. Q. Yes? Okay. Do you remember him asking you certain questions and giving certain answers? A. Yes, I do. Q. Do you recall being asked this following question and giving this following answer: “Question, Could you tell at the time if anyone appeared to be distressed? … Answer, No, I couldn’t. I could hear him talking mostly. Not too much from her.” A. Mm-hmm. Q. Do you recall giving that answer to that question? A. Yes, I do. Q. Were you being truthful at that time A. Not truthful enough. Q. …to the best of your ability? A. No. Q. Do you recall being asked the question by the police officer in that statement on that day, “Could you tell if they were clothed at the time? …” And giving the answer, “No, but I didn’t have my glasses on.” Do you recall giving that answer to that question? A. Not until today, no. I didn’t remember when I wrote my statement until today when I reviewed it, and it wasn’t very thorough, and I’m sorry that it wasn’t very thorough. But today I figured, you know, like that’s wrong. … Because, I mean, there was more to it, and I was in a hurry, and, you know that’s sad of me to say because I should have been more thorough with the investigators, but I was working and I was going back to work. So, I mean, I should have been more thorough and went over the statement with them that day. Q. So you recall being asked the further question, “Could you tell if they were clothed at the time?” And answering, “No, but I didn’t have my glasses on.”? A. Yes. Q. Were you being truthful at that time? A. No, I guess not. The Reasons of the Trial Judge [52] The trial judge acknowledged the frailties of Deidre Jarvis’ evidence, including her nearsightedness, mistaken estimate as to her distance from the dock, and the inconsistencies between her statements. He nonetheless invoked Jarvis’ testimony at several points in his reasons. [53] For one, he cited Jarvis’ evidence to confirm S.S.’s narrative of events at the dock. The trial judge admitted “concern” with respect to S.S.’s evidence of “how [she and the appellant] got from the motel room to the dock.” However, he accepted S.S.’s account of the sexual assault, explaining: Regardless of any concern I may have had in relation to that issue of moving down to the dock, I have no doubt on the evidence as to the following events. As I noted, it is in the accused’s own evidence that when Dawley arrived, and this was before any evidence of anything physical between the two, [S.S.] a desire to leave. As noted previously, there is significant evidence of [S.S.] of resistance found in the evidence of Deirdre Jarvis, who heard the screaming and who saw Stewart ultimately pull up his pants and run away . [Emphasis added.] In accepting S.S.’s evidence the judge also relied on the evidence of responding officers, who testified as to her distraught condition. [54] The trial judge also resorted to Jarvis’ evidence to reject aspects of the appellant’s testimony. The most significant of which being the appellant’s account of what occurred at the dock, including his denial that he ever removed S.S.’s clothing. The trial judge said: In light of the earlier incident in the room when [the appellant] accidentally struck [S.S.] while doing some form of self-defence manoeuvre, and the evidence of subsequent events, I have no difficulty in not being able to accept his evidence that she was pulling him by the hair in an attempt to get him to go back up to her room. It simply makes no sense in context. He makes no reference in his evidence to her screaming down at the dock. That is clearly contradicted by the evidence of Deidre Jarvis . I have commented earlier that I have considered the difference in Ms. Jarvis’s evidence given at trial, as opposed to that given in an August, 2007 statement to the police. I also note the fact that Mr. Pascal states that at no time did he ever remove [S.S.]’s clothes. That is also contradicted by Deidre Jarvis, who says that she saw the man get up, pull his pants up, and then run away . She then saw the other individual getting straightened up. I am satisfied that in spite of the evidence as to distance where she may have been mistaken, and the evidence of not having her glasses on, the evidence of Deidre Jarvis was still solid and unequivocal, and is sufficient for me to accept her evidence of what occurred at the dock . [Emphasis added.] The Fresh Evidence [55] The materials filed in support of the motion to adduce fresh evidence may be divided into several categories. The most significant of which are the then-existing convictions and charges outstanding against Deidre Jarvis, and the knowledge of the trial participants about them. Although not tendered as fresh evidence, I will briefly describe some further charges and their disposition to complete the narrative. The Criminal Record [56] At the time of trial, Deidre Jarvis had previous convictions of possession under, two counts of possession of controlled substances and one of possession of a controlled substance for the purpose of trafficking. The convictions were entered on September 10, 2001, over seven years prior to the appellant’s trial. [57] Deidre Jarvis’ convictions arose after police executed a search warrant at her residence in Fort Frances. In her home, Ontario Provincial Police (“OPP”) officers found three different kinds of controlled substances, a small amount of cash, seven unsafely stored long guns and assorted drug paraphernalia. The Outstanding Charges [58] Between her first and second statements Deidre Jarvis accumulated a number of criminal charges. In chronological order, those charges were: · Possession of proceeds, over $5000 (March 2008) · Failure to appear (May 5, 2008) · Possession of cocaine for the purposes of trafficking (July 31, 2008) · Possession of proceeds, over $5000 (July 31, 2008) · Failure to comply (July 31, 2008) · Possession of proceeds, under $5000 (August 28, 2008) · Trafficking cocaine (2 counts) (August 28, 2008) None of these charges were disclosed to the defence. And none of them were disposed of until after the appellant’s trial was complete. [59] The first charge (possession of proceeds over) was laid in March 2008. Deidre Jarvis and Frank Novelli were passengers in a motor vehicle stopped by an OPP officer. Jarvis had a backpack that contained $7,000 in bundled Canadian currency. Frank Novelli was believed to be involved in the drug trade and often had large amounts of money. Jarvis, who had been dating Novelli for seven months, claimed the money was her own. About 20 months later Jarvis pleaded guilty to possession over and received a one-year conditional sentence. [60] The second charge was laid in May 2008 when Jarvis failed to appear in relation to the possession over charge. The failure to appear charge was later withdrawn. [61] The next three charges arose from police surveillance of Jarvis and Novelli on July 31, 2008. After completing what appeared to be a drug transaction with an unknown person, Novelli went to an area near an old age home. He emerged from a wooded area and handed a bag to Jarvis, who shoved it down the front of her pants. Police arrested the couple. The bag in Jarvis’ pants contained 60.5 grams of cocaine. Police also found 16 ounces of cocaine in the wooded area. It was valued at $40,000. A search of the couple’s home yielded $6,850 in cash. [62] Deidre Jarvis was charged with possession of cocaine for the purpose of trafficking, possession of the proceeds of crime and failure to comply with an undertaking. Jarvis pleaded guilty to these charges on September 20, 2010. She received a six-month jail sentence (less credit for pre-sentence custody) on the possession for the purpose count and conditional sentences on the other charges. At the hearing, Jarvis acknowledged a relationship of three and one-half years with Frank Novelli. The couple had a child who was then 16 months old. [63] The final charges – two counts of trafficking cocaine and one count of possession under $5000 – arose from police surveillance of Jarvis and Novelli’s residence between March and May, 2008. During this period, officers noticed as few as 3 and as many as 40 persons visit the house each day for short periods of time. Officers confirmed the visitors had purchased cocaine. [64] After the appellant’s trial, four of these charges were ultimately withdrawn: failure to appear, possession under, and two counts of trafficking in cocaine. On the other counts, Jarvis was sentenced as follows: · Possession of proceeds over – One year conditional · Possession of proceeds over – One year conditional and concurrent · Possession cocaine purpose of trafficking – Six (6) months jail less pre-sentence custody, concurrent · Fail to comply with undertaking – 30 days conditional and concurrent The Post-Testimony Charges [65] On September 3, 2009 Jarvis and Novelli were arrested in connection with possession of less than 30 grams of marijuana and Percocets, as well as various counts of failure to comply with earlier forms of release. All charges against Jarvis were withdrawn on November 25, 2009. [66] In 2017 and again in 2018, Deidre Jarvis was arrested in Fort Frances and charged with a number of property offences and failures to comply with the terms of prior forms of release. In none of these alleged offences was she charged with Frank Novelli, although one count alleged that she stole Novelli’s car. The Evidence of Knowledge and Disclosure [67] The record on the fresh evidence application includes affidavits and statements of several persons involved in investigating the offences of which the appellant was convicted and of trial counsel for the appellant, as well as counsel who represented the appellant at the preliminary inquiry. The record also includes cross-examinations of several, but not all, participants. The Evidence of Defence Counsel [68] A lawyer from Winnipeg represented the appellant at the preliminary inquiry. The Crown disclosed to him a copy of Deidre Jarvis’ first statement. He received no disclosure about Jarvis’ criminal record or outstanding charges. He was unaware of the disclosure practices of the Crown Attorney’s office in Kenora. It was not his practice, at that time, to ask for disclosure of the criminal records of or outstanding charges against Crown witnesses. [69] Trial counsel was an experienced criminal lawyer who practiced law in Thunder Bay. He was contacted by Legal Aid Ontario to take over the appellant’s defence and agreed to do so. He had two to three months within which to review the disclosure and prepare for trial. The disclosure materials included the first statement of Deidre Jarvis whom he considered a possible defence witness. Trial counsel considered Ms. Jarvis’ description of having heard a man and woman “laughing and giggling” on the dock as confirmatory of the appellant’s version of events. He had no reason to request her criminal record. [70] Trial counsel explained that in Thunder Bay where he practices, he would have known whether a witness had a criminal record. He would also have received disclosure of the record from the Crown as was the practice in that jurisdiction. He agreed that, as a general rule, criminal records of proposed Crown witnesses were disclosed on request. [71] On the morning the appellant’s trial began, defence counsel received a copy of Deidre Jarvis’ second statement given that day. Nothing in it gave him any reason to inquire whether Ms. Jarvis had any criminal history. He considered it raised a reliability issue, one which could be dealt with through cross-examination to neutralize the incriminating aspects of her testimony and bring her back to the portions of the contemporaneous first statement which were compatible with the defence position. [72] When he received Deidre Jarvis’ second statement, trial counsel did not seek an adjournment. His client had been in custody in a century-old jail for 17 months. The conditions were deplorable. An adjournment would have resulted in a delay of several months, perhaps even a year. The appellant was not a candidate for release pending trial. There was also a funding issue with Legal Aid Ontario. [73] Trial counsel did not seek disclosure from the Crown of the criminal record or history of Deidre Jarvis. He saw no warning signs. She remained a clerk from the convenience store at Luby’s Motel. Her second statement took counsel by surprise. He considered that her revised version might have had some racial overtones since it supported the account of the Caucasian female, describing a violent sexual assault by an Aboriginal male. In the end, he considered the second statement to have been made, taken and disclosed in good faith. The Police Evidence [74] DC Renita Jackson of the Kenora Police Service was the officer in charge of the investigation into S.S.’s allegations. DC Jackson took Deidre Jarvis’ original statement two days after the alleged offence. The statement was handwritten during an interruption of Jarvis’ work shift at the convenience store. Jarvis did not appear concerned about the interruption. [75] DC Jackson, who was a sergeant with the OPP at the time of trial, assigned Constable Spencer to review Deidre Jarvis’ statement with her as part of witness preparation requested by the trial Crown. Constable Spencer, who was there on his day off, reported that Deidre Jarvis had more information to provide. The trial Crown directed that a further statement be taken from Deidre Jarvis so it could be disclosed to defence counsel. Constable Spencer took the statement in a handwritten question and answer format. [76] Sgt. Jackson acknowledged she was familiar with Deidre Jarvis although she could not recall whether she was aware at the time of the statements or trial of Ms. Jarvis’ criminal record, the outstanding charges against her or her relationship with Frank Novelli. In accordance with Kenora Police Service practice at the time, Sgt. Jackson did not do, nor was she asked to do, a criminal record check on Deidre Jarvis or determine whether Jarvis had any outstanding charges. [77] Constable Spencer was involved in the early stages of the investigation. He executed a search warrant at Luby’s Motel and participated in the post-arrest interview of the appellant. Although it was his day off, Constable Spencer attended the first day of the appellant’s trial and was assigned to review Deidre Jarvis’ statement with her. He prepared Ms. Jarvis’ second statement, but cannot recall who directed him to do so. Constable Spencer remained in the courtroom while Deidre Jarvis testified, but did not testify himself at trial. [78] Constable Spencer was a detective constable with the Kenora Police Service at the time of the investigation and trial. He acknowledged the Kenora Police Service was a small force in which “everyone knew everyone”. He was aware that Deidre Jarvis was the girlfriend of Frank Novelli whom Spencer considered “the biggest drug dealer in Kenora”. He assumed that Jarvis lived with Novelli in his Kenora home. Constable Spencer testified that he did not know whether Deidre Jarvis had a criminal record or any outstanding charges at the time of the appellant’s trial. However, the officer had entered Deidre Jarvis’ statement given after her arrest on March 20, 2008 into the records management system of the Kenora Police Service. [79] Constable Gordon participated in the investigation and was the file manager in the courtroom during the appellant’s trial. He was familiar with Deidre Jarvis’ first statement. He knew that a second statement had been taken by DC Spencer but had not seen the statement and was not sure at whose request it had been taken. [80] Constable Gordon knew about Novelli’s drug dealing activities and his relationship with Deidre Jarvis but he was not sure about any charges against Jarvis because drug investigations operated out of a different police unit than he did. He did not inquire into potential outstanding charges. It was not the practice of Kenora Police Service to do so except where the Crown asked about criminal records and outstanding charges in connection with a person proposed as a surety. He did not consider Deidre Jarvis a significant witness in the prosecution of the appellant. [81] Constable Gordon assumed the trial Crown would be aware of any outstanding charges against Deidre Jarvis. He based his conclusion on the fact that disclosure in drug cases is made through the local Crown Attorney’s office, in the absence of a standing Federal agent in Kenora, and that the provincial and Federal Crowns are in the same courtroom at the same time. In this case, no affidavit was filed on behalf of the trial Crown. [82] Constable Frankcom was the only forensic identification officer at the Kenora Police Service. He was in the courtroom throughout the appellant’s trial assisting counsel on both sides with the presentation of forensic evidence gathered during the investigation. He did not testify at trial. [83] Constable Frankcom was aware of Deidre Jarvis and her involvement in various narcotics investigations. He had been assigned the task of checking baggies for fingerprints and preparing a list of the exhibits seized during the investigation. He continued to work on the drug investigation during the appellant’s trial. He was also aware of Jarvis’ relationship with Novelli and their shared residence in Kenora. [84] Constable Frankcom testified that it never occurred to him to tell the Crown about the drug seizures and the ensuing investigation involving Deidre Jarvis. In his mind, Jarvis’ testimony at the appellant’s trial and her involvement in drug investigations were two different things, neither of which had anything to do with his duties as a forensic identification officer. The CPIC Inquiry [85] Three days before the appellant’s trial was to begin, a civilian employee of the Kenora Police Service entered a query in the Canadian Police Information Centre (“CPIC”) system in connection with Deidre Jarvis. This occurred two weeks after Jarvis’ last court date and six weeks before her next one. Constable Gordon suggested the query was probably for validation purposes – i.e., to confirm the accuracy and purge inaccuracies in the entries concerning outstanding charges. The Arguments on Appeal [86] The parties join issue on the obligation of the Crown to disclose Deidre Jarvis’ criminal record and outstanding charges in advance of trial as part of the first party disclosure obligation. They are at odds over the effect of the failure to disclose on the outcome of the trial and the fairness of the trial proceedings. [87] The appellant submits that pre-trial disclosure of Deidre Jarvis’ criminal record and outstanding charges was required under the first party disclosure regime of R. v. Stinchcombe , [1991] 3 S.C.R. 326. This information was in the possession or control of the Crown and was relevant to the credibility of an important Crown witness, as well as the reliability of her testimony. [88] To assess the impact of the Crown’s disclosure failure, the appellant continues, this court must conduct a two-step inquiry. First, we must assess whether there is a reasonable possibility the verdict rendered could have been different had the disclosure been made. Second, we must assess whether the failure affected the overall fairness of the trial proceedings. [89] The appellant says there is a reasonable possibility that the verdict rendered could have been different had the required disclosure been made. The original statement of Deidre Jarvis provided material support for the appellant’s defence since her description of “laughing and giggling” with no apparent distress was incompatible with the complainant’s version of events. The second statement was fatal to the defence if the substance of it became Deidre Jarvis’ evidence at trial. It was critical for the defence to be able to undermine the reliability of her second statement and not just by virtue of its timing relative to the events described. [90] The undisclosed material including Deidre Jarvis’ criminal record and outstanding charges, the circumstances underlying them, and her relationship with the most notorious drug dealer in Kenora provided a storehouse of impeachment material, including information that could support a claim that she had a motive to fabricate her evidence to curry favour with the Crown in respect of her own outstanding charges. Jarvis was not simply a clerk at Luby’s Motel who happened to hear and see things on the dock. Impeachment of the reliability of her evidence would reduce its confirmatory potential to the vanishing point, giving rise to the reasonable possibility of a different result at trial. [91] The appellant also submits that the non-disclosure affected the overall fairness of his trial. The failure to disclose deprived the appellant of the evidentiary resources needed to effectively impeach the credibility of Deidre Jarvis and the reliability of her testimony. [92] The appellant accepts that due diligence is a relevant factor, but submits that trial counsel in this case lacked sufficient information to request the materials now proposed as fresh evidence. Defence counsel at trial was unfamiliar with the local disclosure practices. Prior to the first day of trial, all indications were that Deidre Jarvis was a witness of unremarkable background, whose observations were consistent with the appellant’s account. An adjournment was not a viable option. There was no reason to question the bona fides of Jarvis’ revision of her original statement. [93] The respondent acknowledges that Jarvis’ record and outstanding charges were relevant for cross-examination purposes. However, the respondent emphasizes that appellate intervention is only warranted where an appellant demonstrates that non-disclosure impacted his right to make full answer and defence. In this case, the appellant has not satisfied this burden. [94] The respondent accepts that the trial judge relied on Deidre Jarvis’ testimony to confirm some aspects of S.S.’s evidence. But his key findings were not reliant on Deidre Jarvis’ evidence. Nor was his rejection of the appellant’s account based on an acceptance of Deidre Jarvis’ version of events. [95] The trial judge accepted S.S.’s evidence and found it was confirmed by her physical injuries, her distraught condition immediately afterwards, the DNA findings and, in some respects, by the appellant’s own testimony. [96] The disclosure failure had no impact on trial fairness. It did not impact defence counsel’s ability to advance his position: that while an assault occurred, there was no sexual component. [97] In addition, the respondent continues, lack of due diligence constitutes a significant impediment to the appellant’s motion. Trial counsel was aware of the general practice that the criminal records and outstanding charges of witnesses were only disclosed if a specific request was made for them of the Crown. An experienced criminal lawyer, he made no such request in connection with Deidre Jarvis. Further, the claim that an adjournment was not realistic because of the delay that would likely ensue rings hollow. Trial counsel was well aware that if the appellant was convicted, the court would institute dangerous offender proceedings which, by their very nature, are protracted. [98] Overall, defence counsel made a tactical decision to attempt to have Deidre Jarvis confirm her observations as reported in his first statement. He should not now be permitted to reverse course because the result was unfavourable. The Governing Principles [99] The principles that inform our determination of this ground of appeal are those that define: i. the disclosure obligations of the Crown; ii. the evidentiary use of previous convictions and outstanding charges in impeachment of a non-accused witness; and iii. the remedies available on appeal for disclosure failures at trial. The Disclosure Obligations of the Crown [100] Two different disclosure regimes govern disclosure in criminal cases. First party disclosure under Stinchcombe supplemented by the duties imposed upon the Crown and investigating police in R. v. McNeil , 2009 SCC 3, [2009] 1 S.C.R. 66, and third party disclosure under R. v. O’Connor , [1995] 4 S.C.R. 411. The purpose of each regime is to protect an accused’s right to make full answer and defence, while at the same time to recognize the need to impose limits on disclosure when required: R. v. Gubbins , 2018 SCC 44, [ 2018] 3 S.C.R. 35, at para. 29; World Bank Group v. Wallace , 2016 SCC 15, [2016] 1 S.C.R. 207, at para. 115. [101] First party disclosure under Stinchcombe imposes a duty on the Crown to disclose all relevant, non-privileged information in its possession or control, whether that information is inculpatory or exculpatory, unless disclosure of that information is governed by some other regime. This duty is ongoing and corresponds to the accused’s constitutional right to the disclosure of all material which meets the Stinchcombe standard: Gubbins , at paras. 18-19; Stinchcombe , at pp. 339; and R. v. McQuaid , [1998] 1 S.C.R. 244, at para. 22. [102] The purpose of disclosure is to protect an accused’s Charter right to make full answer and defence. That right will be impaired where there is a reasonable possibility that undisclosed information could have been used by the accused to meet the case for the Crown, to advance a defence or to otherwise make a decision which could have affected the conduct of the defence: Gubbins , at para. 18; McQuaid , at para. 22. [103] Crown entities other than the prosecuting Crown – including the police – are third parties for the purposes of disclosure. They are not subject to the Stinchcombe regime: Gubbins , at para. 20; McNeil , at para. 22; and R. v. Quesnelle , 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 11. The prosecuting Crown’s disclosure duty under Stinchcombe is triggered upon a defence request for disclosure: Gubbins , at para. 19; Stinchcombe , at pp. 342-43. [104] It ill lies in the mouth of the prosecuting Crown to explain failure to disclose relevant material on the basis that the investigating police service failed to disclose it to the Crown. When put on notice of potentially relevant material in the hands of the police or other Crown entities, the prosecuting Crown has a duty to make reasonable inquiries. Correspondingly, the police have a duty to disclose to the prosecuting Crown all material pertaining to its investigation of the accused. This material is often termed “the fruits of the investigation”: Gubbins , at para. 21; McNeil , at paras. 14, 22-24 and 52. [105] The “fruits of the investigation” refers to the police investigative files, not their operational records or background information. In other words, “fruits of the investigation” refers to information “generated or acquired during or as a result of the specific investigation into the charges against the accused”: Gubbins , at para. 22. [106] However, the police obligation of disclosure to the prosecuting Crown extends beyond the “fruits of the investigation”. The police should also disclose to the prosecuting Crown any additional information that is “obviously relevant” to the accused’s case. This “obviously relevant” information is not within the investigative files, but must be “disclosed under Stinchcombe because it relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence”: Gubbins , at para. 23. [107] To determine which disclosure regime applies to information, a court must consider whether: i. the information sought is in the possession or control of the prosecuting Crown; and ii. the nature of the information sought is such that the police or another Crown entity in possession or control of it should have supplied the information to the prosecuting Crown. The second question will be answered affirmatively where the information is part of “the fruits of the investigation” or is “obviously relevant”. An affirmative response on either of these issues means that the first party or Stinchcombe disclosure regime applies: Gubbins , at para. 33. Evidentiary Use of Prior Convictions and Outstanding Charges [108] Section 12(1) of the Canada Evidence Act , R.S.C., 1985, c. C-5, permits questioning a witness on whether they have been convicted of any offence. The fact that a witness has been convicted of a crime is relevant to that person’s trustworthiness as a witness. Some convictions – for example, offences involving dishonesty or false statements – have a greater bearing on testimonial trustworthiness than others. The probative value of prior convictions also varies with other factors. The number of prior convictions. Their proximity or remoteness at the time of the witness’ testimony. See e.g. R. v. Brown (1978), 38 C.C.C. (2d) 339 (Ont. C.A.), at p. 342; R. v. Murray (1997), 115 C.C.C. (3d) 225 (Ont. C.A.) , at para. 9. [109] As a general rule, an ordinary witness, unlike an accused, may be cross-examined on unrelated misconduct which has not resulted in a criminal conviction. This includes cross-examination on conduct that underlies charges outstanding against a witness at the time of their testimony. The purpose of this cross-examination is to impeach the witness’ credibility: R. v. Davison , DeRosie and MacArthur (1974), 20 C. C.C. (2d) 424 (Ont. C.A.), at pp. 443-44, leave to appeal refused, [1974] S.C.R. viii ; R. v. Gonzague (1983), 4 C.C.C. (3d) 505 (Ont. C.A.), pp. 510-11; and R. v. Gassyt (1998), 127 C.C.C. (3d) 546 (Ont. C.A.), at para. 37, leave to appeal refused, [1999] 2 S.C.R. vi . [110] As a general rule, the mere fact that a witness is charged with an offence cannot degrade the witness’ character or impair their credibility. Generally this rule would mean that a witness could not be cross-examined about whether they were then charged with a criminal offence. But this rule gives way and permits cross-examination for the purpose of showing that the witness has a possible motivation to seek favour with the prosecution. A circumstance that may permit cross-examination on the fact of outstanding charges arises when the same police service that laid the charges outstanding against the witness also laid the charges against the accused about which the witness testifies for the Crown: Gonzague , at p. 511; Gassyt , at paras. 36-38; and R. v. Titus , [1983] 1 S.C.R. 259 , at p. 263. Appellate Remedies for Non-Disclosure [111] An appellant who seeks to set aside a conviction on the basis of the Crown’s failure to meet its disclosure obligations bears the onus of establishing not only a breach of the right to disclosure, but also a breach of the right to make full answer and defence. This is so because the right to disclosure is a component of, but not coextensive with, the right to make full answer and defence. And it is a breach of the right to make full answer and defence that forms the basis for the remedy of the new trial: R. v. Taillefer , 2003 SCC 70, [2003] 3 S.C.R. 307, at para. 71; R. v. Dixon , [1998] 1 S.C.R. 244, at paras. 23-24. [112] An appellant who seeks a new trial based on a disclosure failure must first demonstrate a breach of the right to disclosure. This requires that the appellant demonstrate a reasonable possibility that the undisclosed information could have been used: i. to meet the case for the Crown; ii. to advance a defence; or iii. to make a decision that could have affected the conduct of the defence. See Dixon , at paras. 22-23. [113] Second, the appellant must establish, on the balance of probabilities, that his right to make full answer and defence was impaired by the Crown’s failure to disclose: Dixon , at paras. 31, 33. To discharge this burden, the appellant must demonstrate there is a reasonable possibility that the non-disclosure affected either the outcome at trial or the overall fairness of the trial process. This reasonable possibility must be based on reasonably possible uses of the undisclosed evidence or reasonably possible avenues of investigation that were closed to the accused as a result of the disclosure failure. Mere speculation does not satisfy this reasonably possible standard: Dixon , at para. 34. See also R. v. C.(M.H.) , [1991] 1 S.C.R. 763, at pp. 776-77. [114] A two-step analysis is necessary to determine whether the disclosure failure impaired the appellant’s right to make full answer and defence. The first step invites an assessment of the reliability of the verdict. The second step involves an assessment of the effect of the disclosure failure on the overall fairness of the trial process: Dixon , at para. 36; Taillefer , at paras. 80-81. [115] At the first step, to assess the reliability of the result at trial in light of the disclosure default, we are to examine the undisclosed information to determine the impact it might have had on the decision to convict as expressed in the reasons for judgment. If, on its face , the undisclosed information affects the reliability of the conviction, we should order a new trial. The application of this test requires that we determine whether there was a reasonable possibility that the trier of fact, with the benefit of all the relevant evidence, might have had a reasonable doubt about the appellant’s guilt. This determination is made on the basis of the evidence in its entirety: Dixon , at para. 36; Taillefer , at paras. 81-82. [116] If the undisclosed evidence does not itself affect the reliability of the verdict, the second step requires us to consider the effect of the non-disclosure on the overall fairness of the trial process. To do this, we must assess, on the basis of reasonable possibility, the lines of inquiry with witnesses or the opportunities to obtain additional evidence that could have been available to the defence had timely disclosure been made. This step has to do not only with the content of the undisclosed information, but also with “the realistic opportunities to explore possible uses of the undisclosed information for purposes of investigation and gathering evidence”: Dixon , at para. 36 (emphasis in original). [117] This step involves weighing and balancing. Important factors are the materiality of the undisclosed information and the diligence of counsel in its pursuit: Dixon , at paras. 38-39. If defence counsel knew – or should have known based on other Crown disclosure – that the Crown had failed to disclose information, yet remained passive as a result of a tactical decision or lack of due diligence, it would be difficult to establish that trial fairness was affected: Dixon , at paras. 37-38. The Principles Applied [118] I would give effect to this ground of appeal. The appellant has established a breach of his right to disclosure and a consequent impairment of his right to make full answer and defence. [119] The analysis that follows involves a series of steps. It begins with a consideration of the subject-matter of the alleged disclosure failure. The Subject-Matter of Disclosure [120] Deidre Jarvis was a witness whom the Crown intended to call at the appellant’s trial. On the basis of her first statement to police, she could fairly be described as a “mixed” witness. [121] It is well established that as a witness in a criminal trial, Deirdre Jarvis could be cross-examined on any prior convictions under s. 12(1) of the Canada Evidence Act . And as a non-accused witness, she could be cross-examined on disreputable conduct – for example, her outstanding charges at the time of trial, and the conduct underlying those charges. [122] It follows that Deidre Jarvis’ criminal record, as well as information about outstanding charges and the circumstances on which those charges were based, was relevant in the sense that it could be used to impeach Ms. Jarvis as a witness. This information was not substantively admissible. Its use was limited to impeachment. The Applicable Disclosure Scheme [123] To determine which, if any, disclosure regime required disclosure of this information in advance of trial, it is necessary to consider two questions: · Is the information in the possession or control of the prosecuting Crown? · Is the nature of the information sought such that the police or another Crown entity in possession or control of the information ought to have supplied it to the prosecuting Crown? [124] No one suggests that the information at issue here was in the possession or control of the prosecuting Crown. Even if it be assumed that the local Crown was aware of the antecedents of the witness, this does not amount to possession or control of the information: R. v. Yumnu , 2012 SCC 73, [2012] 3 S.C.R. 777, at para. 64. [125] On the other hand, it cannot be seriously suggested that the investigating police service is not in possession or control of a prospective witness’ criminal record since that force has access to records of criminal convictions through CPIC. Likewise, at the very least where that force is the investigating agency, or a participant in a joint forces investigation into the alleged criminal conduct of a witness, that agency can be said to have possession and control of the information with which we are concerned here. [126] To engage the obligation of a police service in possession or control of information to supply that information to the prosecuting Crown, that information must be either part of the “fruits of the investigation” or “obviously relevant”. [127] I am not satisfied that the information at issue may fairly be categorized as “fruits of the investigation” in the circumstances of this case. [128] However, in my respectful view, the information with which we are concerned here falls within the “obviously relevant” category for disclosure purposes. It follows that it was incumbent on the police to turn over this information to the prosecuting Crown for disclosure to defence counsel. [129] The phrase “obviously relevant” describes information that is not within the investigative file but is nonetheless required to be disclosed under Stinchcombe because it relates to an accused’s ability to meet the case for the Crown, to raise a defence or to otherwise consider the conduct of the defence: Gubbins , at para. 23. Logically, this would include evidence that could be used to impeach the credibility of witnesses to be called to establish the accused’s guilt: Taillefer , at para. 62. The relevance of outstanding charges in particular was emphasized by the Court in Titus , at pp. 263-64: [T]he accused is entitled to employ every legitimate means of testing the evidence called by the Crown to negative that presumption and in my opinion this includes the right to explore all circumstances capable of indicating that any of the prosecution witnesses had a motive for favouring the Crown. In my opinion the outstanding indictment preferred against the witness by the same police department that had laid the present charge against Titus constitutes such a circumstance . [Emphasis added.] [130] It is difficult to gainsay the relevance of the information at issue here. A criminal record. Outstanding charges. Evidence about the circumstances underlying the relevant charges. Each available for impeachment of a witness called by the Crown. Each a relevant factor in deciding whether to call Deidre Jarvis as a defence witness in the event she was not to be called by the Crown. Relevance is the controlling principle, not the likelihood of use or prospect of success. [131] Several police officers were examined under oath about their knowledge of any outstanding charges against Deidre Jarvis at the time she testified at the appellant’s trial. Two constant refrains emerged from their testimony. They did not conduct the investigation; thus they did not know anything about it or about any charges that may have resulted from it. And it was not the practice in Kenora at the time to check for a criminal record or outstanding charges against a Crown witness, or to discuss these issues with the prosecuting Crown. [132] Kenora is not a large place. It had a police service at the time of about 40 members. That police service conducted or participated in the investigation that led to the charges against Deidre Jarvis and her partner, Frank Novelli, the biggest drug dealer in town. The offences involved were significant. Some of the arrests, including that of Jarvis, were publicized on local media outlets. One of the officers who was involved in the investigation of the offence alleged against the appellant was in the courtroom assisting in the organization of the exhibits throughout the appellant’s trial at which Deidre Jarvis testified. During the same period of time, the same officer was conducting forensic analyses of some exhibits seized during the investigation of the drug charges then outstanding against Deidre Jarvis and essential to the proof of those charges. I am satisfied the police knew about Jarvis’ outstanding charges. [133] The local practice, if such it be, not to discuss the criminal records or outstanding charges faced by a Crown witness did not obviate the disclosure obligation on the police. Even if it could be argued that the disclosure obligation had not clearly crystallized when Deidre Jarvis gave her first statement, it had plainly crystallized by the time she provided her second statement on the morning of the first day of trial. The Disclosure Failure [134] I have concluded that the police working on the appellant’s case knew about Deirdre Jarvis’ outstanding charges. Accordingly, they carried a disclosure obligation to turn over to the Crown Ms. Jarvis’ criminal record and information concerning the outstanding charges she was then facing. The Crown was then required to disclose this information to the defence. [135] Without the benefit of hindsight, it is difficult to assign fault to defence counsel for a failure to request disclosure and information of which he was neither aware nor had any reason to suspect existed even after the volte-face of the witness on the first day of trial. The Impact of Non-Disclosure [136] The appellant has demonstrated a breach of his right to disclosure. But, as we have seen, to obtain a new trial the appellant must also demonstrate that this breach infringed his right to make full answer and defence. To do so he must show a reasonable possibility that the disclosure failure affected the outcome of his trial or the overall fairness of the trial process: Dixon , at para. 34; Taillefer , at para. 71. [137] As I will explain, I find the appellant has shown both. The Reliability of the Verdict [138] In my examination of the undisclosed information to determine the impact it might have had on the decision to convict, I have the advantage of the trial judge’s reasons that describe the extent to which he accepted Deidre Jarvis’ evidence and how it influenced his decision to convict. My analysis proceeds through several steps. [139] First, the nature and scope of the controversy at trial. [140] At trial, it was uncontested that, at the material time, the appellant and S.S. were at the dock area together. The appellant admitted punching S.S. in the face. This caused her to fall to the ground. Her injuries amounted to bodily harm within its definition in s. 2 of the Criminal Code . The essential issue at trial was whether a sexual assault had occurred and, to some extent, in light of the appellant’s claim of third party authorship by Dawley Dunsford, the identity of its perpetrator. [141] Second, the evidence of sexual assault. [142] Aside from S.S.’s evidence, Deidre Jarvis’ testimony constituted the main evidence that a sexual assault occurred. While forensic evidence confirmed contact between the appellant and S.S., this evidence did not necessarily contradict the appellant’s version of events. [143] Third, the substance of Deidre Jarvis’ evidence. [144] The substance of Deirdre Jarvis’ testimony at the appellant’s trial consisted of observations of activity on the dock area which she made on the night in question. Ms. Jarvis’ evidence confirmed the appellant’s presence on the dock with a woman. This was uncontroversial. But other aspects of her testimony – particularly the man pulling up his pants – went to the key issues at trial. [145] Fourth, the trial judge’s use of Deidre Jarvis’ evidence. [146] The trial judge rejected the appellant’s version of events including those that took place in the motel room prior to the trip to the dock and the events that took place there. The trial judge accepted the evidence of S.S., B.S. and M.B. that the appellant pushed S.S. down on the bed and tried to kiss her. The evidence of Deidre Jarvis played no part in this finding. [147] However, the same cannot be said of the trial judge’s findings about what occurred at the dock. In rejecting the appellant’s version of events, the judge accepted Deirdre Jarvis’ “solid and unequivocal” evidence about “what occurred at the dock.” Although the trial judge also rejected the appellant’s evidence on the basis of its inherent implausibility in light of the evidence of what had occurred earlier in the evening and the 911 call that resulted, it cannot be said that Deirdre Jarvis’ evidence was peripheral to the trial judge’s rejection of the appellant’s evidence or to his conclusion that the prosecution had proven the appellant’s guilt in relation of the sexual assault beyond a reasonable doubt. [148] Aggravating matters is the trial judge’s use of Jarvis’ evidence to confirm critical aspects of S.S.’s testimony. While he also enlisted the testimony of responding police officers, his acceptance of S.S.’s version of events at the dock was based, at least in part, on the “significant evidence of … resistance found in the evidence of Deirdre Jarvis, who heard the screaming and who saw [the appellant] ultimately pull up his pants and run away.” [149] Finally, the undisclosed information and its impact on the reliability of the result at trial. [150] Were the application based solely on Deidre Jarvis’ criminal record, I would not allow the appeal. The criminal record is dated. No offences of dishonesty. No disobedience of court orders. No interferences with the administration of justice. There is no reasonable possibility that disclosure could have impacted the result at trial. [151] However, the outstanding charges are a different matter. While evidence of Jarvis’ charges was not relevant or admissible to prove any material issue at trial, it was highly probative of Jarvis’ credibility and was admissible for impeachment purposes. [152] Facing charges laid by the same police service handling the appellant’s case, Jarvis may have been motivated to ingratiate herself with the police and prosecution. Between her first and second statements, Jarvis accumulated eight charges. Some were minor. Others – related to trafficking of cocaine – less so. None were resolved by the time of the appellant’s trial. Jarvis’ first statement, before the charges, was consistent with the appellant’s version of events. Her second, after the charges, was not. To the contrary, her testimony provided tailored support for the Crown’s position on the contested issues at trial. [153] I take no position on whether Jarvis in fact altered her account to curry favour with the prosecution. The relevant point is that Jarvis, at first a key but mixed witness for the Crown, 17 months later, on the morning of the first day of trial, while herself facing serious outstanding charges laid by the same police service that investigated the appellant, transformed into a witness who sealed the case for the Crown on the critical issue at the appellant’s trial, the sexual nature of the assault. [154] Without the benefit of this information, the trial judge apparently accepted Jarvis’ explanation that her first statement was incomplete because the interview had interrupted her shift at the convenience store. As explained above, the trial judge proceeded to accept Deidre Jarvis’ evidence and rely on it to reject the appellant’s narrative of events at the dock. [155] Under these circumstances, I am satisfied that with the benefit of all the relevant evidence, the trial judge may have been left with a reasonable doubt and reached a different conclusion. The Fairness of the Trial [156] Even if the trial result was not affected, I would allow the appeal on the basis that the non-disclosure compromised trial fairness. As noted, this step involves balancing factors such as the materiality of the undisclosed information and the diligence of counsel in its pursuit: Dixon , at paras. 38-39. [157] The materiality of the undisclosed information is high. As I have explained, the outstanding charges imbued Jarvis with a strong motivation to alter her statement in order to curry favour with the prosecution. Failure to disclose these charges foreclosed the possibility for defence counsel to impeach Ms. Jarvis on this basis. [158] While trial counsel did not request the undisclosed information, I do not find this omission was based on a tactical decision. In his affidavit, counsel explained that had he known of Jarvis’ charges and convictions, he would have conducted further investigation and tried to impeach her on this basis. Indeed, defence counsel attempted to impeach Jarvis’ credibility through cross-examination on her inconsistencies. But in this attempt he was deprived of certain tools to which he was entitled. [159] Nor do I find that trial counsel’s conduct amounts to a failure of due diligence of the magnitude which would preclude a finding of trial unfairness. Defence counsel did not practice in the jurisdiction in which the trial was conducted. He was unaware of the disclosure practices of the local Crown Attorney’s office. Based on his practice in Thunder Bay, he would have expected the record of Crown witnesses to be disclosed to him even absent a request. [160] In these circumstances, trial counsel’s failure to request the information does not outweigh its materiality with respect to the impeachment of Deidre Jarvis. The appellant has established that the non-disclosure caused trial fairness to be compromised, and his right to make full answer and defence, breached. disposition [161] For these reasons, I would allow the conviction appeal and order a new trial. It is therefore unnecessary to consider the appeal against sentence. Released: “DW” May 6, 2020 “David Watt J.A.” “I agree. B.W. Miller J.A.” “I agree. Fairburn J.A.” [1] The appellant pleaded guilty to both counts of failure to comply with a recognizance. Those convictions are not under appeal.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Phan, 2020 ONCA 298 DATE: 20200513 DOCKET: C63419 Strathy C.J.O., Miller and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and Thanh Tung Phan Appellant James Lockyer and Craig Zeeh, for the appellant Frank Au and Gerald Brienza, for the respondent Heard: March 3, 2020 On appeal from the conviction entered on February 7, 2017 by Justice Brian O’Marra of the Superior Court of Justice, sitting with a jury. Strathy C.J.O.: A. OVERVIEW [1] The appellant appeals his conviction for first-degree murder of Peter Nguyen. On February 4, 2012, two men shot Mr. Nguyen as he left the Wildfire Restaurant on Yonge Street in Toronto, after dinner with his girlfriend. The gunmen then jumped into a black Mercedes SUV, which sped from the scene. [2] The appellant was the owner of the Mercedes. Coincidentally, police had been surveilling him as part of an investigation into drug trafficking. They had followed the Mercedes to Yonge Street, where they saw it park near the restaurant. They watched and waited. They became eye witnesses to Mr. Nguyen’s assassination. [3] The Crown alleged that the appellant was the driver of the Mercedes and that he participated in the murder by locating the victim, alerting the killers to his departure from the restaurant, and facilitating their escape by driving the getaway car. [4] The principal issue at trial was whether the appellant was the driver of the Mercedes. The jury did not have reasonable doubt on that issue. [5] Mr. Phan’s appeal rests on two grounds. First, he asserts that the trial judge erred in his disposition of a Garofoli application: R. v. Garofoli , [1990] 2 S.C.R. 1421 ; second, he contends that the trial judge erred in admitting evidence of a history of violence between two gangs that the appellant and the deceased were alleged to be associated with, as the prejudicial effect outweighed the probative value. [6] For reasons that follow, I find no error in the Garofoli ruling. I also find no error in the admission of evidence related to the history of violence. Accordingly, I would dismiss the appeal. B. BACKGROUND [7] I will begin by setting out some of the background facts. First, the facts relating to the judicial authorization; second, the facts relating to the surveillance of the appellant’s vehicle on the day of the shooting; and third, the appellant’s alleged gang affiliation. I will add additional detail when considering each ground of appeal. (1) The Authorization [8] On January 14, 2014, as part of a large-scale drug investigation into the activities of individuals including the appellant, Durham Regional Police obtained an authorization to intercept the appellant’s telephone communications pursuant to ss. 185 and 186 of the Criminal Code , R.S.C., 1985, c. C-46, and an authorization under s. 492.1(1) of the Criminal Code to install a tracking device on the appellant’s Mercedes. [9] This authorization was the subject of a Garofoli application at the appellant’s trial. The appellant argued at trial that: (a) the authorization should be set aside because the affiant of the ITO deliberately deceived the authorizing justice; (b) he should be permitted to cross-examine the affiant and sub-affiants; and (c) he was entitled to disclosure of video evidence concerning a third party. The trial judge excised some portions of the ITO and permitted some cross-examination of the affiant but dismissed the other requests. The trial judge’s ruling on these matters is the subject of the first ground of appeal. (2) Surveillance of the Appellant and the Shooting [10] Pursuant to the authorization, police conducted surveillance of the appellant’s activities by placing an electronic tracking device on his Mercedes. They also intercepted some of his telephone communications. [11] On January 22, 2014, police officers following the appellant observed him at a “SpyTech” store on Yonge Street. They later determined that he had purchased an electronic tracking device. They also subsequently intercepted a call between the appellant and a GPS service, seeking to purchase an upgraded tracking plan to enable him to more closely monitor the movements of his target. His target turned out to be the deceased’s girlfriend, Andrea Villareal. [12] On the evening of the killing, February 4, 2014, police had followed the appellant’s Mercedes to Yonge Street, near the Wildfire Restaurant. About 90 minutes before the shooting, they observed the driver of the Mercedes get out of his vehicle, walk to Ms. Villareal’s BMW, which was parked nearby, kneel down and remove something from underneath. That “something” was later identified as the tracking device the appellant had purchased at “SpyTech”. [13] The driver returned to the Mercedes and waited. Around 9:20 p.m., just as Mr. Nguyen and Ms. Villareal were leaving the restaurant, the officers saw the lights of the Mercedes turn on. The Crown alleged that this was a signal from the driver to the gunmen that it was time to act. As Mr. Nguyen and Ms. Villareal left the restaurant and walked towards her BMW, two men approached them and began shooting at Mr. Nguyen, who fell to the ground while the shooting continued. Mr. Nguyen died of multiple gunshot wounds. Ms. Villareal was not hit. [14] The gunmen fled on foot. After a short distance, they got into the Mercedes, which stopped to pick them up and then sped from the scene. The gunmen were never identified or apprehended. [15] Two police officers who had been conducting surveillance while the Mercedes was parked near the restaurant identified the appellant as the driver of the Mercedes. (3) The Gang Evidence [16] The Crown brought an application at trial to adduce evidence of a history of violent acts between two gangs: the “Chin Pac”, with which the appellant was alleged to be associated, and the “Asian Assassinz”, alleged to be a rival gang to which the deceased belonged. The evidence established connections between the appellant and other Chin Pac members, including his brother, Jerry Phan. It also chronicled a series of violent acts involving the gangs, including the shooting and wounding of Jerry Phan on January 1, 2013 and May 11, 2013, as well as his eventual fatal shooting on November 3, 2014, after the killing of Mr. Nguyen. [17] The Crown contended that the gang evidence was admissible to establish that the appellant had a motive to participate in Mr. Nguyen’s killing. The Crown proposed to adduce the evidence through the testimony of police officers who were aware of the gang associations and of the specific acts of violence. The trial judge encouraged the Crown to adduce the evidence through a statement of facts not contested and this, in fact, took place. [18] The trial judge’s admission of this evidence is the basis for the second ground of appeal. C. ANALYSIS (1) The Judicial Authorization (a) Background [19] The appellant claims that the affiant of the ITO deceived the authorizing justice and withheld information from him. He also argues that the trial judge should have excluded the evidentiary fruits of the judicial authorization, including all the evidence obtained by surveillance of the appellant, which would have eviscerated the Crown’s case. [20] The judicial authorization, as it related to the appellant, came about in the following way. In December 2013, members of the Durham Regional Police Gun and Gang Enforcement Unit were conducting a large-scale drug investigation. Shawn Hussain was one of the targets of that investigation. On December 19, 2014, the police followed him to Cumberland Avenue in the Yorkville area of Toronto. Officers observed Mr. Hussain getting out of his car carrying a back pack and apparently talking on his phone as he paced up and down the street. Mr. Hussain got into the passenger seat of a black Mercedes SUV, later discovered to be registered to the appellant. About 20 seconds later, Mr. Hussain left the Mercedes and returned to his own car. Two officers conducting surveillance asserted that when Mr. Hussain got out of the Mercedes, he was carrying a different bag, rather than the back pack. [21] After Mr. Hussain left the area, police followed the appellant’s car to an apartment building on Broadview Avenue, where they observed it enter the underground parking lot. They later discovered that the appellant lived in the building and the Mercedes was parked in his spot. Later that day, police followed the appellant in Toronto and to Brantford, Ontario, where he engaged in activities that they considered indicative of drug trafficking. (b) The ITO and the Affiant’s Evidence [22] The appellant’s core submission in relation to the judicial authorization is that the affiant of the ITO, D.C. Nathan Campbell, deliberately misled the authorizing justice and colluded with sub-affiants, creating the impression that the officers conducting the surveillance had actually seen the appellant engage in a drug transaction with Mr. Hussain. In fact, they had only observed Mr. Hussain get into and out of the appellant’s Mercedes, and they never actually saw the appellant in the vehicle. While officers later observed the Mercedes parked in the appellant’s spot at his apartment building, and still later observed the appellant get out of his car after following it to other locations, the appellant says they painted a misleading picture, if not outright lied, to make the case for authorization appear stronger than it was. [23] D.C. Campbell based his statements in the ITO on two reports. One was a surveillance report prepared by D.C. Hilborn, the central note-taker for the five-member surveillance team on December 19, 2013. His report included the statement that the appellant “did a bag exchange” with Mr. Hussain. The other was an investigative report prepared by D.C. Capener, a member of the surveillance team. D.C. Capener stated in his report that he was conducting surveillance on Mr. Hussain “when he met with an Asian male”, later identified as the appellant. [24] Based on this information, D.C. Campbell stated in the ITO: I believe that association between HUSSAIN with PHAN … is for the sole purpose of drug trafficking and that they are all part of this drug trafficking network. I believe that this meeting between HUSSAIN and PHAN was indicative of a drug transaction . This appeared to be a prearranged meeting that lasted for a very short period of time. The surveillance team also observed an exchange of bags between HUSSAIN and PHAN . Thanh Tung PHAN has been identified as an associate of Shawn HUSSAIN. This has been established through surveillance. HUSSAIN and THANH were observed during surveillance conducting a clandestine meeting that lasted for a short duration of time . During this meeting HUSSAIN and PHAN conducted a bag exchange . I believe that this meeting was indicative of a drug transaction. I also believe that PHAN supplied drugs to HUSSAIN during this meeting. Through further surveillance conducted on PHAN he was observed conducting activity which I believe was indicative of drug trafficking. [Emphasis added] [25] The trial judge granted the appellant leave to cross-examine D.C. Campbell on aspects of his affidavit, discussed below. The appellant claims that he erred in refusing to grant leave to cross-examine the sub-affiants. (c) Disclosure: the video surveillance of Mr. Hussain [26] The appellant also sought disclosure of video surveillance of Mr. Hussain at an apartment building located on Fort York Boulevard in Toronto. [27] The issue arose in the following way. D.C. Hilborn’s surveillance report for December 19, 2014 described Mr. Hussain as leaving his own car with a “large school bag (black)”, getting into the appellant’s car, and shortly thereafter emerging with a “larger black bag”. D.C. Capener’s surveillance notes described the first bag as flat and empty, with zippers on the side, and the second bag as being a “different shape” with “zippers all over top”. [28] D.C. Campbell included a photograph in the ITO, showing Mr. Hussain carrying a back pack two weeks earlier on December 4, 2013. In describing the “bag exchange” at the appellant’s car on December 19, 2013, D.C. Campbell said that “HUSSAIN has also been observed on a number of occasions, through surveillance and security videos to be in possession of a back pack … I believe HUSSAIN uses this back pack as a means to transport items that relate to drug trafficking”. [29] After the meeting at the appellant’s car on December 19, 2013, the police tracked Mr. Hussain’s vehicle to a condominium tower on Fort York Boulevard in Toronto. Police subsequently obtained video evidence of Mr. Hussain at that location, but D.C. Campbell testified on his cross-examination that he did not review the video to determine whether Mr. Hussain was carrying a back pack or the more elaborate bag with zippers on the top, described by D.C. Capener. [30] During the Garofoli application, the appellant requested disclosure of video recordings obtained by police from cameras at the Fort York Boulevard location, which would have captured Mr. Hussain’s movements on December 19, 2013. He argued then, as he does now, that if the video recordings showed the appellant carrying a plain back pack, rather than the zippered bag described by D.C. Capener, it would undermine D.C. Capener’s credibility with respect to the bag exchange. This request went hand-in-hand with the appellant’s request to cross-examine the sub-affiants, D.C. Capener and D.C. Hilborn, concerning the bag exchange. The trial judge rejected both requests. (d) The Trial Judge’s Reasons ( R. v. Phan , 2017 ONSC 978) (i) Cross-Examination of the Affiant and Sub-Affiants [31] The trial judge granted leave to cross-examine D.C. Campbell, the affiant of the ITO, applying the test in R. v. Pires; R. v. Lising , 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 10, and the decision of this court in R. v. Green , 2015 ONCA 579, 337 O.A.C. 72. He limited the scope of the cross-examination to the basis of D.C. Campbell’s belief that the appellant was involved in a drug transaction with Mr. Hussain on Cumberland Avenue on December 19, 2013, for the purpose of establishing bad faith or negligence of the affiant. He declined to grant leave to cross-examine the sub-affiants, because the issues could be “fully and fairly” canvassed through D.C. Campbell’s examination. (ii) Disclosure of Video Surveillance [32] The trial judge refused the request for additional disclosure, including disclosure of the video of Mr. Hussain at Fort York Boulevard. Referring to R. v. McKenzie , 2016 ONSC 242, 26 C.R. (7th) 112, he observed, at para. 18, that “[o]nce the disclosure request reaches beyond materials placed before the authorizing justice and the contents of the investigative file, presumption of relevance is attenuated.” He added that in a case such as this, where the ITO has numerous targets, “the disclosure issues on the Garofoli hearing should focus on the information related specifically to the applicant and not the investigation at large.” The observations of Mr. Hussain at locations unrelated to the applicant were not relevant to the Garofoli hearing. (iii) Reasonable and Probable Grounds [33] The trial judge found that the ITO disclosed reasonable and probable grounds. In his written reasons, which were released after the cross-examination of D.C. Campbell, he noted the “narrow scope” of a Garofoli application, which focuses on the affiant’s “reasonable belief” in the requisite statutory grounds: World Bank Group v. Wallace , 2016 SCC 15, [2016] 1 S.C.R. 207. The trial judge framed the issue as whether the contents of the ITO “provide a basis upon which the issuing justice, acting judicially, could find reasonable and probable grounds to believe that an offence has been committed and that evidence of the offence would be found at the specified place”. Even where there has been material non-disclosure or misleading or false information presented in the ITO, the authorization is not automatically vitiated. Rather, these are factors to be considered and the “primary focus on review is whether the authorizing judge could have been satisfied that the order should issue.” [34] The Crown conceded that the assertion that the appellant was actually seen interacting with Mr. Hussain was inaccurate and had to be excised from the ITO on review. The trial judge found D.C. Campbell’s cross-examination had exposed inaccuracies, informational gaps, and failures to follow up or seek corroboration on important issues. But the issue remained whether the affiant reasonably and honestly believed that a bag exchange had occurred between the appellant and Mr. Hussain, and whether there was a circumstantial basis on which the authorizing justice could have found that the appellant was involved in a drug transaction. He pointed out that “[t]he standard for naming a party on a Part VI [ Criminal Code ] application is far less than a balance of probabilities, let alone beyond a reasonable doubt” and that the standard could be met through circumstantial evidence. [35] Ultimately, the trial judge admitted evidence derived from the tracking device and from surveillance footage of the appellant. Although the erroneous information about the appellant being observed in a bag exchange needed to be excised, there was sufficient evidence to conclude that the authorizing justice, acting judicially, could find reasonable and probable grounds to believe that an offence had been committed and that evidence of the offence would be found at the specified place. [36] Even with the statement excised, there was sufficient circumstantial evidence to conclude that the appellant was in the vehicle when Mr. Hussain entered with a bag and quickly left, and that they likely engaged in a drug transaction. The trial judge reviewed the key circumstantial facts, at para. 37: 1. Hussain entered Phan’s vehicle with a bag at Cumberland and exited very shortly thereafter with a bag; 2. Phan’s vehicle was driven from Cumberland and parked at the parking spot reserved for Phan at his residence; 3. Phan was observed later in the day getting into and out of his car on more than one occasion; and 4. Nobody else was observed getting into or out of his car that day. [37] Based on this evidence, the trial judge decided that the authorization was valid. However, the affiant should have said that he had concluded that the appellant was present during the bag exchange, rather than that the surveillance team had observed it. (e) The Parties’ Submissions (i) Appellant [38] The appellant submits the trial judge erred in four respects: 1. refusing to exercise his discretion to set aside the authorization because D.C. Campbell, the affiant of the ITO, had deliberately deceived the authorizing justice; 2. refusing to permit cross-examination of the sub-affiants, particularly D.C. Hilborn and D.C. Capener, in order to enable the appellant to establish that they had conspired with D.C. Campbell to mislead the authorizing justice; 3. refusing to order production of video evidence of Mr. Hussain, which he says would have established that the sub-affiants’ description of Mr. Hussain’s bag was false, thereby undermining the claim that a drug transaction had taken place in the appellant’s Mercedes; and 4. concluding that the authorization could have been issued in the absence of a specific observation of the appellant on Cumberland Avenue. [39] With respect to the first submission, the appellant characterizes D.C. Campbell’s actions as an example of “noble cause corruption” – perverting the course of justice in the pursuit of a cause perceived to be worthy. He says that D.C. Campbell, probably in conspiracy with the sub-affiants, bolstered the case set out in the ITO by making the evidence seem stronger than it actually was, by repeatedly describing a person-to-person meeting between the appellant and Mr. Hussain. He submits the trial judge failed to properly assess the evidence in order to determine whether deliberate deception had occurred. [40] With respect to the second and third submissions, the appellant argues that cross-examination of the sub-affiants and disclosure of videos of Mr. Hussain at Fort York Boulevard could have undermined the affiant’s claim that there was a “bag exchange”, leading to a conclusion that all the officers had engaged in a scheme of deception. Disclosure of the surveillance evidence could have demonstrated the existence of such a scheme if it showed that Mr. Hussain still had his back pack with him at Fort York Boulevard after the alleged “bag exchange”. [41] Finally, the appellant submits that the trial judge erred in concluding that the authorization could have issued in the absence of a specific and positive observation of the appellant on Cumberland Avenue. At the very least, he submits, had the improper statements been excised, the authorizing justice would have required that further inquiries be made to determine whether the appellant was actually involved. (ii) Respondent [42] The respondent submits that the trial judge did, in fact, address the issue of deliberate deception – he found that when D.C. Campbell swore the ITO, he reasonably believed that the appellant was present at a drug transaction with Mr. Hussain. This finding of fact was open to him. D.C. Campbell was entitled to rely on the investigative reports of members of the surveillance team and had no reason to doubt them. [43] As to cross-examination of the sub-affiants, the issue was the honesty and reasonable belief of the affiant, not the ultimate truth of his statements overall: World Bank , at para. 119. The appellant has failed to demonstrate that there was a reasonable likelihood that cross-examination of the sub-affiants would reveal deception on the part of D.C. Campbell. [44] The respondent submits that the request for additional disclosure was properly dismissed, as the appellant did not establish that there was a reasonable likelihood that the materials would be relevant to the Garofoli application. (f) Analysis [45] These grounds of appeal turn on well-settled principles of law set out in decisions of the Supreme Court of Canada, notably Garofoli , Pires; Lising , and World Bank . [46] Before turning to each of these grounds, I make some general observations about the aspects of the Garofoli analysis that are at issue. (i) The Challenge to the Judicial Authorization [47] The Garofoli analysis determines the reasonableness of a search or other statutory investigative measure. That determination requires the statutory preconditions for the exercise of such measures to have been met: World Bank , at paras. 117-118. In essence, whether there were reasonable and probable grounds to believe that the measures would produce evidence concerning the particular offence. [48] The challenge to the authorization in this case is a “sub-facial” challenge. The record before the authorizing justice was, on its face, sufficient to meet the statutory requirements, but the appellant asserted that the record did not accurately reflect what the affiant knew or ought to have known. If it had, he submits, the authorization would not have issued: see World Bank , at paras. 120-121. [49] Typically, on a sub-facial challenge, the accused argues that misleading or inaccurate portions of the ITO must be excised, and the validity of the authorization is determined by what remains. The accused may also argue that “the augmented record placed before the reviewing judge demonstrates that the affiant deliberately, or at least recklessly, misled the issuing judge, rendering the entire ITO unreliable as a basis upon which to issue a warrant”: R. v. Shivrattan , 2017 ONCA 23, 346 C.C.C. (3d), at para. 26, leave to appeal refused, [2017] S.C.C.A. No. 93. [50] Due to the ex parte nature of applications for search warrants, wiretaps, and other investigative aids, the affiant of an ITO is required to make full and frank disclosure of material facts: R. v. Araujo , 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 46. The affiant must not deceive the reader by making unsupportable conclusions or leaving out important qualifying information: R. v. Booth , 2019 ONCA 970, at para. 55. Furthermore, in Booth , at para. 56, this court clarified that the affiant’s duty of candour requires disclosure of all material information that: (a) could undercut the probability that the alleged offence has been committed; (b) could undercut the probability that there is evidence to be found at the place of the search; and (c) that challenges the reliability and credibility of the information the affiant officer relies upon to establish grounds for the warrant. [51] As the determination of whether the statutory conditions have been met focuses on the affiant’s reasonable belief, the Garofoli analysis does not determine whether the allegations in support of the authorization were ultimately true. It determines whether the affiant had “a reasonable belief in the existence of the requisite statutory grounds”: Pires; Lising , at para. 41. And this turns on what the affiant knew or ought to have known at the time the affidavit in support of the authorization was sworn. The parties agree that the applicable test is set out in World Bank , at paras. 122-3: an error or omission is not relevant on a Garofoli application if the affiant could not reasonably have known of it. Testing the affidavit against the ultimate truth rather than the affiant's reasonable belief would turn a Garofoli hearing into a trial of every allegation in the affidavit, something this Court has long sought to prevent When assessing a subfacial challenge, it is important to note that affiants may not ignore signs that other officers may be misleading them or omitting material information. However, if there is no indication that anything is amiss, they do not need to conduct their own investigation. [Citations omitted.] [52] Typically, evidence that the affiant knew or ought to have known was false, inaccurate, or misleading will be “excised” from the ITO when determining whether it was lawfully issued. If there is additional evidence that the affiant knew or ought to have known was required for full and frank disclosure, it should be added back: World Bank , at para. 121; Booth , at para. 59. [53] After excision and amplification is complete, the reviewing court should determine whether, based on the corrected ITO, there is a basis upon which the authorizing justice, acting judicially, could find reasonable and probable grounds to believe that an offence has been committed and that evidence of the offence would be found at the specified place. The question is whether there is sufficient reliable information upon which the search authority could be grounded: R. v. Paryniuk , 2017 ONCA 87, 134 O.R. (3d) 321, at para. 45. [54] It is, however, well-settled that even where sufficient reliable information remains after excision and amplification, the reviewing judge has a “residual discretion” to set aside an authorization “where the judge is satisfied that the conduct of the police has been subversive of the pre-authorization process leading to the issuance of the search authority”: Paryniuk , at para. 66. [55] That residual discretion must be exercised having regard to the totality of the circumstances: Araujo , at para. 64. Furthermore, in Paryniuk , at para. 69, this court described the test for the exercise of that discretion as follows: What is clear, however, is that previous authority in this court has recognized a residual discretion to set aside a warrant despite the presence of a proper evidentiary predicate for its issuance where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like. [Emphasis added; citations omitted.] [56] The standard to invoke that discretion is high. In Paryniuk , at para. 74, this court clarified that “[s]ubversion connotes undermining, corrupting, weakening, destroying or disrupting a system or process.” In some cases, it has been described as conduct that amounts to an abuse of process: R. v. Vivar , 2009 ONCA 433, at para. 2; Paryniuk , at para. 62. [57] The appellant submits that D.C. Campbell engaged in “deliberate deception” of the authorizing justice and submits that the trial judge failed to come to grips with that issue. (ii) Did the Trial Judge Err in Failing to Find the Affiant Engaged in Deliberate Deception? [58] The trial judge plainly understood the appellant’s assertion that the affiant had deliberately deceived the authorizing judge. He noted, at para. 8 of his reasons, the appellant’s submission that the statement in the ITO that the appellant was observed engaging in a drug transaction with Mr. Hussain was not only inaccurate, but “knowingly false and misleading” and that the authorizing justice was “knowingly misled or at least led astray by a cavalier failure to properly follow up on information and properly inform the authorizing justice.” [59] After observing D.C. Campbell’s cross-examination, the trial judge concluded that D.C. Campbell “honestly and reasonably believed that the [appellant] was at the bag exchange. While he “should not have deposed that [the appellant] was observed in a bag exchange with Hussain … his conclusion that he was there was nonetheless reasonable.” The affiant reached this conclusion based on the totality of information provided to him and the inferences he drew from that information. [60] These findings of fact, which were plainly available to the trial judge, are an implicit repudiation of the appellant’s claim of deliberate deception. There was no evidence before the reviewing judge to support the appellant’s assertion that D.C. Campbell conspired with the sub-affiants to make the case stronger than it appeared. D.C. Campbell testified that he made his statements in the ITO based on the written reports of D.C Capener and D.C Hilborn. He was entitled to do so. Those reports supported the inference the affiant drew from them that there had been a drug exchange between the appellant and Mr. Hussain in the appellant’s Mercedes on Cumberland Avenue, and that the appellant was engaged in activities consistent with drug trafficking. [61] I would therefore reject this submission. (iii) Disclosure of Video Recordings of Mr. Hussain [62] Both parties have referred to McKenzie as accurately summarizing the principles applicable to disclosure requests in the Garofoli context. In most cases, subject to confidential informant privilege, the accused is entitled to disclosure of all documents that were put before the authorizing justice and all other relevant materials in the “investigative file” concerning the accused: McKenzie , at para. 15. If the material sought is not part of the investigative file, then it is presumptively irrelevant. There is an onus on the accused to show that disclosure will be of assistance to the court in relation to a material issue on the application to set aside the authorization: McKenzie , at paras. 39, 53, referring to Pires; Lising , at paras. 30-31, 41. [63] The videos of Mr. Hussain’s comings and goings at Fort York Boulevard were unconnected with the appellant – they were not part of the investigative file against him, nor did the affiant rely on them in the ITO. What they might or might not have established, in relation to the accuracy of statements in the ITO concerning the appellant, were matters of pure speculation. The appellant failed to establish a reasonable likelihood that they would assist the court in the determination of the application. The trial judge rightly refused to be led down an evidentiary rabbit hole on a search for evidence to support a speculative claim. While it might have been easy enough to require the Crown to produce the evidence, that was not the point. Regardless of whether Mr. Hussain appeared at Fort York Boulevard with a back pack, zippered bag, or no bag at all, the video footage would not invalidate the affiant officer’s reasonable reliance on the investigative reports of the sub-affiants, which indicated that Mr. Hussain entered the Mercedes with one bag and emerged with another at Cumberland Avenue. The trial judge kept his focus – as World Bank demands – on the reasonable belief of the affiant and not on the ultimate truth of every assertion in the affidavit. [64] In my view, the trial judge did not err in refusing this request. (iv) Cross-Examination of Sub-Affiants [65] Leave is required to cross-examine an affiant or sub-affiant. The standard for granting leave was set out by Sopinka J. in Garofoli , at p. 1465, as follows: Leave must be obtained to cross-examine. The granting of leave must be left to the exercise of the discretion of the trial judge. Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization, as for example the existence of reasonable and probable grounds . [Emphasis added.] [66] Sopinka J. added that the trial judge should limit the scope of cross-examination to questions that seek to establish that there was no basis on which the authorization could have been granted: Garofoli , at p. 1465. [67] The focus on a motion for leave to cross-examine “is on the reasonableness and honesty of the affiant’s belief about the existence of the requisite grounds, and not on the ultimate accuracy of the information the affiant relies upon”: R. v. Victoria , 2018 ONCA 69, 359 C.C.C. (3d) 179, at para. 80. A proposed cross-examination directed to show only that some of the information relied upon by the affiant is false is unlikely to warrant leave unless it can also support an inference that the affiant knew or ought to have known it was false: Pires; Lising , at para. 41. [68] When an accused seeks evidence in support of a Garofoli application, that narrow test must be kept in mind. In R. v. Imam , 2012 O.J. No. 6543 (C.J.), at para. 14, Paciocco J., as he then was, indicated that an accused must demonstrate a “threshold factual basis … raising a reasonable likelihood that cross-examination will produce probative evidence tending to discredit a material precondition to the authorization being granted or tending to show significant police misconduct in securing the search order”. [69] On appeal, the decision of whether to grant leave to cross-examine an affiant or sub-affiant should be reviewed with deference. In Garofoli , at p. 1465, Sopinka J. stated, “The discretion of the trial judge should not be interfered with on appeal except in cases in which it has not been judicially exercised.” Absent an error in principle, a material misapprehension of any evidence, or an unreasonable decision, an appellate court will defer to the trial judge: Victoria , at para. 8; Garofoli , at p. 1465; and Pires; Lising , at para. 46. [70] Here, the trial judge granted the appellant leave to cross-examine D.C. Campbell but, in accordance with the direction given in Garofoli , at p. 1465, he limited the scope of the examination to key issues that went into the assessment of whether there were reasonable grounds to grant the authorization. Specifically, he permitted cross-examination related to: the basis for the officer’s belief that the appellant was present in the area of Cumberland Avenue in Toronto in the early evening of December 19, 2013; the basis for his sworn belief that, at that time and place, the appellant was involved in an illicit drug transaction with Mr. Hussain; and the further observations of the appellant and his vehicle on December 19, 2013. [71] The appellant does not take issue with that determination. But he takes issue with the trial judge’s conclusion that cross-examination of the sub-affiants was not required because the issues could be fully and fairly explored through D.C. Campbell’s cross-examination. [72] The appellant has not demonstrated that the trial judge made an error in principle or misapprehended the evidence in refusing to order cross-examination of D.C. Capener and D.C. Hilborn. Nor was the decision unreasonable. Even assuming that the sub-affiants deliberately tailored their reports to make it appear that there was a direct drug transaction with the appellant (and there is no evidence of this), there is no factual basis to indicate that the affiant was aware that they had done so, ignored signs, or was wilfully blind to indications of impropriety. [73] Having considered all the evidence, including the cross-examination of D.C. Campbell, the trial judge concluded that the affiant “honestly and reasonably believed that the [appellant] was at the bag exchange.” He acknowledged that D.C. Campbell should not have deposed that the appellant was “observed” in a bag exchange with Mr. Hussain, but “his conclusion that he was there was nonetheless reasonable.” As in the case of the disclosure request, the trial judge focused on the affiant’s reasonable belief and not on the ultimate truth of his statements. He properly refused cross-examination of the sub-affiants. (v) Concluding that the Authorization Could be Issued [74] It follows, in my view, that the trial judge did not err in concluding that the authorization could have issued with the offending portions of the ITO having been excised. There was circumstantial evidence that Mr. Hussain was a “big league drug dealer”, and direct evidence that he entered the appellant’s car on Cumberland Avenue in a furtive manner while carrying a bag and, very shortly thereafter, got out carrying either the same bag or a different bag. The trial judge described the circumstances as being “reasonably viewed as a drug transaction.” While there was no direct observation of the appellant in his car, it was driven from Cumberland Avenue to his apartment building and was parked in his spot. He was observed later in the day getting into and out of his car on more than one occasion and nobody else was observed getting into and out of his car that day. [75] As the trial judge noted, the standard for naming a party on an application under Part VI of the Criminal Code is “far less than a balance of probabilities”. He reasonably concluded that “the authorizing justice could reasonably have found that it was Phan in his car on Cumberland Avenue when the drug dealer Hussain entered with a bag and quickly left.” [76] The trial judge did not err in his disposition of the Garofoli ruling. I would not give effect to this ground of appeal. (2) The Gang Evidence [77] The appellant’s second ground of appeal is that evidence of his alleged membership in the Chin Pac and of the history of violence between the Chin Pac and the Asian Assassinz was overwhelmingly prejudicial, incapable of remediation by jury instructions, and should have been excluded by the balancing of prejudicial effect and probative value. (a) The Evidence Admitted [78] Over the objection of the defence, the trial judge permitted Crown counsel to file as an exhibit and read into evidence a 56-page document entitled “Facts Not Contested”, consisting of five pages of narrative and eight appendices. This took place at the conclusion of the Crown’s case and after the trial judge had given the jury a mid-trial instruction, informing them of the permitted use of the evidence and cautioning them against improper use. [79] The “Facts Not Contested” provided a basis for the following conclusions: (a) the appellant, his brother, Jerry Phan, and his friend, Steven Livingstone, were members of the Chin Pac gang; (b) the deceased, Peter Nguyen, was a member the Asian Assassinz gang; and (c) there had been a long history of “back and forth” violence – shootings, stabbings, assaults and killings – involving members of the two gangs. The incidents referred to included: · on July 3, 2010, Steven Livingstone (Chin Pac) was stabbed at “The Guvernment” nightclub in Toronto; · on July 10, 2010, a week later, Tien Pham (Asian Assassinz) was shot and killed at a restaurant in Chinatown; · on August 11, 2011, the appellant’s brother, Jerry Phan (Chin Pac), was shot while driving his car on Lake Shore Boulevard in Toronto; · on January 1, 2013, Jerry Phan and his girlfriend were shot in the parking lot of “The Guvernment” nightclub; · on February 24, 2013, Thuan “Tony” Nguyen (Chin Pac) was shot and killed outside a lounge in Toronto; · on March 30, 2013, Michael Nguyen (Asian Assassinz) was shot and killed at the Yorkdale Shopping Centre. Michael Nguyen had stabbed Tony Nguyen in 2003. Thanh “Danny” Vo (Asian Assassinz) was also shot at the same location on March 30, 2013; · on May 11, 2013, the appellant’s brother, Jerry Phan, was shot again while eating at a restaurant in the Yorkdale Shopping Centre. The appellant and Steven Livingstone were present, but were not hit; · on December 6, 2013, Michael Quan (Asian Assassinz) was shot on Lakeshore Boulevard in Toronto; · on December 26, 2013, Duy Ly Nguyen (Chin Pac) was shot 14 times outside his family’s residence but survived. An hour and 20 minutes later, Jamie Dang (Asian Assassinz) appeared in a Toronto area hospital with a bullet wound. The Crown theory was that the shootings were related; · on February 9, 2013, Hung Pham (Asian Assassinz) was shot and killed. (This took place five days after the victim in this case, Mr. Nguyen, was shot and killed outside the Wildfire restaurant); and · on November 3, 2014, the appellant’s brother, Jerry Phan, was shot and killed while sitting in his car in the parking lot of a restaurant in Richmond Hill. [80] The “Facts Not Contested” also included photographs of members of each gang found by police in the possession of rival gang members, indicating that members of the two gangs had been targeting each other for violence. (b) The Trial Judge’s Reasons ( R. v. Phan , 2017 ONSC 1061) [81] The trial judge observed that the evidentiary record adduced by the Crown provided a reasonable basis to conclude that the appellant and the deceased were members of the rival gangs, and that “the violent history between the groups or gangs provided a motive for the [appellant] to participate in the murder of Peter Nguyen.” He said a “long-term perspective is necessary to assess the interaction of the two groups” and concluded: If this evidence were not left with the jury they would be left to consider an apparently senseless shooting that involved unknown shooters and an alleged party who had no apparent motive. The absence of a proven motive would tend to support the denials by the respondent in his post-arrest statement. If they receive this evidence they may or may not find it is evidence of a motive. To exclude this evidence from their consideration on the issue of motive and intention would leave them to decide the case “on the basis of some artificially crafted, antiseptic version” as referred to by Dambrot J. in R. v. Riley et al., 2009 CanLII 15451 (ONSC) at para. 38. [82] The trial judge gave the jury a mid-trial instruction before admitting the evidence, as well as a final instruction explaining the limited purpose for which the evidence was admitted and its prohibited uses. (c) The Jury Instructions [83] The appellant does not challenge the trial judge’s jury instructions. He simply says that instructions were incapable of mitigating the prejudice caused by the litany of inter-gang violence put before the jury, none of which was proven to have involved him as a perpetrator. [84] Before the evidence was introduced, the trial judge told the jury that the Crown would tender evidence that the appellant and the victim were associated with “separate groups”, and that there had been a history of violence between the two groups. The Crown would contend that “this evidence relates to a potential motive for this homicide.” He would give the jury further instructions, but he explained that they could not consider the evidence “in any way as showing that Thanh Phan is a violent or bad person or that he is the type of person who would commit the crime he is alleged to have done”. Nor could they use the evidence to find that the appellant was involved in or responsible for any of the violent acts that the Crown alleged were committed by the Chin Pac. [85] The trial judge repeated and expanded upon these cautions in his final instructions. He explained the Crown’s assertion that the motive for the crime and for the appellant’s involvement was based on the violent history between the rival gangs over several years. The jury members were to consider whether the appellant and Mr. Nguyen were associated with the rival gangs, but this did not require proof beyond a reasonable doubt. Motive was not an essential element of the crime, but if they found that the appellant had a motive, it might assist them in deciding whether the Crown had proven its case beyond a reasonable doubt. He explained, once again, the limited use they could make of the evidence and its impermissible uses. (d) The Parties’ Submissions (i) Appellant [86] The appellant acknowledges that some of the gang evidence was probative of motive and animus. He submits, however, that most of the evidence had no probative value because it was “remote” and unconnected to motive and thus unduly prejudicial. He submits the evidence was all “one-way”. It established violence perpetrated by the Asian Assassinz against the Chin Pac, but it did not establish that the appellant was aware of this violence or that it resulted in reprisals by the Chin Pac. The trial judge failed to give sufficient consideration to the highly prejudicial impact of much of the evidence, particularly the evidence of a killing that occurred after the shooting of Mr. Nguyen, which had no probative value in establishing motive. A caution was insufficient to undo the prejudicial effect of all the evidence. [87] By analogy to the principles applicable to similar fact evidence, the appellant argues that the relevant acts of violence must be linked to the accused and the mere possibility of a connection is insufficient, referring to R. v. Arp , [1998] 3 S.C.R. 339 and R. v. Perrier , 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 31. In this case, the Crown called no evidence to establish the identity of the perpetrators of the acts of violence which allegedly formed part of the “narrative” or served as evidence of animus and motive. Lumping this disconnected evidence against the appellant was highly prejudicial. Relying on R. v. Riley , 2017 ONCA 650, 137 O.R. (3d), the appellant submits that much of the gang evidence should have been excluded as peripheral and unduly prejudicial. (ii) Respondent [88] The respondent submits that the jury was not required to consider the killing of Mr. Nguyen in a vacuum – they were entitled to know the history of violent retribution between the appellant’s and the deceased’s gangs. They were also entitled to consider these actions, including violent actions against the appellant’s brother and his friend, in assessing whether the appellant had a motive to participate in Mr. Nguyen’s killing. [89] The respondent further submits that the trial judge understood the prejudicial effect of the evidence of gang violence, but it was mitigated by the manner in which the evidence was admitted – a documentary record – rather than viva voce evidence of police officers who had investigated the various crimes that formed part of the narrative. In addition, the trial judge provided effective cautionary instructions, both mid-trial and in his final instructions, that the jury should not infer that the appellant was involved in the other alleged wrongdoings of the Chin Pac or that he was the type of person who would commit the charged offence. (e) Analysis (i) Legal Principles 1) Evidence of Bad Character [90] Evidence of gang membership is bad character evidence. It is presumptively inadmissible unless the Crown can demonstrate that: (a) it is relevant to an issue in the case; and (b) the probative value outweighs its prejudicial effects: R. v. B., (F.F.) , [1993] 1 S.C.R. 697, at p. 699. The evidence is inadmissible if it serves only to show that an accused is the type of person likely to have committed the offence: B. (F.F) , at p. 731; R. v. G. (S.G.). , [1997] 2 S.C.R. 716, at para. 65. [91] While evidence of gang membership can be highly prejudicial, it may be relevant for a variety of purposes. Like all bad character evidence, it may be admissible on an exceptional basis where its probative value outweighs its prejudicial effect. It may be admissible to provide context or narrative, to establish animus or motive, or to establish the accused’s state of mind or intention, among other purposes. The case law is replete with the admission of gang association evidence for these and other purposes. 2) Evidence of Narrative [92] Evidence that the accused is a member of a gang may have a narrative purpose, to help the jury understand the events as they unfolded. Narrative evidence is “evidence that tells the story of a crime in a manner that makes it possible for the jury to properly carry out its fact-finding function”: R. v. Riley (2009), 246 C.C.C. (3d) 552 (Ont. S.C.J.), at para. 60. The principle underlying the admission of narrative was expressed by Nordheimer J., as he then was, in R. v. Skeete , 2012 ONSC 737, at para. 15, aff’d 2017 ONCA 926, 357 C.C.C. (3d) 159, leave to appeal refused, [2018] S.C.C.A. No. 508: it remains the fact that a “criminal trial is, after all, about the search for truth”. A jury ought to be provided with information that will allow them to put the central facts into context including the nature of the relationships between persons connected to the events that might not otherwise be obvious. Jurors should not be placed in a situation where they are attempting to perform their truth seeking function in what is effectively either a factual vacuum or an artificial one . [Emphasis added.] [93] Evidence of gang membership and a history of gang violence may be relevant as narrative to contextualize a homicide that otherwise seems senseless. For example, in Riley (SCJ) , at para. 38, which was cited by the trial judge, Dambrot J. admitted narrative of an ongoing gang war for the following reasons: Without this background, the jury will be left to puzzle over an allegation of a senseless shooting by individuals who had no motive to do it . They will inevitably be invited by the accused to find a reasonable doubt on the basis of the absence of motive when in fact, evidence of motive exists. While it is imperative that limits be placed on the bad character evidence sought to be introduced by the Crown, and that strong instruction be given to the jury about how to use the evidence that is admitted, I do not think that the jury should be expected to decide this case on the basis of some artificially crafted, antiseptic version of the case . [Emphasis added.] 3) Evidence of Motive and Animus [94] In addition to providing context, evidence of the accused’s gang affiliation may be relevant to the accused’s motive and animus. [95] Motive and animus are related concepts. Animus refers to hostility toward a person or group. Animus may form part of a motive, which is what induces a person to act: R. v. Darnley , 2020 ONCA 179, at para. 46. This type of evidence is always relevant to intent or identity, although it must be evidenced by human acts and there are limitations to the extent to which such acts may be introduced: Lewis v. The Queen , [1979] 2 S.C.R. 821; R. v. Sheriffe , 2015 ONCA 880, 333 C.C.C. (3d) 330, at para. 81, leave to appeal refused, [2016] S.C.C.A. No. 299. [96] As this court observed in R. v. Salah , 2015 ONCA 23, 319 C.C.C. (3d) 37, at para. 64, evidence of motive is relevant because: Evidence of motive is a kind or species of circumstantial evidence that invokes a prospectant chain of reasoning. The line of argument engaged is that the previous occurrence of an act, state of mind, or state of affairs justifies an inference that another act was done, or state of mind or affairs existed, at some time afterwards that is material to the proceedings. [97] An accused’s motive may be influenced by group membership. To determine if this has occurred, the trier of fact must first decide whether the accused is a member of a group. If they find that to be the case, they may consider whether the accused was influenced by a “group motive”. In R. v. Sipes , 2011 BCSC 640, at para. 53, Smart J. explained the concept of group motive: In assessing the probative value of the discreditable conduct in this trial, it is essential to recognize that the charged offences are alleged to have been committed by members of a gang for the purpose of advancing the gang’s drug business. In other words, the motive for each of the charged offences was a group motive. As such, the structure of the gang and the role in or relationship of each of the accused to the gang is relevant to the Crown’s theory as to why the offences were committed and why the individual accused participated in the commission of them . [Emphasis added.] [98] In addition, it is open to the Crown “to adduce evidence that shows or tends to show the intensity and permanence of a motive since this may enhance the probability that the person with the motive acted in accordance with it”: Salah , at para. 66. [99] Evidence of the accused’s gang affiliations has been admitted to show animus and motive in many cases: see Riley (ONCA) ; R. v. Sarrazin , 2010 ONCA 577, 259 C.C.C. (3d) 293, aff’d 2011 SCC 54, [2011] 3 S.C.R. 505; R. v Haevischer , 2012 BCSC 1641; and R. v. Sanghera , 2012 BCSC 993. (ii) Application [100] As I have noted, the appellant does not dispute that some evidence of gang affiliation and some evidence of prior gang violence may have been relevant to narrative, animus, and motive. The appellant argues that the prejudicial effect of the evidence outweighs the probative value. Therefore, the trial judge erred by putting highly prejudicial evidence before the jury and inviting the jury to find the appellant guilty by virtue of his gang membership. [101] The appellant’s submissions on this ground of appeal can be summarized in the following way: 1. the evidence was too remote and did not connect him to the violent acts because the police did not identify any suspects; 2. the evidence only demonstrated one-way violence by the Asian Assassinz (the gang the deceased was associated with) against the Chin Pac (the gang the appellant is associated with); 3. violence that took place after the charged offence was not relevant; 4. the evidence does not satisfy the legal standard set out by the Supreme Court in Arp and Perrier ; and 5. given the above, the prejudicial effect outweighed the probative value. [102] I would not give effect to these submissions. I will explain. 1) Remoteness of the Evidence: Lack of Suspects and One-Way Violence [103] I will address the first two submissions together. I do not accept the submission that the evidence was too remote because the police did not identify any suspects. Nor do I accept the submission that the evidence only disclosed one-way violence by the Asian Assassinz against Chin Pac. Although the police had not identified suspects in these events, there was strong circumstantial evidence that painted a picture of an ongoing war between the Asian Assassinz and the Chin Pac. [104] The gang violence evidence provided narrative and context. It was open to the jury to conclude that the appellant was a member of Chin Pac, whose members included his brother, Jerry Phan, and his friend, Steven Livingstone. Based on the evidence, the jury could also find that the Chin Pac had a long history of back and forth violent conflict with the Asian Assassinz. This evidence “tells the story” of the crime and provides necessary context. As in Riley (SCJ) , the absence of this background would leave the jury to “decide this case on the basis of some artificially crafted, antiseptic version of the case” and to “puzzle over an allegation of a senseless shooting by individuals who had no motive to do it.” [105] It was also open to the jury to conclude that the acts of violence perpetrated by the Asian Assassinz against Chin Pac members provided both group motive and personal motive for revenge and retribution: see Sipes , at para. 53. Notably, there were several attempts to kill the appellant’s brother, Jerry Phan, including one incident in the presence of the appellant on May 11, 2013. The frequency and nature of these acts of violence could help establish the intensity and permanence of that motive: Salah , at para. 66. Thus, the history of “back and forth” violence involving the two gangs, whether as victims or perpetrators, provided important context for the shooting of Mr. Nguyen, as well as evidence of animus between the two gangs. That animus, in turn, could have motivated the appellant to retaliate. As noted by this court in Skeete (ONCA) , at para. 169, “Retaliation for a perceived wrong may provide a motive for a crime.” Overall, this evidence helps explain why the appellant might assist in the killing of Mr. Nguyen. [106] Therefore, I do not accept the appellant’s submission based on Riley (ONCA) that the gang violence evidence is unrelated and inadmissible. In Riley (ONCA) , this court held that the evidence was inadmissible because it was “evidence of unrelated criminality that formed no part of the narrative of the [charged] shooting. It was not of assistance in establishing motive on some of the counts” (emphasis added): at para. 212. The present case differs. The gang violence evidence is relevant to the charged shooting for the purposes of narrative, motive, and animus. 2) Evidence of Violence After the Charged Offence [107] I do not accept the appellant’s submission that events after the killing of Mr. Nguyen were irrelevant to the existence of animus. Specifically, he argues that the evidence of the shooting of Hung Pham, another Asian Assassinz member, several days after the shooting of Mr. Nguyen, could not have been relevant to the appellant’s culpability in the latter’s death. Coming, as they did, on the heels of Mr. Nguyen’s assassination, these events were compelling evidence of the permanence and intensity of the animosity between the gangs. These incidents made it more likely that the animus was present when Mr. Nguyen was shot five days earlier. [108] As this court observed in Riley (ONCA) , at para. 160, “as a practical matter, … a trial judge may properly take into account the temporal connection between the discreditable conduct evidence and the charged offences in assessing its probative value.” Even if events take place after the charged offence, the test “remains whether the evidence’s probative value exceeds its prejudicial effect”, “there is no legal requirement for the Crown to establish evidence of discreditable conduct occurring after the charged offences is of ‘exceptional’ probative value”. In the present case, the trial judge made no error in balancing the probative value and prejudicial effect of the post-offence evidence. 3) Applicability of the Similar Fact Evidence Cases [109] Nor do I accept the appellant’s submission concerning the applicability of similar fact evidence cases, such as Perrier and Arp . Those principles would require the jury to consider: (1) whether the evidence of one group activity can be used to identify the group responsible for another; and (2) whether the evidence has sufficient probative value in relation to the particular accused to outweigh its prejudicial effect. The appellant submits that the gang violence evidence is inadmissible because the police did not identify who committed the violent acts in the “Facts Not Contested” document. Without this information, it is impossible to identify whether a particular gang or any gang was responsible for the acts of violence. Therefore, there was no “link” between the appellant and the acts of violence committed by the Asian Assassinz. [110] Perrier and Arp were concerned with similar fact evidence led for the purpose of identity. The Supreme Court clearly indicated that the test in Perrier applies to situations where “you have several crimes committed with a unique modus operandi , and the objective improbability of coincidence is high”: at para. 31. In those cases, “the trier of fact should be permitted to draw an inference that the same gang committed the acts”: Perrier , at para. 31. But in the present case, the purpose of the evidence is to provide narrative, motive, and animus – it is not to demonstrate identity on the basis of a unique modus operandi . [111] Other courts have rejected the application of Perrier to gang history evidence adduced for purposes other than identity. In Riley (SCJ) , the accused made a similar submission, arguing that Perrier placed limits on the admissibility of gang activity evidence. However, Dambrot J. rejected this argument, clarifying that Perrier is a “classic” similar fact evidence case where the evidence is used to establish identity, but it does not apply when the purpose is narrative: In my view, this judgment is of no assistance to the accused. Perrier is what I would call a classic similar fact case, where one or more offences proved to have been committed by the accused is strikingly similar to the crime charged, and as a result is admissible to identify the accused as the person who committed the crime charged . Perrier simply provides appropriate restraints on the application of the principles concerning such cases in the situation where it is the gang's method of operation that is unique, and not the method of operation of an individual. This is not such a situation. In this case, the gang evidence is not being tendered to prove identity on the basis of the uniqueness of the crime. It is being lead as part of the narrative of the case , and for the various other purposes that I am about to outline. As will be seen, none of these uses depends on the uniqueness of the crime for its probative value. Perrier has nothing to say about these issues . [Emphasis added.] [112] For similar reasons, in Haevischer , at para. 88, Wedge J. rejected the application of Perrier to gang activity adduced for purposes other than identity. Wedge. J. explained that Perrier is a similar fact case that sets restraints on evidence related to a gang’s unique methods, it does not apply generally to all discreditable conduct evidence. [113] Even outside the gang context, this court has explained that “motive evidence does not fit neatly within the normal similar fact evidence ‘test’” because “its probative value does not arise from any similarity”: R. v. Johnson , 2010 ONCA 646, 262 C.C.C. (3d) 404, at para. 98. [114] In conclusion, the test from similar fact evidence cases like Perrier and Arp does not apply. The Crown did not advance a “classic” similar fact case where the allegation against the accused bears a striking similarity to prior acts, such as a unique gang trademark. When discreditable conduct evidence is led for the purpose of narrative, motive, and animus, the typical process for weighing probative value and prejudicial effect applies. There is no need for the “additional step” described in Perrier of looking for similarities to infer that the same gang carried out the acts. 4) Balancing Probative Value and Prejudicial Effect [115] Overall, the trial judge did not err in balancing the probative value and prejudicial effect of the gang violence evidence. The trial judge plainly appreciated the value of the evidence in relation to narrative, animus, and motive, but was equally aware of the potential prejudicial effect. He was at pains to contain the scope of the evidence to limit its effect and to ensure that there was no reference to the appellant’s involvement in perpetrating any acts of violence, so as to mitigate the risk of moral prejudice. As the trial judge noted in his admissibility ruling at para. 9, “The Crown stipulated that if the evidence was admitted, there would be no information or suggestion that the [appellant] was personally involved in any of the acts of violence.” He instructed the jury to this effect. [116] The prejudicial effect of the evidence was also mitigated by the method by which it was adduced. In many cases, gang-related evidence has been introduced through an expert. In this case, the Crown did not propose to call an expert, but was prepared to call police witnesses to testify about the history of violence involving members of the Chin Pac and the Asian Assassinz. In the course of the application to adduce this evidence, the trial judge suggested that concessions by the defence could alleviate the need to call some of the viva voce evidence the Crown sought to adduce. The trial judge asked the Crown to consider drafting admissions with respect to the “bottom line” evidence it wanted to adduce on this issue. Ultimately, the trial judge carefully curated the evidence by permitting the introduction of the “Facts Not Contested” document. As noted at trial, this means of putting the evidence before the jury removed some of the “punch” or impact of the evidence and minimized the risk of reasoning prejudice, which is the risk of distraction and confusion from the main issues at trial. While the risk of moral prejudice remained, it was mitigated by the jury instructions. [117] The trial judge’s weighing of probative value and prejudicial effect is entitled to deference, in the absence of an error of principle, consideration of an irrelevant factor, failure to consider a relevant factor, or a plainly unreasonable conclusion: Skeete (ONCA) , at para. 139. [118] No such error has been identified and I would not give effect to this ground of appeal. D. CONCLUSION AND ORDER [119] For these reasons, I would dismiss the appeal. Released: “GRS”     MAY 13 2020 “G.R. Strathy C.J.O.” “I agree. B.W. Miller J.A.” “I agree. Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Phillips, 2020 ONCA 323 DATE: 20200528 DOCKET: C65435 Doherty, Juriansz and Miller JJ.A. BETWEEN Her Majesty the Queen Respondent and Brian Phillips Appellant Richard Litkowski, for the appellant Natalya Odorico, for the respondent Heard: May 19, 2020 via videoconference On appeal from the conviction entered by Justice E. Meijers of the Ontario Court of Justice, dated January 22, 2018. REASONS FOR DECISION [1] In the late evening or early morning of April 28 th /29 th , 2017, someone broke into the Anthony home in Orillia, Ontario and stole Ms. Anthony’s purse and the keys to the truck parked in the driveway. The next morning, Mr. Anthony discovered the purse, keys and truck were missing. [2] The appellant and a co-accused were charged with one count of break and enter, two counts of theft (the truck and the purse), and one count of possession of stolen property (the truck). The co-accused was acquitted on all counts. The appellant was convicted on counts one to three and acquitted on count four, based on the date of the offence alleged in the information. [3] The appellant initially appealed conviction and sentence, but has abandoned his sentence appeal. [4] The case against the appellant was entirely circumstantial. The Crown argued that the totality of the circumstantial evidence compelled the conclusion that the appellant, with one or more accomplices, had broken into the Anthony home, stole the purse and keys and drove the Anthony car to Kingston to visit his girlfriend. [5] The appellant did not testify. The Crown tendered a statement made by the appellant. In that statement, he acknowledged getting a ride from Orillia to Hamilton and then to Kingston to see his girlfriend. He would not identify the driver. [6] There was little, if any, dispute about the credibility of the evidence tendered by the Crown. The outcome turned on what inferences could be drawn from that evidence. The evidence justified the following findings: · some time in the late evening of April 28 th or the early morning of April 29 th , a person or persons broke into the Anthony home in Orillia, Ontario and stole Ms. Anthony’s purse and the keys to the truck parked in the driveway. The thieves left the house and drove away in the truck; · the appellant was living in a drug rehabilitation residence in Orillia on April 28 th . He was required to sign in and out. He signed out of the residence shortly after 6:00 p.m. on April 28 th and did not return; · there was no evidence as to the relative locations of the rehabilitation residence and the Anthony home, other than both were said to be in Orillia; · Highway 407 toll records show the Anthony’s vehicle proceeding eastward, near Markham, Ontario shortly after 6:00 a.m. on April 29 th ; · Kingston is about 300 kilometres east of Markham; · the appellant was arrested on an unrelated warrant in Kingston, Ontario at his girlfriend’s residence at about noon on May 1 st . The co-accused was arrested in Kingston on May 2 nd ; · the Anthony’s truck was found on a street in Kingston on May 19 th . Parking tickets on the truck indicated it had been parked on the same street, if not in the same spot, since at least May 3 rd at 9:52 a.m.; · the truck was found about four kilometres from the residence of the appellant’s girlfriend and about one kilometre from the residence where the co-accused was arrested; · the appellant’s DNA was lifted from a Red Bull can found under the passenger seat in the Anthony’s vehicle. The co-accused’s DNA was found on a cup also located in the back of the vehicle. Other cups and assorted garbage were also found in the back of the truck; · a construction hat was found in the vehicle. It did not belong to Mr. Anthony. The appellant had a construction job on April 28 th when he left the Orillia area. There was no physical evidence connecting the hat to the appellant; · the keys to the truck and Ms. Anthony’s purse were found in the truck; and · Mr. Anthony did not know the appellant or the co-accused. [7] In convicting the appellant on three charges, the trial judge said: I find nothing in the evidence or in common sense which proffers any reasonable, innocent explanation for their juxtaposition. Mr. Phillips had a motive to go to Kingston. He had no vehicle of his own. He was right in the area of where the vehicle was stolen. The vehicle took a path to Kingston shortly after it was stolen. He was arrested in Kingston at his girlfriend’s house, some 300 plus kilometres away within 2½ days, and his DNA was found inside the vehicle. Obviously it had been put there before May 1st, because after May 1st noon, he was in custody. In my view, it would require a great deal of speculation to come up with some alternative explanation that fits common sense and reality on the evidence that is before me. [8] The appellant argues that the verdict is unreasonable. He submits, that while the circumstances are suspicious, the inferences necessary to prove the allegations beyond a reasonable doubt cannot reasonably be drawn. In his submission, at its highest, the evidence puts the appellant in the Anthony vehicle some time after it was stolen on the evening or early morning of April 28 th -29 th and the time of his arrest on May 1 st at around noon. The appellant contends the finding he was in the truck within a few days of its theft could not support the conclusion that he was ever in possession of the truck, much less that he was a party to the break-in and thefts at the Anthony home. [9] This court has a limited power under s. 686(1)(a)(i) to review the reasonableness of a conviction. This court’s task is well described in R. v. Lights , 2020 ONCA 128, at para. 39: When a verdict that rests wholly or substantially on circumstantial evidence is challenged as unreasonable, the question appellate courts must ask is whether the trier of fact, acting judicially, could reasonably be satisfied that the guilt of the accused was the only reasonable conclusion available on the evidence taken as a whole: [citation omitted]. Fundamentally, it is for the trier of fact to determine whether any proposed alternative way of looking at the case as a whole is reasonable enough to raise a doubt about the guilt of the accused. [10] There is nothing to connect the appellant to the break-in or the thefts, except for his alleged possession of the stolen vehicle shortly after the break-in and thefts occurred. The reasonableness of the three convictions turns on whether the circumstantial evidence was reasonably capable of supporting the inference the appellant was not only in the Anthony vehicle when it travelled to Kingston, but was also in possession of that vehicle. Possession requires proof of some element of control over the thing said to be possessed: R. v. Pham (2005), 203 C.C.C. (3d) 326, at para. 16 (Ont. C.A.), aff’d, [2006] 1 S.C.R. 940; R. v. Terrence , [1983] 1 S.C.R. 357. Absent a finding the appellant was in possession of the truck, the further inferences he was the person who broke into the Anthony home and stole the purse and keys was not reasonably available. [11] The Crown claims there were two or more people involved in the break-in, the theft and the trip to Kingston. There is no evidence the appellant was driving the vehicle. Other than evidence he was in the vehicle, there is nothing from which possession of the vehicle could reasonably be inferred. [12] We are satisfied the evidence was equally consistent with an inference that the appellant became involved with the vehicle some time after the break-in and the thefts had occurred. On that view, even if the appellant knew the break-in had occurred and the vehicle was stolen, he was not a party to the break-in or the thefts from the Anthony residence. His potential liability on a charge of possession of the stolen vehicle, based on his presence in the vehicle, is a  moot point. He was acquitted on that charge and there is no appeal from that acquittal. [13] On our review of the evidence, a trier of fact could not reasonably be satisfied that the appellant’s guilt on the charges was the only reasonable conclusion available on the evidence. The appeal must be allowed, the verdicts set aside, and acquittals entered. “Doherty J.A.” “R.G. Juriansz J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Poobalasingham, 2020 ONCA 308 DATE: 20200522 DOCKET: C66068; C66193; C66261 & C66866 Watt, Huscroft and Trotter JJ.A. DOCKET: C66068 BETWEEN Her Majesty the Queen Respondent and Bryan Poobalasingham Appellant DOCKET: C66193 AND BETWEEN Her Majesty the Queen Respondent and Brandon Poobalasingham Appellant DOCKET: C66261 AND BETWEEN Her Majesty the Queen Respondent and Ronald Wilkins Appellant DOCKET: C66866 AND BETWEEN Her Majesty the Queen Respondent and Teshawndra Thomas Appellant Edmond Brown, for the appellants Bryan Poobalasingham, Ronald Wilkins and Teshawndra Thomas Jill R. Presser and Jeff Marshman, for the appellant Brandon Poobalasingham Leslie Paine and Nicolas Demontigny, for the respondent provincial Crown (C66068 & C66193) Bradley Reitz, for the respondent federal Crown (C66261 & C66866) Heard: November 7, 2019 On appeal from the convictions entered on March 30, 2018 by Justice Fletcher Dawson (C66068 & C66193); December 7, 2017 by Justice Steve A. Coroza  (C66261); and January 22, 2019  by Justice Jennifer Woollcombe (C66866), of the Superior Court of Justice, sitting with a jury. Watt J.A.: [1] In a jurisdiction in which trial proceedings are conducted in English and over 95% of the total population asserts knowledge of English, the English-speaking appellants obtained an order under s. 530(1) of the Criminal Code , directing that their trials be held before a judge and ju ry who spoke English. [2] At trial, the appellants invoked the orders under s. 530 and applied to challenge each prospective juror for cause under s. 638(1)(f) of the Criminal Code on the ground that the juror did not speak English. [3] The judge who decided the challenge for cause issue in each case dismissed the application. In the result, no challenge for cause under s. 638(1)(f) was permitted at the appellants’ trials. [4] The appellants contend that the judges were wrong to deny their applications. They advance no other grounds of appeal. [5] As I will explain, I have concluded that the judges were right in dismissing the applications under s. 630(1)(f). It follows that I would dismiss the appeals and affirm the convictions entered at trial. The Background Facts [6] These appeals originate in three separate prosecutions tried by three different judges of the Superior Court of Justice sitting with juries in Brampton. A brief description of the procedural history of each prosecution will provide the context necessary to resolve the narrow legal issue common to each. The Orders under Section 530 [7] As noted, each of the appellants obtained an order under s. 530(1) of the Criminal Code. This section authorizes judges and justices of the peace to make orders about the official language in which trial proceedings will be conducted. Some orders are mandatory, others discretionary. Relevant factors include the timing of the application and the language capacity of the applicant. [8] In these cases, all the appellants self-identify as speaking and understanding one of Canada’s official languages – English. In these circumstances, provided their application was timely, an order directing that their trial take place before a judge and jury who spoke the same official language – English – was mandatory under s. 530(1)(c), as it then appeared. [1] [9] An accused who fails to apply for a mandatory order under s. 530(1) may apply to the trial court for an order to the same effect: Criminal Code , s. 530(4). However, this authority is discretionary and requires the accused to persuade the trial court that it is in the best interests of justice that the order be made. R. v. Poobalasingham [10] Bryan and Brandon Poobalasingham were charged jointly with a third person with counts of aggravated assault and attempted murder. All elected trial by judge and jury and requested a preliminary inquiry. [11] At the preliminary inquiry, Bryan Poobalasingham sought and obtained an order under s. 530(1)(c) of the Criminal Code that his trial be held before a judge and jury who spoke the same official language of Canada as he –  English. [12] Counsel who represented Bryan Poobalasingham, who is one of his counsel on appeal, did not suggest to the preliminary inquiry judge that the order was necessary to ensure that the judge and jury at the appellant’s trial spoke English, the same official language as the appellant. Rather, counsel told the judge he “always” brings an application under s. 530(1) for the same order. [13] Neither Brandon Poobalasingham nor the third co-accused applied for the same order or joined in Bryan’s application. R. v. Wilkins [14] The appellant Wilkins was charged with two counts of offences under the Controlled Drugs and Substances Act , S.C. 1996, c. 19 . He elected trial before a  judge and jury and requested a preliminary inquiry. Represented by the same counsel who represented Bryan Poobalasingham, both at trial and in this court, Wilkins sought and obtained an order under s. 530(1)(c) of the Criminal Code that he be tried by a judge and jury who spoke the same official language as he – English. R. v. Thomas [15] The appellant Thomas was charged with a single count of importing cocaine. She elected trial by judge and jury and requested a preliminary inquiry. As with the other appellants, counsel sought and obtained an order that Ms. Thomas be tried by a judge and jury who spoke the same official language as she – English. The Applications to Challenge for Cause under Section 638(1)(f) [16] At trial, each appellant sought to challenge each prospective juror for cause under s. 638(1)(f). That section reads: 638(1) A prosecutor or an accused is entitled to any number of challenges on the ground that (f) a juror does not speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or both official languages of Canada, where the accused is required by reason of an order under section 530 to be tried before a judge and jury who speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or who speak both official languages of Canada, as the case may be. [17] The question counsel proposed to ask each prospective juror was in these or similar terms: As His/Her Honour will tell you, it is your duty and responsibility as a juror to listen carefully to the spoken testimony of the witnesses, to examine the evidence in the exhibits filed, to attend diligently to the arguments of counsel and the instructions by the Judge on the law, and ultimately decide whether the Crown has proven the charges against the accused beyond a reasonable doubt. I am asking you, as a potential juror, to make a self-assessment. Do you understand written and spoken English well enough to take on the responsibility and obligations of a juror in this trial? R. v. Poobalasingham [18] In support of his application to challenge prospective jurors for cause under s. 638(1)(f), counsel for Bryan Poobalasingham filed a notice of application and a factum, but no extrinsic materials. No evidence was adduced on the application, nor was the judge asked to take judicial notice of any census data, or any other facts, to support the application. [19] Counsel for Brandon Poobalasingham joined in the motion “in the sense of supporting it”, but made no submissions. Counsel for the third co-accused said she was not part of the motion and would not be making submissions on it. R. v. Wilkins [20] The application under s. 638(1)(f) was heard by a case management judge. In support of the application, counsel filed a copy of a sample “Questionnaire about Qualifications for Jury Service”. This document is Form 1 under Regulation 680 made under the Juries Act , R.S.O. 1990, c. J.3 . Prospective jurors are asked to indicate their competency in reading, writing, and speaking English. They are also informed that completion of the form is required by Ontario law. [21] The appellant also filed a copy of a Census Profile for Peel Region in 2011. The document contains data about residents of the Region, including not only Canadian citizens, but also landed immigrants and non-permanent residents. Also included is data about residents’ mother tongue, their knowledge of Canada’s official languages and the language most often spoken at home. R. v. Thomas [22] Thomas’ application to challenge prospective jurors under s. 638(1)(f) was also heard by a case management judge. No evidentiary record accompanied the application. Counsel simply sought to pose the single proposed question as of right because of the order under s. 530(1). The Rulings [23] In each case, the application under s. 638(1)(f) was dismissed. Common to each decision was a conclusion that the mere existence of an order under s. 530(1), without more, did not entitle an accused to challenge each prospective juror for cause, as of right, under s. 638(1)(f) to determine the juror’s language facility. As under s. 638(1)(b), there must be an air of reality to a proposed challenge for cause. The materials filed by the appellants, if any, did not satisfy that standard. The Grounds Of Appeal [24] The appellants advance a single ground of appeal. They say the judges who decided the applications erred in failing to permit them, as beneficiaries of orders under s. 530(1) of the Criminal Code , to challenge prospective jurors for cause under s. 638(1)(f). The Arguments On Appeal [25] The principal arguments advanced are common among the appellants on the one hand and between the respondents on the other. The appellants Brandon Poobalasingham and Thomas make additional submissions based on their individual circumstances. The Appellants [26] The appellants’ primary position is that, having obtained an order under s. 530(1) requiring that their trials be held before a judge and jury who speak English, they are entitled as of right to challenge each prospective juror for cause under s. 638(1)(f). [27] In accordance with the modern approach to statutory interpretation, a single condition must be met to engage the challenge for cause for which s. 638(1)(f) provides. That pre-condition, which is met here, is an order establishing the language of trial under s. 530. With an order under s. 530, s. 638(1)(f), a mechanism to ensure compliance with orders under s. 530, is engaged. [28] The appellants also point to the broader legal context. [29] Section 530 is a language rights provision. Language rights are fundamental. They must not be approached in an adversarial way since they serve the interests of justice and Canadian unity. The fundamental nature of the right of an accused to be tried by a trier of fact who understands the language of an accused’s choice is underscored by s. 16 of the Official Languages Act , R.S.C., 1985, c. 31 (4th Supp.) . This right is substantive, not procedural. The choi ce of official language for trial is the choice of the person charged made for their own reasons. To exercise this fundamental right of trial in the language of choice, an accused must be able to challenge prospective jurors for cause based solely on a s. 530 order. [30] The appellants reject any suggestion of a threshold standard as required where the challenge for cause is based on lack of impartiality under s. 638(1)(b). The threshold under s. 638(1)(b) is necessary because of the presumption of impartiality which adheres to each prospective juror. The air of reality standard is put in place to counter this presumption. But there is no presumption of linguistic competence, nor any presumption that a linguistically limited person could set aside their limitations and fulfil their duty as a juror. [31] The appellants say that by making a s. 530 order a precondition to a challenge for cause under s. 638(1)(f), Parliament ensured that the challenge was available to those with a demonstrated interest in guaranteeing a trial in their official language of choice. As the only precondition to invoking s. 638(1)(f), Parliament ensured that when an accused exercised their language rights, they would not be found to satisfy the challenge on the basis of some case-specific justification. By requiring a case-specific justification, the judge in these cases erred by going beyond the plain, unambiguous and rights-protective language enacted by Parliament. [32] In the alternative, and in the event that we conclude that a factual basis is required for an accused to gain an entrée into s. 638(1)(f), the appellants say the facts found by the case management judge in Wilkins satisfy the threshold. Indeed, the mere fact that prospective jurors identified language concerns on pre-vetting establishes this. Self-selection and pre-vetting are not sufficient nor do any other reasons mentioned by the judges at first instance warrant their conclusions. [33] The appellant Thomas adds that s. 16 of the Charter recognizes the equality of Canada’s two official languages. In doing so, it does not assign a lesser place for those whose official language is that of a majority of the population. Whether the official language at issue is that of a majority or that of a minority is of no moment. Jurors must be linguistically competent and impartial. Just as impartiality must be tested on a challenge for cause, so must linguistic competence. [34] The appellant Brandon Poobalasingham acknowledges that he did not bring a formal application to challenge for cause at trial. Nonetheless, he submits that he should be permitted to advance his case in common with the other appellants. He supported the application at first instance, albeit his counsel made no submissions and filed no material. He was a party to the jury selection process and was bound by any ruling made. The trial judge considered him an applicant and invited submissions from his counsel. [35] The appellants stand as one on the issue of remedy. A ruling denying them a challenge for cause to which they were entitled meant that the jury, and thus the court, was not properly constituted for their trial. This error resulted in a loss of jurisdiction that is beyond the reach of any curative provision in the Criminal Code . The only remedy is a new trial. The Respondents [36] The respondents deny any errors in the rulings below. They say there is not, as the appellants contend, any automatic right to challenge prospective jurors for cause under s. 638(1)(f) simply by virtue of having obtained an order under s. 530 of the Criminal Code . Instead – and consistent with other Criminal Code provisions – a party who invokes s. 638(1)(f) must establish a realistic potential for the challenge. Finally, this realistic potential must be related to specific language rights concerns in the individual case. [37] This conclusion, the respondents argue, finds support in a purposive interpretation of s. 638(1)(f). The provision was enacted in 1978 along with Part XVII of the Code , which includes s. 530 and imposes constitutional bilingualism on the criminal courts across Canada. As a complement to s. 530, s. 638(1)(f) must be interpreted in accordance with the purpose of that section. And the purpose of s. 530, we know, is to provide equal access to the courts to accused speaking one of the official languages of Canada in order to assist official language minorities in preserving their cultural identity. [38] Trial fairness and language rights, the respondents continue, are fundamentally distinct although they are sometimes complementary concepts. The right to make full answer and defence is linked with linguistic abilities only in the sense that an accused must be able to understand and be understood at their trial. For their part, language rights are not meant to enforce minimum conditions under which a trial will be considered fair, or even to ensure the greatest efficiency of the defence. To be sure, language rights may enhance the quality of legal proceedings, but their source lies elsewhere. [39] Issues related to language competency as a function of trial fairness, the respondents say, are properly addressed and more than adequately satisfied by other Criminal Code provisions, as well as the Juries Act . Section 2 of the Juries Act requires that prospective jurors be Canadian citizens. For an adult who is not otherwise a Canadian citizen to become one, the person must have an adequate knowledge of either English or French and pass a test in one of the official languages. A recent amendment requires that every juror be able to speak, read and understand English or French: see Protecting What Matters Most Act (Budget Measures) , S.O. 2019, c. 7, Sched. 35, s. 2; Juries Act , s. 2(d). [40] In addition, under the Juries Act eligible jurors are identified through a questionnaire which asks recipients to certify whether they speak, read and understand English and/or French. The instructions make it clear that to answer “Yes”, the prospective juror must be fluent in the relevant language and understand it well enough to follow a trial where all evidence and legal instructions will be given in that language, without the assistance of an interpreter. [41] The respondents also point out that s. 632 of the Criminal Code permits the judge presiding over jury selection to vet the panel of prospective jurors in advance of the formal jury selection process. Among the issues routinely explored is the need for fluency in the language of trial. In each of the appellants’ cases, this issue was canvassed and some prospective jurors were excused because of inadequate language competency. [42] In addition, the respondents say, if during the trial a particular juror’s language fluency comes up short, the presiding judge may discharge that juror to ensure trial fairness under s. 644(1) of the Criminal Code . [43] The respondents submit that the appellant’s reliance on the Official Languages Act is misplaced. To be sure, that Act imposes certain duties on “federal courts”: see Official Languages Act , ss. 3(2), 16. But the court where the appellants were tried – the Superior Court of Justice – is a creature of provincial statute: see Courts of Justice Act , R.S.O. 1990, c. C.43, ss. 11-17. The Official Languages Act does not apply. [44] The respondents accept that an order under s. 530 is a necessary condition for a challenge under s. 638(1)(f). But it is not a sufficient one. Like any other challenge for cause available under the provision, s. 638(1)(f) requires that there be an “air of reality” or “realistic potential” for the challenge. An evidentiary foundation – whether satisfied by extrinsic evidence, judicial notice, admission or otherwise – must be established . [45] And this evidentiary foundation, the respondents continue, must be related to the purpose of s. 638(1)(f) : ensuring equal access to justice in either official language. If this were not so, Parliament would not have insisted on a s. 530 order as a condition precedent. And provided the request is timely, the s. 530 order is for the asking. Therefore, absent a requirement that the evidentiary foundation be linked to the purpose of s. 638(1)(f), every accused would enjoy an automatic right to challenge every juror under that provision – even absent any concern related to language rights. No such purpose can be teased out of either s. 530, s. 638(1)(f) or their combination. [46] The evidence adduced by the appellant Wilkins falls well short of the “air of reality” threshold. The Census Profile is dated and includes among the population, constituents who would not be eligible for jury service because they are under 18 or are not Canadian citizens. The data about a resident’s “mother tongue” is of little value because it lacks any direct correlation to competency in either official language. If anything, the Census Profile undermines Wilkins’ claims: fully 96% of respondents asserted knowledge of English. [47] In connection with the Poobalasingham appellants, the respondents say Bryan’s materials failed to recite any fair trial or (moreover) language rights concerns. As for Brandon, the interests of justice do not favour granting him leave. He failed to advance the issue at trial. And on appeal, he has failed to point to any negative impact on his rights occasioned by the decision below. The Governing Principles [48] Although the issue ultimately requiring decision is a narrow one involving the interpretation of s. 638(1)(f) of the Criminal Code , that decision is informed by several other incidents of the jury selection process. For, as we know, context plays an important role in construing the written words of a statute: Bell ExpressVu Limited Partnership v. Rex , 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 27. [49] As is well known, the jury selection process involves two stages. [50] The first – the pre-trial stage – involves the organization of a panel or array of prospective jurors who are made available at court sittings as a pool from which trial juries are selected. This pool is randomly assembled from the broader community. Governed by provincial legislation (in Ontario, the Juries Act ), this stage includes the qualification of jurors; completion of the jury list; summoning of panel members; selection of jurors from the jury lists; and conditions for being excused from jury duty: R. v. Find , 2001 SCC 32, [2001] 1 S.C.R. 863, at paras. 19-20; Criminal Code , s. 626(1). [51] The second – the in-court stage – involves the selection of a trial jury from the panel. During this process prospective jurors may be excluded in two ways. Some may be excused by the presiding judge in a preliminary way. Others may be excluded as a result of a successful challenge by the parties: Find , at paras. 19, 21-24. This stage of the process is governed by federal legislation: see Criminal Code , ss. 626-644. The Pre-Trial Stage of Jury Selection [52] To be eligible for jury service in Ontario under s. 2 of the Juries Act , a person must reside in Ontario and be a Canadian citizen at least 18 years old. A recent amendment adds a further requirement for eligibility – the juror must be able to speak, read and understand English or French: see Juries Act , s. 2(d). [53] Any person who is not a Canadian citizen by birth and who is between 18 and 54 years old (inclusive) can only become a Canadian citizen if they have an adequate knowledge of one of Canada’s official languages and can demonstrate in that language an adequate knowledge of Canada and the privileges of citizenship: Citizenship Act , R.S.C. 1985, c. C-29, ss. 5(1)(d) and (e). [54] The process of compiling a jury list begins with the Director of Assessment mailing out a statutorily prescribed form – a jury questionnaire – to residents of a county, district, regional municipality or city, based on information obtained from the most recent enumeration of inhabitants under the Assessment Act , R.S.O. 1990, c. A.31 . [55] The purpose of the jury questionnaire – to determine eligibility for jury service – is stated on the first page. At the time of the appellants’ trials, the form also provided the following warning: If you fail to return this form without reasonable excuse within five (5) days of receiving it, or knowingly give false information on the form, you are committing an offence. If convicted of this offence, you may be fined up to $5000.00 or imprisoned up to six (6) months, or both . [Emphasis added.] [56] Question nine of the questionnaire addresses language competency. Part A asks whether the respondent speaks, reads and understands English. Part B asks the same question with respect to French. The instruction for this question, which the respondent is directed to review, states: If you are chosen to sit on a jury, the trial will be conducted in either English or French. If indicating a “Yes” response to English or French, you must be fluent in either language and understand it well enough to follow a trial where all evidence and legal instructions will be given in English or French, without the assistance of an interpreter. [57] When the questionnaires are returned and opened, a jury roll is compiled from those who are eligible to serve as jurors. The jury roll is divided into three parts based on declared language competency: (i) English, (ii) French, or (iii) both English and French. The In-Court Pre-Selection Procedure [58] When a jury panel arrives in the courtroom to begin the formal process of jury selection, s. 632 of the Criminal Code authorizes the presiding judge to vet the panel members to determine whether any of them should be excused from jury service. Typically, this involves the presiding judge advising members of the jury panel about some requirements for jury service. This includes an understanding of the language of trial. A representative question on this issue is in these terms: Our law also requires that each juror be able to understand the language that will be used in the trial. In this case, witnesses will testify and others involved in the case will speak in English. Documents written in English may be made exhibits. If you have any difficulty understanding English as it is spoken or written, please raise your hand and come to the front of the courtroom. See Find , at paras. 22-23; R. v. Sherratt , [1991] 1 S.C.R. 509, at pp. 527-28, 534-35. See also R. v. Jimenez Leon , 2012 ONSC 575 , 283 C.C.C. (3d) 243, at paras. 11-12, aff’d 2014 ONCA 813; R. v. Smith and Mathers , 2019 ONSC 4816, at para. 11 ; and R. v. E. , 2019 ONSC 3813, at para. 23. [59] When a prospective juror expresses concern, the presiding judge will make inquiries of the juror to determine their language facility. In some cases, the judge may be aware of the nature of the evidence to be adduced and can formulate their questions accordingly. At the end of the inquiry, the judge will determine whether the prospective juror has the language facility necessary to understand the evidence, submissions and jury instructions at trial: see e.g. Jimenez Leon , at para. 18. Section 530 of the Criminal Code [60] Section 530 of the Criminal Code is not part of Part XX, Jury Trials , but rather is contained in Part XVII, Language of Accused . At the time of the relevant proceedings in this case, s. 530(1)(c) of the Criminal Code provided: 530(1) On application by an accused whose language is one of the official languages of Canada, made not later than (c) the time when the accused is ordered to stand trial, if the accused (i) is charged with an offence listed in section 469, (ii) has elected to be tried by a court composed of a judge or a judge and jury, or (iii) is deemed to have elected to be tried by a court composed of a judge and jury, a justice of the peace, provincial court judge or judge of the Nunavut Court of Justice shall grant an order directing that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak the official language of Canada that is the language of the accused or, if the circumstances warrant, who speak both official languages of Canada. [61] While the wording has changed since the appellants’ trials, the substance of this provision remains the same: see Criminal Code , s. 530(1). And this language permits of no doubt: an order directing that the trial of an accused be before a judge and jury who speak the official language of the accused is mandatory, provided the accused’s application is timely. [62] Section 530 is a language rights provision. Section 530(1) creates an absolute right of an accused to equal access to designated courts in the official language which that accused considers their own. It requires that criminal courts be institutionally bilingual in order to provide for the equal use of the two official languages of Canada. The right is substantive, not procedural. It brooks no interference: R. v. Beaulac , [1999] 1 S.C.R. 768, at paras. 23, 25 and 28. [63] The purpose of s. 530 is to provide equal access to the courts to accused who speak one of Canada’s official languages “in order to assist official language minorities in preserving their cultural identity”: Beaulac , at para. 34; R. v. Munkonda , 2015 ONCA 309, 126 O.R. (3d) 646, at para. 49. [64] Language rights are a particular kind of right. They are distinct from the principles of fundamental justice. Language rights are meant to protect official language minorities and to ensure the equal status of English and French. They are “not meant to support the legal right to a fair trial, but to assist [an] accused in gaining equal access to a public service that is responsive to [their] linguistic and cultural identity”: Beaulac , at paras. 23, 25, 41, 45 and 53; Munkonda , at para. 59; and Bessette v. British Columbia (Attorney General) , 2019 SCC 31 , 376 C.C.C. (3d) 147, at para. 38. [65] This court addressed an application under s. 530 by an English-speaking accused in R. v. Leon , 2014 ONCA 813 – albeit in the context of a discretionary order under s. 530(4). This court agreed with the trial judge that “there was no basis to make a s. 530 order , since the accused was already scheduled to have a trial in English”: Leon , at paras. 3-4. Challenges for Cause and Section 638(1)(f) [66] The aim of a challenge for cause is to assist in the selection of a jury who will decide the case impartially and base its verdict on the evidence adduced and in accordance with the legal instructions provided by the trial judge. [67] The ultimate requirement of a system of jury selection is that the system result in a fair trial. A fair trial is not a perfect trial. Nor is it a trial that is the most advantageous from the perspective of the accused: Find , at paras. 26, 28. [68] The presiding judge has authority to control the jury selection process. To make effective use of court resources. And to ensure fairness to all participants, including prospective jurors: R. v. Husbands , 2017 ONCA 607, 353 C.C.C. (3d) 317, at para. 31, leave to appeal refused, [2017] S.C.C.A. No. 364; R . v. Province , 2019 ONCA 638, at para. 69. [69] This inherent authority extends specifically to the challenge for cause component of jury selection. It is exercised to prevent an abuse of the challenge for cause process and to ensure fairness to the parties and the prospective jurors: Province , at para. 68. A challenge for cause with no purpose beyond increasing delays or intruding on the privacy of prospective jurors is ripe for extinction in the exercise of this authority: Find , at para. 29; R. v. Hubbert (1975), 29 C.C.C (2d) 279 (Ont. C.A.), at p. 291, aff’d [1977] 2 S.C.R. 267 . [70] Section 638 of the Criminal Code authorizes challenges for cause. Sections 638(1) and (2) provide an exhaustive catalogue of the grounds upon which a challenge for cause may be advanced. The plain language of s. 638 entitles each party to “any number of challenges” for cause: Criminal Code , s. 638(1); Sherratt , at p. 521. [71] Section 638 is silent on whether an applicant must meet a particular threshold requirement or preliminary burden in order to challenge a prospective juror on the basis of an enumerated cause. But it follows from the presiding judge’s degree of control over the selection process that some burden is settled on the challenger to ensure that selection accords with the governing principles and that the presiding judge is provided sufficient information so the truth of the challenge is contained within reasonable bounds: Sherratt , at pp. 535-36. [72] Among the six articulated grounds upon which a prospective juror may be challenged for cause under s. 638(1), the most frequently invoked is s. 638(1)(b) – i.e., that the prospective juror is not impartial as between the Crown and the accused. An accused who seeks to challenge prospective jurors under s. 638(1)(b) must establish a realistic potential for the existence of partiality on a ground sufficiently articulated in the application: Sherratt , at pp. 535-36; Find , at para. 31; R. v. Yumnu , 2010 ONCA 637, at paras. 70, 88, 260 C.C.C. (3d) 421, aff’d 2012 SCC 73, [2012] 3 S.C.R. 777; and R. v. Williams , [1998] 1 S.C.R. 1128, at para. 14. In assessing whether an accused has met this threshold, courts have considered the availability and efficacy of various components of the trial process to serve as antidotes in ensuring impartiality: Find , at paras. 41-42. Only where these components are insufficient to negate a realistic potential of partiality will the challenge be permitted to proceed. [73] A challenge for cause under s. 638(1)(f) contests the language competency of prospective jurors. The challenge for cause is available only where the accused is required by an order under s. 530 to be tried by a judge and jury who speak the same official language as the accused. The challenge is that the prospective juror does not speak the same official language. The Principles Applied [74] Several reasons persuade me that this ground of appeal fails. [75] First, the circumstances in which the orders under s. 530(1) were obtained. [76] As we have already seen, s. 530 is a language rights provision. Its purpose is to provide equal access to the courts to accused who speak an official language of Canada in order to assist official language minorities in preserving their cultural identity. An order ensures that an accused will understand and be understood in the proceedings. Language rights are not meant to enforce minimum conditions under which a trial will be considered fair. [77] The timeliness of the applications under s. 530(1)(c) in these cases dictated that an order would be made in view of the mandatory language in the section. But the application, which counsel said he “always made”, was at best frivolous and at worst abusive. For it had nothing to do with language rights or assisting official language minorities in preserving their cultural identity. [78] In these cases, as the appellants well knew, their trials would be held in the official language with which they identified – English. No order under s. 530 was required to achieve this result: see Leon , at paras. 3-4. The appellants would understand the language of proceedings. [79] In addition, the juror qualification requirement under the Juries Act and the pre-vetting of jurors for language competency ensured that the trier of fact would understand the proceedings in their official language. In each of the appellants’ cases, the presiding judge conducted screening for language competency. And in each case, several prospective jurors were excused. [80] As it would appear to me, counsel sought the order not to enforce language rights, but to secure a foothold to challenge prospective jurors for cause on the ground of language competency in the absence of any warrant for doing so. Indeed, the focus of the proposed question is more directed at the fairness of the trial process than the language in which the trial was conducted. [81] Second, the interpretation of s. 638(1)(f). [82] The interpretation of s. 638(1)(f) proposed by the appellants, that the mere existence of an order under s. 530 entitles an accused to challenge the language competency of each prospective juror as of right, would be inconsistent with the threshold requirements for all other challenges for cause – in particular, s. 638(1)(b) – in the absence of any statutory language or principle requiring it. [83] The threshold to be met under s. 638(1)(b) – a realistic potential for the existence of partiality on a ground sufficiently articulated in the application – does not emerge from the language of the section. Nor can s. 638(1)(b) be distinguished based on the presumption of impartiality in prospective jurors. Indeed, the functional equivalent of a similar presumption – one of language competency – could as easily be grounded on the combination of jury qualification requirements in place under provincial law and the pre-vetting of panel members for language competency by the presiding judge. [84] Further, a requirement of the threshold showing for each ground of challenge for cause is consistent with basic principles. To take advantage of an entitlement to challenge for cause, one which has the effect of eliminating from the jury as sworn persons not disqualified by the statute under which jurors are selected, a challenger must make a preliminary showing before being allowed to proceed. [85] Finally, challenges for cause which, as here, serve no useful purpose but to increase delays and intrude on the privacy of prospective jurors must be avoided. Disposition [86] For these reasons, I would dismiss the appeals. Released: “DW” May 22, 2020 “David Watt J.A.” “I agree. Grant Huscroft J.A.” “I agree. Gary Trotter J.A.” [1] While the structure of s. 530 has changed slightly since the appellants’ trials, its substance remains the same. Accordingly, the expression “as it then appeared” is not repeated in subsequent references to the provision.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Potvin, 2020 ONCA 299 DATE: 20200513 DOCKET: C63033 Rouleau, Zarnett and Jamal JJ.A. BETWEEN Her Majesty the Queen Respondent and Roger Marcel Potvin Appellant Howard L. Krongold, for the appellant Nicolas de Montigny, for the respondent Heard: in writing On appeal from the sentence imposed by Justice Jonathan Brunet of the Ontario Court of Justice on May 12, 2016. REASONS FOR DECISION A. Overview [1] The appellant was convicted of breaching his long-term supervision order (“LTSO”) and sentenced to an indeterminate sentence pursuant to s. 753.01 of the Criminal Code , R.S.C. 1985, c. C-46 . He argues on appeal that the trial judge failed to properly consider the principle of proportionality and to consider certain mitigating factors in imposing this sentence. For the following reasons, we dismiss his appeal. B. Background (1) Criminal History and Dangerous Offender Designation [2] The appellant was declared a dangerous offender in 2012. This designation followed his conviction for criminal harassment and other offences. It was the culmination of a 30-year history of crimes against women. His conduct included breaking into victims’ residences, following them from place to place, relentless phone calls, and making threats. As noted by the sentencing judge, in the course of his offending conduct the appellant has caused “severe psychological damage to several women and has left a large swath of misery, anxiety, mistrust and emotional scars on these individuals.” [3] The appellant also has convictions for indecent acts, by exposing his penis to women he had called over to his motor vehicle under the pretext of asking for directions. As well, he has been convicted of sexual assault, obstruction of justice, break and enter, assault and uttering threats. A number of these offences were committed while on bail or probation. [4] After being declared a dangerous offender in 2012, the appellant was sentenced to time served, equivalent to 844 days in jail, followed by a 10-year LTSO. One of the terms of the LTSO was that the appellant had to immediately report to his parole supervisor all contacts with females with whom he associated. (2) Index Offence [5] In the fall of 2013, the appellant became friendly with a 23-year old female employee of a local coffee shop. He would regularly walk her home and did so approximately 40 times over the course of two months. The woman became uncomfortable with the continued contact when the appellant caused the conversations to become personal and sexually explicit, for example when he asked how many sexual partners she had had. The appellant also shared with her that he had masturbated with the blinds open and a woman across the street had seen him. She testified that he would call her several times a day. [6] After a time, the woman made it clear to the appellant that she did not want him walking her home. When he continued to attend her workplace, she did not wish to deal with him. On one occasion, she left through the back door and went home feeling afraid. Shortly after arriving home she heard the doorbell ring and a knock on the door. She pretended not to be home, but the appellant rang the doorbell again and she eventually answered the door. She told the appellant that she needed to be left alone. [7] The appellant also gave the woman gift cards and an elliptical machine. When pressed by the appellant the woman agreed to meet with him to talk about “us”. It is then that the appellant told her that he had a file or a background check he had done on her and told her he had asked a contact to look up her name, where she was from, and her family and personal history. This made the woman scared and furious, after which she went to the police to report her concerns. As it turned out, the appellant had never reported to his parole officer the fact that he had been pursuing this woman for several months. He was therefore arrested and charged with breach of his LTSO. [8] In his reasons for conviction, the trial judge expressed the view that the appellant’s behavior could be considered “courting” or “grooming” and was “very close to, if not tantamount to, stalking as described [in s.] 264 of the Criminal Code .” (3) Sentencing Hearing and Reasons for Sentence [9] At the sentencing hearing, the Crown called two experts. Dr. Philip Firestone was qualified as an expert in the area of clinical psychology. Dr. Firestone had provided the appellant with psychological counseling from 2012 until his arrest in December 2013. Dr. Scott Woodside, a forensic psychiatrist, performed a psychiatric assessment of the appellant and was qualified as an expert in the area of diagnoses, risk assessment and risk management. [10] In the course of his assessment by Dr. Woodside, the appellant displayed no reluctance in speaking with him, but it was apparent that the information he provided was not always accurate or consistent. [11] Dr. Woodside diagnosed the appellant with a mixed personality disorder with paranoid, antisocial, borderline and dependent traits, as well as exhibitionistic disorder. Dr. Firestone agreed with this diagnosis. [12] Based on both clinical and actuarial evaluations, Dr. Woodside concluded that the appellant continues to pose a high risk of sexual recidivism. According to Dr. Woodside the risk of reoffending was highest with respect to exhibitionism, stalking and harassment. [13] Dr. Firestone was concerned that although the appellant had been under intense supervision, he nonetheless returned to his offence cycle. In his view, there was little that he could recommend to add to the conditions already in place that might mitigate or reduce the risk of reoffending. He concluded that even if subjected to an LTSO with strict conditions, the appellant was at a moderate to high risk to reoffend. [14] Dr. Woodside expressed “significant pessimism” regarding the appellant’s future manageability in the community even if strict conditions were in place. In his own words: [T]his is now the third time he's faced dangerous offender proceedings of one kind or another. … This is not a good prognostic factor, right? I mean, this is someone who should have known, even if he says he didn't, known what was at stake. And yet he could not restrain his behavior and was not willing or able to make use of treatments that were available to him, in a way that would actually result in a different approach to relationships. [15] Dr. Woodside acknowledged that two types of treatment had not yet been attempted with the appellant: antipsychotic medication and sex drive reducing medication. Dr. Woodside however had significant reservations about the outcome of these potential treatment options. It was unclear whether the appellant would accept and persist with these forms of treatment, nor was it known whether they would be effective. [16] The sentencing judge considered the appellant’s entire history, the psychiatric and psychological evidence, and the evidence emanating from the offences and victim impact statements, and concluded that the criteria in s. 753.01(5) for the imposition of an indeterminate sentence were met. C. Analysis [17] The appellant argues that, in assessing what form of sentence would sufficiently protect the public, the trial judge does not appear to have considered the principles of proportionality, the appellant's moral culpability, or the mitigating factors that exist in this case. The appellant maintains that the trial judge made only tangential reference to the sentencing principles set out in s. 718 of the Criminal Code , the common law and relevant jurisprudence. [18] While the objective of public protection is enhanced in cases involving individuals designated as dangerous offenders, a court must nonetheless balance this against the other sentencing principles, including proportionality: R. v. Boutilier , 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 53. In the present case, the appellant submits he had received few interventions before or while living at the halfway house. For someone exhibiting the depth of problems faced by the appellant, the limited intervention and treatment provided to him was a recipe for failure. In the appellant’s submission, this ought to have informed the trial judge’s disposition in this case. [19] The appellant further maintains that he posed only a limited risk of “hands on” reoffending and committing a serious personal injury offence. In the appellant’s submission, had the trial judge fully grappled with the mitigating factors in fashioning a sentence, he ought not to have imposed an indeterminate sentence. [20] We disagree. As conceded by the appellant, it is well accepted that the dominant purpose of the dangerous offender regime is public protection: R. v. Steele , 2014 SCC 61, [2014] 3 S.C.R. 138, at para. 29. The conduct underlying the offence for which the appellant was convicted was strikingly similar to that which led to the appellant's original dangerous offender designation. It went to the heart of his offence cycle and it therefore created a direct link to his risk to public safety. [21] The sentencing judge properly focused on the narrow issue of whether there was a reasonable expectation that something less than an indeterminate sentence could adequately protect the public against the commission of a serious personal injury offence by the appellant: Criminal Code , s. 753.01(5). He reviewed the sentencing principles and mitigating factors identified by defence counsel, including the relative lack of “hands on” violence in the record, the fact that the appellant had not spent time in a penitentiary with access to the programming available there, the appellant's expressed desire to change his ways, as well as Dr. Woodside's evidence that he could not completely rule out a delusional disorder diagnosis and that a trial of antipsychotic medication could be attempted. [22] The evidence at the hearing, however, was that the appellant had a history of declining medication and had been unable to meaningfully engage in treatment. He had denied responsibility for his crimes and demonstrated a lack of insight into his offence cycle and mental illness. The trial judge considered the relevant factors, both mitigating and aggravating, and concluded that the breach was “very significant” because the condition that was breached was directly tied to the nature of the offence that formed the basis of the dangerous offender designation itself. On the basis of all the evidence that was produced at the sentencing hearing, the sentencing judge concluded that there was no reasonable expectation that something less than an indeterminate sentence would adequately protect the public. [23] In our view, the trial judge was alive to the factors that the appellant alleges received inadequate consideration. The psychiatric evidence was that the appellant is likely to continue his longstanding pattern of criminal harassment. The sentencing judge’s conclusion that only an indeterminate sentence would adequately protect the public from future serious personal injury offences, specifically, further instances of criminal harassment causing severe psychological damage, was reasonable and well supported by the evidence. We see no basis to interfere with this conclusion. D. Disposition [24] As part of the appellant’s sentence, a $200 victim surcharge was imposed. In accordance with R. v. Boudreault , 2018 SCC 58, [2018] 3 S.C.R. 599, leave to appeal is granted and this victim surcharge is set aside. [25] For the reasons given above, the appeal is otherwise dismissed. “Paul Rouleau J.A.” “B. Zarnett J.A.” “M. Jamal J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, 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. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. R.R., 2020 ONCA 327 DATE: 20200528 DOCKET: C64708 Doherty, Juriansz and Miller JJ.A. BETWEEN Her Majesty the Queen Respondent and R.R. Appellant Richard Litkowski and Jessica Zita, for the appellant Jennifer Trehearne, the respondent Heard: May 19, 2020 via videoconference On appeal from the convictions entered by Justice K.A. Sherwood of the Ontario Court of Justice, dated August 29, 2017, and on appeal from the sentence imposed on November 28, 2017. REASONS FOR DECISION [1] The appellant was convicted of two counts of sexual assault. The offences occurred in 1996 and 1997, but were not reported until years later. The appellant was charged in 2016, convicted in August 2017, and sentenced to 14 months in November 2017. He appeals conviction and sentence. The appellant has been on bail pending appeal for 2½ years. [2] For the reasons that follow, the appeals are dismissed. [3] The two complainants, J.P. and C.P., are cousins. In 1996 and 1997, J.P. and her mother shared a duplex with J.P.’s grandmother. J.P. and her mother lived on one side and her grandmother lived on the other side. [4] C.P. often came to visit her grandmother and played with J.P. They moved back and forth between the two parts of the duplex. At the relevant time, J.P. was five or six and C.P. was between eight and ten. [5] J.P.’s mother was involved in a relationship with the appellant. He was often at the duplex. [6] J.P. and C.P. both described being sexually assaulted by the appellant on two occasions. All four occasions occurred at the duplex when the complainants were very young. All four incidents involved the appellant putting his hand under the complainants’ clothing, including their underpants. On at least three of the four occasions, he digitally penetrated the complainants’ vaginas. On three of the four occasions, the complainants were sitting on the appellant’s lap or knee. [7] J.P.’s mother testified. She recalled an incident when she saw the appellant put his hands under J.P.’s covers and near her “private area”. She told the appellant to get away from her daughter. This incident was quite similar to one of the assaults described by J.P. [8] In addition to describing the two sexual assaults, J.P. also testified that the appellant photographed her and C.P. when they were in the bath together. J.P.’s mother confirmed that the appellant took a picture of J.P. alone when J.P. was in the shower. C.P. testified that she was not aware of any photos being taken of her when she was in the bath or shower. [9] The appellant testified and denied the allegations. He indicated he had a brief relationship with J.P.’s mother in late 1996 and early 1997. He ended the relationship because of her “lifestyle”. J.P. and the appellant ended up in a custody dispute over their son. The appellant eventually got custody. [10] The appellant admitted taking a photograph of J.P. when she was in the bathtub. He indicated that J.P.’s mother had asked him to take the photograph. [11] Several witnesses called by the defence gave what the trial judge properly characterized as character evidence for the appellant. They had little to say about the events giving rise to the charges. The Conviction Appeal [12] There are two grounds of appeal: · Did the trial judge err in admitting the evidence directly relevant to one count as similar fact evidence on the other counts? · Did the trial judge apply different levels of scrutiny as between the complainants’ evidence and the appellant’s evidence? The Similar Fact Evidence Ruling [13] The trial judge ruled the evidence directly relevant to each count was admissible on the other counts. He held the evidence was admissible to prove the actus reus of the allegations in each count. In so holding, the trial judge referred to the many similarities between the allegations of the two complainants, and the absence of any evidence of collusion. [14] The appellant does not take issue with the trial judge’s determination the evidence on each count had probative value on the other counts. He submits, however, the trial judge failed to balance that probative value against the prejudicial effects of admitting the evidence across counts. [15] The trial judge gave detailed reasons for admitting the evidence. He specifically identified the issue on which the evidence had probative value. The trial judge described, on at least two separate occasions, the nature of the potential prejudice inherent in the admission of similar fact evidence. He was obviously alive, both to the probative value of the evidence and the nature of the potential prejudice inherent in the evidence. [16] This was a judge alone trial. There was no objection to the joinder on the same information of all four counts. It was understood the trial judge would hear the evidence on all counts. He specifically alerted himself to both the legitimate and the illegitimate purposes for which the evidence can be used. In deciding to admit the evidence, he was obviously satisfied the legitimate probative value of the evidence outweighed any risk of misusing the evidence. Indeed, it is difficult to see any risk that this trial judge would misuse the evidence after repeatedly and accurately identifying how the evidence could and could not be used. The Uneven Scrutiny Argument [17] As with most allegations of sexual assaults against children, the outcome at trial turned, to a large extent, on the trial judge’s assessment of the credibility of the witnesses. The trial judge dealt at length with the credibility and reliability of the complainants’ testimony. He also addressed the appellant’s credibility. He did so in the context of the presumption of innocence and the burden on the Crown to prove its case beyond a reasonable doubt. [18] The trial judge ultimately rejected the appellant’s evidence as untrue. He believed the complainants’ evidence. [19] The appellant’s complaint that his evidence was subject to a more rigorous examination than the complainants’ evidence seems based in large measure on the different assessments ultimately made by the trial judge. Not surprisingly, the evidence of the complainants and the evidence of the appellant gave rise to very different credibility considerations. The trial judge concluded that the appellant’s veracity was tainted by his obvious animus towards J.P.’s mother. Nothing in the complainants’ evidence raised a comparable credibility related issue. [20] We see little value, for the purposes of appellate review, in comparing the trial judge’s assessment of the impact on the appellant’s credibility of his animus towards J.P.’s mother with the trial judge’s assessment of the impact on the complainants’ credibility of some entirely different feature of their evidence. A trial judge’s finding that factor “A” had a negative impact on the assessment of one witness’s credibility, but a completely different factor “B” did not have the same impact on the assessment of a different witness’s credibility is not uneven scrutiny. To the contrary, it reflects a proper individualized assessment of the different evidence offered by the different witnesses. [21] The trial judge did not err in the manner in which he approached and assessed the evidence of the witnesses. The Sentence Appeal [22] The appellant was sentenced to 14 months concurrent on the charges. The defence at trial sought a conditional sentence. They renew that request on appeal. [23] A conditional sentence was legally available. It would, however, have been inappropriate. These were serious crimes committed against very young victims. The appellant took advantage of his access to the duplex through his friendship with J.P.’s mother to commit the crimes. The nature of the offences fully warranted a significant reformatory sentence. Nothing in the character or antecedents of the appellant supports the imposition of a non-custodial sentence. The sentence imposed was fit. [24] The appellant’s bail pending appeal was varied to allow him to surrender into custody, as directed by the court. As his appeals have been dismissed, he shall surrender into custody by no later than noon on Friday, May 29, 2020, failing which a warrant may issue for his arrest. “Doherty J.A.” “R.G. Juriansz J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Renaud, 2020 ONCA 302 DATE: 20200513 DOCKET: C68244 MacPherson, Pardu and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and Jennifer Renaud Appellant Amanda Warth, for the appellant Michael Fawcett, for the respondent Heard: May 12, 2020 by Teleconference On appeal from the sentence imposed on February 24, 2020 by Justice Erin J. Lainevool of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant, Jennifer Renaud, pled guilty to, and was convicted of, several criminal offences: unauthorized possession of a weapon; theft of a motor vehicle; being an occupant of a vehicle with a weapon; possession of a dangerous weapon; possession of break-in instruments; personation; and failure to comply with recognizance. She received a custodial sentence of ten months after the sentencing judge’s calculation of credit for pre-sentence custody. The appellant appeals the sentence. [2] At the sentence hearing, the appellant sought a conditional sentence of 12 to 15 months. The Crown position was that the appellant should receive a custodial sentence of 9 to 12 months less credit for pre-trial custody. The trial judge rejected a conditional sentence and imposed the custodial sentence set out above. [3] On appeal, the appellant does not contend that the sentencing judge erred by declining to impose a conditional sentence. She does assert that the custodial sentence imposed by the sentencing judge was too harsh. We agree with this submission, essentially for three reasons. [4] First, and most importantly, the sentence imposed by the sentencing judge was above that sought by the Crown. The very top of the Crown’s range was 12 months. Although the sentencing judge never said what her global sentence was, the reality is that when you add the custodial sentence she imposed and the credit the parties acknowledge should have been given for pre-sentence custody, the global sentence is about 13 ½ months. The Crown acknowledges this point and agrees with the proposition that when a sentencing judge imposes a sentence more harsh than that sought by the Crown, the judge should explain the reasons for so doing. The sentencing judge did not do this. There is no indication in her reasons that she intended to impose a sentence exceeding the maximum sought by the Crown. This outcome may have been related to the error in calculation of pre-sentence custody; submissions made to her about this credit were not precise. [5] Second, the Crown concedes that the sentencing judge underestimated, by about 15 days, the appropriate credit the appellant should have been given for pre-sentence custody. [6] Third, although the sentencing judge mentioned some of the mitigating factors favouring the appellant, she did not refer to the appellant’s guilty plea. [7] Although we would not say that any of these factors, taken in isolation, would necessarily warrant appellate interference with a sentence, in this appeal these factors, taken together, lead us to conclude that the sentence imposed by the sentencing judge was too harsh. [8] The appeal is allowed. The sentence imposed for personation (90 days consecutive) is varied to 90 days concurrent to the other sentences imposed. This results in an effective sentence today of time served. Accordingly, it is ordered that the appellant be released from custody. “J.C. MacPherson J.A.” “G. Pardu J.A.” “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Rose, 2020 ONCA 306 DATE: 20200521 DOCKET: C63806 and C63807 Strathy C.J.O., Harvison Young and Jamal JJ.A. BETWEEN Her Majesty the Queen Respondent and Conroy Rose and Kharla Rose Appellants Ingrid Grant, for the appellants Ian Bell, for the respondent Heard: November 26, 2019 On appeal from the convictions entered on March 14, 2017 and the sentences imposed on August 22, 2017, by Justice J. Morissette of the Superior Court of Justice, sitting with a jury. Harvison Young J.A.: A. Overview [1] The appellants Conroy and Kharla Rose are married. They were convicted before a judge and jury of several charges in relation to alleged drug trafficking. Specifically, Conroy was convicted of three counts of possessing proceeds of crime and one count of money laundering, while Kharla was convicted of one count of possessing proceeds of crime and one count of money laundering. They were self-represented at trial. Both Conroy and Kharla appeal their convictions and sentences. [2] Conroy and Kharla raise two principal grounds of appeal from conviction: 1) the trial judge erred in failing to follow the provisions of the Criminal Code , R.S.C., 1985, c. C-46 that govern the procedure for dismissing an additional juror; and 2) the trial judge erred in admitting evidence of Conroy’s prior convictions, particularly in the form of judicial reasons. [3] In addition, Kharla appeals from the dismissal of her claim that she did not receive a trial within a reasonable time, as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms . Accordingly, Kharla seeks a stay of the proceedings against her. [4] For the reasons that follow, I would allow the appeals from conviction and order a new trial. As a result, I need not address the sentence appeals. I would also dismiss Kharla’s appeal on the s. 11(b) ground. [5] I will only review the facts that are necessary to dispose of this appeal. B. The Factual Background [6] In July 2010, the police executed search warrants at an apartment on Oxford Street West and a house on Staffordshire Road in London, Ontario. Conroy had signed the lease and paid rent for the apartment. Kharla owned the house. [7] A t the apartment, the police seized about $20,000 in cash. At the house, the police seized 11 safety deposit box keys, a key that was later found to unlock the apartment, and a BMW. Shortly after executing these warrants, the police located seven safety deposit boxes in Kharla’s name containing over $400,000 in cash. [8] The police arrested and charged Conroy and Kharla with possession of proceeds of crime and money laundering. Specifically, Conroy was charged with: · Possession of proceeds of crime, particularized as a Honda; · Possession of proceeds of crime, particularized as $20,000 found in his apartment; and · Possession of proceeds of crime, particularized as a BMW. [9] Kharla was charged with possession of proceeds of crime, particularized as $465,710 found in the seven safety deposit boxes in her name. [10] Conroy and Kharla were also charged jointly with one count of money laundering. The Crown alleged they used proceeds of crime to pay down the mortgage on their marital home. [11] The Crown brought an application in July 2015 to adduce evidence relating to Conroy’s former charges and convictions. As a result of this application, significant evidence of Conroy’s prior convictions was admitted in the form of reasons for decision. The details of this will be discussed further below. [12] In August and October 2015, Kharla brought a pre-trial s. 11(b) application for a stay of the charges against her. The application was dismissed. [13] The appellants represented themselves at the trial. The jury convicted Conroy and Kharla on all counts. [14] I will now turn to the three grounds of appeal: · The dismissal of the additional juror; · The evidence relating to Conroy’s prior convictions; and · The dismissal of Kharla’s s. 11(b) application. C. The Dismissal of the Additional Juror [15] The trial began in March 2017. After 12 jurors were selected, two extra jurors were sworn in as “alternate number one” and “alternate number two”. Although the trial judge referred to these jurors as alternates, they remained present when the evidence began. [16] Shortly after the trial began, one of the first 12 jurors was excused. The trial judge ordered that alternate number one would replace the lost juror. She also ordered that alternate number two continue hearing evidence. [17] At the end of the evidence and prior to closing addresses to the jury, the trial judge stated (without the jury present): So I will discharge the jury [for the weekend] and I am going to be discharging the alternate - actually we don’t call her ‘alternate’ we call her ‘additional’ in accordance with the Criminal Code . [18] When the jury was present, the trial judge then dismissed alternate number two, addressing her as “additional juror number 13”. This juror did not participate in deliberations. For clarity, I will refer to this dismissed juror as “juror 13”. [19] “Alternate” jurors and “additional” jurors address different concerns and are governed by different procedures of the Criminal Code . Section 631(2.1) provides that a judge may select one or two “alternate” jurors. Section 631(2.2) provides that a judge may have one or two “additional” jurors sworn. [20] Alternate jurors protect against the risk that some jurors may be excused, abscond, or be otherwise unavailable between the time that the jury is selected and the beginning of the evidence. They are not intended to hear evidence. Instead, pursuant to s. 642.1(1), they are present at the beginning of evidence to replace any absent juror. This is to prevent the need to start the jury selection process anew if numbers have fallen before the evidence begins. Section 642.1(2) states that an “alternate juror who is not required shall be excused” (emphasis added). Alternate jurors are therefore excused before the evidence begins if there is a full jury present without them at that point. [21] Additional jurors protect against the loss of jurors during the course of the evidence, something which may be a particular concern during long trials. Unlike alternate jurors, additional jurors are intended to remain throughout the evidence. If the additional jurors remain at the time deliberations are to begin, s. 652.1 governs the procedure for reducing the jury to 12 members: 652.1 (1) After the charge to the jury, the jury shall retire to try the issues of the indictment. (2) However, if there are more than 12 jurors remaining, the judge shall identify the 12 jurors who are to retire to consider the verdict by having the number of each juror written on a card that is of equal size, by causing the cards to be placed together in a box that is to be thoroughly shaken together and by drawing one card if 13 jurors remain or two cards if 14 jurors remain. The judge shall then discharge any juror whose number is drawn. [22] In short, “alternate” jurors, by definition, remain present only until the evidence begins. At that point, they are excused unless one or both are required. “Additional” jurors, on the other hand, remain until the evidence is complete. Before deliberations, the number of the jury members must be reduced to 12. This reduction is done randomly , as required by s. 652.1. There is no such requirement applicable to alternate jurors. [23] It is common ground that although the trial judge used the term “alternate” to describe the extra jurors early in the trial, she treated them as “additional” jurors, as per s. 631(2.2) of the Criminal Code , by allowing them to remain present throughout the evidence . The problem is that, before deliberations began, she dismissed juror 13, one of the two additional jurors chosen, and the last to have been chosen, rather than randomly selecting a juror to be dismissed, as s. 652.1(2) of the Criminal Code requires. The Parties’ Submissions [24] The appellants submit that the trial judge failed to follow mandatory Criminal Code procedures, which resulted in an improperly constituted jury. Relying primarily on this court’s reasons in R. v. Noureddine , 2015 ONCA 770, 128 O.R. (3d) 23, at paras. 49-53, the appellants suggest the trial judge’s error deprived them of a statutory right in the jury selection procedure. This error is analogous to errors relating to peremptory challenges, challenges for cause, or “stand-asides”. As such, the curative proviso in s. 686(1)(b)(iv) of the Criminal Code cannot apply. [25] The appellants further suggest the trial judge’s errors caused prejudice. A random selection procedure to reduce the jury to 12 members is necessary to prevent a judge from influencing the jury composition to an accused’s disadvantage. The appellants argue the trial judge’s error creates an appearance of unfairness, which warrants a new trial. [26] The Crown concedes that the trial judge should have randomly dismissed a juror, rather than dismissing juror 13. However, it denies that the jury was improperly constituted, because the trial judge’s error arose after the jury was constituted. The Crown relies on s. 643(1) of the Criminal Code , which reads: 643 (1) The 12, 13 or 14 jurors who are sworn in accordance with this Part and present at the commencement of the presentation of the evidence on the merits shall be the jury to hear the evidence on the merits. [Emphasis added.] Based on this wording, the Crown suggests the jury was properly constituted at the commencement of the presentation of evidence in this case. Any error after this point does not go to the question of whether a jury is properly constituted. [27] In addition, the Crown submits that when this court has ordered a new trial based on a trial judge’s error in discharging (or failing to discharge) a juror once the trial has commenced, it has been on the basis that the error created at least the appearance of unfairness to the accused. The Crown says that here, there is no basis to support even the appearance that the trial judge “hand-picked” the final jury composition, as the appellants suggest. As such, the error was a mere irregularity, which can be saved by the curative proviso under s. 686(1)(b)(iv). Law and Analysis [28] I agree with the appellants’ submissions on this issue. First, the error in failing to discharge a juror randomly under s. 652.1(2) is analogous to errors regarding a challenge for cause, Crown stand-asides, static or rotating triers, or the summoning of talesman. For instance, in Noureddine , at para. 55, this court wrote that “the process used to determine the appellants’ challenges for cause directly contravened the controlling Criminal Code provisions”, and thus the court below was improperly constituted. Similarly, in this case, the process used to dismiss juror 13 directly contravened s. 652.1(2) of the Criminal Code . [29] While the jury may have been properly constituted at the outset to hear the evidence, it was not properly constituted according to s. 652.1(2) when it began to deliberate on that evidence. I see no principled distinction arising from the temporal difference between an error under s. 652.1(2) and other previously listed errors going to the constitution of the jury that could justify treating this error differently. The idea that following Criminal Code procedures at the beginning of the trial effectively operates to insulate the court from the requirements of those procedures at a later stage in the trial does not make sense. [30] Second, even if the curative proviso could be argued, it cannot be said that there was no prejudice caused to the appellants. The curative proviso is only successful in cases where the Crown can “establish on a balance of probabilities that the legal error is harmless” in the sense that no prejudice resulted or that a trier of fact would inevitably convict: R. v. O’Brien , 2011 SCC 29, [2011] 2 S.C.R. 485, at para. 34. [31] Here, the Crown has not met its burden to justify the curative proviso’s application. As this court outlined in R. v. Chouhan , 2020 ONCA 40, 149 O.R. (3d) 365, leave to appeal granted, [2020] S.C.C.A. No. 19, there are various in-court mechanisms to protect against actual and apparent jury partiality, such as challenges for cause: at paras. 66-72. Similarly, the purpose of s. 652.1(2) is to ensure that the trial judge discharges additional jurors impartially. The random dismissal procedure helps prevent a trial judge from “hand-picking” the final composition of the jury based on their observations. [32] While there is no suggestion of actual partiality in this case, the point is that the failure to follow the procedure in s. 652.1(2) causes prejudice by tainting the appearance of jury impartiality. Proof of actual partiality is not necessary to demonstrate prejudice for the purposes of the curative proviso: Noureddine , at para. 63. Treating the trial judge’s error as inconsequential would risk bringing the administration of justice into disrepute. The curative proviso cannot apply. [33] I would therefore order a new trial on this ground. D. The Evidence relating to Conroy’s Prior Convictions [34] In July 2015, the Crown brought a pre-trial application to lead evidence of Conroy’s three prior drug trafficking-related charges, dated 2007, 2008, and 2010. The trial judge allowed the application only with respect to the 2008 charges, for which Conroy was convicted in 2011 (“the 2008 convictions”). The 2008 convictions were for the possession of cocaine for the purpose of trafficking and possession of proceeds of crime. [35] At the time of the application, the parties indicated that they would create an agreed statement of facts to admit the evidence of the prior convictions. This did not happen. Instead, at trial, the Crown called several officers to testify about the 2008 convictions. The following documents were also admitted as evidence for the jury’s consideration: · Tausendfreund J.’s reasons for judgment on the 2008 convictions and sentence; · Leitch J.’s reasons for judgment on a related forfeiture hearing; and · An order from the Court of Appeal dismissing Conroy’s appeal from the 2008 convictions. The Parties’ Submissions [36] The appellants concede that admitting the fact of the convictions for possession of cocaine for the purpose of drug trafficking was sufficiently probative regarding the origin of the money in the present case. However, they argue that 1) admitting the fact of the proceeds convictions and 2) admitting the 2008 convictions in the form of the reasons for decision was highly prejudicial and warrants a new trial. [37] First, they say the proceeds convictions should not have been admitted, because they were not relevant to the origin of the money, which was the only live issue at trial. Further, the proceeds convictions permitted impermissible propensity reasoning. The risk of propensity reasoning was particularly high, given that the proceeds convictions arose at least in part from the same sources of income in the same time period as the case at bar. [38] Second, the appellants argue that the reasons for judgment relating to the 2008 convictions should not have been admitted and filed as exhibits, because they contained more than the fact of the 2008 convictions. As the reasons in their entirety were admitted, they were inevitably imbued with the inherent authority of another judge’s decision that could readily overwhelm a jury. Moreover, they were comprised in essence of a blend of hearsay and expert opinion, which both call for careful jury instructions as to the proper use of such evidence. No such jury instructions were given. [39] In response to the first issue, the Crown submits that the proceeds convictions were highly probative and minimally prejudicial. Specifically, the proceeds convictions were important additional evidence of Conroy’s commercial drug trafficking, which was relevant to the origin of the assets in the case at bar. [40] In response to the second issue, the Crown concedes that the trial judge failed to balance the probative value against the prejudicial effect of the manner in which the prior convictions were entered into evidence. It maintains that negligible prejudice resulted, because the Crown called testimonial evidence from four witnesses that amply supported the contents of the exhibited reasons. In addition, Conroy had the opportunity to cross-examine these witnesses. There was little to suggest that a challenge to the 2008 convictions or the evidence underlying those convictions would have succeeded. [41] The Crown concedes that the forfeiture ruling should not have been admitted into evidence. However, it argues that there is no reasonable possibility that the verdict could have been different. Law and Analysis [42] Evidence of prior discreditable conduct is presumptively inadmissible: R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at paras. 54-56. It is only admissible where its probative value to the charges on the indictment outweigh their prejudicial effects. On appeal, a trial judge’s decision to admit this kind of evidence is generally entitled to deference unless it is unreasonable, tainted by legal error, or cumbered by a misapprehension of the material evidence: Stubbs , at para. 66. [43] The trial judge found the prior convictions for the 2008 offences, including the proceeds convictions, to be admissible. This finding is entitled to deference: Stubbs , at para. 58. However, the 2008 convictions were admitted in a highly problematic manner. The trial judge did not balance the probative value and the prejudicial effect of the findings in the reasons that were made exhibits at trial. To admit these three sets of reasons without considering this balance is an error and this decision is thus not entitled to deference. [44] Had the trial judge conducted the balancing exercise, it is difficult to see how she could have admitted the reasons. They contained findings of fact and opinions that were more prejudicial than probative of the source of money in this case. For instance, Tausendfreund J.’s reasons for conviction state that “the activity viewed and observed by the police that evening were consistent with the accused trafficking in an illicit drug”. However, in the present case, Conroy was not charged or convicted of trafficking; the admitted convictions were for possession of cocaine for the purpose of trafficking, and possession of proceeds of crime. [45] Moreover, Tausendfreund J.’s sentencing reasons state that there “is no doubt in my mind that Mr. Rose was involved in a well-organized and not on a small scale illicit drug marketing scheme”. As the appellants highlight, Tausendfruend J.’s findings on this point arguably addressed aggravating factors in sentencing, rather than inherent elements of the conviction. [46] In any case, Tausendfreund J.’s sentencing reasons should not have been admitted at all because they were not probative of the source of the proceeds in this case. Similarly, and as the Crown concedes, there was no basis for admitting Leitch J.’s forfeiture order and reasons. [47] The Crown argues that there is no reasonable possibility that the verdict could have been different. I disagree. The jury was presented with three sets of reasons that contained judicial findings that went well beyond the fact of Conroy’s prior convictions and as such, significantly increased the possibility of impermissible propensity reasoning. As authoritative statements from a judge, there was a particularly high risk that these findings would overwhelm the jury’s own fact finding. [48] This error was further compounded by inadequate jury instructions regarding the prior convictions and exhibited reasons. When instructing the jury on the element of whether the BMW, Honda Civic, and $20,000 were obtained by crime, the trial judge simply stated: Now, evidence was adduced from some witnesses with respect to the 2008 charges…You have as part of Exhibits 23, 24 and 25 the decisions of Justice Tausendfreund, issued on September 13th, 2011, who convicted Conroy of possession of proceeds of crime in relation to the money he had in his seven bank accounts, and found him guilty of possession for the purposes of trafficking in cocaine. [49] The trial judge did not give guidance on how these reasons could be used. Later – when instructing the jury on the element of whether Conroy knew the property had been obtained by or derived from crime – the trial judge told the jury to analyze the prior convictions as similar fact evidence. This is despite the fact that, as the Crown concedes, the evidence of Conroy’s prior convictions was not similar fact evidence as understood in R. v. Handy , 2002 SCC 56, [2002] 2 SCR 908. [50] In these circumstances, admitting the three sets of reasons in the absence of adequate correcting instructions was a fatal error, regardless of whether the fact of the 2008 proceeds convictions should have been admitted. I would order a new trial on this ground as well. E. The Dismissal of Kharla’s s. 11(b) application [51] Gorman J., the application judge, began by noting the “inordinate” delay of five years, two months and 11 days between Kharla’s arrest on August 3, 2010, and her anticipated trial date on October 14, 2015. As she issued her ruling before R. v. Jordan , 2016 SCC 27, [2016] 1 S.C.R. 631, the application judge applied the test for assessing unreasonable delay in R. v. Morin , [1992] 1 S.C.R. 771. [52] She found that this was an inherently complex case involving separate investigative entities, which excused longer periods of delay. She noted that Conroy had changed counsel three times and Kharla had changed counsel twice, which contributed to the delay. Overall, she found: · the total neutral delay was 27 months and 22 days; · the total Crown delay was 3 months and 6 days; · the total defence delay was 6 months and 14 days; and · the institutional delay was 19 months and 14 days. [53] Having done so the application judge stated that: While the overall length of delay is concerning, when examination is made of the relevant periods it cannot be said that the Crown did anything but make efforts to move the case along. This is a complex case with several players. There were clearly attempts at resolution…which necessitated adjournments. Further, the shifting of counsel did nothing to improve the pace of the litigation. [54] Through an affidavit, Kharla stated she had lost her job and been unable to find alternative work. However, she had not tried to find employment since 2013. The application judge noted that several of the most stringent bail conditions (such as non-association with Conroy, along with the reporting clause) had been deleted. The application judge concluded that Kharla had not suffered prejudice. [55] The application judge also emphasized that the charges were serious. She cited R. v. Seegmiller (2004), 191 C.C.C. (3d) 347 (Ont. C.A.), for the proposition that the absence of meaningful prejudice to the accused can lengthen the period of delay that is constitutionally tolerable, particularly where there is a heightened social interest in a trial on the merits. She then concluded: A judicial stay of proceedings must only be granted in the clearest of cases. In my view, this is not such a case. In all of the circumstances I am not persuaded that [sic] delay was unreasonable. Accordingly the Application is dismissed. The Parties’ Submissions [56] Kharla submits the application judge erred in three main ways: 1) she denied a stay of proceedings based on the “clearest of cases” test, which does not apply to s. 11(b) applications; 2) she failed to scrutinize the pace of disclosure and the lack of explanation for delays in disclosure; and 3) she failed to consider inferred prejudice. Kharla asserts delay based on the anticipated trial date at the time of the s. 11(b) application, October 14, 2015. She does not rely on any periods after this date for the purpose of her s. 11(b) claim of unreasonable delay. [57] The Crown argues that where the application judge made errors in characterizing specific time periods, her errors favoured Kharla. As for prejudice, the Crown emphasizes that Kharla does not challenge the underlying facts that led the application judge to reject her argument that she had suffered prejudice. The Crown submits that when the time periods are characterized properly, the delay in this case is reasonable. The case was inherently complex and there were significant periods of defence-caused delay. Law and Analysis [58] The application judge incorrectly cited the “clearest of cases” test when refusing a stay of proceedings. While a stay of proceedings is to be treated as a remedy of last resort for other Charter violations, a stay is the “minimal remedy” for a s. 11(b) violation: R. v. Steele , 2012 ONCA 383, 288 C.C.C. (3d) 255, at paras. 30-31. [59] Having said this, the application judge correctly found that the delay in this case was reasonable. [60] To begin, I note that Kharla’s s. 11(b) application was decided a little under one year before Jordan was released. The Jordan framework applies to cases in the system prior to Jordan’ s release. [61] Under Jordan , the presumptive ceiling for a case tried in the superior courts is 30 months from the date of arrest. Once the presumptive ceiling is exceeded, the Crown bears the burden of rebutting the presumption of unreasonableness, based on exceptional circumstances. If the Crown cannot do so, a stay will follow. An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the presumptive ceiling. [62] For cases that were in the system prior to Jordan ’s release, transitional exceptional circumstances may justify a delay that exceeds a presumptive ceiling. In R. v. J.C.P. , 2018 ONCA 986, at para. 20, this court explained whether and how transitional exceptional circumstances may apply: [T]he Crown must satisfy the court that the time taken in the case is justified based on the parties’ reasonable reliance on the law as it previously existed under R. v. Morin , [1992] 1 S.C.R. 771. This requires the court to undertake a contextual assessment of the delay, sensitive to the manner in which the previous framework was applied, and to the fact that the parties’ behaviour cannot be judged strictly, against a standard of which the parties had no notice. Consideration of the seriousness of the offences, prejudice to the accused, and the parties’ general level of diligence may inform whether the parties reasonably relied on the previous state of the law. [Citations omitted.] [63] The first step in the Jordan analysis is to determine the total delay between the charges and the anticipated end of the trial. The total delay here was about 63 months and one week, from August 3, 2010 to November 11, 2015. The anticipated trial end date was based on the fact that, at the time of s. 11(b) application, the trial was to begin on October 14, 2015 and last for four weeks. [64] The next step is to determine whether the defence waived or caused any of the delay. The application judge found that the 6.5-month period from November 26, 2012 to June 10, 2013 was for a defence adjournment request and constituted defence delay. Kharla does not dispute this characterization. I agree this 6.5-month period constitutes defence delay. [65] The Crown suggests the following periods are also defence delay: · June 17 to September 30, 2011: defence adjournment requests pending results of Conroy’s trial on the 2008 offences; · September 30, 2011 to December 20, 2011: adjournments for possible resolution, with an explicit s. 11(b) waiver from November 29 to December 20; and · December 20, 2011 to January 13, 2012: defence attempts to obtain instructions for resolution. [66] I agree that these listed periods, which equal roughly 6 months, should be treated as defence delay. Collectively, then, the defence delay is 12.5 months and must be deducted from the total delay of 63 months and one week. The resulting net delay is 50.75 months, which exceeds the 30-month presumptive ceiling in Jordan . [67] As such, the Crown must show that the time the case has taken is justified by exceptional circumstances. It relies on the transitional exceptional circumstance. For this reason, the Morin analysis must be applied. Under Morin , the following factors are relevant for determining whether delay is unreasonable: 1. The length of the delay; 2. Waiver of time periods; 3. The reasons for delay, including: a. The accused’s actions; b. The Crown’s actions; c. Limits on institutional resources; and d. Other reasons for delay; and 4. Prejudice to the accused. [68] Kharla advances only one recharacterization of delay periods. She suggests that “a substantial portion” of August 3, 2010 to November 29, 2011, should be seen as Crown instead of neutral delay, due to delays in providing disclosure. [69] I do not agree. I have already found that the period from June 17, 2011 to December 20, 2011 was defence delay. During the rest of the impugned period, the parties focused on resolution rather than setting dates. [70] The Crown concedes that it may have taken “excessive” time to unseal the relevant warrants, but maintains this did not substantially affect the delay in this case. This is supported by the record. For instance, the absence of the warrants did not appear to prevent a focus hearing from occurring on April 19, 2011, and a first judicial pre-trial on May 3, 2011. [71] I agree with the Crown that the five-month adjournment from June 17, 2013 until November 19, 2013 of the preliminary hearing should be considered as neutral delay. Counsel for Kharla made a clear concession on this point at the hearing, as evidenced in the transcripts. [72] I also find that the institutional delay in awaiting the anticipated trial date is about six months, from April 7, 2015 to October 14, 2015. Institutional delay does not necessarily begin from the set date. Instead, institutional delay only begins to run when the parties are ready for trial and the system cannot accommodate them: Morin , at pp. 794-795; see also, R. v. Picard , 2017 ONCA 692, 137 O.R. (3d) 401, at paras. 92-102, leave to appeal refused, [2018] S.C.C.A. No. 135. [73] In this case, on February 18, 2015 and April 7, 2015, there was a judicial pre-trial to discuss pre-trial motions and clarify related issues. This demonstrates the parties were not ready to begin trial until April 7, 2015, at the earliest. [74] At most, the total institutional delay is 16 months and 12 days, as follows: · March 26, 2012 to November 26, 2012: awaiting preliminary hearing; · June 6, 2014 to August 11, 2014: awaiting decision on committal; and · April 7, 2015 to October 14, 2015: awaiting trial. [75] This falls under the 18-month Morin guidelines for institutional delay. The Crown delay is two months and 13 days, from January 13, 2012 to March 26, 2012, a period where the Crown was awaiting a witness list for a focus hearing. The defence delay is 14 months, as indicated earlier. The remaining delay is neutral. [76] Regarding prejudice under the Morin framework, the application judge correctly concluded that Kharla did not suffer any specific prejudice. While she did not explicitly consider inferred prejudice, I find that any inferred prejudice would not outweigh other relevant considerations. Kharla did not seriously raise Crown missteps that render the delay otherwise unreasonable. Additionally, the parties agree this was a complex prosecution on serious charges. [77] In these circumstances, which occurred entirely pre- Jordan , the delay was reasonable under the Morin framework. The release of Jordan “should not automatically transform what would previously have been considered reasonable delay into an unreasonable one”: Jordan , at para. 102. The situation here is akin to that in R. v. Barna , 2018 ONCA 1034, 371 C.C.C. (3d) 217, at para. 7, where this court wrote: The relative complexity of the case, the fact the period of institutional delay … fell within (albeit at the upper limits) of the Morin guidelines, and the seriousness of the charges, weighed against the prejudice to the accused, support the application of the “transitional exceptional circumstance” in this case. [78] This is not a case like J.C.P or Steele , where the institutional and Crown delay make up a majority of the total delay, and the institutional delay exceeded the Morin guidelines: J.C.P , at paras. 46-52; Steele , at paras. 34-36. The application judge did not err in dismissing Kharla’s s. 11(b) application in the circumstances. F. DISPOSITION [79] The trial judge erred in failing to dismiss an additional juror according to the procedure under s. 652.1(2) of the Criminal Code . The trial judge also erred in allowing the Crown to file reasons for judgment relating to Conroy’s 2008 convictions. The application judge did not err in dismissing Kharla’s s. 11(b) application. For these reasons, I would allow the appeal, set aside the convictions and order a new trial. Released: May 21, 2020 “GRS” “A. Harvison Young J.A.” I agree G.R. Strathy C.J.O.” “I agree M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Sangster, 2020 ONCA 332 DATE: 20200528 DOCKET: M51545 (C65913) Jamal J.A. (Motions Judge) BETWEEN Her Majesty the Queen Respondent and Alexander Sangster Applicant Erin Dann, for the applicant Gerald Brienza, for the respondent Heard: May 20, 2020 by Videoconference REASONS FOR DECISION A. Overview [1] The applicant, Alexander Sangster, applies for bail pending his conviction and sentence appeal. Following a trial by judge alone, he was convicted on March 27, 2018 of aggravated assault, assault causing bodily harm, pointing a firearm, careless use of a firearm, and possession of a loaded prohibited firearm. He also pleaded guilty to failing to comply with his recognizance by writing a letter to his girlfriend to inquire about the welfare of her and their child, while prohibited from doing so. He was sentenced on April 25, 2018 to seven years and seven months, less 497 days of pre-trial custody credit, leaving six years and 81 days to serve. He has not previously applied for bail. [2] The Crown opposes the application, contending that the applicant has failed to establish that his detention is not necessary in the public interest under s. 679(3)(c) of the Criminal Code , R.S.C. 1985, c. C-46. [3] For the reasons that follow, I grant the application. B. Background [4] The convictions under appeal arose from events on the evening of May 29, 2017 at the apartment of Ms. Sasha Strickland and Mr. Ryan Davey in Huntsville, where the applicant lived with his girlfriend, Ms. Samantha Lambertsen-Downing . The evening was fueled with drugs and alcohol. Several altercations ensued. [5] The applicant was convicted of assaulting Ms. Lambertsen-Downing and causing her bodily harm; aggravated assault by stabbing his friend and neighbour, Mr. Courtney Carpenter, when Mr. Carpenter tried to protect his wife, whom the applicant attacked when she intervened to protect Ms. Lambertsen-Downing; and possessing a loaded prohibited sawed-off shotgun and pointing it at Mr. Davey when he asked the applicant to stop attacking Ms. Lambertsen-Downing. [6] The applicant was arrested the next morning. Two representatives of the Children’s Aid Society (CAS) had come to the apartment because they had concerns about Ms. Strickland, who had a young daughter in the care of the CAS. A police officer was at the building because Mr. Carpenter’s sister had advised the police during an unrelated traffic stop that Mr. Carpenter had been stabbed. The CAS asked the police officer to come with them. The CAS asked Ms. Strickland for permission to enter. She agreed, and the CAS and the police officer came in. The CAS then asked Ms. Strickland if they could look in the bedroom. She agreed again. When one of the CAS representatives entered, she saw the applicant lying on the bed clutching a sawed-off shotgun. She screamed that the applicant had a gun. The police officer immediately removed everyone from the apartment and saw the applicant appear to hide the shotgun under the mattress. The officer arrested the applicant, who told him, “be careful it’s loaded”. The officer called for backup, lifted the mattress, and found the shotgun. The officers preserved the scene until a search warrant was obtained and then seized the shotgun under the warrant. [7] At trial, the applicant applied to exclude the evidence derived from the search of the apartment, alleging that the CAS and the police breached his rights under s. 8 of the Charter . The trial judge found that the applicant was a guest of the tenant, Ms. Strickland. He found Ms. Strickland had consented to the search and that the search was voluntary. He accepted that “a tenant’s guest has some expectation of privacy, as against the state actors, such as the CAS and the police” but found the applicant was “a mere over holding guest [and] had no reasonable expectation of privacy interests”. He found that the applicant had no expectation that Ms. Strickland could not consent to a search of the apartment or the bedroom. He concluded that the applicant’s s. 8 Charter rights were not infringed. Even had he found a breach of s. 8, he concluded that any breach was minor and would not have warranted exclusion of the evidence under s. 24(2). [8] The trial judge made credibility findings for each of the witnesses who testified and found beyond a reasonable doubt that the applicant had stabbed Mr. Carpenter, assaulted Ms. Lambertsen-Downing causing her bodily harm, and possessed a prohibited weapon that he pointed at Mr. Davey. He sentenced the applicant to a total sentence of seven years and seven months, less credit for pre-trial custody. C. Analysis [9] To obtain bail pending appeal under s. 679(3) of the Criminal Code , the applicant must establish that: (1) the appeal is “not frivolous” (s. 679(3)(a)); (2) he will surrender himself into custody in accordance with the terms of the order (s. 679(3)(b)); and (3) his detention is not necessary in the public interest (s. 679(3)(c)). [10] The applicant has met his onus under the first two grounds in s. 679(3). There is no dispute that the appeal meets the “very low bar” for being “not frivolous” under s. 679(3)(a): R. v. Oland , 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20. Nor does the Crown dispute that the applicant will surrender into custody in compliance with a bail order as required under s. 679(3)(b). [11] The Crown opposes bail only on the third ground, s. 679(3)(c). The Crown submits that the applicant has failed to establish that his detention is not necessary in the public interest. [12] The “public interest” criterion under s. 679(3)(c) has two elements: public safety and public confidence in the administration of justice: Oland , paras. 23, 26. [13] I will first address public safety. Public safety [14] Public safety considerations under s. 679(3)(c) relate to the protection and safety of the public: Oland , at para. 24. Bail is not denied for everyone who poses a risk of committing an offence or interfering with the administration of justice while on bail. To be denied bail for public safety considerations, (i) an individual must pose a “substantial likelihood” of committing an offence or interfering with the administration of justice; (ii) the “substantial likelihood” must endanger the “protection or safety of the public”; and (iii) the individual’s detention must be “necessary” for public safety: R. v. Morales , [1992] 3 S.C.R. 711, at p. 737; R. v. Stojanovski , 2020 ONCA 285, at para. 18. [15] Public safety considerations alone can justify refusing bail in the public interest. And, even where an applicant meets the public safety threshold, residual public safety concerns or the absence of any public safety concerns should still be considered as part of the public confidence analysis: Oland , at para. 27. [16] The applicant concedes that the offences for which he was convicted were very serious and violent, but submits that there is no longer a substantial likelihood he would commit any offence, let alone a violent one, or interfere with the administration of justice if released on bail pending appeal. He therefore says his detention is no longer necessary for public safety. He notes that the convictions under appeal arose from his longstanding drug and alcohol addiction that he has learned to manage while in custody. He has participated in Alcoholics Anonymous and Narcotics Anonymous and other programs at the Beaver Creek Institution. He has been sober now for over 2 years. [17] Reports prepared by the Beaver Creek Institution in September, 2019 and March, 2020 confirm the applicant has made substantial progress in managing his addiction and his personal risk factors: · The September 2019 report notes “substantial gains” in the applicant’s ability to recognize and address problems and confirms that “he has been sober for two years”. It notes that he participated in a methadone program, “communicates positively with staff”, has improved relations with his family as a result of his sobriety, and is “determined to set boundaries with anyone who uses drugs”, whereas previously he was “never sober” and “began to become more violent and aggressive the more drugs he used”. The report notes that he has “made sobriety his number one priority” and has “planned a continuum of care using community supports”. His rated ability and commitment to manage his thinking that justifies and supports the use of violence, partner violence, and general violence has improved from “needs a lot of improvement to moderate”. The report concludes that the applicant’s “current overall ability and commitment to use the skills required to manage his various risk factors improved and is currently rated as good”. · The March 2020 report highlights continued improvement. It confirms that the applicant “conducts himself respectfully with staff”, “has successfully completed his correctional programs, is enrolled in school, and has maintained employment.” It notes that his risk to public safety is “reduced from moderate to low”. The report states that he has “demonstrated accountability for his offences” and “[t]here are no indicators of substance abuse during his incarceration.” The report also states that “[h]e is not currently assessed to be a candidate for detention”. It concludes that “he has demonstrated limited negative conduct and there is no evidence of violent behaviour or substance abuse institutionally.” [18] There is, however, evidence of the applicant having had one slip in maintaining sobriety while in custody – though it is evidence from the applicant himself. In his affidavit in support of bail, the applicant states: “I have worked hard and have been sober while in custody except for one slip, when I consumed alcohol. Though my drinking was not discovered by the prison authorities, I told my parole officer that I consumed alcohol.” This candour suggests that the applicant takes his addiction very seriously and is determined to maintain sobriety. [19] The applicant says that the court can also have confidence about public safety because of his plan of release. It includes him living with his mother, his proposed surety; observing a curfew; attending substance abuse counselling and Alcoholics Anonymous and Narcotics Anonymous meetings as directed by her; not possessing any weapon; and not having any contact with Ms. Lambertsen-Downing (with whom he has apparently reconciled and who is the mother of their young daughter), except with her prior written orally revocable consent and in the presence of another adult; and having no contact with other named individuals. His mother, who has never been charged with any criminal offence, has pledged $10,000 as surety, which is almost a third of her pre-tax annual income. She has been in regular contact with Ms. Lambertsen-Downing and her now two-year-old granddaughter, born while the applicant was in custody. [20] The Crown does not assert that public safety considerations alone justify refusing bail in this case. Still, the Crown highlights that the applicant was convicted of very serious offences involving violence and a loaded prohibited weapon. While the Crown accepts that the applicant’s criminal behaviour was “likely fueled by a serious drug problem”, it highlights that this problem is longstanding. The Crown also notes that the applicant has a prior criminal record, including two impaired driving convictions in 2010 and 2015, one resist arrest conviction, and a conviction for failing to comply with recognizance. The Crown says that the court cannot take comfort from the applicant’s mother as his proposed surety because she was unable to affect her son’s drug and alcohol problem for many years and he has been violent towards her in the past. The Crown also suggested that the applicant’s pre-sentence report dated April 24, 2018 gives a better sense of his character and the depth of his addiction. [21] As noted, the breach of recognizance, to which the applicant pleaded guilty, involved him writing a letter to Ms. Lambertsen-Downing to ask about her welfare and the welfare of their child. The sentencing judge noted that it did not involve any attempt to obstruct justice or any sort of threatening behaviour. [22] But I agree with the Crown that, based on the pre-sentence report alone, bail would not have been appropriate. That report noted that the applicant was then in denial about his drug and alcohol addiction and posed a high-risk to reoffend. The situation is, however, markedly different today. [23] The evidence on this application suggests that the applicant’s past criminal behaviour was strongly associated with drug and alcohol addiction. The applicant now admits that he is an addict and he has sought treatment. He has been sober for over two years. He is evaluated very favourably by his institution. While I accept that if the applicant relapses there may be a risk to public safety, I have concluded that this risk can be managed by the applicant’s determination to maintain his sobriety, if appropriately supported by ongoing participation in addiction treatment programs and counselling and by his mother’s supervision. [24] I also note that, at the time of the applicant’s pre-sentence report, his mother was unwilling to have him live with her upon his release. But she now is, because he is sober. In her affidavit filed on this application, Mrs. Sangster states: I have seen a major change in him as a result of overcoming his addictions … I used to worry about him all the time when he was using drugs, but I feel like I have my son back now. He has hope. He is himself again. And he understands that he cannot start using again. She adds: “should I have any concerns with his behaviour, I will not hesitate to call the police.” She also assures the court that her son “will obey each and every condition imposed on him. I will ensure that he does so.” I have been given no reason to doubt her. [25] I therefore conclude that the applicant should not be denied bail because of public safety considerations alone. Any residual public safety concerns, which I consider below under the public confidence component, can be managed by the applicant’s plan of release. [26] I turn now to the public confidence component. Public confidence [27] The public confidence component involves a weighing of two competing interests: enforceability and reviewability. Enforceability concerns the need to respect the general rule of the immediate enforceability of all judgments. Reviewability concerns the need to provide for a meaningful review process, one that does not require persons convicted of offences to serve all or a significant part of their sentence only to have their conviction overturned on appeal: Oland , at paras. 24-26. (i) The enforceability interest [28] In assessing the enforceability interest, the seriousness of the crime has an important role. The more serious the crime, the greater the risk that public confidence in the administration of justice will be undermined if the person convicted is released on bail pending appeal: Oland , at para. 37. At the same time, the absence of flight or public safety risks will attenuate the enforceability interest. Other factors should also be considered where appropriate: Oland , at para. 39. [29] Here, as already noted, the parties agree that the applicant’s offences were very serious, violent, and involved a firearm. As the sentencing judge noted, these offences occurred when the applicant had “long-standing substance abuse issues that have fundamentally shattered the accused’s life; losing his house, truck, girlfriend and business and his relationship with his family, including violence against his very supportive, indeed overly supportive mother.” [30] At the same time, the applicant now has renewed connections to his family that appear to have motivated his rehabilitative progress and will continue to do so. While public safety risks are not completely absent, they are substantially reduced, provided the applicant maintains his sobriety and follows his addiction treatment plan under his mother’s supervision. [31] I conclude that the absence of flight risks and the substantially reduced public safety risks both attenuate the enforceability interest. (ii) The reviewability interest [32] In assessing the reviewability interest, the strength of the appeal plays a central role: Oland , at para. 40. A preliminary assessment of the strength of the appeal is made by reviewing the grounds in the notice of appeal for their general legal plausibility and foundation in the record, to determine whether those grounds clearly surpass the “not frivolous” criterion: Oland , at para. 44. A broader public interest in reviewability transcends an individual’s interest in any given case: Oland , at para. 45. The remedy sought on appeal may also inform the reviewability interest: Oland , at para. 46. [33] Here, the applicant’s appeal raises four main grounds, two from conviction and two from sentence. [34] First, the applicant asserts that the trial judge erred in dismissing his Charter application. He says that he had a reasonable expectation of privacy over his bedroom, however diminished, and that the trial judge erred in law by concluding that Ms. Strickland’s consent could nullify that expectation. He relies on the Supreme Court’s statement in R. v. Reeves , 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 52, that “[w]aiver by one rights holder does not constitute waiver for all rights holders”, and the Court’s recognition of the “high bar for first-party consent” because “waiving s. 8 rights has significant consequences”. [35] The Crown submits that the trial judge found that the applicant “did not have a reasonable expectation of privacy” having regard to the totality of the circumstances and that this finding is entitled to deference on appeal. [36] I agree with the Crown that the applicant will have an uphill challenge in overcoming appellate deference to the trial judge’s findings. Still, there is a general legal plausibility and a foundation in the record for his claim that he had a reasonable expectation of privacy in the bedroom he was staying in with his girlfriend. The same is true of his argument that his privacy expectation, however diminished, could not be waived by Ms. Strickland in the circumstances. Indeed, the applicant testified that Ms. Strickland and Mr. Davey would ask for permission by knocking on the bedroom door before entering and that the door had a lock on it. [37] The Crown’s submission on this application also reveals a potential tension in the trial judge’s reasons. The Crown interprets the trial judge as finding that the applicant “did not have a reasonable expectation of privacy”. Yet the trial judge appeared to conclude that, as a guest of the tenant, the applicant did have “some expectation of privacy” in the bedroom, even if a diminished one. [38] Second, the applicant asserts that the trial judge misapprehended the evidence on core issues central to his reasoning process in determining guilt. In particular, he notes that aspects of Mr. Carpenter’s evidence were contradicted by Ms. Strickland’s evidence. These contradictions are said to have been material because nobody saw the applicant stab Mr. Carpenter. At first, Mr. Carpenter himself told the police he did not remember being in an altercation with the applicant because both of them were intoxicated. [39] The Crown does not address this ground in any detail on this application, except to note that the trial judge could accept all, none, or some of the evidence and that his overall assessment of the evidence is entitled to deference. [40] I agree that this will be a challenging ground of appeal. It is at best weakly arguable. [41] Third, on the sentence appeal, the applicant asserts that the trial judge erred by relying on aggravating sentencing factors that were unsupported by the evidence. The applicant says that there was no evidence that the applicant used a kitchen knife or any other specific implement to stab Mr. Carpenter, nor any evidence of peril to Mr. Carpenter’s life. The Crown responds that all these evidentiary findings were open to the trial judge on the evidence. [42] Fourth, the applicant also asserts on the sentence appeal that the trial judge erred by failing to apply the totality principle, and thus the cumulative sentence exceeded the applicant’s overall culpability. Because this was the applicant’s first penitentiary sentence, he says the trial judge should have imposed the shortest possible sentence to achieve the relevant sentencing objectives, and that, in totality, a sentence of seven years and seven months was unduly long and harsh. He says the sentence should be reduced to 5 years and 1 month. In response, the Crown says that the sentences for each offence were on the low end and that the cumulative sentence respected the totality principle given the applicant’s very violent rampage. [43] These grounds again face an uphill battle, but they are arguable. In particular, the submission that the trial judge failed to advert to or apply the totality principle has a foundation in the reasons for sentence, because this principle is not mentioned. [44] In conclusion, my preliminary assessment is that while some grounds of appeal are stronger than others, cumulatively they clearly surpass the “not frivolous” threshold. Balancing the public interest in enforceability and reviewability [45] In conducting a final balancing of the enforceability and reviewability interests, public confidence is measured through the eyes of a reasonable member of the public, someone who is “thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values”: Oland , at para. 47. Anticipated delay in deciding an appeal, relative to the length of the sentence, is also a consideration, so as to ensure that the reviewability interest remains meaningful: Oland , at para. 48. [46] The applicant highlighted the COVID-19 pandemic and the lack of addiction counselling services currently available at his institution. This court has accepted that the COVID-19 pandemic is a factor that may be considered as part of the public interest criterion: see e.g. R. v. Kazman , 2020 ONCA 251, at paras. 17-21; R. v. Omitiran , 2020 ONCA 261, at para. 26; and R. v. Jesso , 2020 ONCA 280, at para. 36. The weight to be given to this factor depends on the circumstances of each case. Unlike in Kazman , this applicant is 38 years old and there is no evidence he has underlying health conditions that would place him in a group particularly vulnerable to COVID-19: see Kazman , at para. 17. [47] Here, the Crown accepts that, because of the pandemic, addiction counselling is currently restricted in detention centres, but adds that this is also so in the community. There is, however, evidence before me that the Addiction Treatment Centre in Huntsville remains open, with modifications to its services. The applicant may therefore have greater access to addiction support in the community. Although I have considered this as a relevant factor under the public confidence criterion, it is by no means decisive. Its absence would not alter my conclusion that the public interest in reviewability outweighs the interest in enforceability, nor would its presence have been sufficient to outweigh more serious residual public safety concerns than those I have found here. [48] As to the balancing of the enforceability and reviewability interests, the Crown submits that in this case the need for enforceability “is paramount for maintenance of the public’s confidence in the administration of justice”. [49] I respectfully disagree. The enforceability interest is somewhat weaker than urged by the Crown, given the lack of flight risk and the substantially reduced public safety risks, as highlighted by the correctional authorities themselves. The reviewability interest is also somewhat stronger than urged by the Crown. [50] I am also mindful of the anticipated delay in deciding the appeal relative to what remains to be served of the sentence. The applicant has already served three years and five months of his sentence – the entire sentence for the firearms conviction or the aggravated assault. He was eligible for parole on May 1, 2020 and expects to have a parole hearing in August 2020. The applicant only recently perfected his appeal and I understand the parties will be contacting the court soon to seek a hearing date. This is not a case where bail pending appeal is sought at the beginning of a long sentence, which may engage a different balance between reviewability and enforceability. [51] In the circumstances, I conclude that the public interest in reviewability outweighs the enforceability interest. The applicant has established that his detention is not necessary in the public interest, measured through the eyes of a reasonable member of the public who is thoughtful, dispassionate, informed of the circumstances of the case, and respectful of society’s fundamental values. D. Disposition [52] For these reasons, I grant the application for bail pending appeal. “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Soriano, 2020 ONCA 276 DATE: 20200501 DOCKET: C67910 Doherty, Simmons and Pardu JJ.A. BETWEEN Her Majesty the Queen Respondent and Alann Soriano Appellant Jeffrey Fisher , for the appellant Michael Fawcett, for the respondent Heard: in writing On appeal from the sentence imposed on September 19, 2019 by Justice Richard H. K. Schwarzl of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant seeks leave to appeal from a sentence imposed for four counts of breach of probation. The Crown proceeded by indictment so that the maximum sentence available was four years for that offence. The sentencing judge imposed a global sentence of 23.5 months’ incarceration followed by probation for three years, after taking into account 170 days of actual pretrial custody. [2] The appellant submits that the sentence was demonstrably unfit having regard to the nature of the offence and further that the sentencing judge violated the “jump” principle by imposing a sentence so substantially longer than previous sentences imposed on the appellant for similar offences. Nature of the Offence [3] The appellant was bound by two probation orders prohibiting him from contacting or physically approaching his former spouse, the son he had with her, or her current partner. On March 10, 2019, the appellant called his former spouse’s phone approximately a dozen times over several minutes. He insisted he wanted to see his son. When the appellant was told he was not allowed to come over, he cursed and said that he did not care about the order and that he was coming to their home. Criminal Record of the Appellant [4] The appellant was convicted of assault, assault with a weapon, and uttering a threat some 12 years before the present sentence was imposed. Most significantly, since 2015 he had been convicted 12 times for breach of probation for violating no-contact or physical distance orders in relation to these same persons. Reasons of the Sentencing Judge [5] The defence position was that time served of 170 days actual pretrial custody would be an appropriate sentence. The Crown sought a sentence of 18-24 months in addition to pretrial custody. [6] The sentencing judge noted that the appellant acknowledged that he had an alcohol problem but denied drug addiction or mental health difficulties, referred to in a psychiatric report. Because the report was contested, the sentencing judge indicated that he would not place much weight on it. He noted further that the offence itself was not particularly egregious in isolation, amounting to a series of phone calls made to his former spouse’s home. Most significant for the purposes of sentencing was his conclusion that the appellant was incorrigible, and that there was nothing that any court could do or say to stop him from violating the orders. He noted that the victims were living in a state of “perpetual fear and terror, not knowing when and where Alann Soriano is going to show up and, if he does, what is he going to say and what is he going to do.” He found that the appellant had no insight into his behaviour or the reasons for it, and that the risk of re-offence was extremely high. He concluded that the sentence had to focus on specific deterrence of the appellant, and “denunciation of this effective terrorizing of your ex-wife and your son.” He indicated that he was “obligated to try and protect the people who have been subject to your non-stop harassment for the last four years” and that all he could do was “separate you from society as long as possible in an effort to try to give these people some relief for that period of time.” Analysis [7] This court will not vary a sentence unless it is demonstrably unfit or the sentencing judge made an error that affected the sentence imposed: see R. v. Friesen , 2020 SCC 9, at paras. 25-29. [8] A sentence that is demonstrably unfit is “clearly excessive” or “clearly unreasonable”. Given the appellant’s incorrigible behaviour, we cannot say that the sentence was clearly excessive. The psychiatric report says nothing to attenuate the trial judge’s conclusion that the risk of re-offence was extremely high. The longest previous sentence imposed on the appellant amounted to 312 days, including pretrial custody. That was not sufficient to deter the appellant. It was reasonable for the sentencing judge to conclude that the time had come for a significantly longer sentence to protect the victims and attempt to deter the appellant from reoffending: see R. v. Blake , 2016 ONCA 508; R. v. Simeunovich , 2019 ONCA 856. [9] We see no basis to intervene. Leave to appeal sentence is granted but the appeal is dismissed. “Doherty J.A.” “Janet Simmons J.A.” “G. Pardu J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Rabi v. University of Toronto, 2020 ONCA 305 DATE: 20200521 DOCKET: C67362 Doherty, Juriansz and Paciocco JJ.A. BETWEEN Lakshmikanth Kishor Rabi Applicant (Appellant) and The University of Toronto Respondent (Respondent) M. Olanyi Parsons and Christopher Breton, for the appellant Robert A. Centa and Emily Home, for the respondent Heard: In writing On appeal from the order of Justice Shaun O’Brien of the Superior Court of Justice, dated July 17, 2019. REASONS FOR DECISION OVERVIEW [1] The appellant, Lakshmikanth Kishor Rabi, seeks to set aside the decision to deny his application for an interlocutory injunction to prevent enforcement by the respondent, The University of Toronto (the “University”), of a Trespass Notice that is impeding the completion of Mr. Rabi’s studies and putting his student visa status at risk. He sought the interlocutory injunction pending a proceeding before the Human Rights Tribunal of Ontario (the “Tribunal”). The appellant contends that the application judge committed palpable and overriding errors in her assessment of the evidence, misapplied the test for interlocutory injunctions, and arrived at an unreasonable decision in finding that the balance of convenience favoured the respondent. For reasons that follow, we would dismiss Mr. Rabi’s appeal. BACKGROUND FACTS [2] On May 5, 2017, Mr. Rabi, a student enrolled at the University, attended at the university Health and Wellness Centre. As the result of events that transpired during his visit, the on-call psychiatrist, Dr. Soraya Mumtaz, formed the opinion that Mr. Rabi posed a threat to himself and others. As a result, Mr. Rabi was immediately involuntary committed for psychiatric review in the Centre for Addiction and Mental Health (“CAMH”). Four days later, on May 9, 2017, the respondent issued a Trespass Notice to Mr. Rabi, which is the subject of this appeal. [3] Mr. Rabi, who was released from CAMH 18 days later after voluntarily extending his stay, denies that he posed a danger to anyone, then or now. He contends that confusion over the contents of a note he wrote as well as cultural misunderstanding led to his benign expressions of frustration being interpreted as threats, and that comments he made about past ruminations of suicide and the suicide of another were misconstrued and mistakenly treated as current suicidal ideation. He also claims that the accounts of events offered by the attending registered nurse, Dr. Mumtaz, and campus police who attended on May 5, 2017, are inaccurate and exaggerated. He notes, as well, that the comments he did make to Dr. Mumtaz were made while he was emotional, exhausted, and being “pressingly interrogated”. [4] The letter containing the Trespass Notice invited Mr. Rabi to furnish, for consideration, any information that he wished to have considered. It affirmed that the Trespass Notice would not be rescinded until the University is satisfied that he “do[es] not pose a threat to the health and safety of others” and sought Mr. Rabi’s “consent to undergo a psychiatric risk assessment by a qualified expert who will report to the University”. [5] Mr. Rabi furnished the university with a letter from his treating physician at CAMH, Dr. Ofer Agid, dated June 13, 2017, which said in relevant part: During the state in the in-patient unit (May 5 th to May 23 rd ) the patient was not offered any type of medical treatment and was fully cooperative with the psychiatric observation. At this point he does not require psychopharmacological treatment. The assessment conducted today, reveals that he is not at any risk to self or others. [6] The University did not find Dr. Agid’s letter to be adequate to allay its concerns. Mr. Rabi contends that this position is unreasonable and insists that the Trespass Notice should be rescinded on the strength of the letter. Accordingly, he has not consented to a psychiatric risk assessment. Extensive correspondence between the parties did not resolve the impasse. [7] On February 28, 2018, Mr. Rabi initiated a court application alleging that the University breached its contractual and fiduciary duties in its dealings with him. On May 4, 2018, he filed a complaint with the Tribunal. On May 23, 2019, he amended his application, adding a request for an interlocutory injunction restraining the University from enforcing the Trespass Notice. [8] On July 17, 2019, the application judge dismissed the application in its entirety. ISSUES [9] Mr. Rabi appeals only the denial of the interlocutory injunction. No issue was taken with the decision of the application judge to exercise her jurisdiction and hear an application for an interlocutory injunction relating to a complaint before the Tribunal, notwithstanding that the Tribunal also has jurisdiction to order the interim relief requested and would arguably have been in a better position to determine its suitability: see e.g., Nelson et al. v. Her Majesty the Queen in Right of Ontario et al . , 2019 ONSC 5415, at para. 21; Robert J. Sharpe, Injunctions and Specific Performance , loose-leaf (2019-Rel. 28), (Toronto: Thomson-Reuters, 2019) at para. 3.990. The issues he raises can be organized as follows: A. Did the application judge commit palpable and overriding errors? B. Did the application judge err in the application of the legal test for an interlocutory injunction? C. Did the application judge unreasonably conclude that the “balance of convenience” favoured denying the interlocutory injunction? ANALYSIS A. DID THE APPLICATION JUDGE COMMIT PALPABLE AND OVERRIDING ERRORS? [10] Mr. Rabi argues that the application judge made unreasonable factual determinations relating to the cogency of the medical notes relied upon by the University, and that she unreasonably relied upon her finding that the threats implicated University staff, when this was not a basis for issuing the Trespass Notice. Mr. Rabi also argues that she committed a palpable and overriding error by misapprehending evidence relating to the finding of “compromise” by the University, and in identifying the basis for the opinion expressed in the letter from Dr. Agid. Mr. Rabi argues, as well, that the application judge ignored his medical evidence. [11] None of these alleged errors occurred, nor have any other errors of fact or errors of mixed fact and law been successfully identified. [12] Mr. Rabi’s argument that it was unreasonable for the application judge to rely on the medical notes as an accurate account of the events of May 5, 2017 rests in his claim that she failed to appreciate the discrepancies in the medical notes. Most significantly, the medical notes of the registered nurse record that Mr. Rabi wrote on a notepad that if he had a rifle, he would shoot “something”. In his medical notes, Dr. Mumtaz recorded that the note Mr. Rabi wrote stated, “that he wanted to kill someone (no name) and that he was good with a rifle”. Mr. Rabi argues that this error made its way into the Form 1 application. [13] The application judge committed no palpable and overriding error in her treatment of these medical notes. She explained why she found them reliable. Specifically, they were “taken contemporaneously” and were taken by health care practitioners. This determination was for her to make. [14] It is also clear that she was not misled by any imprecision there may have been in Dr. Mumtaz’s medical note about what Mr. Rabi had written. She accepted Mr. Rabi’s position that the note he wrote said that he wanted to shoot “something”. Her conclusion that there was evidence that Mr. Rabi wished to shoot “someone” was not based on evidence about the note, but on things Mr. Rabi is recorded as having said to the registered nurse and Dr. Mumtaz. This includes comments attributed to Mr. Rabi that he wanted “to shoot someone at random, as a sniper shooting at people who happened to be around”, and that “either [he] dies or someone else will”. The registered nurse’s medical notes also record Mr. Rabi explaining that in his note he wrote “something” instead of “somebody” because writing “somebody” would have been “incriminating”.  Mr. Rabi has demonstrated no errors by the application judge relating to the medical notes. [15] Nor did the application judge commit a palpable and overriding error by relying on what Mr. Rabi claims is an “irrelevant” finding that his threats were linked to animosity against University staff. We do not accept Mr. Rabi’s contention that the University did not rely on this consideration when issuing the Trespass Notice. The letter containing the Trespass Notice in fact describes the risk the University perceived Mr. Rabi to pose “in the University community”, a community that obviously includes University staff. Moreover, University records put before the application judge bore out Mr. Rabi’s animosity to staff members. It is an entirely reasonable inference that the University was mindful of this when issuing the Trespass Notice. No palpable error occurred. [16] In any event, even if mistaken, the application judge’s findings relating to animosity against University staff would not amount to an overriding error. Given the evidence before the application judge that Mr. Rabi threatened to shoot people randomly as a sniper would, the seriousness of the threats made would not be materially diminished if not directed at University staff, or if not fueled by animosity against University staff. [17] We also reject the submission that the application judge misapprehended the evidence by noting an offer of compromise by the University, when the University was, in fact, insisting on a psychiatric risk assessment. The Trespass Notice itself invited Mr. Rabi to provide other information, distinct from the request that Mr. Rabi consent to a psychiatric risk assessment. In its letter of September 14, 2017, while re-asserting its belief that a psychiatric risk assessment remains necessary and appropriate, the University said that it “undertakes to consider any medical reports touching on the subject of risk to its community, that refers to the position taken by Dr. Agid and supplements or updates it with cogent and comprehensive medical evidence”.  There was therefore clear evidence of an offer to compromise on the record. The fact that the University’s repeatedly called for a psychiatric risk assessment does not alter this fact. [18] Nor did the application judge misapprehend the evidence by describing the June 13, 2017 letter of Dr. Agid as being based on an assessment “that day”. The letter says this expressly. There is simply no basis for inferring that the application judge failed to appreciate that Mr. Rabi had been at CAMH for 18 days. [19] In any event, even if it had been wrong to note that the letter was based on an assessment “that day”, such an error would not be overriding. What mattered was the application judge’s conclusion that Dr. Agid’s “extremely brief” letter of opinion did not “provide sufficient assurance of Mr. Rabi’s health and safety”, a decision supported by University’s evidence from Dr. Lisa Ramshaw that Dr. Agid’s letter of June 13, 3017, was inadequate, and “not a violence risk assessment”. The application judge noted that Dr. Agid’s letter gave no indication of the information he had been provided, said nothing about the nature of tests or assessments undertaken, and did not offer an assessment of future risk. Whether Dr. Agid’s conclusion was an assessment of Mr. Rabi’s risk “that day” or a more general assessment based on a larger body of information would not have altered the shortcomings identified by the application judge. [20] Mr. Rabi’s submission that the application judge disregarded the medical evidence he provided fares no better. As the prior paragraph makes plain, the application judge considered this evidence but found it to be wanting. Mr. Rabi’s arguments that it was unreasonable for the application judge not to assign weight to Dr. Agid’s letter amounts to no more than an effort to reargue the case before us and must be rejected. B. DID THE APPLICATION JUDGE ERR IN THE APPLICATION OF THE LEGAL TEST FOR AN INTERLOCUTORY INJUNCTION? [21] The application judge correctly set out the legal test for an interlocutory injunction from RJR-MacDonald v. Canada (Attorney General) , [1994] 1 S.C.R. 311, at p. 334. This test requires the applicant to demonstrate that the interests of justice call for a stay by showing: (1) that there is a serious issue to be tried; (2) that he will suffer irreparable harm if the injunction is refused, and (3) the balance of convenience favours the injunction. [22] Mr. Rabi does not take issue with the articulation of the test, nor with the application judge’s findings that there was a serious issue to be tried, and that he will suffer irreparable harm if the injunction is denied. He argues that the application judge erred in law in applying the test by not conducting “a fluid, not rigid, analysis of the elements” and by giving disproportionate emphasis to her finding that the balance of convenience favoured the University. On this latter point, he argues that the strength of the first two components of the test should have overcome any deficiency in the last. [23] The University does not contest that in determining whether a stay is in the interests of justice, an application judge is entitled to consider the relative weight of the three components of the test, or that a strength in one area may offset the weakness in another. However, the University argues that Brown J. made clear in R. v. Canadian Broadcasting Corporation , 2018 SCC 5, [2018] 1 S.C.R. 196, at para. 12, that “an interlocutory injunction must satisfy each of the three elements of [the] test”. Since the application judge found that the third component was not met – that the balance of convenience instead favoured the University – this was not a case for the kind of fluid assessment that Mr. Rabi calls for. [24] We need not determine whether the dictum in R. v. Canadian Broadcast Corporation has the significance the University ascribes to it, such that no matter how strong the applicant’s case is, or how serious the irreparable harm may be, an interlocutory injunction may not issue if the balance of convenience favours the respondent. (See e.g., Robert J. Sharpe, Injunctions and Specific Performance , at para 2.540). We need not explore this question because we are satisfied that the application judge considered the weight of each component of the test and was satisfied that this was not a case where, in all the circumstances, the strength of the factors that favoured Mr. Rabi could sustain Mr. Rabi’s application. [25] In particular, she found the serious issue to be tried arose from Dr. Agid’s opinion, an opinion whose deficiencies she described. And she clearly tempered her finding that Mr. Rabi had demonstrated irreparable harm by noting that he took two years to seek the injunction. It would not be accurate to suggest that she found the first two factors favouring Mr. Rabi to be strong. [26] Then, when describing the balance of convenience, the application judge said that the impact of providing updated medical information to the University on Mr. Rabi was less significant than the impact of the injunction on the University and gave an explanation that we are about to describe that made that determination decisive. [27] Put simply, the application judge’s evaluation of the relative strength of each component of the test leaves no room for a finding that she failed to conduct a fluid assessment or gave undue weight to the balance of convenience. Even if Mr. Rabi’s claimed errors amount to errors of law, the application judge committed neither of them. C. DID THE APPLICATION JUDGE UNREASONABLY CONCLUDE THAT THE “BALANCE OF CONVENIENCE” FAVOURED DENYING THE INTERLOCUTORY INJUNCTION? [28] There is no basis for impugning the reasonableness of the application judge’s finding that the balance of convenience favoured the University. Her reasons were clear, grounded in the evidence, and compelling. In particular, she noted the very serious threats that had been demonstrated to the university community, the concerning context in which Mr. Rabi’s threats were made, and the absence of sufficient assurances of Mr. Rabi’s mental health. “On the other side”, she reasoned that, if he did not pose the threat apprehended, the harm to Mr. Rabi could be overcome by the inconvenience and loss of privacy that securing adequate medical information would entail. The application judge’s conclusion that, on balance, the balance of convenience favoured the university was entirely reasonable. CONCLUSION [29] The appeal is dismissed. If either party is seeking costs, the University’s bill of costs, supported by written submission of no more than three pages, shall be submitted by May 28, 2020. Mr. Rabi’s costs submissions shall be submitted by June 2, 2020 and shall also consist of a bill of costs and no more than three pages of written submissions. If Mr. Rabi seeks costs, the University will be entitled to provide two further pages, in response, by June 5, 2020. “Doherty J.A.” “R.G. Juriansz J.A.” “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Stirrett v. Cheema, 2020 ONCA 288 DATE: 20200506 DOCKET: C65848 Hoy A.C.J.O., van Rensburg and Roberts JJ.A. BETWEEN Karen Stirrett Plaintiff (Respondent) and Asim Nazir Cheema, Tej Narendra Sheth, Bradley Strauss Defendants ( Appellant ) William D. Black and Christine Wadsworth, for the appellant Gavin MacKenzie, Brooke MacKenzie, Richard Bogoroch and Toby Samson, for the respondent Barbara Legate, for the intervener, the Ontario Trial Lawyers Association Jeremy Opolsky and Alexandra Shelley, for the intervener, the Canadian Cancer Trials Group John Adair and Jordan V. Katz, for the intervener, the Canadian Cardiovascular Research Collaboratory Heard: October 10, 2019 On appeal from the judgment of Justice Grant R. Dow of the Superior Court of Justice, dated August 9, 2018, with reasons reported at 2018 ONSC 2595. By the Court: I OVERVIEW [1] Tragically, David Stirrett died on February 12, 2005 as a result of complications that arose during an angiogram he underwent as part of his participation in a clinical research trial. Karen Stirrett, the respondent, sued the two doctors who performed the angiogram on her husband. She also sued the appellant, Dr. Bradley Strauss, the medical researcher who headed up the clinical research trial at the hospital where the angiogram was performed. [1] [2] This appeal raises two main issues: first, whether the trial judge erred in finding that the appellant, as a medical researcher, owed and breached an ad hoc fiduciary duty to Mr. Stirrett, as a participant in a clinical research trial; and, second, whether the trial judge erred in accepting that causation was “remove[d] … from the analysis” in determining the respondent’s entitlement to compensation for breach of fiduciary duty. [3] We decline to decide the first issue. The research interveners’ submissions had the effect of framing the ad hoc fiduciary duty issue differently on appeal than how it was argued before the trial judge. While we acknowledge that the purpose of the interveners’ submissions was to present a different perspective, their arguments would require us to make determinations with respect to an issue not squarely argued at trial, namely whether the trial judge erred in failing to consider whether the appellant undertook to act in Mr. Stirrett’s best interests. Given our conclusion on the causation issue, it is not necessary for us to determine this issue. [4] Even if the appellant owed Mr. Stirrett an ad hoc fiduciary duty and breached that duty in the manner found by the trial judge, the trial judge erred by not taking into account causation and awarding damages for the breach. As we shall explain, the respondent was not entitled to compensation because the breach did not cause Mr. Stirrett to undergo the February 2005 angiogram that led to his death. Accordingly, we allow the appeal. II THE BACKGROUND (1) The Stent Restenosis and Metabolism Study (a) The recruitment of Mr. Stirrett [5] Mr. Stirrett was a 54-year-old man who was a non-insulin dependent Type II diabetic. He began to have chest pain and shortness of breath in early 2004 and was referred for an angiogram. An angiogram uses x-rays and contrast dye to view blood vessels supplying the heart. The angiogram revealed a 90 percent blockage, or stenosis, of his left circumflex artery and he was scheduled to undergo an angioplasty at St. Michael’s Hospital (the “Hospital”) in Toronto four days later, on June 11, 2004. [6] That day, before the successful angioplasty, Mr. Stirrett was recruited to participate in the Stent Restenosis and Metabolism Study (the “Study”). (b) An overview of the Study [7] The Study was a clinical trial examining whether the use of insulin to control glucose levels in non-insulin dependent diabetics with coronary artery disease would reduce restenosis (the recurrence of stenosis – the narrowing of a blood vessel) after balloon angioplasty or stenting. Restenosis results in restricted blood flow, occurs at a higher rate in diabetics, and is particularly difficult to treat. [8] Study participants were randomized into either the control group or the experimental group. The control group, of which Mr. Stirrett was a part, received “best medical care”, including exercise and dietary recommendations, and the experimental group received insulin. For medical research purposes, all participants would have a follow-up angiogram six months after the initial procedure to see how much restenosis had occurred. [9] The Study operated at seven hospitals throughout Canada. The appellant, an interventional cardiologist, was the Study’s principal investigator at the Hospital. (c) The Tri-Council Policy Statement [10] The medical researchers conducting the Study were required to comply with the Tri-Council Policy Statement: Ethical Conduct for Research Involving Humans (the “Policy”), a policy adopted by the Canadian Institutes of Health Research, the Natural Sciences and Engineering Research Council of Canada, and the Social Sciences and Humanities Research Council of Canada. The Policy describes standards and procedures governing research involving human subjects. Among other things, the Policy requires that research be overseen by a Research Ethics Board (“REB”) and imposes disclosure obligations on researchers. It stipulates that “[r]esearchers shall provide, to prospective subjects … full and frank disclosure of all information relevant to free and informed consent” and that participants shall be given “continuing and meaningful opportunities for deciding whether or not to continue to participate”. (d) Changes to the on-going Study [11] The REB at each participating hospital was required to approve the Study and, on an annual basis, to approve its continuation. The REB at the Hospital first approved the Study in February 2002 and annually approved its continuation during the relevant period. The protocol for the Study, provided to the REB, described a “planned recruitment of 240 patients”. While Data Safety Monitoring Boards (“DSMB”) are not mandatory, the protocol also provided that a “Data and Safety Monitoring Committee (to be named) ... will oversee the progress of the trial and monitor safety of the intervention”. [12] For various reasons, the Study had difficulty in recruiting the planned number of participants, which had an effect on the Study’s funding. The Heart and Stroke Foundation of Ontario (the “Foundation”), which had granted funding to the Study for a three-year period, advised in September 2003 that it would not release new monies corresponding to the third year of the Study (2003-2004) due to the Study’s shortfall in recruiting participants. The Foundation permitted the Study to retain the unspent funds, totalling $171,942, that were already released to it and to use them for the duration of the grant year ending June 30, 2004. Mr. Stirrett was not advised of this change in funding. [13] The appellant and other researchers involved in the Study were of the view that the Study should continue until it reached 100 participants. The appellant disagreed with two research colleagues who felt the REBs at their respective hospitals should be advised of both the change in the intended number of participants and the Foundation’s decision not to release additional funds. In the end, the appellant did not advise the REB at the Hospital of those changes. However, the Hospital’s REB was aware of the slower than hoped for enrolment. In the annual report to the Hospital’s REB, dated February 9, 2004, the appellant reported that there were 55 participants enrolled in the Study. He explained that “[e]nrollment has been slower than anticipated at the start of the study however the sponsor has included more sites and enrollment is now steadily increasing”, and that “[r]ecruitment has been slower than anticipated due to the fact that some patients live too far away to participate in follow-up or are reluctant to inject themselves with insulin”. All of the hospitals continued to participate in the Study. [14] The DSMB contemplated by the protocol was not established. The appellant’s evidence at trial was that this was because the concern about hypoglycemic episodes that motivated the provision for the DSMB never materialized. The REB at the Hospital was not advised of the failure to establish a DSMB. (e) The Consent Form [15] Mr. Stirrett signed a consent form when he enrolled in the Study on June 11, 2004 (the “Consent Form”). The Consent Form played a significant role at trial. [16] The Consent Form indicated that it contained all the relevant information for Mr. Stirrett to decide whether to participate in the Study. The Consent Form also explained that “[y]our doctor will inform you of any new information about the study that might develop during the course of this research and might influence your willingness to participate in the study” and that “you may discontinue participation at any time during the study without penalty”. [17] The Consent Form identified the sponsor of the Study as the Foundation. It described the Study as a study “of about 240 patients similar to yourself”, although at the time that Mr. Stirrett signed the Consent Form, the number of planned participants had already been reduced. [18] The Consent Form explained that the follow-up angiogram at six months was not part of a regular clinical practice, but rather was part of the Study. It also stated that there was a one in one thousand risk of a serious complication, such as heart attack, stroke, or death, from an angiogram. Mr. Stirrett was also informed of the risks associated with the follow-up angiogram on other occasions, including when he signed a further consent form prior to undergoing the procedure. [19] The Consent Form stated that “[t]he treatment may or may not be of personal benefit to you but the information gathered from the study will be very important in discovering new treatments in people like yourself”, and “[i]n addition, you may benefit from the follow-up angiogram and ultrasound performed at 6 months post-angioplasty which is not part of the routine examination”. (f) The follow-up angiogram [20] The follow-up angiogram contemplated by the Study was performed on February 10, 2005. [21] The respondent testified that her husband was again experiencing chest pain in the months before the follow-up angiogram. He had begun carrying nitroglycerin spray with him at all times, using it when he had chest pain. She also testified that both he and she would have wanted to find out the cause of the pain. It was common ground that the angiogram was a diagnostic tool to discover the cause of Mr. Stirrett’s chest pain. [22] Tragically, Mr. Stirrett died on February 12, 2005 from complications which arose during the follow-up angiogram. The post mortem examination confirmed that Mr. Stirrett had experienced very significant restenosis. (g) The publication of the Study [23] The Study continued following the death of Mr. Stirrett, who was the 73 rd participant out of a total of 78 participants in the Study. The Study results were inconclusive. A paper based on the Study was published in 2012 and has been subsequently cited in other published studies. The paper identified the Foundation, among other organizations, as having funded the Study. (2) The litigation [24] The respondent sued the two doctors who performed the follow-up angiogram and the appellant, both in negligence and for breach of fiduciary duty. The parties agreed on damages, but not on the issue of liability. The action against the doctors who performed the angiogram was dismissed in its entirety. Below, we outline how the litigation proceeded. (a)     The respondent’s negligence claim against the appellant [25] In her Fresh as Amended Statement of Claim of March 19, 2018, the respondent alleged that her husband’s death was caused by negligence and/or breach of contract. In the case of the appellant, the pleaded particulars of the negligence and/or breach of contract included: failing to ensure that the Study was monitored by a DSMB; failing to provide Mr. Stirrett with all of the relevant information regarding the Study that he required in order to decide whether he should participate and undergo the February 10, 2005 angiogram; and failing to halt the Study when required in the circumstances. [26] The negligence claim proceeded to trial before a jury in March 2018. The respondent put four main arguments to the jury in advancing her negligence claim against the appellant. [27] First, she alleged that the appellant breached the standard of care of a reasonable and prudent principal investigator of the Study by failing to: § Establish a DSMB in accordance with the research protocol; § Advise the REB that a DSMB had not been established; § Amend the protocol to indicate how the goals of the Study had changed; § Obtain subsequent REB approval for the redesigned Study; § Amend the Consent Form for the Study to reflect accurate information, including that the Study planned to recruit 100 participants, not 240. [28] Second, she alleged that, but for the breach, Mr. Stirrett would not have undergone the follow-up angiogram, since had the appellant acted in accordance with his standard of care, the Study likely would have been terminated before the date of the angiogram. [29] Third, the respondent argued that the appellant had breached the standard of care of a reasonable and prudent principal investigator in obtaining Mr. Stirrett’s informed consent. Among other things, the respondent relied on the fact that the intended number of participants on the Consent Form was incorrect, that the impact this had on the Study’s ability to achieve its primary objective was not communicated to Mr. Stirrett, and that the sponsorship information on the Consent Form was misleading. [30] Finally, the respondent argued that, but for the failure to obtain Mr. Stirrett’s informed consent, a reasonable person in Mr. Stirrett’s circumstances would not have undergone the angiogram on February 10, 2005. [31] As is described below, the jury partially accepted the respondent’s first argument but rejected the other three. (b)     The respondent’s fiduciary duty claim against the appellant [32] The respondent also pleaded breach of fiduciary duty. She claimed the appellant breached the standard of care and his fiduciary duties to Mr. Stirrett by failing to establish a DSMB when the protocol required it and failing to halt the Study when it became apparent due to the low number of participants that the Study was unlikely to achieve its primary objective. She further alleged that the appellant owed a “special duty of care” to Mr. Stirrett, which included a duty to take special care to ensure Mr. Stirrett did not feel pressured to consent to the follow-up angiogram. She also alleged that, “[i]n breaching this duty of care”, the appellant and the two other doctors breached their fiduciary duty to Mr. Stirrett. [33] Claims for “other equitable relief”, such as breach of a fiduciary duty, must be tried without a jury: Courts of Justice Act , R.S.O. 1990, c. C.43, s. 108(2). Accordingly, following the jury’s verdict, the trial judge heard submissions and decided the fiduciary duty claim. [34] The respondent contended that the appellant owed Mr. Stirrett a fiduciary duty and advanced three broad arguments as to how this duty was breached. First, she alleged that the appellant breached a fiduciary duty owed to Mr. Stirrett by not telling him: (1) the new sample size; (2) the primary objective of the Study had changed as a result of the change in sample size; and (3) the Foundation was not providing additional funding for the third year of the Study. Second, the respondent argued that the failure to set up a DSMB was a breach of fiduciary duty because it was an important oversight mechanism. Finally, the respondent argued that the appellant breached his fiduciary duty by putting his interests as a researcher ahead of those of Mr. Stirrett by failing to stop the Study once its primary objective had changed. (c) The jury’s verdict on the negligence claim against the appellant [35] There is no appeal from the jury’s verdict. The appeal arises only from the trial judge’s decision on the fiduciary duty claim. However, we outline the jury’s verdict, given that it has a bearing on our causation analysis. [36] In the case of the appellant, the jury was asked four questions, corresponding to the four arguments the respondent put to the jury, which are outlined above. On the first question, the jury found the appellant had breached the standard of care of a reasonable and prudent principal investigator in the following four ways: · Sample size should have been changed in the protocol from 240 patients to 100 patients; · The DSMB was never set up as set out in the protocol; · The Consent Form was never updated with the new sample size from 240 patients to 100; and · No protocol deviation was submitted to the REB based on the information above. [37] On the second question, however, the jury found that the respondent had not proven on a balance of probabilities that, but for the particulars of the breach of the standard of care, Mr. Stirrett would not have undergone the angiogram that resulted in his death. [38] The jury also found, on the third question, that the respondent had not proven on a balance of probabilities that the appellant had breached the standard of care of a reasonable and prudent principal investigator in obtaining Mr. Stirrett’s informed consent. As a result, the jury did not proceed to answer the fourth question of whether, but for a breach in the standard of care in obtaining Mr. Stirrett’s informed consent, Mr. Stirrett would have undergone the follow-up angiogram on February 10, 2005. [39] Consequently, the appellant was not liable in negligence. (d)     The trial judge’s reasons on breach of fiduciary duty [40] The trial judge began by noting that a fiduciary relationship can arise in a doctor-patient relationship but it is not limited, as the defendants argued, to cases such as Norberg v. Wynrib, [1992] 2 S.C.R. 226 , where the patient is exploited by the doctor. For what gives rise to a fiduciary duty, he relied on Frame v. Smith , [1987] 2 S.C.R. 99, and Hodgkinson v. Simms , [1994] 3 S.C.R. 377. [41] The trial judge found that the scope of the relationship between the appellant and Mr. Stirrett was one of researcher to patient, in addition to doctor and patient. He stated that the “obligation of a researcher to the participant when it involves humans is more strict than a doctor to patient relationship”: at para. 47. While he accepted that not all aspects of the participant to researcher relationship, where it involves research on humans, will rise to the level of a fiduciary duty, he concluded that the appellant owed a fiduciary duty to Mr. Stirrett. He described the duty owed, at paras. 49-50, as a duty to comply with the Consent Form, drafted in accordance with the Policy, and to advise the REB: The fiduciary duty was to comply with the terms set out in the consent form as drafted and agreed by David Stirrett. The consent form was drafted in accordance with the principles set out in the Tri-Counsel [ sic ] Policy Statement. The consent form required Dr. Strauss to inform David Stirrett of new information “about the study that might develop during the course of this research and might influence your willingness to participate in the study”.… Dr. Strauss failed to do so as stated in the particulars of negligence given by the jury. In addition, it was apparent or at least contemplated by more than one other source that the study should not continue in its existing format without resubmitting the revised protocol to each participating hospital’s Research Ethics Board. The letter from the Heart & Stroke Foundation of September 23, 2003 contemplated the “closing” of the study. The emails of Dr. Cohen and Dr. Seidelin expressly set out their view that the changes required notice and approval by their respective Research Ethics Boards. While the changes made in the STREAM study from when the consent form was drafted may not have been significant or changed the risk of harm to David Stirrett, it was not something for Dr. Strauss to decide. His obligation, or duty, was to pass on these changes to David Stirrett (and to the Research Ethics Board) in order to permit them to re-evaluate their previous decision. This would have protected Dr. Strauss from liability. [42] He also concluded, at para. 51, that the appellant had breached that duty: Dr. Strauss, by his actions failed to give David Stirrett the opportunity to consider, reflect and determine if he should “discontinue participation at any time during the study without penalty”.… By not providing the information about the STREAM study which varied from the content of the consent form that was explained to David Stirrett on June 11, 2004 and to which Dr. Strauss, as principal investigator at St. Michael’s Hospital for the STREAM study agreed, Dr. Strauss breached his fiduciary duty. [43] The trial judge agreed with the respondent’s submission that a finding of a fiduciary duty and a breach of that duty “removes causation from the analysis on whether there will be recovery as occurs in the determination of negligence followed by causation”: at para. 52. [44] The trial judge granted judgment against the appellant in the agreed amount of damages. III THE ISSUES ON APPEAL [45] The two main issues raised by this appeal can be articulated as follows: i. Did the trial judge err in finding that the appellant owed and breached a fiduciary duty to Mr. Stirrett in the circumstances of this case? ii. If the appellant did owe a fiduciary duty, and breached that duty, did the trial judge err on the issue of causation? [46] The appellant also argues that the trial judge provided insufficient reasons for his decision. However, given our disposition of this appeal, it is unnecessary to address this further argument. IV THE FIDUCIARY DUTY ISSUE [47] It is important to begin by noting what is and what is not at issue on this appeal. [48] The Canadian Cancer Trials Group and the Canadian Cardiovascular Research Collaboratory (“the research interveners”) submit that the trial judge’s decision potentially imposes a novel fiduciary obligation on all research doctors to advance the best interests of individual human research subjects and that he erred in finding that physicians who are researchers owe fiduciary duties to voluntary participants in clinical studies. According to the research interveners, research doctors should not owe such duties because they would have a chilling effect on the operation of clinical trials in which a researcher seeks broader knowledge and a societal benefit greater than the individual participant’s interests. They say that researchers are required to balance the interests of participants in clinical trials with their duty to maximize the benefits of a research study for the advancement of knowledge and that this balancing of interests is inconsistent with the recognition of a fiduciary duty. The research interveners are concerned about the precedential impact of this case and its practical implications for medical researchers in Canada. [49] By contrast, the Ontario Trial Lawyers Association (“OTLA”) argues that, not only did the trial judge correctly find that the appellant owed and breached his fiduciary duty to Mr. Stirrett, but that this court should go further and generally find that there is a breach of fiduciary duty where a researcher has failed to obtain the approval of a REB. The OTLA says that the recognition of a fiduciary duty owed by a researcher to a human subject will enhance the community’s trust in an important institution. [50] The trial judge did not find, nor did any of the parties to the appeal argue, that the relationship between a medical researcher and study participant is a new category of per se fiduciary relationship, such as solicitor-client or trustee-beneficiary. Further, the parties to this appeal did not dispute that there could be circumstances in which a medical researcher may owe an ad hoc fiduciary duty to a participant in a clinical trial. [51] As such, the question in this appeal is not whether medical researchers owe a per se fiduciary duty to research participants, or even in general terms when an ad hoc fiduciary duty may arise. It is unnecessary and beyond the proper scope of this appeal for us to resolve any such issue in the context of this appeal. [52] The narrow question raised by this appeal is whether the trial judge erred in finding that the appellant owed an ad hoc fiduciary duty to Mr. Stirrett in the particular circumstances of this case. [53] In Alberta v. Elder Advocates of Alberta Society , 2011 SCC 24, [2011] 2 S.C.R. 261, at para. 36, McLachlin C.J., writing for the court, stated what a claimant must establish before a court will impose a fiduciary duty outside of the traditionally recognized categories of per se fiduciary relationships: In summary, for an ad hoc fiduciary duty to arise, the claimant must show, in addition to the vulnerability arising from the relationship described by Wilson J. in Frame : (1) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary or beneficiaries; (2) a defined person or class of persons vulnerable to a fiduciary’s control (the beneficiary or beneficiaries); and (3) a legal or substantial practical interest of the beneficiary or beneficiaries that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control. [54] Here, the trial judge recognized that t he issue was whether the factual matrix before him raised a fiduciary duty. While he did not cite Elder Advocates for the factors giving rise to a fiduciary duty, he relied on Frame and Hodgkinson, two other leading cases from the Supreme Court on fiduciary duty . [55] The appellant repeats arguments that he made before the trial judge, that is, that the requisite vulnerability and discretion to impose a fiduciary duty were not present in this case. We reject those arguments as the elements of vulnerability and discretion are fully supported by the evidence. The appellant, who is an accomplished researcher, had all the information about the Study that might influence Mr. Stirrett’s willingness to participate and could control the disclosure of that information; the information was complex and extremely important; and Mr. Stirrett, who had no expertise and relied on the appellant to provide that information, could not make an informed decision without that information. [56] With respect to the additional requirement emphasized in Elder Advocates for establishing an ad hoc fiduciary duty – an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary – the research interveners argue that the trial judge erred by failing to expressly determine whether there was an implicit or explicit undertaking by the appellant to act in the best interests of Mr. Stirrett. As a result, the research interveners argue, the trial judge’s finding that the appellant owed an ad hoc fiduciary duty to Mr. Stirrett is not entitled to the normal deference it would be entitled to on appeal: see Waxman v. Waxman (2004) , 186 O.A.C. 201 (C.A.), at paras. 501, 716, leave to appeal refused, [2004] S.C.C.A. No. 473 . [57] In this case, the trial judge cited the following passage from pp. 409-10 of Hodgkinson : “[W]hat is required is evidence of a mutual understanding that one party has relinquished its own self-interest and agreed to act solely on behalf of the other party”. While Elder Advocates does not talk about a “mutual understanding”, this passage from the trial judge’s reasons includes the requirement in Elder Advocates of an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary or beneficiaries. [58] We acknowledge, however, that the trial judge did not explicitly analyze whether the appellant undertook to act in Mr. Stirrett’s best interests in relation to the interest in question. He did not do so for the good reason that it was not the subject of argument before him. No party referenced Elder Advocates or discussed the undertaking requirement. [59] The respondent argued at trial that all the defendant physicians owed fiduciary duties to Mr. Stirrett and that those duties required them to put Mr. Stirrett’s best interests before their own. Counsel referred to the “hallmarks” of a fiduciary relationship, as set out in Frame , at p. 136, which are: ( 1) the fiduciary has scope for the exercise of some discretion or power; (2) the fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests; and (3) the beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power. It was submitted that physicians, as a class, owe fiduciary duties to their patients. [60] In response, the appellant argued that not every relationship or interaction between doctors and patients is fiduciary in nature. He made no reference to the undertaking requirement in Elder Advocates . He confined his trial submissions to the other elements of an ad hoc duty, framing them in accordance with the three hallmarks of a fiduciary relationship. The appellant maintained that Mr. Stirrett was not vulnerable and that the defendant physicians did not engage in any conduct that would come near to the kind of egregious abuse of discretionary power, such as in Norberg , that amounted to a breach of fiduciary duty. It was also the appellant’s position that the jury’s findings on negligence foreclosed any finding of liability for breach of fiduciary duty that was grounded on the same facts and that the action failed on the issue of causation. [61] Even assuming, without deciding, that the trial judge erred by failing to analyze the “undertaking” element of an ad hoc fiduciary duty, we are not persuaded that we should undertake that analytical exercise. It would require us to make a determination of mixed fact and law on an issue not argued at trial. Given our conclusion on the causation issue, it is not necessary for us to do so. [62] In declining to deal with this issue, we should not be taken as expressing any opinion on whether the trial judge was correct in accepting that a fiduciary duty was owed to Mr. Stirrett, or that, if a duty were owed, it was the duty articulated by the trial judge. Nor should these reasons be read as foreclosing or requiring a finding of a fiduciary relationship between a medical researcher and study participant in another case. The presence or absence of a fiduciary relationship will depend on the evidence in each particular situation. Any time it is alleged that one party owes an ad hoc fiduciary duty to another party, the court must engage in an examination of the particulars of the relationship to determine whether the Elder Advocates test is satisfied in the circumstances. V THE CAUSATION ISSUE [63] The causation issue is dispositive of the appeal. For the purposes of this discussion, we accept, without deciding, that the appellant breached his fiduciary duty to Mr. Stirrett in the manner described by the trial judge. [64] As indicated above, the trial judge concluded that a finding of fiduciary duty and a breach of that duty obviated the need to consider the issue of causation. The trial judge stated the following, at paras. 52-53 of his reasons: Having found a fiduciary duty existed and that Dr. Strauss breached that duty, the third issue is to determine the legal outcome. Counsel for the plaintiff submitted the finding of a fiduciary duty and the breach of that duty removes causation from the analysis on whether there will be recovery as occurs in the determination of negligence followed by causation. I agree. I rely on the statement of Justice McLachlin in Norberg v. Wynrib , supra at paragraph 95, “Equity has always held trustees strictly accountable in a way the tort of negligence and contract have not”. In addition, Justice McLachlin goes on to state, at paragraph 98, “The physician is pledged by the nature of his calling to use the power the patient cedes to him exclusively for her benefit. If he breaks that pledge, he is liable”. [65] As we will explain, the trial judge misstated the law regarding the role of causation in cases involving a breach of fiduciary duty. Simply put, for compensation to be awarded for breach of fiduciary duty, the plaintiff must establish that the defendant’s breach caused the plaintiff’s loss. As a result, the trial judge erred in failing to consider and determine the issue of causation. [66] Considering and applying the correct principles with respect to the issue of causation afresh, assuming that the appellant owed an ad hoc fiduciary duty to Mr. Stirrett and breached that duty, we conclude that there was no causal link between the appellant’s breach and the angiogram Mr. Stirrett underwent that led to his death. Moreover, the jury’s determination with respect to “but for” causation in the negligence claim is determinative. In the result, the respondent is not entitled to damages. [67] Before turning to an analysis of the trial judge’s reasons, it is first necessary to review the law on causation in the fiduciary context. (1) Compensation for breach of fiduciary duty [68] Compensation for breach of fiduciary duty is typically determined according to restitutionary principles, where the plaintiff is entitled to be put in as good a position as he or she would have been in had the breach not occurred: Hodgkinson , at p. 440, per La Forest J. In M. (K.) v. M. (H.), [1992] 3 S.C.R. 6 , La Forest J., writing for the majority, pointed out that in equity there is no capacity to award damages and that the distinction between damages and compensation is often slight, with the courts tending to merge the principles of law and equity when necessary to achieve a just remedy: at pp. 80-81. Over time, courts have used the term “damages” to denote monetary compensation for breach of fiduciary duty. Remedies in cases of breach of fiduciary duty (such as disgorgement of profits and exemplary compensation) can also have a prophylactic or deterrent purpose: Strother v. 3464920 Canada Inc. , 2007 SCC 24, [2007] 2 S.C.R. 177, at paras. 74-77. Irrespective of the purpose, there must be a causal link between the breach of fiduciary duty and the compensation sought. [69] As we will explain, when considering equitable compensation, or damages, the fiduciary breach must have been the cause in fact – the effective cause – of the loss in respect of which compensation is sought. There is of course a difference between the right to a remedy, and the assessment of damages. Causation in fact is relevant to the first issue. Legal causation, which incorporates limiting factors such as remoteness, proximity, foreseeability, and intervening act, is part of the second issue. [70] We acknowledge that a source of confusion over the role of causation is in the use of the word “causation” in some of the cases both to describe causation in fact and as part of the test for applying common law limiting factors to limit the extent of a damages claim. These two uses should not be confounded. [71] In the tort context, Philip H. Osborne cautions that causation in fact, which focuses on the factual issue of the sufficiency of the connection between the defendant’s wrongful act and the plaintiff’s loss, should not be confused with the “control device” of remoteness of damages, sometimes known as proximate cause, which may excuse a defendant from liability for loss caused to the plaintiff on the ground of fairness: Philip. H. Osborne, The Law of Torts , 5th ed. (Toronto: Irwin Law, 2015), at p. 54. [72] Similarly, Sir Andrew Tipping, in “Causation at Law and in Equity: Do We Have Fusion?” (2000) 7:3 Canterbury L. Rev. 433, at p. 433, emphasizes the conceptual difference between the need to demonstrate a causal relationship that is “separate from and precedes the further controls provided by the concepts of foreseeability and remoteness”. [73] Writing on fiduciary law, Leonard I. Rotman distinguishes between legal and factual causation: Leonard I. Rotman, Fiduciary Law , (Toronto: Thomson Reuters Canada Limited, 2005). At p. 634, he writes: Both the common law and Equity require that there be some connection between the harm or loss caused and the actions of the person who is alleged to be liable for it. Each starts with the idea of “but for”, “cause-in-fact”, or “ sine qua non ” causation. This generally satisfies Equity, but the common law requires more; it demands a finding of materiality or substantial cause to link the impugned activity with the harm to the plaintiff. Further, the common law imports ideas of foreseeability (or reasonable contemplation) and remoteness into its assessment of causality. Mitigation of losses is another relevant consideration under the common law’s assessment of damages for harm or loss, as is contributory negligence. These other considerations do not readily enter into Equity’s assessment of fiduciary accountability. [Footnotes omitted.] [74] As this passage suggests, and as we will discuss below with reference to the case law, cause in fact is required in the fiduciary context. This case turns on the cause in fact requirement: did the respondent prove that the appellant’s breach of fiduciary duty caused the loss in respect of which compensation is sought? That loss is Mr. Stirrett’s death from the February 2005 angiogram. Because damages were agreed, it is unnecessary to go further and consider the extent of recoverable losses or whether a different measure should apply where the claim is for breach of fiduciary duty rather than negligence. [75] We turn now to the case law on causation. (2) Factual causation [76] While the appropriate approach to the assessment – that is, the measure and extent – of damages for breach of fiduciary duty was the subject of debate and discussion in the Supreme Court during the 1990s, namely in Canson Enterprises Ltd. v. Boughton & Co., [1991] 3 S.C.R. 534 , and Hodgkinson , the Supreme Court was unanimous that whether dealing with a common law cause of action, or a claim sounding in equity, the plaintiff must establish that the defendant’s wrong was the cause in fact of some injury or loss. [77] Canson involved a claim against a solicitor who handled a real estate transaction and who failed to disclose to his clients, the purchasers, a secret profit made by a third party. It was claimed that the solicitor was not only liable for the secret profit but also for the losses flowing from the negligence of engineers and pile-drivers who performed work on the purchased property. [78] All eight justices who heard the case agreed that the defendant solicitor should be liable for the secret profit but not for the construction losses that were caused by the engineers. And, while the justices expressed differing opinions on whether and when the common law limiting factors would apply to compensation for breach of fiduciary duty, importantly, they agreed that, in order to award compensation for breach of a fiduciary duty, there must be a loss or injury that “flows from” or “results from” the breach. [79] La Forest J., writing for the majority, stated, at pp. 578-79, that “ [i] n the case of a mere breach of duty [by contrast to a breach of trust], the concern of equity is to ascertain the loss resulting from the breach of the particular duty”, and that it was imperative “to ascertain the loss resulting from the breach of the relevant equitable duty” (emphasis added). [80] While generally agreeing with La Forest J., Stevenson J. wrote brief separate reasons in which he noted that the “losses [were] too remote, not in the sense of failing the ‘but for’ test , but in being so unrelated and independent that they should not, in fairness, be attributed to the defendant’s breach of duty”: at p. 590 (emphasis added). [81] McLachlin J., writing for herself, Lamer C.J., and L’Heureux-Dub é J., agreed that the court was engaged in determining the loss resulting from the breach of the relevant equitable duty: at p. 551. She distinguished causation in fact from legal causation, stating, at p. 552, that “ [t] he requirement that the loss must result from the breach of the relevant equitable duty does not negate the fact that ‘causality’ in the legal sense as limited by foreseeability at the time of the breach does not apply in equity” (emphasis added). Similarly, she stated that “ while the loss must flow from the breach of fiduciary duty, it need not be reasonably foreseeable at the time of the breach”: at p. 552 (emphasis added). [82] The Supreme Court next addressed compensation for breach of fiduciary duty in Hodgkinson , a case involving alleged breaches of fiduciary duty and contract in the performance of a contract for investment advice and other tax-related financial services. [83] La Forest J., writing for the majority, found that Mr. Simms, an investment advisor, owed, and had breached, a fiduciary duty to Mr. Hodgkinson. He found that the damages owed for breach of fiduciary duty were the same as for breach of contract, taking into account the impact of market fluctuations that occurred after the breach. [84] La Forest J. referred to the task of determining the damages “flowing from” the breach of fiduciary duty. The investment advisor induced Mr. Hodgkinson to make investments that he would not have otherwise made by deliberately concealing his own financial interest, thus “initiat[ing] the chain of events leading to the investor’s loss”: at p. 443. [85] In summary, in Canson and Hodgkinson there was a causal link between the breach of fiduciary duty of the defendant and the harm to the plaintiff. The plaintiffs in Canson would not have entered into the transaction if the defendant solicitor had disclosed the secret profit. And, in Hodgkinson , the plaintiff would not have made the investments if he had known of the true relationship between the defendant and the developers. The point of contention in these cases was not whether a loss was caused by the breach, but the extent to which compensation for consequential losses could be recovered. [86] The need for cause in fact to be established before compensation or damages are awarded for breach of fiduciary duty has also been consistently recognized by this court. [87] For example, in Martin v. Goldfarb (1997) , 31 B.L.R. (2d) 265 (Ont. Gen. Div.), the plaintiff claimed damages as a result of losses suffered in commercial dealings with a disbarred lawyer who had been convicted of fraud. Following a first trial awarding $5.95 million in damages to the plaintiff, a successful appeal by the defendant, and a new trial which resulted in the dismissal of his claim, the plaintiff appealed. The issue on the appeal of the new trial was whether the trial judge erred in requiring that the plaintiff’s personal losses be direct: see Martin v. Goldfarb (2003), 68 O.R. (3d) 70 (C.A.). This court stated, at para. 8, that “ [d] amages cannot be awarded absent evidence of a causal connection”. This court held that the trial judge was justified in dismissing the claim because the plaintiff had not established a causal connection in fact between the losses he sustained in a bankruptcy and the breach of fiduciary duty. [88] Further, in Waxman , this court accepted that “ [t] he basic rule of equitable compensation is that the injured party will be reimbursed for all losses flowing directly from the breach ” : at para. 651 (emphasis added). [89] Also, in Standard Trust Company v. Metropolitan Trust Company of Canada , 2007 ONCA 897, 232 O.A.C. 74, MacFarland J.A. confirmed, in a breach of fiduciary duty case, that the trial judge was required “on a common sense and reasonable consideration of the evidence, [to] conclude what the losses were that flowed from the breach ”: at para. 49 (emphasis added). [90] To put it succinctly, a plaintiff seeking compensation for breach of fiduciary duty must establish that the losses flowed from the breach. [91] We add this. While legal causation is not at issue in this appeal, we note that the Supreme Court and other appellate courts have accepted that common law limiting principles may apply to limit equitable compensation in order to treat similar wrongs similarly, but only where: (1) it is necessary to achieve a just and fair result; and (2) doing so does not raise any policy concerns: Canson , at pp. 581, 586-87, per La Forest J.; Hodgkinson , at p. 443, per La Forest J.; Waxman , at para. 662; and Dhillon v. Jaffer , 2016 BCCA 119, 86 B.C.L.R. (5th) 239, at paras. 26-28. [92] For example, in M. (K.) , La Forest J. declined to award any additional compensation for a parent’s breach of fiduciary duty after concluding that the underlying policy objectives for compensation were the same as those animating the jury’s award of damages for sexual assault and battery in a case of incest: at pp. 81-82. [93] We now turn to the trial judge’s decision in this case. (3) The trial judge’s decision [94] With respect, an examination of the trial judge’s reasons demonstrates that he fell into error on the question of causation through his reliance on the comments by McLachlin J. in Norberg . As noted, at para. 52, he agreed with plaintiff’s counsel that “the finding of a fiduciary duty and the breach of that duty removes causation from the analysis on whether there will be recovery as occurs in the determination of negligence followed by causation”. [95] Decided a year after Canson , Norberg dealt with allegations of sexual assault in the context of a doctor-patient relationship. McLachlin J., who was joined in her reasons by only L’Heureux-Dubé J., found there was a breach of fiduciary duty. McLachlin J. made the following comments, at pp. 290 and 293 of Norberg , which were relied on by the trial judge in this case on the issue of causation: Equity has always held trustees strictly accountable in a way the tort of negligence and contract have not. The physician is pledged by the nature of his calling to use the power the patient cedes to him exclusively for her benefit. If he breaks that pledge, he is liable. [96] The trial judge’s reliance on these comments was misplaced. [97] We do not read McLachlin J.’s comments as supporting the proposition that “causation is removed” from the analysis in the fiduciary context. She made these observations in her discussion of whether there was a breach of fiduciary duty. Later in her reasons, in addressing damages, McLachlin J. noted that “Dr. Wynrib’s breach of his duty to Ms. Norberg caused the following losses or injuries to her: (1) prolongation of her addiction; and (2) sexual violation”: at p. 295 (emphasis added). After reviewing the evidence, she indicated she “would award an additional $20,000 for suffering and loss during the period of prolonged addiction for which Dr. Wynrib was responsible”: at p. 296. Thus, causation in fact was present. [98] Moreover, as we have explained, the trial judge’s reading of McLachlin J.’s comments is inconsistent with Canson , Hodgkinson and case law from this court, which affirm the place of cause in fact in the fiduciary context. [99] The trial judge failed to consider cause in fact, as he was required to do. We turn finally to explain why it is not made out in this case. (4) Failure to establish causation [100] As we will explain, applying the findings of the jury to this case, the claim for breach of fiduciary duty inevitably founders on causation. The claims against the appellant for breach of fiduciary duty and breach of the standard of care of a principal investigator in this case were based on substantially the same conduct. [101] There was an agreement in this case on the amount of damages, which were premised on the loss of Mr. Stirrett’s life following the February 2005 angiogram. [102] While the jury did not need to assess damages, it was still necessary for them to determine whether the wrong that they found the appellant to have committed – his breach of the standard of care of a principal investigator – had caused the loss in question. After concluding that he had breached the standard of care in four ways, the jury responded in the negative when asked whether the plaintiff had proven, on a balance of probabilities, that but for the breaches of the standard of care they had described, Mr. Stirrett would not have undergone the February 2005 angiogram. [103] The causation issue, as it developed in the evidence, addressed two questions. The first was whether, if the appellant had not breached his standard of care in the ways the jury had identified, the Study would have continued, or whether it would have been terminated once it was known that its stated purpose could not be achieved and that the Foundation had stopped its funding. The second question was whether, if the appellant had not breached his standard of care in the ways the jury had identified, Mr. Stirrett would have refused to participate in the Study or withdrawn from it. The argument was that, in either case, Mr. Stirrett would not have had the February 2005 angiogram. [104] The jury’s conclusion that there was no “but for” causation between the appellant’s breach of the standard of care as a principal investigator and Mr. Stirrett’s decision to undergo the February 2005 angiogram can only mean that the jury was not satisfied: (1) that the Study would have been terminated once the proper information had been provided to the REB; and (2) that Mr. Stirrett would not have participated in the Study, or would have withdrawn from it, if the proper information had been provided to him. In essence, the jury must have concluded that, notwithstanding the breach of the appellant’s standard of care, in the ways they had identified, the Study would have continued, and Mr. Stirrett would not have ceased his participation and would have still undergone the February 2005 angiogram. [105] The same issues are part of the causation analysis when the cause of action is breach of fiduciary duty. In determining whether the breach of fiduciary duty was the cause in fact of the respondent’s loss, the trial judge would have had to answer the following question: would Mr. Stirrett have remained in the Study and undergone the February 2005 angiogram as part of the Study, if the appellant had not breached his fiduciary duty? [106] The issue is whether there is a causal link between the breach of fiduciary duty and Mr. Stirrett’s decision to undergo the February 2005 angiogram. The fact that Mr. Stirrett would have undergone the angiogram despite the appellant’s breach of fiduciary duty breaks the chain of factual causation in the fiduciary duty claim, just as it did in the negligence claim. The result would have been the same. [107] This is the case whether or not causation in a breach of fiduciary duty case is described as “but for” causation. That said, causation in the context of a breach of fiduciary duty is properly characterized as “but for” causation. “But for” causation is not simply a common law concept. It means that the defendant’s breach of duty was necessary to bring about the plaintiff’s loss. The defendant’s wrong need not be the sole cause of the loss, but it must be part of the cause. “But for” causation raises the counterfactual question: what would likely have happened if the defendant had discharged his or her duty? Properly understood, “but for” causation simply means causation in fact. [108] As we have seen, a number of the fiduciary duty cases speak of causation in fact in what are in substance “but for” terms: see Canson , at pp. 578-79, per La Forest J., at p. 552, per McLachlin J.; Hodgkinson , at pp. 393-94, per La Forest J.; and SFC Litigation Trust v. Chan , 2019 ONCA 525, 147 O.R. (3d) 145, at para. 117, leave to appeal refused, 75 C.B.R. (6th) 1 . Similarly, in Cadbury Schweppes Inc. v. FBI Foods Ltd. , [1999] 1 S.C.R. 142, at para. 74, the Supreme Court considered the economic advantage the plaintiffs would have enjoyed “but for” the defendant’s breach of confidence. [109] Returning to this appeal, the respondent makes several arguments on causation. [110] First, the respondent argues that the appellant had the onus at trial of disproving causation. She submits that this court cannot give effect to the jury’s finding on causation because it was a finding that she had not satisfied her burden to prove causation, whereas a fiduciary has the burden of proving, with concrete evidence, that the beneficiary would have suffered the same loss regardless of the fiduciary’s breach. [111] For this proposition, the respondent relies on Hodgkinson , at p. 441, where La Forest J. referred to “the long standing equitable principle that where the plaintiff has made out a case of non-disclosure and the loss occasioned thereby is established, the onus is on the defendant to prove that the innocent victim would have suffered the same loss regardless of the breach”. [112] In the passage on which the respondent relies, La Forest J. continues to explain, citing Rainbow Industrial Caterers Ltd. v. Canadian National Railway Co. , [1991] 3 S.C.R. 3, at pp. 14-17, that this principle has been affirmed with respect to damages at common law in the context of negligent misrepresentation, and that courts exercising both common law and equitable jurisdiction have approached this issue in the same manner. [113] We do not accept the respondent’s “reverse onus” approach to causation. This approach may apply where a plaintiff has first satisfied the burden of establishing cause in fact. At the stage of assessing damages, it may permit the defendant to argue that the injured party would have, in any event, assumed a position “other than the status quo ante ” and that this should be taken into account in calculating damages: Rainbow , at pp. 15-16. This is the point made in Hodgkinson , where the defendant argued unsuccessfully that the plaintiff, who had relied on the defendant to make a particular investment, would have invested in tax shelters in any event, and suffered market losses. [114] In this case, the reverse onus does not apply. The respondent did not first establish that the appellant’s breach caused Mr. Stirrett to undergo the February 10, 2005 angiogram. In the present case, the “reverse onus” approach might arguably have applied to the assessment of damages, had damages not been agreed, but does not apply to the question of cause in fact. [115] For these reasons, we do not accept the respondent’s argument that the onus was on the appellant, as the breaching fiduciary, to demonstrate with concrete evidence that Mr. Stirrett would have undergone the February 2005 angiogram irrespective of the breach. The onus was on the respondent to establish that the appellant’s breach was the cause in fact of the respondent’s loss. [116] Second, the respondent asserts that there was evidence to support a causal link between the appellant’s breach of fiduciary duty and Mr. Stirrett’s February 2005 angiogram. Essentially, the respondent argues that, based on the evidence, the Study would not have continued if the proper information had been provided to the REB and that, if Mr. Stirrett had been given the information in question, he would not have participated in the Study, or would have withdrawn from it. [117] We agree with the appellant that this argument cannot succeed. It would require the court, in assessing the fiduciary duty claim, to make findings that are inconsistent with those made by the jury on the negligence claims. [118] In this case, the respondent pleaded precisely the same omissions (failure to establish a DSMB and halt the Study) and relied on the same evidence to support her claims of breach of the standard of care and of the fiduciary duty. The respondent explicitly equated the alleged breach of the duty of care owed to Mr. Stirrett to the breach of fiduciary duty in the final paragraph of her pleadings. Thus, not only are the pleadings based on the same principles, but they relate to the same exact activity: see discussion in Dhillon , at para. 28. This is the factual matrix that was before the jury. [119] The trial judge correctly noted, at para. 45, that he was obliged to accept the findings of the jury, as triers of the facts. Indeed, the trial judge observed that the specific breaches of the appellant’s standard of care as a principal investigator identified in the particulars were consistent with the breaches relied upon in the fiduciary duty claim. [120] In M.M. v. P.M., 2000 BCSC 1597, 82 B.C.L.R. (3d) 125, after a jury had determined a case of sexual assault, Bennett J. (as she then was) had to determine the fiduciary duty claims. Citing R. v. Brown , [1991] 2 S.C.R. 518, she noted that, in such circumstances, a trial judge may be required to make additional factual findings, but “is normally bound by the express and implied factual implications of the jury verdict”: at para. 13. [121] As noted above, the jury’s finding in this case was that the respondent had not proven on a balance of probabilities, that, but for the appellant’s failure to change the Study’s sample size in the Consent Form and the research protocol, his failure to set up the DSMB, and his failure to submit a revised protocol to the REB, Mr. Stirrett would not have undergone the February 2005 angiogram that led to his death. This meant that the jury could not have been satisfied that, but for the breaches of the standard of care, either the Study would have been stopped, or Mr. Stirrett would have chosen not to participate. If either of those events had happened, the follow-up angiogram in February 2005 would not have taken place. No different result is open on the factual causation question in relation to the breach of fiduciary duty found by the trial judge. [122] Indeed, at para. 3, the trial judge accepted that the jury found that the negligence of the appellant was not the cause of Mr. Stirrett undergoing the angiogram on February 10, 2005. At para. 42, he observed that the jury may have been influenced by the evidence that the risk of serious harm from the procedure was small, and the logic of it being better to know the extent of restenosis six to eight months following an angioplasty than not. In other words, even if he had received the correct material information, Mr. Stirrett may have decided to have the follow-up angiogram because of its expected advantages. [123] To the extent that, in finding a breach of fiduciary duty, the trial judge pointed to failures that were not identified by the jury, such as the failure to inform Mr. Stirrett of the loss of the Foundation’s sponsorship, these additional failures are similar in nature to the jury’s findings on the particulars of the appellant’s breach of his standard of care, and would not affect the outcome. [124] In the end, the result is the same, whether the respondent’s claim sounds in negligence or breach of fiduciary duty. VI DISPOSITION [125] Accordingly, we allow the appeal and dismiss the action. [126] If sought, the appellant is entitled to costs of the appeal in the agreed-upon, all-inclusive amount of $25,000. The order for costs in the court below is set aside and, unless otherwise agreed by the parties, the question of costs below shall be remitted to the Superior Court of Justice. Released:  “AH” “MAY 06 2020” “Alexandra Hoy A.C.J.O.” “K. van Rensburg J.A.” “L.B. Roberts J.A.” [1] Mr. Stirrett’s estate was also initially a plaintiff in this action, but on March 20, 2018, the trial judge dismissed, on consent, the action brought by Mr. Stirrett’s estate, leaving Ms. Stirrett’s action to proceed alone. On appeal, the appellant does not challenge Ms. Stirrett’s standing to bring the fiduciary claim.

COURT OF APPEAL FOR ONTARIO CITATION: TriDelta Investment Counsel Inc. v. GTA Mixed-Use Developments GP Inc., 2020 ONCA 294 DATE: 20200511 DOCKET: C67118 Doherty, Juriansz and Paciocco JJ.A. BETWEEN TriDelta Investment Counsel Inc., TriDelta Fixed Income Fund and TriDelta High Income Balanced Fund Applicants (Respondents) and GTA Mixed-Use Developments GP Inc., Mixed-Use Developments (Ontario) GP Inc. and Wasaga Developments and Infrastructure GP Inc. Respondents (Appellants) Simon Bieber and Michael Darcy, for the appellants Christopher Naudie and Lauren Tomasich, for the respondents Heard: In-writing On appeal from the order imposed by Justice Michael A. Penny of the Superior Court of Justice, dated May 27, 2019. REASONS FOR DECISION [1] This appeal comes to the court from the commercial list. The respondents (“TriDelta”) are limited partners in three limited partnerships. The appellants are the general partners. [2] The partnerships were formed to acquire interests in various real estate development projects. The limited partnerships acquired those interests through “project companies” controlled by the limited partnerships and managed by the same person who controls all of the shares of the general partners. [3] TriDelta does not have a direct interest in the project companies or their assets. TriDelta holds units in the limited partnership. Under the limited partnership agreements (“LPA”), TriDelta’s investment in the limited partnerships is to be recouped from the profits, if any, earned through the development of the projects. [4] The working relationship between TriDelta and the appellants began to break down in early 2018, when the appellants came under new management. Since that time, as observed by the application judge, both parties have engaged in conduct giving rise to animosity, suspicion and lack of trust. [5] The breakdown in their relationship has fuelled this application and the cross-application. On the application, TriDelta sought an order requiring the appellants to produce certain documentation and information referable to the limited partnerships and the real estate development projects. [6] The parties were able to agree the appellants would provide much of the information and documentation sought by TriDelta. The disputed issues went before Penny J. [7] In his endorsement, Penny J. ordered the appellants to produce most of the material sought by TriDelta. He also directed that the annual reports and semi-annual reports prepared by the appellants contain certain material and information specified in his order. TriDelta’s cross-application did not proceed. [8] The appellants raised two grounds of appeal: · Did the application judge err in making orders in respect of an issue that was not properly raised before him? · Did the application judge err in imposing requirements on the contents of the annual report going beyond the requirements agreed upon by the parties in the limited partnership agreements (“LPA”)? [9] The first ground of appeal alleges a failure of procedural fairness. The appellants argue they did not have adequate notice the application judge would be asked to make an order detailing the contents of the annual report. They submit that TriDelta sought production of certain information and documentation, but did not, until very shortly before the hearing, seek an order directing that the information requested be included in the annual report. The appellants contend, without adequate notice, they did not have a fair opportunity to respond to this issue and place relevant material before the application judge. [10] It is not clear from the record whether this argument was put to Penny J. Counsel made written and oral argument. Penny J., in his endorsement, makes no reference to any submission that he should not entertain parts of TriDelta’s application because of inadequate notice. Nor do the facta filed on appeal make any reference to such arguments. [11] The appellants acknowledge they knew that TriDelta would be seeking orders in respect of the contents of the annual report, although they claim to have been made aware of this only days before the argument. In these circumstances, if the appellants did not raise this issue before the application judge, it is difficult to give it any credence on appeal. In any event, we are satisfied that it cannot succeed. [12] This application generated a sizable record. The parties went back and forth on what the appellants should and should not be obliged to produce to TriDelta. The material demonstrates, well before the hearing, both parties were operating on the basis that the annual and semi-annual reports could provide the vehicle for production of at least some of the material sought by TriDelta. [13] TriDelta’s initial application did not refer to the content of the annual report. This is explained by the timing of the application. When the application was launched, the annual report was not due for several months. By the time the application was heard, the annual report for the fiscal year 2018 was late. It is understandable that TriDelta would look to the pending annual report as a means of providing the necessary disclosure. [14] A review of the cross-application filed by the appellants, the cross-examination of the representative of the appellants, and proposals made to resolve the application while it was pending demonstrates both parties were addressing TriDelta’s demand for production of materials and information, in part, in the context of the appellants’ acknowledged obligation under the LPA to provide annual and semi-annual reports. It may be that TriDelta’s position as to exactly what information and material it sought included in the annual report did not crystallize until shortly before argument. However, well before the application was heard, the parties had joined issue on what the appellants should be required to produce and the contents of the annual report in light of any production requirements imposed on the application. The appellants had ample notice and a full opportunity to make their case in respect of the particulars of any order to be made mandating the contents of the annual report. [15] The second argument made by the appellant engages the intersection of the terms of the LPA and the provisions of the Limited Partnership Act , R.S.O. 1990, c. L.16 (the “Act”). [16] The appellants submit the contents of the annual and semi-annual reports were agreed upon by the parties and fixed by the terms of the LPA. They contend that Penny J. could not alter those contractual arrangements and place additional obligations on the appellants in respect of the annual reports by reliance on the provisions in the Act giving limited partners certain rights to the production of information and material relating to the partnership. [17] Section 10 of the Act provides: A limited partner has the same rights as a general partner, (a) to inspect and make copies of or take extracts from the limited partnership books at all times; (b) to be given, on demand, true and full information concerning all matters affecting the limited partnership, and to be given a complete and formal account of the partnership affairs. [18] Section 10 gives limited partners very broad rights to information “concerning all matters affecting the limited partnership”. It was open to Penny J. to conclude the information and material sought by TriDelta “affected the limited partnership”. It was also open to him to determine the means by which the required disclosure should be made. We see no prejudice to the appellants by the direction that the material be included in the annual and semi-annual reports. Penny J. could have ordered the material disclosed to TriDelta on an annual or semi-annual basis in a separate document to be enclosed in the same envelope as the annual or semi-annual report. There is no substantive difference between this hypothetical order and the one actually made. [19] The appellants also argue that by requiring the material be placed in the annual report, Penny J. relieved TriDelta of having to demonstrate the need for the information and material on an annual basis. Instead, the order places the obligation on the appellants to provide the information on an annual basis. [20] This argument is not persuasive. Obviously, TriDelta wants the information to which it is entitled under the Act on an ongoing basis. As long as the partnership operates, there is no reason to think that TriDelta will not require the information to which it is entitled. There is no point in making TriDelta return to the court on an annual, or worse yet semi-annual, basis to make repeated applications for the same relief. [21] The appellants next argue that some of the information ordered produced goes beyond “information concerning all matters affecting the limited partnership”, and may extend to information not available to the appellants. This submission raises issues which are, at this point in time, hypothetical. The appellants do not point to any specific material or information which they claim is beyond the production requirements under the Act. Nor do they refer to material or information to which they do not have access. Instead, the appellants argue there is no evidence they have the information. [22] This argument provides no basis for varying the order of Penny J. At best, it points to the possibility of the need to vary the order in the future. If a dispute should develop over the applicability of the order to certain specific information, or should TriDelta seek information that the appellants claim they do not have and cannot get, those issues may have to be litigated in the commercial court, unless the parties can resolve them on their own. [23] Finally, the appellants in their supplementary written submissions contend that parts of the order are so vague or so broadly framed as to make compliance all but impossible. We think this argument must also be addressed in the context of any specific issue that may arise in the course of the partnership and the appellants’ attempts to comply with the order of the application judge. None of the terms are so vague or overly broad on their face as to justify varying the order. Whether one or more of the terms may prove to be unworkable due to vagueness or overbreadth will only become apparent in circumstances which may or may not arise as the order is implemented. [24] The appeal is dismissed. Costs of the appeal to TriDelta in the amount of $7,000, inclusive of disbursements and relevant taxes. [25] In their supplementary written argument, the appellants requested an opportunity to make additional oral submissions. The panel is satisfied that no further submissions are necessary. “Doherty J.A.” “R.G. Juriansz J.A.” “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Van Delst v. Hronowsky, 2020 ONCA 329 DATE: 20200529 DOCKET: C66973 Rouleau, Hourigan and Roberts JJ.A. BETWEEN Lynda Mary Van Delst (Hronowsky) Respondent and Thomas John Hronowsky Appellant Rodney Cross, for the appellant Katherine Shadbolt and David Migicovsky, for the respondent Heard: March 11, 2020 On appeal from the order of Justice Tracy Engelking of the Superior Court of Justice, dated April 24, 2019, with reasons reported at 2019 ONSC 2569, 23 R.F.L. (8th) 306. Hourigan J.A.: Part I: Introduction [1] Certainty in the resolution of financial issues flowing from the dissolution of family relationships has been a policy imperative underlying much of the recent reform of family law in Canada. Child support, spousal support, and the division of family property have all been clarified through legislative and regulatory reform. While certainty should be tempered by limited judicial discretion to ensure fairness, certainty facilitates two essential policy objectives of family law: the encouragement of settlement and the avoidance of costly litigation to resolve financial issues. [2] The Government of Ontario enacted legislation that came into effect in 2012 amending the Pension Benefits Act , R.S.O. 1990, c. P.8 (the “ PBA ”) and the Family Law Act , R.S.O. 1990, c. F.3 (the “ FLA ”), to simplify the valuation of pensions for purposes of calculating net family property. This legislation brought much-needed certainty to the valuation of what, in many cases, is the most significant asset held by litigants on their valuation date. A formula was established for pension valuations and the responsibility for calculating that value was imposed on pension administrators. Thus, courts largely got out of the business of pension valuation. For litigants this provided both certainty and fairness. It also allowed them to avoid the costly process of retaining actuarial experts and litigating competing pension valuations. [3] The Ontario rules for valuating provincially regulated pensions for equalization purposes are relatively clear and easily applied. However, the valuation of federally regulated pensions is not as certain. Parliament has not reformed the law regarding pension valuations to bring it in line with the Ontario legislation. Until it does, Ontario courts must apply, to the extent reasonably possible, the provincial approach to valuing federal pensions for family law equalization. [4] In the present case, the most significant issue at trial was the valuation of the parties’ federally regulated pensions for equalization purposes. Three aspects of the trial judge’s reasons on this issue are challenged on appeal: (i) the determination of the parties’ normal retirement dates; (ii) the decision not to include in the respondent’s net family property the contingent interest she held in the appellant’s pension; and (iii) the inclusion of a contingent survivor benefit in valuating the parties’ pensions. While the trial judge reached the right conclusions on the survivor benefit and contingent survivor benefit issues, she erred in her approach to all three issues by failing to heed the requirement of s. 10.1(2) of the FLA that, in valuating pensions that are not provincially regulated, the Ontario method of valuation should be applied, with only necessary modifications. [5] In my view, the correct approach to pension valuation issues such as those on appeal is for parties to obtain valuations from their pension administrator where possible. Where this is not possible or issues remain as to the proper application of the Ontario regime to a federal pension plan, the parties should refer such issues to a trial judge for determination, usually with the aid of a jointly appointed expert. However in this case, given what has transpired, I would suggest, as will be explained below, a different process to resolve these issues. [6] In addition to the pension valuation issues, the appellant also appeals certain date of marriage deductions and notional disposition costs used by the trial judge in calculating net family property. Further, he seeks an order permitting him to pay part of his equalization payment by means of the transfer of a lump sum from his pension. I would dismiss these grounds of appeal, as they are meritless. Part II: Background Facts [7] The appellant and respondent were married in October 1995 and separated in September 2016. Both spouses worked for entities governed by the federal Public Service Superannuation Act , R.S.C. 1985, c. P-36 (the “ PSSA ”). The appellant became a pension member on December 4, 1984, and retired on December 17, 2016. The respondent started working for the Royal Canadian Mounted Police in 2008 and continues to be employed. [8] The respondent commenced an application in the Superior Court in May 2017 seeking orders for spousal support, child support and custody, along with the equalization of net family property. In August 2017, the appellant filed his answer. In September 2018, the respondent amended her application to include a claim for divorce. The appellant was alerted to the respondent’s intention to divorce at least as early as November 2017. The parties were able to resolve all issues except equalization, which proceeded to trial. The calculation of net family property was based on a series of findings made by the trial judge that are challenged on appeal. [9] The most significant component of the net family property calculation was the values of the parties’ pensions. According to s. 10.1(1) of the FLA , the imputed value for family law purposes of a spouse’s interest in a pension plan is determined in accordance with s. 67.2 of the PBA . [10] If, as here, the pension plan is a plan to which the PBA does not apply, s. 10.1(2) of the FLA nevertheless requires the PBA approach be used, “with necessary modifications”. One element of the valuation calculation under the PBA is the normal retirement date under the plan. Provincially regulated plans are required to provide a normal retirement date, which permits a straightforward valuation calculation. The PSSA does not list a normal retirement date. [11] Both parties tendered reports by experts valuating their respective pension plans. The respondent’s expert used 65 as her normal retirement date because, although retirement with an unreduced pension is possible at 60, a “fair amount” of civil servants work past 60. The appellant’s expert calculated the value using ages 60 and 65. He used 60 because this is when all members who joined prior to 2013 are entitled to unreduced benefits. The appellant’s expert opined that 65 was also reasonable for several reasons, including because it was not unusual for members to retire after 60 and the majority of pension plans in Canada define the normal retirement age as 65. [12] The trial judge concluded that the normal retirement date for the appellant was age 60 and for the respondent age 65. These conclusions were based on the pre-separation evidence of the parties’ intended retirement dates. In approaching the issue this way, the trial judge relied on the method for determining the likely retirement date from Di Francesco v. Di Francesco , 2011 ONSC 3844, at para. 31. The trial judge found that the respondent continues to work and intends to do so until age 65. The appellant, meanwhile, planned to retire when he was entitled to an unreduced pension. There was evidence that he remained in his job slightly longer than that in order to settle a grievance with his employer. [13] When she calculated net family property, the trial judge excluded the respondent’s survivor benefits under the appellant’s pension, because the respondent would lose her entitlement to those benefits at the time of divorce. The value of the appellant’s survivor benefit was not provided and was not included in his net family property. Contingent survivor benefits were included in the net family property calculation, over the appellant’s objection. The trial judge also made several findings on the appellant’s date of marriage deductions and the parties’ notional disposition costs. [14] Ultimately, the trial judge calculated net family property of $1,834,578 for the appellant and $707,458 for the respondent. Accordingly, she ordered that the appellant must pay the respondent $563,560 to equalize their net family properties. Part III: Analysis [15] There are five main issues on this appeal: (i) the appellant’s motion to tender fresh evidence; (ii) objections to the pension valuations; (iii) objections to the date of marriage deductions; (iv) objections to notional disposition costs used by the trial judge in calculating net family property; and (v) a request for an order that part of the appellant’s equalization payment be made by means of a transfer of a lump sum out of his pension plan. (i) Fresh Evidence Motion [16] The appellant brought an application to tender fresh evidence. I would dismiss that application, other than with regard to the documents at tabs 12, 13, 14, and 15 of the appellant’s materials, which were trial exhibits. [17] The appellant has not met his onus under Palmer v. The Queen , [1980] 1 S.C.R. 759, to establish that the remaining evidence could not have been adduced at trial with due diligence. (ii) Pension Valuation Issues (a) The General Approach [18] The process for valuating pensions is set forth in s. 67.2 of the PBA , the relevant provisions of which provide as follows: 67.2 (1) The preliminary value of a member’s pension benefits, a former member’s deferred pension or a retired member’s pension under a pension plan, before apportionment for family law purposes, is determined by the administrator in accordance with the regulations and as of the family law valuation date of the member, former member or retired member and his or her spouse.  2010, c. 9, s. 44 (1). * * * (5) The imputed value, for family law purposes, of each spouse’s pension benefits, deferred pension or pension, as the case may be, is that portion of the preliminary value that is attributed by the administrator, in accordance with the regulations, (a) to the period beginning with the date of the spouses’ marriage and ending on their family law valuation date, for the purposes of an order under Part I (Family Property) of the Family Law Act ; or (b) to the period beginning with the date determined in accordance with the regulations and ending on the spouses’ family law valuation date, for the purposes of a family arbitration award or domestic contract.  2009, c. 11, s. 49. [19] The other critical legislative provisions for the purposes of the valuation of pensions in the family law context are subsections 10.1(1) and 10.1(2) of the FLA : 10.1 (1) The imputed value, for family law purposes, of a spouse’s interest in a pension plan to which the Pension Benefits Act applies is determined in accordance with section 67.2 or, in the case of a spouse’s interest in a variable benefit account, section 67.7 of that Act.  2009, c.11, s. 26; 2017, c. 8, Sched. 27, s. 21 (1). * * * (2) The imputed value, for family law purposes, of a spouse’s interest in any other pension plan is determined, where reasonably possible, in accordance with section 67.2 or, in the case of a spouse’s interest in a variable benefit account, section 67.7 of the Pension Benefits Act with necessary modifications.  2009, c.11, s. 26; 2017, c. 8, Sched. 27, s. 21 (1). [20] The use of the phrase “with necessary modifications” in s. 10.1(2) of the FLA indicates a legislative intent that the substance of s. 67.2 of the PBA be applied, while recognizing that some details may require modification. As the Supreme Court of Canada has recently observed, the words “with necessary modifications” are a contemporary reformulation of the Latin phrase mutatis mutandis : see R. v. Penunsi , 2019 SCC 39, 378 C.C.C. (3d) 37, at para. 49. They mean that the rules to be applied are read with necessary changes in points of detail, while the matter remains the same: Penunsi , at para. 50. [21] In a recent decision considering s. 10.1(2) of the FLA , Raikes J. held that any departure from the PBA methodology must be justified as necessary by the party seeking that departure: Kelly v. Kelly , 2017 ONSC 7609, at paras. 161-162. I agree with and adopt that statement. This approach is consistent with the language of necessary modification. If one of the parties can show that, because the plan is not regulated under the PBA , a modification to the approach is necessary, departure will be warranted. Otherwise, the default position is that the PBA approach is to be used. [22] This approach is also consistent with the legislative intent in reforming pension valuation on marital breakdown. The purpose of the new legislation was to create a uniform approach that would create certainty and avoid costly litigation over pension valuations: see Ontario, Legislative Assembly, Official Report of Debates (Hansard) , 39th Parl., 1st Sess., No. 92 (24 November 2008) at 4156 (Hon. Christopher Bentley); and Ontario, Legislative Assembly, Official Report of Debates (Hansard) , 39th Parl., 1st Sess., No. 111 (19 February 2009) at 4891 (Hon. Christopher Bentley). [23] In summary, the legislature has signalled a clear intention in s. 10.1(2) of the FLA that a non-Ontario pension be valuated wherever possible in the same manner as an Ontario regulated pension. This means that the valuation formula in the PBA regulation Family Law Matters O. Reg. 287/11 should be applied to a non-Ontario pension with modifications only where necessary. In addition, a purposive interpretation of s. 10.1(2) of the FLA requires that, to the extent that other Ontario statutory provisions or regulatory requirements impact the valuation of a pension for family law purposes, they too should be applied to the valuation of a non-Ontario pension. [24] In other words, a pension administrator should, to the extent possible, valuate a non-Ontario pension as if it were an Ontario pension. This is consistent with the purpose of the valuation exercise, which is to obtain a fair, predictable, and consistent division of net family property. Thus, it is important that provincial and federal pensions be valuated in the same manner, to the extent reasonably possible. [25] The problem with the trial judge’s analysis of the parties’ pensions is that she did not default to the requirement that a federally regulated pension should be valuated in the same manner as a provincially regulated pension unless a departure from the methodology was necessary in the circumstances. Instead, she applied the pre-legislative-reform approach of tailoring the pension valuation to the parties’ specific circumstances. I turn now to consider the specific objections to the trial judge’s valuation of the parties’ pensions. (b) Did the trial judge err in determining the parties’ normal retirement date? [26] As noted, the term “normal retirement date” is one of the variables included in the pension valuation methodology prescribed under the PBA . In this case, in order to calculate the value of the parties’ pensions in accordance with this methodology, the parties’ actuaries had to fix a value for this variable. Fixing a value for the normal retirement date for the plan at issue requires a modification. This is because “normal retirement date” is a defined term in the PBA meaning “the date or age specified in the pension plan as the normal retirement date of members”: see s. 1(1). Plans regulated by the PBA must specify a normal retirement date: s. 10(1)4. However, the plan at issue is not regulated by the PBA and therefore is not required to, and does not, specify a normal retirement date. The definition is therefore not helpful and must be modified when applying the PBA rules to valuate these pensions for family law purposes. [27] The question is what modification is necessary. As discussed above, the legislature signaled a desire, in prescribing the PBA methodology with necessary modifications, that the substance of this methodology be followed, even though the details of a federally regulated plan may not map perfectly onto provincially regulated plans. [28] In the absence of a fixed value referenced in the definition, the meaning of the term normal retirement date can nonetheless be determined by reference to how it is used in the provincial scheme. An analysis of its use in the PBA and other regulated pension plans shows that the normal retirement date is not a case-specific value reflecting when a given member is likely to retire. Rather, it is a generalized value representing the date at which the pension plan entitles any given member to unreduced pension benefits. [29] After reaching the normal retirement date, working members become entitled on terminating employment to the benefits to which they are entitled under their plan: PBA , s. 35(3). The PBA requires that this date be no later than one year after the member turns 65: s. 35(1). However, members do not necessarily all retire at the normal retirement date. The PBA foresees that members may work past the normal retirement date and potentially earn additional pension benefits, but these additional amounts can be capped by the terms of the plan: PBA , s. 35(3). [30] This analysis is confirmed by the terms of various major pension plans. Across pension plans, members’ normal retirement date is the date at which any member is entitled to retire with unreduced pension benefits: see OMERS Primary Pension Plan, s. 16; University of Toronto Pension Plan, s. 6.01; Healthcare of Ontario Pension Plan, ss. 6.1, 6.2; OPSEU Pension Plan, s. 10.1; Rules and Regulations of the Multi-Sector Pension Plan, s. 3.01; and The College of Applied Arts and Technology Pension Plan, s. 6.01. [31] This is consistent with guidance from the Financial Services Commission of Ontario (‘FSCO”), the agency responsible for the regulation of Ontario pensions. In their policy, Retirement Dates , R700-101 , they define the normal retirement date this way: As a minimum standard under the PBA the normal retirement date is the date or age specified in the pension plan as the normal retirement date of members. The PBA requires every plan to specify a normal retirement date. Section 10(1) of the PBA specifies the documents that create and support a pension plan shall set out the normal retirement date under the plan. Section 35(1) requires this date be no later than one year after the member reaches age 65. A member has the right to retire and begin receiving an unreduced pension at the normal retirement date, if the member so chooses. The PBA does not require a pension plan member to cease employment and begin receiving a pension at the normal retirement date or age. A former member or other person who is entitled to a deferred pension is also eligible to begin receiving an unreduced pension at the normal retirement date. [Emphasis added.] [32] Thus, the functional meaning of the term “normal retirement date” in the PBA scheme is the date or age at which any given member of a pension plan is entitled to retire with unreduced pension benefits. [33] The trial judge did not ask what modification was necessary in order to calculate the value of the pension in accordance with the PBA methodology. Instead, she determined the parties’ respective normal retirement dates based on their case-specific intentions. [34] This approach is inconsistent with s. 10.1(2) of the FLA , which provides that the PBA formulae be used subject to necessary modifications. As discussed above, this language connotes the legislative intent to preserve the substance of the referenced rules, while providing for inevitable adjustment on points of detail. Though a modification was required here because the federal pension did not stipulate a normal retirement date as required under the PBA , the trial judge was required to adopt the functional meaning of normal retirement date in the PBA — namely the date or age at which any given member is entitled to retire with unreduced pension benefits. [35] The PSSA pension benefits are structured in a similar way to pension benefits under Ontario plans. Upon reaching a specified age, a contributor who ceases to be employed in the public service is entitled to unreduced benefits (an “immediate annuity”): ss. 12(1), 12.1(2), 13(1)(a), 13.001(1)(a). Unreduced benefits are also available by reason of disability: PSSA , ss. 12(1)(a,c), 12.1(2)(a,c), 13(1)(b), 13.001(1)(b). Contributors who cease to be employed in the public service earlier may nonetheless be entitled to unreduced benefits based on their years of service, and otherwise are entitled to reduced benefits: ss. 13(1)(c), 13.001(1)(c). [36] It is discernable from the terms of the PSSA at what age all contributors are entitled to retire with an unreduced pension, which is equivalent to the normal retirement date in the provincial plans. Using this date preserves the substance of the PBA rules in applying them to plans that do not explicitly specify a normal retirement date. This is consistent with the intention underlying s. 10.1(2) of the FLA . [37] The trial judge erred by replacing the generalized concept of normal retirement date, as defined under the provincial scheme, with a case-specific value for which there is no statutory authority. This was not necessary because a functional equivalent to the normal retirement date is apparent on the face of the parties’ pension plan. The trial judge’s approach is undesirable because it implements a case-specific approach that is likely to involve more litigation, and is exactly what the legislature sought to avoid in enacting s. 10.1(2) of the FLA . [38] Applying an approach based on the terms of the pension plan rather than the intentions of the parties, the normal retirement date for both parties is age 60. The parties’ benefits are outlined in s. 13 of the PSSA . It provides different sets of pension benefits depending on when the person began contributing and the amount of pensionable service they have accumulated. Contributors are entitled to s. 13 benefits where they are “Group 1” contributors with two or more years of pensionable service: s. 13(1). Both parties in this case are “Group 1” contributors because they worked for the public service before 2013: PSSA , s. 12(0.1). They both also have at least two years of pensionable service. Therefore, s. 13 applies to both parties. [39] The functional equivalent of the normal retirement date in s. 13 is the date on which the contributor reaches 60 years of age. Section 13 provides any contributor who has reached 60 years of age and has credited two years of pensionable service with immediate unreduced benefits on retirement: PSSA , s. 13(1)(a). As in the provincial plans, there are circumstances in which certain contributors may be entitled to unreduced benefits at an earlier date due to disability or having credited a threshold of pensionable service. However, at age 60, any contributor who retires is entitled to unreduced benefits, as with the normal retirement date in the provincial scheme. [40] For these reasons, applying the PBA valuation methodology with necessary modifications to the pension benefits provided by s. 13 of the PSSA requires the substitution of the definition of normal retirement date with the date that the parties reach age 60. [41] I add the following regarding the process to be followed when valuating non-Ontario pensions. Generally, the same process should be followed as with a provincially regulated plan. The parties should request that the pension administrator generate a value based on the Ontario law. If a pension administrator, who is not regulated by the provincial legislation, refuses to calculate the value, or if issues arise regarding the necessary modifications to be made, directions from the court may be sought. The preferable approach is that a single jointly-appointed expert provides expert evidence. The appointment of competing valuators should be avoided because it encourages the type of costly valuation litigation that the new legislation was designed to avoid. [42] I note the Family Law Rules were recently changed to encourage the use of joint litigation experts. Rule 20.2(8)2 now requires joint litigation experts wherever the court so orders. Rule 17(4)(d.1) prompts the court to explore expert evidence issues at case conferences and make related orders. The joint expert can set out for the court the relevant decisions that need to be made in order to apply Ontario law to a federal pension, as well as potentially necessary modifications. It would then be for the court to determine whether any of the suggested modifications meet the high threshold of “necessary” mandated by the FLA . [43] What remains to be done in this case is a calculation of the equalization payment owing based on a correct normal retirement date of age 60 for both parties. The appellant’s expert provided a calculation assuming a normal retirement date of age 60, and it appears that the respondent’s expert prepared this calculation as well. In the circumstances of this case, where important arguments regarding normal retirement date were not clearly made before the trial judge, and where further cost and delay should be minimized, I would direct the matter back to the trial judge to determine the equalization payment owing based on the experts’ age 60 calculations plus the parties’ further equalization calculation submissions. (c) Should the trial judge have included the survivor pension in the respondent’s net family property? [44] The appellant submits that the trial judge erred in not including in the respondent’s net family property the contingent interest she had in the appellant’s pension in the event that he died while they remained married. The parties’ positions on appeal on this issue mirror their arguments at trial. [45] The appellant’s position is that the respondent was entitled to a survivor pension from him that was valued at $392,270 on the valuation date and that this asset should be included in her net family property calculation. As of the date of separation, he argues, there was no intention to divorce and he notes that the respondent did not claim a divorce in her original application. [46] In response, the respondent submits that under the terms of the PSSA she is not entitled to a survivor pension from the appellant if she is not his spouse at the time of his death. Therefore, she submits that this contingent right cannot count as an asset of hers at the date of separation. She takes the position that the fact that she did not claim a divorce in her original pleadings is irrelevant, as she subsequently sought and was granted leave to amend her pleadings to include that claim. [47] The trial judge accepted the respondent’s submission that this amount should not be included. Her reasoning was that the respondent had asked for a divorce, which was consented to by the appellant, and therefore the appellant would not fall within the definition of a survivor within the PSSA . In making this ruling, the trial judge relied on Humphreys v. Humphreys (1987), 1987 CarswellOnt 309, 7 R.F.L. (3d) 113, and Martin v. Martin , 2018 ONSC 6804. [48] In my view, the trial judge reached the correct result on this issue but erred in her analytical approach. She determined that the most equitable result would be that the survivor pension should not be included because the respondent would lose the benefit of this asset as soon as the divorce was granted. The correct approach was to treat this issue the same way it would be treated if this were an Ontario pension by first asking: What would the law require if this were an Ontario pension? Once that has been determined, the next question is whether any modifications of that approach are necessary in the circumstances. [49] The appellant’s expert provided the following opinion in his report: The Ontario Pension Benefits Act and regulations only assigns a family law value to a survivor pension payable to the former spouse if the separation occurs after retirement. This is logical for Ontario regulated pension plans since a spouse who is separated from the member prior to retirement will not be entitled to a survivor pension on the member's retirement. However, this does not necessarily reflect the survivor pension entitlements in the case of pension plans from other jurisdictions, such as the PSSA, where a separated married spouse is entitled to the survivor pension if the marriage commenced prior to retirement and the member and spouse are not divorced at death. [50] In the present case, neither spouse had retired as of the date of separation. The appellant’s expert testified that inclusion of the survivor benefit, and exclusion of the contingent survivor benefit, would be modifications of the usual approach but they might be necessary: Q. What necessary modifications did you have to make? A. … The other issues of necessary modifications are the two issues we've discussed in Section 2.1 and 2.2. And whether those modifications are necessary is for the court to decide, but one modification could be to remove the contingent survivor benefits from the value in this case. Another modification could be to ascribe some value for the survivor pension payable to Ms. Hronowsky - her current entitlement to it I should say, not payable. But other than that, I haven't made any, any modifications to the rules per se, aside from making a judgment on the normal retirement age. But I provided Section 2.1 and 2.2 due to the unique nature of the survivor benefits in this plan. The Court might deem it appropriate to make an, an adjustment to the standard rules, so I provided sufficient - tried to provide sufficient information to allow the court to make that judgment. [Emphasis added.] [51] The appellant’s expert was of the view that including some value for the survivor benefit in these circumstances would represent a “modification” of the usual approach, and an “adjustment of the standard rules”. He suggested that this might be necessary because, unlike with an Ontario pension, the respondent remained technically entitled to the survivor benefit post-separation until the parties divorced. [52] I do not see modification of the usual approach to include this benefit as necessary on the facts of this case. The expectation is that the Ontario regime will be applied where reasonably possible, unless there are compelling reasons not to. In these circumstances, where entitlement to the survivor benefit terminates upon divorce, and the respondent sought a divorce early on in proceedings, and the appellant consented to the granting of a divorce, there is no compelling reason to depart from the requirements of the standard rules to include the full value of an asset never to be realized in the hands of the respondent. [53] Based on the forgoing, I would dismiss this ground of appeal. (d) Did the trial judge err in including a contingent survivor benefit in the appellant’s net family property? [54] The appellant argues that the trial judge erred in including a contingent survivor benefit in valuating his pension. A contingent survivor benefit is payable to a pension member’s future potential spouse. Some value for a contingent survivor benefit is included in the value of a pension based on the probability of the member having an eligible spouse at death and based on the age of the spouse. The appellant took the position that this figure should not be included in the value of his pension, whereas the respondent’s expert included the figure in her pension valuation. The trial judge included these figures in calculating the value of both parties’ pensions. [55] Again, the trial judge reached the correct result on this issue but erred in her analytical approach. As with the other pension issues, the correct approach was to determine what the law would require if this were an Ontario pension and then determine whether any modifications of that approach are necessary in the circumstances. [56] The appellant’s expert stated that the Standards of Practice of the Canadian Institute of Actuaries require actuaries to include contingent survivor benefits in the commuted value of a member’s pension benefits on termination. He further stated that the FSCO has instructed pension plan administrators “to include the value of contingent survivor benefits in the family law value in the same way the pension plan includes this value when determining the commuted value for terminated pension plan members.” He described the inclusion of this benefit in the appellant’s net family property as “in accordance with the regulations and the generally accepted methodology for calculating Ontario family law values.” [57] The appellant’s expert opined that, notwithstanding the foregoing, including the survivor pension payable to a possible future spouse was unfair because the member may not have an eligible spouse, and even if the member does have an eligible spouse, the survivor pension would be an asset of the future spouse, not an asset of the member. [58] According to even the appellant’s expert, if this were an Ontario pension the pension administrator would have been obliged to follow the FSCO direction and include these figures. In the testimony quoted above, the appellant’s expert acknowledged that exclusion of the contingent survivor benefit would represent a modification of the standard methodology. Again, I see no compelling reason why the usual valuation approach should be modified for the parties’ federal pensions. The ability to confer a survivor benefit on a future partner is of value to a pension member even if the member does not receive these funds personally. In any event, no changes are necessary for the court to apply the usual provincial approach to these federal pensions. The appellant’s retirement was a post-separation event, and such events generally will not affect the valuation of assets on valuation day according to the standard methodology. I would, therefore, dismiss this ground of appeal. (iii) Date of Marriage Deductions [59] The issue here is the treatment of interest in the appellant’s net family property statement. In his date of marriage property, he included prorated figures for interest earned on his Scotiabank Guaranteed Investment Certificate, Canada Savings Bonds, and Bank of Nova Scotia RRSP. The trial judge found that it was permissible for the appellant to include the interest earned on his pre-marriage assets. However, in order to include this interest as property owned on the date of marriage, she found that the appellant was obliged to include interest for the property he owned on the date of separation. The trial judge found that he did not undertake this exercise for these date of separation assets and stated that the appellant “cannot benefit by including interest in his calculations when it is advantageous to him and not including it when it is not.” [60] The appellant submits that the trial judge erred in fact in finding that he did not include interest in his date of separation assets. I am not persuaded by this argument. The appellant’s net family property statements suggest that he did not include interest in his date of separation assets. For example, in his December 10, 2018 statement, his Scotiabank Guaranteed Investment Certificate is assigned a value of $85,000 as of the valuation date and the same figure is used for the current value. This strongly suggests that interest was not included, as there is no increase in the value between the two dates. The onus is on the appellant to show that the trial judge’s factual findings should be overturned. This would require evidence of the inclusion of interest in his date of separation values, and the methodology used to reach such figures, sufficient to displace the trial judge’s findings against him on this issue. [61] Having found as a fact that the appellant did not include interest in these date of separation asset values, I see no legal error in the trial judge’s decision to disregard the date of marriage interest values for the sake of consistency. I would, therefore, dismiss this ground of appeal. (iv) Notional Disposition Costs [62] The appellant has raised a number of alleged errors regarding the treatment of notional disposition costs. Specifically, he submits that the trial judge erred in: · not using a marginal tax rate of 26.9% for the pre-marriage portion of his retiring allowance; · using a 25.8% marginal tax rate at age 60 instead of a rate of 26.9%; · not using a 45% marginal tax rate for the retiring allowance as at the date of separation; · not applying a notional disposition cost for his non-registered SSI account; and · using an 18% disposition rate for the respondent’s remaining contribution deficiencies. [63] I am not persuaded that there is a basis to interfere with the trial judge’s calculation of notional disposition costs. The appellant failed to meet his onus of adducing sufficient evidence to establish these costs. For example, the appellant led no evidence regarding the appropriate tax rate to apply to his date of marriage severance pay, and the only information the court had with regard to the appellant’s marginal tax rate as at the date of separation was the agreement of the parties that the tax rate on the retroactive pay he received should be 45%. Moreover, the 25.8% rate used was the same one used by the appellant’s actuary assuming a retirement age of 60. In addition, the 18% rate was the same rate the appellant used in his Net Family Property Statement dated December 10, 2018, and he did not challenge this rate at trial. Deference is owed to the trial judge’s assessment of the evidence relating to costs of disposition: see Berta v. Berta , 2015 ONCA 918, 128 O.R. (3d) 730, at para. 82. [64] For these reasons, I would dismiss this ground of appeal. (v) Method of Equalization Payment [65] The appellant submits that the trial judge should have permitted him to satisfy part of his equalization payment by transfer of a lump sum out of his pension plan. He submits that the requirement to make such a large equalization payment means that he will have to arrange financing to satisfy the equalization payment. [66] I would not give effect to this submission. The appellant stated explicitly in his amended answer, in the context of his argument that the respondent should have his survivor pension added to her net family property, that he would not apply for division of his pension under the Pension Benefits Division Act , S.C. 1992, c. 46, Sch. II, as this would terminate her entitlement to the survivor benefit. Thus, he made a strategic decision not to seek an order for a lump sum transfer. [67] In addition, the evidence at trial established that he had the ability to make the required equalization payment without the need to rely on a lump sum transfer from his pension. His financial statement showed substantial liquid assets, including cash, proceeds from the sale of the family home, and securities. [68] In his closing argument, the appellant’s counsel summarized his client’s position this way: The last point I will bring up, Your Honour, is splitting - my friend alluded to splitting Mr. Hronowsky’s pension of the Pension Benefits Division Act . He does not want to do that, he’s able to pay, and therefore there’s no need to make that order. Certainly, in light of the fact that he has enough liquidity, that, within a matter of a month or so, he should be able to pay the – whatever the equalization payment, Your Honour, thinks is appropriate. [69] The trial judge cannot be criticized for doing exactly what the appellant invited her to do. In taking the strategic position he did at trial, the appellant was no doubt aware of the possibility that the trial judge would be making an order for a substantial equalization payment. [70] I would dismiss this ground of appeal, as I see no basis for appellate interference. The cross-appeal seeking an order that any lump sum payment be grossed up need not be addressed, given the result on this issue. Part IV: Disposition [71] I would allow the appeal in part and order that the parties’ pensions be valuated in accordance with these reasons, and that the resulting adjustment be made by the trial judge to the equalization order. If the parties cannot agree on the costs of the appeal and the trial, they may serve and file written submissions of no more than five pages, plus bills of costs, within two weeks of the date of these reasons. Released: “P.R.” May 29, 2020 “C.W. Hourigan J.A.” “I agree. Paul Rouleau J.A.” “I agree. L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Volk v. Volk, 2020 ONCA 297 DATE: 20200508 DOCKET: M51316 (C67918) Miller J.A. (Motions Judge) BETWEEN George Volk Responding Party Applicant (Respondent) and Doris Volk, Darlene Mussato , Lisa Volk, Felicia Mussato and Public Guardian and Trustee Moving Parties Respondents ( Appellants ) Jerry W. Switzer, for the moving parties Ellen Ann Brohm, for the responding party George Volk Heard: May 6, 2020, by combination of Teleconference and Videoconference REASONS FOR DECISION OVERVIEW [1] The moving parties bring this motion for a stay of an order for the sale of real property, pending appeal to this court of an order of McCarthy J. dated January 7, 2020. The order under appeal provides a suite of remedies in an application under the Substitute Decisions Act , R.S.O., 1990 c. 30, brought by the respondent, George Volk, primarily against his daughter, Darlene Mussato, and granddaughter Felicia Mussato. For the reasons given below, the motion for a stay is dismissed. [2] The litigation arises out of a dispute over the alleged mismanagement by the moving parties of the financial affairs of Doris Volk, the wife of George Volk and mother of Darlene Mussato. Doris Volk is incapable of managing her own affairs, and had executed a power of attorney for property and personal care, appointing her daughters Darlene Mussato and Lisa Volk. [3] The attorneys sold the matrimonial home in which George and Doris Volk resided. The application disputes their authority to have done so, and seeks an accounting of the proceeds of sale and other assets. [4] Some of the proceeds of sale are alleged to have been used by the moving parties to purchase, improve, and maintain the real property that is the subject of this motion – 4 Rose Cottage Lane, Schomberg – supplying the down payment, the continuing mortgage payments, and other expenses. [5] Felicia Mussato is the registered owner as to 99% of the property, with Doris Volk the registered owner as to 1%. There is a dispute as to whether Doris Volk intended to gift the down payment and continuing mortgage payments to Felicia. [6] George Volk and Doris Volk had been living at the property with Darlene Mussato and her partner. The arrangement has not been a happy one. [7] George Volk brought the present application as a dependant of Doris Volk under the Substitute Decisions Act , R.S.O. 1990, C. 30, seeking, among other things, guardianship for Doris Volk’s financial and personal care, and a passing of accounts. He also sought the sale of the property, which George Volk argues is depleting the resources of Doris Volk to her detriment (and to his, as her dependant) and to the benefit of the moving parties. [8] George Volk brought a motion for interim relief, in which he sought – among other things – an order that Darlene Mussato and her partner vacate the property, that the property be listed for sale, and that the proceeds of sale be paid to George Volk in trust for Doris Volk. This relief was granted in the order under appeal and the moving parties have appealed to this court. A court ordered timetable remains in place to address the balance of the application. Analysis [9] The question whether a stay should be ordered is governed by the three inquiries set out in RJR-Macdonald Inc. v. Canada (Attorney General) , [1994] 1 S.C.R. 311. The moving party must show that: a) There is a serious question to be tried; b) The moving party will suffer irreparable harm if the stay were refused; and c) The balance of convenience favours granting the stay. [10] As to the first inquiry, there is little likelihood that the appeal could succeed. The moving parties have not identified a plausible ground of appeal. There is no serious dispute that they were validly served. Furthermore, it was evident from the materials they received, and the correspondence they had with counsel for the respondent, their previous attendances in court, and their answers to undertakings that they knew what was in issue. They chose not to attend. They did not move under Rule 37.14 to have the order set aside in Superior Court on the basis of “accident, mistake, or insufficient notice”. Nor could they have done so, on the evidence before me. The moving party Felicia Mussato objects that counsel for George Volk “did not advise myself or my mother that it would be in our best interest for us to attend the court on January 7, 2020.” Counsel had no obligation to persuade the moving parties to attend. Their failure to appear does not provide a ground to appeal the order. [11] The second ground of appeal identified by the moving parties is that it was an error to order the sale of the property at the application of George Volk, when George Volk is not an owner of the property and is not the attorney for property of a registered owner. This cannot succeed. The application was brought under the Substitute Decision Act . The moving parties needed to engage with the powers of the court under the Substitute Decision Act , and explain how those powers were exercised in error. They have not an argument in this regard. [12] The moving parties have not met their onus on the first branch of RJR- Macdonald . [13] In my view, that is sufficient to dispose of the motion. I will, however, briefly consider the other factors. [14] The moving parties do not face irreparable harm from the sale of the property. Neither of them resides at the property, and neither appear to have more than a minimal financial investment in it, if anything at all. There appears to be no concern that the proceeds of sale would be dissipated. The moving parties have not met their onus under the second factor. [15] With respect to balance of convenience, there is no harm to the moving parties. As noted above, they do not currently reside in the property (albeit because of court order) and have no financial stake in it. There is, however, potential harm to George Volk, who attests to the ongoing depletion of the assets of Doris Volk in maintaining a house that is larger and more expensive than what they require. The balance of convenience favours George Volk. DISPOSITION [16] The motion is dismissed. Costs of this motion, and costs of the motion before Paciocco J.A. on April 14, 2020 that were reserved to this motion, are awarded to George Volk in the amount of $15,000 inclusive of disbursements and HST, payable forthwith. “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Welton v. United Lands Corporation Limited, 2020 ONCA 322 DATE: 20200527 DOCKET: C67272 Lauwers, Huscroft and Thorburn JJ.A. BETWEEN Darlene Welton Plaintiff (Appellant) and United Lands Corporation Limited and Stonebrook Properties Inc. Defendants (Respondents) AND BETWEEN Darlene Alice May Welton Plaintiff (Appellant) and United Lands Corporation Limited and Stonebrook Properties Inc. Defendants (Respondents) Sarah J. Erskine and Shannon Bennett, for the appellant Cameron D. Neil, for the respondents Heard: In Writing On appeal from the judgment of Justice Antonio Skarica of the Superior Court of Justice, dated September 27, 2019, with reasons reported at 2019 ONSC 3623. Lauwers J.A.: [1] Stonebrook hired the appellant, Darlene Welton, as Vice President of Marketing and Sales. A dispute arose concerning her compensation for sales for additional services she provided. She appeals the trial judge’s award of compensation to her on the basis that it was inadequate on the facts and the law. For the reasons that follow, I would dismiss the appeals on the merits. A. The factual context [2] David and John Welton were brothers and had worked together for decades. They incorporated Stonebrook Properties Inc. in 2004 as a joint venture to build a condominium development in Mississauga. Each of their respective companies, Davwel Investments Inc. and Johwel Investments Inc., held a 50% share in Stonebrook. The brothers fell out over this development and, it appears, over the appellant’s role and compensation. [3] The Stonebrook development comprised two high-rise condominium buildings, with Phase I having 226 units and Phase II having 225 units. Phase I sales launched in 2006 and the building was substantially completed in 2010. Phase II sales launched in 2010, but the building was cancelled in May 2012, as the result of low sales. [4] In the late 1990s, the appellant was a marketing and sales director at Hunter Milborne, a brokerage firm retained by developers to sell pre-construction condominium units, earning about $150,000 annually. She met David Welton in 2003-2004 when the Welton brothers retained Milborne to replace another brokerage on their Oakridge Heights condominium development, which was an earlier project. The appellant married David Welton about one year later. [5] In 2005, Stonebrook hired the appellant as Vice President of Marketing and Sales. Her employment was terminated at the end of 2012. During her tenure, the appellant received bi-weekly advances and some additional payments toward the ultimate remuneration owing to her. The trial judge accepted that Stonebrook paid her a total of $744,277.23. [6] On June 6, 2012, John Welton advised the appellant that her position would be terminated once the last units in Phase I were sold or transferred, which occurred in December 2012. The trial judge found that she received her last pay cheque at the end of December 2012, and, as of January 1, 2013, she was no longer employed by Stonebrook. [7] The case turned on the fact that the terms of the appellant’s employment were never formalized. The appellant brought two actions for compensation. She issued the 2012 Statement of Claim on October 25, 2012, while still employed by Stonebrook, claiming unpaid sales commissions of about $1.35 million. In the 2015 action, the appellant claimed compensation in the amount of $440,000 related to the Tarion Warranty claim, particularly her “Technical Audit work for Phase I from 2011 to 2013, including her settlement negotiations with its Condominium Corporation for outstanding deficiencies.” B. ISSUES [8] This appeal raises four issues concerning the appellant’s compensation: The rate of commission the appellant was to receive for the Phase I sales; the rate of commission for the Phase II sales; compensation for her construction services work; and compensation for her work on the Tarion Warranty claim against Stonebrook. The fifth issue concerns the costs award made at trial. [9] I address each issue in turn. C. Analysis (1) Issues One and Two: The Rate of Commission on Phase I and Phase II Sales [10] It is convenient to deal with the first two issues together. (a) The Appellant’s Claim [11] As the appellant describes it, in the 2012 action, she “claimed commissions equaling the greater of 2% of sales revenue net of taxes for Phases I and II, or $220,000 per annum.” By her calculation, as submitted to the trial judge, 2% totalled $1,330,997.22 for Phase I and $744,898.76 for Phase II. She advanced an alternative claim for $220,000 per year for seven years and four months, which amounted to $1,613,333.33. (b) The Trial Judge’s Award [12] The trial judge assessed the 2012 action in two parts corresponding to the development’s two phases. He set “a fair rate of remuneration” for Stonebrook Phase I at “1.5% of net sales, net of HST/GST and insider sales”: at para. 510. The trial judge deducted from this amount “payments to sales agents and sales personnel per the industry standard practice” and draws paid to the appellant: at para. 510. The appellant’s factum provides details of the trial judge’s calculations: The trial judge calculated the amount owing to [the appellant] for Phase I as 1.5% of $67,635,404.30 which totaled $1,014,531.06. He then deducted the amounts paid to sales staff of $261,268 and the $744,277.23 in advances already paid to [the appellant] to arrive at $8,985.83. The trial judge calculated the amount owing to [the appellant] for Phase II as 1.5% of $37,244,938.20 which totaled $558,674.07. He then implied a further term to reduce this amount to one-third and deducted amounts paid to sales staff and amounts paid to [the appellant] of $6,800 and $6,257.71, respectively, to arrive at $173,166.98. [13] For Phase II, the trial judge found that “pursuant to the usual practice …, [the appellant] would be entitled to 1/3 of her commissions based on the same commission rate of 1.5% of net sales net of HST/GST as the project was cancelled before construction commenced”: at para. 511. [14] In the result, the trial judge awarded the appellant the following commissions, at para. 517: · Stonebrook Phase I: $8,985.83 (net of deductions and draws) · Stonebrook Phase II: $173,166.98 · Total: $182,152.81 (c) The Appellant’s Position at Trial [15] The appellant argued at trial that the agreed remuneration was the greater of $220,000 per annum or 2% commission on sales revenue net of taxes. The trial judge traced the $220,000 per annum figure to a letter dated June 18, 2012 and signed by the appellant’s husband David Welton. He noted: “Crucially, this Tab 138 letter, dated June 18, 2012, signed by David and addressed to Darlene Welton ‘confirm the verbal [agreement] between you and I’ i.e. David and Darlene”: at para. 450. [16] The trial judge rejected the appellant’s evidence for two reasons. First, he relied on the evidence of Stonebrook’s chief financial officer. Second, he invoked the appellant’s own evidence, at paras. 451-452: The Tab 138 letter also indicates the agreed upon remuneration is 2% of sales revenue or $220,000 per annum, whichever is greater. Sidney Dick, Stonebrook’s chief financial officer, was shocked to see this $220,000 per annum claim. Accordingly, it can be concluded that Sidney Dick, a key financial officer, was never advised of an agreement of a minimum $220,000 per annum payment to Darlene. Sidney Dick testified that the subsequent Exhibit 1, Volume 3, Tab 148 demand letter from Darlene’s lawyer asking for $220,000 came ‘out of the blue,’ (the Tab 148 letter was dated July 16, 2012). In cross-examination, Darlene conceded that this reference to $220,000 per annum payment never appears in the documentary record prior to June 18, 2012. [17] Credibility was at issue in this case. The trial judge identified ten material inconsistencies and contradictions in the appellant’s evidence, which led him to reject her evidence as being “neither credible nor reliable”: at para. 414. He found that the appellant failed to prove there was an agreement to pay her a 2% commission of sales revenue net of taxes or $220,000 per annum, whichever was greater, at paras. 413-414, 458: Darlene’s evidence presented numerous inconsistencies. Further, as outlined above, she was also contradicted by her discovery evidence, filed exhibits, undertaking answers, and the evidence of other witnesses. Accordingly, I find that Darlene’s testimony was neither credible nor reliable. I reject her evidence, particularly her evidence regarding the alleged three-way agreement in 2006. I reject her evidence that John agreed to pay a 2% commission and/or $220,000 per year. Considering the evidence that I have summarized and my analysis of it, I have come to the conclusion that the plaintiff has failed to prove that there was an agreement between John, David and Darlene for a 2% commission of sales revenue net of taxes or $220,000 per annum, whichever is greater…[.] [18] In my view, the trial judge’s findings are amply justified by his extensive review of the evidence; the appellant has not identified a palpable and overriding error. (d) The Basis of the Trial Judge’s Commission Award [19] Stonebrook’s chief financial officer testified that he assumed that the sales commission rate would be the same rate as that of prior sales consultants – 1.5% – based on instructions received after a private meeting between the Welton brothers. Regarding this evidence, the trial judge noted, at para. 456: Mr. Dick testified that three months before the first cheque to Darlene in May 2006, John, after a closed door meeting with David, told Mr. Dick that Darlene’s sales commission would be the same sales commission rate as prior sales consultants. Mr. Dick assumed it would be 1.5%. [20] The trial judge found that there had been no further discussions apart from “an understanding in accordance with Welton brothers’ tradition” that the appellant would receive “fair remuneration in accordance with industry standards and the brothers’ past practices regarding commission rates”: at para. 490. [21] The trial judge determined that he should apply the principles of quantum meruit to determine the appropriate amount of remuneration in the absence of a formal written agreement: at para. 494. He found that the appellant had established a quantum meruit claim because she provided services at Stonebrook’s request “in circumstances that render[ed] it unjust for [Stonebrook] to retain the benefit conferred by the provision of the services”: at para. 192. As the trial judge found, John and David hired the appellant to be the Vice President of Marketing and Sales and, based on the documentary record, “it would be unjust for Darlene not to receive a fair commission for her services”: at para. 494. (e) The Appellant’s Appeal Argument [22] On appeal, the appellant shifted her position and did not argue that there had been agreement on her compensation. Instead, she argued that the trial judge had not properly valued her services. The appellant asserted in her factum: In light of all of the circumstances, $220,000 per year is a fair and reasonable valuation of Mrs. Welton's services to Stonebrook, and what Stonebrook could reasonably expect to pay someone else to perform those services. For the period between 2006 through 2013, Stonebrook should pay Mrs. Welton $1,760,000 less advances already paid of $744,277.23. This results in a damages award of $1,015,722.77. [23] The appellant argued that the trial judge made a palpable and overriding error by: “Making a finding of an ‘industry standard’ [of 1.5%] in the absence of any evidence of such standard, and in conflict with the expert evidence adduced by both parties that there is no industry standard.” [24] I would reject these submissions because the trial judge’s decision was rooted in the available evidence. [25] The appellant’s expert testified that there was no industry standard for sales commissions, but her report specifies that commission rates vary widely between 1% and 2%. Likewise, the respondents’ expert report stated there is no standard for commissions, but then summarized several attached agreements that set commission rates at between 1.25% and 1.5%. [26] The trial judge canvassed the evidence on industry practice, at paras. 496-504, and concluded that 1.5% was “a reasonable commission rate, within the experience and expectations of the [parties], and in conformity with industry standards”: at para. 505. The trial judge also noted that 1.5% was “midway between the 1% and 2% typical commission ranges as indicated at p. 3 of the plaintiff’s Exhibit 8 expert report”: at para. 505. He repeated this conclusion, at para. 510, before carrying out the calculation, based on a 1.5% sales commission rate, that led to the award for Phase I of the development. [27] On appeal, the appellant also challenged the trial judge’s deduction of amounts paid to sales staff of $261,268, renewing an argument she made at trial. The appellant testified at trial that she did not agree that sales staff’s salaries would be deducted from her commission. However, this evidence appears to conflict with an e-mail she sent to the company bookkeeper, Dolores Gosine, on August 3, 2011. In that e-mail, the appellant explains that Ms. Gosine had “deducted salaries paid for both phases” (emphasis in original). She asked Ms. Gosine to “recalculate the salaries paid for Stonebrook Phase I only” and to “remove any salaries paid to the others” with the exception of the sales staff, receptionists, sales office part-time help, and opening event help. She then stated that “all salaries paid, including my commission advances since June 4, 2010 [the date on which Phase II began], are to be applied against commissions earned for Phase II.” When pressed on cross-examination, she agreed she could have been clearer in the e-mail and simply informed Ms. Gosine that none of those salaries were to be deducted from her commission, if the sales staff’s salaries were irrelevant. The appellant then said she did not recall the e-mail at all or why she wrote it that way and what she was addressing in the e-mail. [28] In my view, the trial judge made no error in the deductions he made from the Phase I commissions. [29] Sales in Phase II began in spring 2010 and continued for just under two years. The trial judge found that due to insufficient sales to obtain the necessary construction loans John Welton decided that the project was no longer viable and would lose money. He cancelled Phase II in May 2012. The appellant claimed full commissions for the units sold in Phase II even though it was cancelled. [30] The trial judge reviewed comparable contracts provided by the experts and noted that the industry standard was to provide for cancellation, with payment of 1/3 of the commission for units on which the transaction closed. On that basis, he awarded the appellant 1/3 of her commissions based on a rate of 1.5% of net sales, net of HST/GST. [31] I see no error in the trial judge’s assessment of the commission rates applied to sales in Phase I and Phase II. (2) Issue Three: Compensation for Construction Services [32] The appellant submits that the trial judge failed to “consider the expert evidence that the additional construction services [she performed] … were not services performed by an outside broker.” The appellant’s expert testified that the additional construction services the appellant undertook did not fall under her mandate as Vice President of Marketing and Sales. Stonebrook’s expert did not provide evidence on this point. [33] The appellant argues that she should receive $150,000 per year (2006-2009) for her services as Vice President of Marketing and Sales, and $249,800 per year from 2010 through to the end of 2013 when she also performed additional construction services previously performed by Colin Pillar. Accordingly, she values this work at about $100,000 per year from 2010 to the end of 2013 based on the calculated differential between her salary and that of the Vice President of Development and Construction, Mr. Pillar, who was relieved of that work on the Stonebrook development. She argues that had she been unable to perform his duties, Stonebrook “would have had to employ someone else to oversee the project.” She asserts that the trial judge should have determined “what Stonebrook would have to pay someone to perform those service[s] if she had not provided them.” [34] The claim appears to be overstated because the appellant’s employment with Stonebrook ended in December 2012 and she did not begin to undertake this work until partway through 2010. [35] The trial judge found that “both Darlene and Stonebrook benefitted from their arrangement”: at paras. 496-497. Stonebrook leveraged its “full time sales and marketing employee who could devote more time and effort than a broker could provide” with respect to “the Tarion process and construction issues (areas not normally done by brokers)”: at para. 496. The trial judge found that the appellant anticipated commission in excess of her former base salary but was not exposed to the risks brokers commonly bear – “[she] had no overhead and did not have to pay sales agents personally. Basically, her commission pay was being in part subsidized by Stonebrook for many years”: at para. 497. [36] In my view, the trial judge did the best that could be done in the absence of evidence on the issue. The appellant provided no evidence as to the value of the additional construction services. I would defer to the trial judge’s findings on this issue. (3) Issue Four: Compensation for Work on the Tarion Warranty Claim [37] In the 2015 action, the appellant claimed unpaid wages of $440,000 related to the Tarion Warranty Claim, particularly her “Technical Audit work for Phase I from 2011 to 2013, including her settlement negotiations with its Condominium Corporation for outstanding deficiencies.” The trial judge dismissed this action. [38] The trial judge accepted that the appellant did some work on Tarion Warranty issues concerning the condominium building. Stonebrook settled the Tarion Warranty claim in November 2013 by paying $50,000 to the condominium corporation. [39] The trial judge observed that the appellant’s claim for work on the warranty issues “ha[d] shrunk from an initial potential claim in 2015 of approximately $600,000 to a claim in 2016 of $440,000 to a claim in 2019 of $220,000”: at para. 550. The trial judge noted that the appellant submitted no invoices for this work over the years that she was involved with it, from February 2010 to November 2013, and did not mention it in the 2012 action. The trial judge noted that: “The first ‘invoice’ was service of the October 2015 Statement of Claim”: at para. 529. [40] The trial judge analyzed this claim under the rubric of unjust enrichment and applied the correct test: Moore v. Sweet , 2018 SCC 52, [2018] 3 S.C.R. 303. He concluded that the first two elements of unjust enrichment were established: “the defendant received Darlene’s services and Darlene was not paid for her Tarion Warranty services”: at para. 552. However, he found that t he claim did not survive on the third element: whether there was a reason in law or justice for Stonebrook’s retention of the benefit conferred by the appellant. [41] The third element of the unjust enrichment analysis consists of two stages. First, the plaintiff must “demonstrate that the defendant’s retention of the benefit … cannot be justified on the basis of any of the ‘established’ categories of juristic reasons: a contract, a disposition of law, a donative intent, and other valid common law, equitable or statutory obligations” (internal citations omitted): Moore , at para. 57. [42] At the second stage, the defendant bears the onus of “rebut[ting] the plaintiff’s prima facie case by showing that there is some residual reason to deny recovery” (internal citations omitted): Moore , at para. 58. Here, the court considers two factors: the parties’ reasonable expectations and public policy considerations: Moore , at para. 58. [43] The trial judge focused on the second stage, particularly on the parties’ reasonable expectations. He found: “By January 2013, Stonebrook was no longer paying [the appellant] and refused to pay her invoices as John’s opinion was that [she] was asking for unreasonable amounts”: at para. 553. Therefore, the trial judge considered it to be objectively reasonable for her “to expect that Stonebrook would not pay for any future services provided by [her] for 2013”: at para. 553. He pointed out that the appellant “admit[ted] that given the litigation and background circumstances she herself expected that Stonebrook would refuse to pay voluntarily for any future services in 2013, without legal intervention”: at para. 553. [44] The trial judge observed that the appellant was involved in the Tarion Warranty process with Stonebrook in 2013, but found she was then employed by Davwel, which had a 50% interest in Stonebrook and had begun paying her salary as of June 2013. [45] The trial judge dismissed the appellant’s claim for unjust enrichment on the basis that, on the evidence, objectively it was “not within the reasonable expectation of the parties that any of Darlene’s services in 2013 would give rise to an after-the-fact claim for payment under the quantum meruit and unjust enrichment doctrine”: at para. 554. [46] The trial judge identified and applied the correct legal principles in dismissing the 2015 action. The appellant has not identified any palpable and overriding factual errors. (4) Issue Five: The Trial Costs [47] The appellant seeks leave to appeal the costs award in the 2012 action, on the basis that the trial judge imposed r. 49.10(2) costs consequences on her even though the respondents’ offer to settle was not delivered “at least seven days before the commencement of the hearing”: Rules of Civil Procedure , R.R.O. 1990, Reg. 194. It was delivered on May 13, 2019, which was six calendar and four juridical days before the trial started. The offer was for $190,000 plus costs. At trial, the appellant was awarded $182,000, but was required to pay the respondents’ trial costs on the basis that, as the trial judge said: “The defendants have beat their offer.” [48] However, the offer must be put into context. The trial judge noted in his costs reasons that the only previous offer was made before the 2012 lawsuit began. He noted that: “ On July 26th, 2012, the defendants, through their lawyer, offered a commission total of $14,898.26.” The action was started in October 2012. It is hard to see the attitude of the guiding minds of the respondents as anything other than roundly contemptuous of the appellant and her claims. It appears that reason entered the picture mere days before the trial, and the date, in the context of the animosity, might well have been strategic, to assert maximum pressure at the very last minute. [49] The trial judge rejected the respondents’ request for substantial indemnity costs on the basis that there was no misconduct to justify such an award. He found he had residual discretion under r. 49.13 to impose r. 49.10(2) costs consequences on the appellant based on this court’s decision in König v. Hobza , 2015 ONCA 885, 129 O.R. (3d) 57. He accepted the respondents’ submission that there was ample time for the appellant to deal with the offer even though it was too late. [50] In the result, the trial judge set off the appellant’s costs up to the date of the offer at $33,000 against the respondents’ partial indemnity trial costs, which he calculated to be $34,566.42, plus HST of $4,493.63, plus disbursements at $2,240.04, for a total of $41,300.09. The offset gave the respondents $8,300.09. [51] Reviewing courts should not readily interfere with the costs decision by a judge of first instance, whose decision is entitled to deference unless the judge “made an error in principle or if the costs award is plainly wrong” (internal citations omitted): Hamilton v. Open Window Bakery Ltd. , 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27; Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at paras. 19-20. [52] However, in my view, it was unreasonable for the respondents to make a last-minute settlement offer after the deadline expired and following a previous offer that can only be described as contemptuous. The trial judge invoked his residual powers under r. 49.13, but, as this court has explained, in exercising those powers he must adopt a “holistic approach”: König , at para. 35. In my view, the respondents did not comply with “the spirit of rule 49”: Lawson v. Viersen , 2012 ONCA 25, at para. 46. Accordingly, this is not an appropriate case where the r. 49.10(2) costs consequences should apply against the appellant. [53] The costs consequences in r. 49.10(2) are real to the appellant. The appellant won a large amount of money in the 2012 action. Under ordinary principles, she is entitled to costs in the 2012 action. [54] The task is to determine the costs to which the appellant is entitled in the 2012 action. The trial judge awarded the appellant $33,000 in partial indemnity pre-trial costs. He awarded the respondents $41,300.09 in partial indemnity trial costs. In my view, the appellant is entitled to both her pre-trial and trial costs due to her success in the 2012 action. I would accept the trial judge’s assessment of her pre-trial costs at $33,000 and fix her trial costs at $41,000, which is about the amount he awarded the respondents. This amount reflects “a fair and reasonable” costs award in the circumstances; the court need not fix costs according to the “exact measure of the actual costs to the successful litigant” (internal citations omitted): Boucher , at para. 24. In total, the appellant is entitled to $74,000 in costs for the 2012 action. D. DISPOSITION [55] For these reasons, I would dismiss the appeal. I would grant leave to appeal the trial costs award. I would allow the appellant’s costs appeal from the 2012 action and grant trial costs to her in the amount of $74,000. Because the respondents were otherwise successful on appeal, they are entitled to costs for the appeal in the amount of $25,000, which I would reduce to $20,000 in view of the appellant’s success on the costs appeal. The respondents’ costs will be offset against the appellant’s costs award in the 2012 action. [56] I conclude by expressing a concern about the length of the reasons for decision in this case, which is reflective of an unfortunately growing trend, of which this is not the worst example, but it is the one before us. [57] Trial judges attend to the evidence in light of the relevant law, listen to it and think about it, draw appropriate inferences, distill the key evidence, make the factual findings, apply the law to the findings, and communicate the basis for the decision to the parties through the reasons. Of these various tasks, simply being present to receive the evidence is only a trial judge’s first step on the path to the decision. [58] More specifically, in their reasons trial judges identify the key issues; find the facts relevant to the issues; assess credibility and reliability where there is conflict; set out the chain of reasoning; make the decision; and then write the reasons to clearly communicate the decision. All of this is necessary for the reasons to be of acceptable quality and for there to be a meaningful right of appeal. (All of these elements are present in the reasons in this case but are somewhat hard to discern in the expanded text.) [59] Note that in setting out these essential tasks I have reversed the customary sequence in decisions, in which the recitation of facts precedes the statement of the issues. The problem I wish to highlight occurs precisely there. It makes good narrative sense to inform the reader by setting the context first, which involves telling the underlying story briefly. But the real marshalling of the facts according to their relevance and salience is only possible when the trial judge has identified the live issues. In short, factual determinations and descriptions should be issue-driven. [60] It is important for trial judges to focus the analysis on the live issues that will decide the case. Helpful guidance can be found in the somewhat analogous function that trial judges perform in crafting criminal and civil jury instructions: “The obligation to review the substantial parts of the evidence and relate it to the issues that ripen for decision by the jury imposes no duty upon the trial judge to review all the evidence. The role of the trial judge is to decant and simplify” (internal citations omitted) : R. v. Saleh , 2013 ONCA 742, at para. 142, per Watt J.A. There is, to emphasize, no need to recite all of the evidence, even the irrelevant, or to refer to every argument made by every party, no matter how unhelpful: R. v. R.E.M. , 2008 SCC 51, [2008] 3 S.C.R. 3 at paras. 11-12, 35-57; Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65, at para. 128. [61] Appellate courts see reasons for decision that do not address the evidence and the arguments and are criticized as conclusory, on the one hand, and decisions that leave nothing out, on the other hand. The task of a trial judge is to find the golden mean, to “decant and simplify,” to synthesize the evidence and make the necessary findings; the task is not to be a court reporter. [62] Many overly long decisions, including this one, contain what I would call a “factual data dump.” Pages 5-79 consist of a witness-by-witness account of examination in-chief, cross-examination, and re-examination. The analysis of the evidence starts at para. 394 on p. 79 and it repeats some of the evidence previously reviewed, adding to the length. [63] Perhaps this emerging style is artifact of electronic note-taking by judges, but it is not helpful and can be confusing. A blizzard of words can obscure. Digesting unduly lengthy reasons consumes far too much time because every word must be read by the parties, by their counsel at great expense, and by appellate courts. A data dump does not constitute fact-finding. It is an extended ‘note to self’ best kept to oneself because it hinders the efficient and economical communication of judicial reasoning. Released: “P.L.” May 27, 2020 “P. Lauwers J.A.” “I agree. Grant Huscroft J.A.” “I agree. Thorburn J.A.”

WARNING This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017 , which deals with the consequences of failure to comply, read as follows: 87 (8) Prohibition re identifying child — 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. (9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. 142 (3) Offences re publication — A person who contravenes subsection 87(8) 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. COURT OF APPEAL FOR ONTARIO CITATION: Windsor-Essex Children’s Aid Society v. J.C., 2020 ONCA 328 DATE: 20200527 DOCKET: C67138 ( M51549 ) Benotto, Zarnett and Thorburn JJ.A. BETWEEN Windsor-Essex Children’s Aid Society Applicant (Respondent on Appeal) and J.C. and J.C. Respondents (Appellants on Appeal) Aileen Manalang, for the appellants Ronald Burnett, for the respondent Heard by video conference on May 26, 2020 On appeal from the judgment of Justice Hebner of the Superior Court of Justice dated May 31, 2019, with reasons reported at 2019 ONSC 3337. REASONS FOR DECISION [1] This is the second appeal relating to the protection of a four-year old child. The Ontario Court found that the child was in need of protection but that he could be adequately protected by a one-year supervision order requiring that the father not be left alone with him. The Society appealed to the Superior Court which allowed the appeal substituting a protection order and disposition placing the child in the care of his grandmother and uncle where the child’s two siblings reside. [2] The respondent brought a motion before the panel for directions since the matter is now back before the Ontario Court on a Status Review and the parents have consented to an order that the child reside in the grandmother’s home. Given the changing situation regarding the child, this matter is properly before the Ontario Court where the presiding judge will consider the evidence. [3] The appeal is dismissed as moot. “M.L. Benotto J.A.” “B. Zarnett J.A.” “Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: 2324702 Ontario Inc. v. 1305 Dundas W Inc., 2020 ONCA 353 DATE: 20200605 DOCKET: C67817 Feldman, Lauwers and Huscroft JJ.A. BETWEEN 2324702 Ontario Inc. Applicant/Respondent by way of cross-application (Appellant) and 1305 Dundas W Inc. Respondent/Applicant by way of cross-application (Respondent) Sam A. Presvelos, for the appellant Robert B. Cohen and Melissa Winch, for the respondent Heard: In writing On appeal from the order of Justice Shaun S. Nakatsuru of the Superior Court of Justice, dated March 29, 2019, with reasons reported at 2019 ONSC 1885, 100 R.P.R. (5th) 223. REASONS FOR DECISION [1] The appellant leased a commercial lounge and event space at 1305 Dundas Street West in Toronto from the respondent’s predecessor, as part of a five-year lease beginning March 1, 2008. The appellant operated a restaurant and lounge called Remix on the premises. On September 5, 2013, the parties signed a lease amending agreement, which extended the original term to the end of September 2018 and gave the appellant a unilateral option to renew the lease for a further five years. The lease renewal option reads as follows: Provided that the Tenant is: (a) 2324702 Ontario Inc.; (b) in occupation of the whole of the Premises; and (c) not in default under this Lease, the Tenant shall have the option exercisable on no less than nine (9) months’ and no more than eleven (11) months’ written notice to the Landlord prior to the expiry of the then current Term to extend the Lease with respect to the Premises for one (1) additional term of five (5) years each on the same terms and conditions as the Term save and except: (i) there will be no further right to extend the Term following the second extension term; (ii) the basic rent rate for each extension term shall be the then fair market Minimum Rent rate for comparable premises in the area, provided that in no event shall such rate be less than the Minimum Rent payable during the last twelve (12) month period immediately preceding the commencement of the then current extension term; and (iii) there shall be no leasehold improvement allowance, Landlord’s Work, rent-free period or other inducements. If the parties are unable to agree on the Minimum Rent for an extension term on or before the date that is sixty (60) days prior to the commencement of such extension term, then such Minimum Rent shall be determined by arbitration before a sole arbitrator in accordance with the Arbitration Act, 1991 (Ontario), or its successor legislation. The parties shall execute a lease extension agreement prepared by the Landlord to reflect the terms of the extension term. [2] The respondent bought the building in July 2017 and became the appellant’s landlord. The application judge found that although the parties communicated by email with respect to renewal, the appellant had not renewed the lease in accordance with the terms of the option to renew. He also refused to grant relief from forfeiture. On this appeal, the appellant submits that the application judge erred in both respects. [3] For the reasons that follow, we find that the application judge made no reviewable error and the appeal must be dismissed. A. Facts [4] The renewal option in the lease amending agreement required the appellant to give “no less than nine (9) months’ and no more than eleven (11) months’ written notice to the Landlord prior to the expiry of the then current term” in order to renew the lease. This meant that written notice of renewal had to be given between November 1, 2017 and December 31, 2017. The application judge found that the appellant did not provide written notice of renewal during that period. [5] On May 15, 2017, the appellant requested a meeting with its investment group and the respondent. On May 18, 2017, the respondent said it was prepared to meet as requested. On June 6, 2017, after the parties met, the respondent sent a follow-up email indicating that it was still considering its future plans for the building and that if the lease were to be extended, the rent would be closer to market rent for commercial space in the area. On October 16, 2017, the appellant emailed that it wished “to discuss our 5yr lease option with you it is very important to us to have this spelled out at this time as our interested investors were waiting for this information to decide on our new plans for the venue.” The appellant proposed a rent rate, and hoped they could “work this out […] as soon as possible.” [6] These conversations all took place before the renewal period, which began on November 1, 2017. [7] The parties exchanged a number of emails on November 3, 2017, discussing and disputing the fair market rent value. In the course of the exchange, the respondent stated that it would be “more than happy to extend your lease, but we do need it to be adjusted to the market price”, and later, that it was willing to “discuss more in details and hopefully reach an agreement.” Ultimately, the respondent asked the appellant to present its best offer, to which the appellant responded that it was “waiting for the compatibles” and that it would “get back […] early next week.” However, no best offer was ever presented in writing. [8] The renewal period concluded at the end of December 2017. [9] When the appellant failed to pay the February 2018 rent, the respondent terminated the lease. The appellant then commenced an application on February 21, 2018 for a declaration that the lease had not been validly terminated, or for relief from forfeiture. The respondent brought a cross-application on July 12, 2018 for a declaration that the lease was terminated. Counsel reached an interim, without prejudice agreement that the appellant could remain in the premises pending the outcome of the litigation on payment of rent. Then, on September 11, 2018, the application judge granted the appellant an adjournment on terms that included the ongoing payment of rent. The application was heard on February 20, 2019. In the interim, two rent cheques were paid late, one of which was returned for non-sufficient funds (NSF). B. Reasons of the Application Judge [10] The first issue before the application judge was whether the respondent had validly terminated the lease for failure to pay rent in February 2018. He found that it had. The next issue was whether the appellant should be granted relief from forfeiture for its breach of the lease in February 2018. The application judge granted the appellant relief from that forfeiture. The appellant does not challenge these findings on appeal. [11] With the original lease still in effect, the main issues on the applications were whether the appellant had validly exercised its option to renew the lease for five years, whether the respondent had waived strict compliance with the lease renewal provision and was estopped from relying on it, and if not, whether the appellant should be relieved from forfeiture for failing to validly renew. [12] The first issue was whether the appellant had validly exercised the option to renew the lease. The application judge found, at para. 45, that the email correspondence from the tenant did not contain an exercise of the option to renew in accordance with the terms of the lease amending agreement, given that the case law requires strict compliance with the renewal provisions of a lease: see 120 Adelaide Leaseholds Inc. v. Oxford Properties Canada Ltd. , [1993] O.J. No. 2801 (C.A.), and Doria v. 66 Degrees Inc. (2000), 30 R.P.R. (3d) 287 (Ont. S.C.). Rather, the appellant was looking to negotiate and agree on the rent as a condition of renewal: at paras. 47, 51. These communications were “far from an unequivocal and clear exercise of [the appellant’s] option to renew”: at para. 47. The words “exercise the option” were never used, nor did the appellant activate the arbitration process: at para. 50. The application judge specifically rejected the affidavit evidence on behalf of the appellant to the extent that it stated that the email correspondence indicated an understanding that the option had been exercised: at para. 51. [13] The next issue was whether the landlord had waived the need for strict compliance. At para. 55, the application judge found that the two requirements of waiver that the Supreme Court set out in Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co. , [1994] 2 S.C.R. 490, had not been met: 1) a full knowledge of rights; and 2) an unequivocal and conscious intention to abandon those rights. He concluded, from the lack of further discussion between the parties about rental rates following the November 3, 2017 emails, that “[t]he ready inference […] is that the [respondent] stopped discussing it as [the appellant] stopped pushing for it because [the appellant] had not given the required written notice”: at para. 55. [14] The application judge also rejected the argument that the respondent was estopped by its silence or otherwise from relying on strict compliance with the lease terms. The appellant argued that the respondent’s statement in one of the November 3 emails that it would be happy to extend the tenant’s lease constituted an estoppel. The application judge did not accept this submission: at para. 58. The phrase was used in the context of the rent being set at market price, but there was no meeting of the minds on this issue: at para. 58. Nor did the respondent use silence to mislead the appellant into believing that it viewed the option as exercised: at para. 59. There were no ongoing negotiations or other conduct after the renewal period that could have misled the appellant: at para. 60. [15] The application judge then turned to relief from forfeiture, although he commented that it had not been specifically requested. He found, at para. 63, that the appellant’s conduct was not reasonable, that it was hedging its bets, and that it had not made diligent efforts to comply with the terms of the lease, as required by 120 Adelaide Leaseholds Inc. for a grant of relief from forfeiture. He also found that the appellant was not unsophisticated regarding knowledge of its rights: at para. 64. Further, unlike in other cases, such as Velouté Catering Inc. v. Bernardo , 2016 ONSC 7281, 135 O.R. (3d) 32, or Firkin Pubs Metro Inc. v. Flatiron Equities Limited , 2011 ONSC 5262, 8 R.P.R. (5th) 312, the respondent had not, by misrepresentation or conduct, led the appellant to believe it had effectively renewed: at para. 66. [16] Finally, the application judge found that the appellant’s conduct did not warrant an award of equitable relief that would result in a five-year lease extension. The fact that the appellant had missed paying rent on time three times, including in the face of a court order, went to the heart of the relationship, leading the application judge to conclude, at para. 67: “To be blunt, it would not be fair to the [respondent] to enforce a renewal that [the appellant] did not properly renew, in these circumstances.” C. Issues on Appeal [17] The appellant argues that the application judge erred by 1) failing to find that the respondent waived its right to require written notice of the lease renewal, and 2) failing to grant the appellant relief from forfeiture for failure to deliver written notice of renewal. D. Analysis (1) The respondent did not waive the right to require strict compliance with the written notice provision of the renewal option [18] The appellant submits that the application judge misapprehended the evidence of the effect of the email correspondence negotiations, which it says reflected a mutual understanding that the lease was going to be renewed, pending determination of the rent. The appellant relies on the fact that the respondent never told the appellant that the appellant had not actually exercised its option to renew. The appellant also submits that the application judge erred by putting weight on the fact that the appellant never invoked the arbitration clause for determining the fair market rent, when it was effectively precluded from doing so when the respondent terminated the lease for failure to pay rent in February 2018. Finally, the appellant argues that the application judge erred by relying on Doria , at para. 8, where Low J. held that a course of negotiation without a clear exercise of a renewal option will not amount to waiver, because that case was distinguishable on the facts. [19] We see no error in the approach or the overall findings of the application judge. Both parties were prepared to renew if the rent could be agreed upon. But the application judge’s reading of the negotiations led him to the conclusion that it was the appellant which was not prepared to commit to the renewal by actually exercising the option before it knew what the rent would be. We agree that the lease was terminated more than 60 days before the end of its term, and therefore before the time when the appellant could have invoked the arbitration clause. However, the application judge’s misperception that the appellant had failed to invoke the arbitration clause was a minor additional factor in his overall assessment that the appellant was hedging and did not intend to exercise the option before the rent was agreed. [20] It is true, as submitted by the appellant, that the option to renew was unilateral and the respondent did not have to agree to it. However, the appellant wanted the respondent to agree on a rental figure before it committed itself to the renewal. We see no error in the application judge’s conclusion that, in adopting this posture, the appellant effectively sought to deny the respondent the certainty that a lease renewal option of this kind is meant to provide. We also see no error in the application judge’s assessment of the evidence, to which this court defers. [21] Moreover, we see no basis to interfere with his application of the test for waiver from Saskatchewan River Bungalows . The appellant never sent its best offer and there were no further negotiations after the expiry of the option period, as in the three cases referred to by the appellant: Directors Film Co. v. Vinifera Wine Services Inc. (1998), 38 O.R. (3d) 212 (Gen. Div.); Petridis v. Shabinsky et al. (1982), 35 O.R. (2d) 215 (H.C.); and Doral Holdings Ltd. v. Bargain Books Ltd. , [1994] O.J. No. 3103 (Gen. Div.) . The respondent did nothing to indicate that it was abandoning its right to expect a written notice of renewal within the notice period. (2) The application judge did not err by failing to grant relief from forfeiture [22] The Commercial Tenancies Act , R.S.O. 1990, c. L.7, allows the court to grant “such relief as […] the court thinks fit”, having regard to all the circumstances, where a landlord seeks to enforce a right of re-entry or forfeiture following a tenant’s breach: ss. 19, 20(1). The Saskatchewan River Bungalows case also established the test for granting relief from forfeiture. In granting the discretionary and equitable remedy of a relief from forfeiture, a court is to consider the conduct of the applicant, the gravity of the applicant’s breaches of the lease, and the disparity between the value of the forfeited property and the damage caused by the breach: Saskatchewan River Bungalows , at p. 504. [23] Although the failure to renew the lease is not a breach of the lease, the court may grant relief from forfeiture where a party seeks to renew the lease but has not complied with the formal requirements or preconditions for doing so. However, this relief is available only in circumstances more narrowly confined than the three-pronged test from Saskatchewan River Bungalows . As recently restated in McRae Cold Storage Inc. v. Nova Cold Logistics ULC , 2019 ONCA 452, at para. 10: With respect to the renewal of a lease, a precondition for the exercise of any such equitable discretion is that the tenant has made diligent efforts to comply with the terms of the lease which are unavailing through no default of his or her own: 120 Adelaide Leaseholds Inc. , at para. 9; Ross v. T. Eaton Co. (1992), 11 O.R. (3d) 115 (C.A.), at pp. 124-125; 1383421 Ontario Inc. v. Ole Miss Place Inc. (2003), 67 O.R. (3d) 161 (C.A.), at para. 80; Mapleview-Veterans Drive Investments Inc. v. Papa Kerollus VI Inc. , 2016 ONCA 93, 344 O.A.C. 363, at paras. 55-56. [24] The application judge found that equitable relief was not warranted here because of the appellant’s conduct. First, the appellant had not made diligent efforts to comply with the renewal term, but instead hedged its bets by seeking to negotiate without committing to renew. Second, the appellant’s failure to pay its rent on time, including one time when it delivered an NSF cheque, was not the type of reasonable conduct that a court looks for as the basis to grant equitable relief. Although the appellant has a large investment in the premises which it stands to lose, this consequence is effectively a result of its own decisions regarding its conduct in relation to the respondent. [25] The appellant argues that in assessing its conduct, the application judge misapprehended the evidence by stating that the appellant had experience in exercising a renewal option for the premises. In fact, the appellant says, it had not previously exercised a renewal option but rather, entered into a lease amending agreement. We reject this argument. The application judge’s point was that the appellant had a level of sophistication in dealing with the lease of the premises, which was partly based on its prior dealings with the respondent’s predecessor in negotiating and concluding the lease amending agreement. That experience spoke against any misunderstanding of the renewal requirements. E. Conclusion [26] For these reasons, the appeal is dismissed with costs to the respondent fixed at $10,000, inclusive of disbursements and HST. In addition, as requested by the respondent, the August 29, 2019 order of Kiteley J., staying the order below pending appeal, is vacated. “K. Feldman J.A.” “P. Lauwers J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Aga v. Ethiopian Orthodox Tewahedo Church of Canada, 2020 ONCA 421 DATE: 20200625 DOCKET: C66733 van Rensburg, Paciocco and Thorburn JJ.A. BETWEEN Teshome Aga, Yoseph Beyene, Dereje Goshu, Tseduke Gezaw and Belay Hebest Plaintiffs (Appellants) and Ethiopian Orthodox Tewahedo Church of Canada, also known as St. Mary Cathedral, and Mesale Enegada, and Abune Dimetros and Hiwot Bekele Defendants (Respondents) Anthony Colangelo, for the appellants Gordon E. Wood, for the respondents Heard: in writing On appeal from the order of Justice Sandra Nishikawa of the Superior Court of Justice, dated February 26, 2019. Thorburn J.A.: ADDENDUM [1] The appellants, Teshome Aga, Yoseph Beyene, Dereje Goshu, Tseduke Gezaw, and Belay Hebest (“the appellants”), are five former members of the congregation of the Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral. They appealed the granting of a motion for summary judgment dismissing their claim. [2] For reasons released on January 8, 2020, the appeal was granted and dismissal of the claim was set aside. [3] This court ordered costs of the appeal to the appellants in the amount of $5,000, as agreed by the parties. This court also ordered that the costs order of the motions judge be reversed. [4] The motions judge ordered costs to the respondent in the amount of $25,000. (The respondent submitted a bill of costs in the amount of $45,000.) [5] Counsel for the respondent seeks to vary the reversal of the motion judge’s costs order only. [6] The respondent notes that the motion judge not only granted the motion for summary judgment but in doing so dismissed the action. He submits therefore that there are costs of the action that are unrelated to the motion for summary judgment. Since the action will proceed and the issues in the action have yet to be resolved, those costs should not be payable. We agree. [7] On March 11, 2020, the appellant advised that his costs for preparing and arguing the summary judgment and disbursements related thereto only are $5447.39. This includes scheduling the summary judgment motion, delivery of affidavits, cross-examinations, disbursements for items such as transcripts, and argument before the motions judge. [8] This sum is reasonable when viewed in the context of the preparation required, the steps taken and the respondent’s own bill of costs. [9] In view of the above, the judgment of January 8, 2020 is amended to confirm that the costs order of the motions judge be vacated and that costs of the summary judgment motion in the amount of $5447.39 are payable to the appellant. Released: June 25, 2020 (“K.M.v.R.”) “J.A. Thorburn J.A.” “I agree. K. van Rensburg J.A.” “I agree. David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Amero (Re), 2020 ONCA 370 DATE: 20200611 DOCKET: C67668 Pepall, Hourigan and Roberts JJ.A. IN THE MATTER OF: Klayton Amero AN APPEAL UNDER PART XX.1 OF THE CODE Anita Szigeti, for the appellant Samuel Greene, for the respondent, the Attorney General of Ontario No one appearing for the respondent, Person in Charge of St. Joseph’s Healthcare Hamilton Heard: in writing On appeal against the disposition of the Ontario Review Board dated October 30, 2019. REASONS FOR DECISION [1] Klayton Amero appeals from the Ontario Review Board’s most recent disposition that continues his detention on a secure forensic unit [1] at St. Joseph’s Healthcare in Hamilton. Mr. Amero submits that the Board erred in finding that he represents a significant risk to the safety of the public and seeks an absolute discharge. [2] We see no error in the Board’s disposition. The record amply supported the Board’s conclusion that Mr. Amero continued to present a significant risk to the safety of the public. The detention order made by the Board was the least onerous and restrictive disposition in Mr. Amero’s circumstances. [3] On November 10, 2017, Mr. Amero was found not criminally responsible (“NCR”) by reason of mental disorder for the theft of a bag of potato chips and other items from a dollar store and failure to comply with a probation order. Since then, he has resided in a forensic hospital setting. He has a serious acquired brain injury with complicated psychiatric issues and addictions. His psychiatric history dates to 2004 and has resulted in multiple hospital admissions. He is 32 years old. His psychiatric diagnosis is psychotic disorder, neurocognitive disorder, as well as cannabis, opioid and alcohol use disorders, which exacerbate his psychosis. He disputes his mental illness and need for medication. [4] Mr. Amero has a history of violence and aggression. In 2006, he assaulted his father and fractured his wrist. He assaulted his stepfather while on interim judicial release. While the index offence was not violent, Mr. Amero’s criminal record includes convictions for intimidation of justice system participants, uttering threats and assault. During his NCR detention, Mr. Amero has exhibited ongoing aggressive and threatening behaviours. While there has been encouraging improvement, in the year under review, Mr. Amero made threats to kill and harm staff and continues to be aggressive towards other patients. [5] The Board met its inquisitorial duties to apply and interpret s. 672.54 of the Criminal Code , R.S.C. 1985, c. C-46, and determine whether the appellant poses a significant threat to public safety. We do not accept Mr. Amero’s submissions that the Board applied an incorrect test or required him to demonstrate that he was not a significant risk to public safety. We see no basis to intervene. [6] Accordingly, we dismiss the appeal. “S.E. Pepall J.A.” “C.W. Hourigan J.A.” “L.B. Roberts J.A.” [1] The Board’s reasons stipulate that Mr. Amero’s detention would be in the “Forensic Psychiatric Program”. In its factum, the Attorney General advises that the Board has indicated its intention to issue an amended disposition to correct this error.

COURT OF APPEAL FOR ONTARIO CITATION: Beniuk v. Leamington (Municipality), 2020 ONCA 424 DATE: 20200626 DOCKET: C66773 van Rensburg, Paciocco and Thorburn JJ.A. BETWEEN Angela and Dennis Beniuk Plaintiffs (Appellants) and The Corporation of the Municipality of Leamington Defendant (Respondent) Raymond G. Colautti and Eric Florjancic, for the appellants Tom Serafimovski and Samuel Atkin, for the respondent Heard: in writing COSTS ENDORSEMENT [1] The appellants appealed an order on a summary judgment motion dismissing their claims as statute-barred. At the hearing of the appeal, the parties confirmed agreement to an all-inclusive amount of $8,000 in costs to the successful party. We reserved judgment on the appeal. [2] There was mixed success in the appeal; the details are set out in our reasons dated March 25, 2020 and reported at 2020 ONCA 238. We ordered costs of the appeal to the respondent in the sum of $6,500 and reduced the respondent’s costs in the court below from $11,850, inclusive of taxes and disbursements to the inclusive amount of $10,000. The order reflected the parties’ mixed success on the appeal. [3] At the request of the appellants’ counsel we agreed to receive written costs submissions. We have now considered those submissions. [4] The appellants contend that the appropriate order to reflect the parties’ mixed success is that each side should bear their own costs of the appeal and that the costs of the motion in the court below should be in the cause. The respondent asserts that the order made by this court fairly reflects the fact that, while success was mixed, they were more successful on the appeal, and the appellants achieved limited success. [5] We agree with the respondent that the costs award already made properly reflects the divided success on the appeal. The appellants were unsuccessful on the two main thrusts of their appeal: on the applicability of the Real Property Limitations Act and on discoverability under s. 5 of the Limitations Act , 2002 . As we stated at para. 78 of our reasons the appellants’ claim is “largely statute-barred”. The effect of the appeal is that the appellants are entitled to proceed with their claim, but only as it relates to damages sustained after January 17, 2016. [6] For these reasons we affirm the award of costs set out in our reasons dated March 25, 2020. “K. van Rensburg J.A.” “David M. Paciocco J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Birdseye Security Inc. v. Milosevic, 2020 ONCA 355 DATE: 20200605 DOCKET: C67407&C67708 Rouleau, van Rensburg and Roberts JJ.A. DOCKET: C67407 BETWEEN Birdseye Security Inc. Plaintiff and Danilo Milosevic also known as Danny Milosevic carrying on business as VCMS Security Services and as VCMS Security Defendant AND BETWEEN Danilo Milosevic also known as Danny Milosevic carrying on business as VCMS Security Services and as VCMS Security Plaintiff by Counterclaim (Appellant) and Birdseye Security Inc. , and Mile Grabovica Defendants by Counterclaim ( Respondent ) DOCKET: C67708 BETWEEN Birdseye Security Inc. Plaintiff and Danilo Milosevic also known as Danny Milosevic carrying on business as VCMS Security Services and as VCMS Security Defendant AND BETWEEN Danilo Milosevic also known as Danny Milosevic carrying on business as VCMS Security Services and as VCMS Security Plaintiff by Counterclaim (Respondent) and Birdseye Security Inc. and Mile Grabovica Defendants by Counterclaim (Appellants) Rocco Galati, for the appellant in C67407 and the respondent in C67708 Tyler H. McLean, for the appellants in C67708 and the respondent in C67407 Heard: In writing On appeal from the order of Justice Michael T. Doi of the Superior Court of Justice, dated August 14, 2019 (C67407). On appeal from the order of Justice Judy A. Fowler Byrne of the Superior Court of Justice, dated October 21, 2019 (C67708). REASONS FOR DECISION INTRODUCTION [1] These two appeals arise out of two separate actions that are pending in the Superior Court in Brampton. Both involve the same parties: Mile Grabovica and Danilo Milosevic and their respective security and home surveillance businesses. Mr. Grabovica, through his company, Birdseye Security Inc. (“Birdseye”), commenced Action CV-18-1527 (“Action 1527”) in April 2018 and Action CV-18-4669 (“Action 4669”) in October 2018. Both actions named as defendant Mr. Milosevic’s sole proprietorship VCMS Security Services or VCMS Security (“VCMS”). [2] In Action 1527, Birdseye claims damages for, among other things, conversion and theft of confidential and sensitive proprietary information, inducing breach of contract, conspiracy, and unlawful interference with economic relations. In Action 4669, Birdseye claims damages for trademark infringement and defamation, alleging that VCMS has attempted to duplicate its business by infringing its “Voice-Down” trademark and by making false and misleading statements that discredit its goods and services. [3] Mr. Milosevic has defended and asserted a counterclaim against Birdseye and Mr. Grabovica in both actions. Essentially, he pleads various facts concerning the business and personal relationship between himself and Mr. Grabovica (who are brothers-in-law), asserting that there is no merit to the actions, and that they have been brought to harass him and to put him out of business. The counterclaim in each action seeks essentially the same relief: damages and an order prohibiting Birdseye and Mr. Grabovica from bringing further proceedings against him and his business without prior leave of the court. The counterclaim in Action 4669 also seeks an injunction against Birdseye and Mr. Grabovica from trademarking the VCMS logo. Mr. Milosevic pleads essentially the same facts in each counterclaim, except that in Action 4669 he pleads, at para. 29, that having launched a claim for trademark infringement against him, Mr. Grabovica is attempting to trademark the VCMS logo for collateral purposes, and to cause him and his company harm. [4] Neither action has progressed beyond the pleadings stage. Birdseye has brought motions to strike various paragraphs of Mr. Milosevic’s statement of defence and counterclaim in each action. These appeals arise out of the two most recent pleadings motions. [5] Birdseye brought its first motion in Action 1527 seeking to strike certain paragraphs of the counterclaim on various grounds, including that it disclosed no reasonable cause of action (in relation to the claim for abuse of process), that it was frivolous and vexatious, and that it failed to contain a concise statement of material facts. The motion was served in August 2018 and was heard on December 19, 2018. By order dated April 29, 2019, Kumaranayake J. struck certain paragraphs of the counterclaim with leave to amend: 2019 ONSC 2676. No appeal was taken, and Mr. Milosevic amended his pleading. [6] While this motion was under reserve, Birdseye served a motion in January 2019, returnable April 2, 2019, to strike certain paragraphs of the statement of defence and the entire counterclaim in Action 4669. By order dated August 14, 2019, Doi J. dismissed the motion with respect to the statement of defence and struck the counterclaim without leave to amend. [7] Meanwhile, while the motion before Doi J. was under reserve, in June 2019, Birdseye served another motion in Action 1527, seeking to strike certain paragraphs of Mr. Milosevic’s amended counterclaim, including the entire cause of action of abuse of process. That motion was heard by Fowler Byrne J. on July 23, 2019. She dismissed the motion by order dated October 21, 2019. [8] In their appeals to this court, Mr. Milosevic appeals the order of Doi J. striking its counterclaim in Action 4669 (Appeal C67407), and Birdseye and Mr. Grabovica appeal the order of Fowler Byrne J. dismissing the motion to strike in Action 1527 (Appeal C67708). APPEAL C67407 [9] Birdseye moved to strike paras. 16 to 19 of the statement of defence and the entire counterclaim in Action 4669. [10] The relevant paragraphs of the statement of defence set out the personal and business history of the parties, referring to the other proceedings commenced by Birdseye, which Mr. Milosevic claims are abusive. These paragraphs also allege that Birdseye’s pleadings contain misleading or blatantly false claims. Birdseye asserted that these paragraphs were neither relevant nor material to the defence, and were pleaded to give atmosphere and to show Birdseye in a bad light. The motion judge disagreed and refused to strike paras. 16 to 19 of the statement of defence. [11] Birdseye argued that the entire counterclaim should be struck under r. 21.01(3)(c) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 because it duplicated the counterclaim asserted in Action 1527. Mr. Milosevic submitted that any concern about duplication could be addressed by consolidating or ordering the trial together of the two Superior Court actions, as well as another action between the same parties in the Small Claims Court in Toronto (SC-18-5547). He also argued that he would be prejudiced if the counterclaim were struck and Birdseye discontinued Action 1527. [12] The motion judge rejected the request for consolidation or trial together in the absence of a motion for such relief. He noted that Mr. Milosevic had retained a different lawyer to defend the Small Claims Court action, which was not before the court. He directed that, should the parties wish to pursue a consolidation or joinder of the actions, they would need to do so by motion with notice on a different occasion. The motion judge found that the counterclaim should be stayed under r. 21.01(3)(c) and made an order striking the counterclaim. He concluded that to do otherwise would constitute an abuse of process and that Mr. Milosevic would not be prejudiced as, under r. 23.02, he could pursue the counterclaim in Action 1527 even if Birdseye were to discontinue its claim in that action. [13] On appeal, Mr. Milosevic submits that the counterclaim ought not to have been struck and that, in the alternative, all of the actions ought to be consolidated or ordered to be tried together. In response, Birdseye asserts that the order striking the counterclaim reflected a proper exercise of discretion, as there was no motion to consolidate, and the counterclaim duplicates what is asserted in Action 1527. [14] A defendant may move for an order staying or dismissing an action (in this case a counterclaim) under r. 21.01(3)(c) where “another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter”. Having concluded that the duplicative counterclaim justified a stay, the motion judge ought to have stayed, and not “struck” the counterclaim. No issue was made of this, and nothing turns on it for the purpose of the appeal. Rather, the issue is whether there was a reversible error in the application of r. 21.01(3)(c) to bring to an end the counterclaim in Action 4669. [15] The determination of whether a stay of proceedings should be granted because another proceeding is pending between the same parties involves an exercise of discretion, taking into consideration the circumstances of the particular case. The moving party must demonstrate that the continuation of the action would cause it substantial prejudice or injustice (beyond inconvenience and expense) because it would be oppressive or vexatious or would otherwise be an abuse of the process of the court, and that the stay would not cause an injustice to the responding party: Farris v. Staubach Ontario Inc. (2004), 32 C.C.E.L. (3d) 265 (Ont. S.C.), at para. 15. Factors relevant to prejudice include: the likelihood and effect of the two matters proceeding in tandem, the possibility and effect of different results, the potential for double recovery, and the effect of possible delay: Farris , at para. 16. [16] The fact that another proceeding is pending between the same parties in respect of the same subject matter does not automatically lead to an order dismissing or staying the claim. Rather, the order is discretionary and the judge hearing the motion must be satisfied that the stay or dismissal is warranted in the particular circumstances of the case. While a multiplicity of proceedings may constitute an abuse of process which warrants an order staying or dismissing a proceeding (see e.g., Maynes v. Allen-Vanguard Technologies Inc. (Med-Eng Systems Inc.) , 2011 ONCA 125, 274 O.A.C. 229, at paras. 36, 46), that is not necessarily always the case. All of the circumstances must be considered to determine whether, in the interests of justice, a stay or dismissal should be granted. [17] In this case, the motion judge stayed the counterclaim “to avoid an unjust multiplicity of proceedings”. He concluded that the duplicative litigation would “on the facts of this case” constitute an abuse of process, and he rejected Mr. Milosevic’s claim of prejudice on the basis that he would be able to pursue his counterclaim in Action 1527 regardless of whether Birdseye discontinued the main action in that proceeding. [18] An order dismissing or staying a proceeding under r. 21.01(3)(c) is a discretionary order that is subject to deference on appeal, absent an error in principle: 1420041 Ontario Inc. v. 1 King West Inc. , 2010 ONSC 6671, 1 R.P.R. (5th) 33 (Div. Ct.), at para. 24, rev’d on other grounds 2012 ONCA 249, 349 D.L.R. (4th) 97, leave to appeal refused, [2012] S.C.C.A. No. 272; Canada (Minister of Citizenship and Immigration) v. Tobiass , [1997] 3 S.C.R. 391, at para. 87. In this case, the motion judge did not explain why permitting Mr. Milosevic to assert his counterclaim in both actions would constitute an abuse of process. He appears to have assumed that the existence of an almost identical pleading in both actions would ipso facto constitute an abuse of process. His failure to consider the context of the litigation was an error in principle that warrants this court’s intervention. [19] Considering the matter afresh, we set aside the order of Doi J. We are not persuaded, in the context of the proceedings involving these parties, that there would be any prejudice or injustice in permitting Mr. Milosevic to assert a counterclaim in response to both actions. [20] First, it is Birdseye that is responsible for the fact that there are multiple proceedings. Rather than asserting all of its claims in a single action, Birdseye chose to commence three separate actions in the Superior Court in Brampton (one of which it discontinued) and an action in the Toronto Small Claims Court. Birdseye opposed the consolidation or trial together of the pending actions as a solution to its concern about duplication. If the facts pleaded by Mr. Milosevic in his statement of defence and counterclaim are true (and they are assumed to be true for the purpose of the pleadings motions), the actions commenced by Birdseye are without merit, an abuse of process, and were initiated for the collateral purpose of causing him harm. The fact that Mr. Milosevic has asserted a counterclaim in each of the multiple actions commenced by Birdseye does not in itself constitute an injustice or prejudice to Birdseye. Indeed, no specific harm was alleged by Birdseye. [21] Second, we note that the counterclaim in Action 4669 seeks additional relief that is not claimed in Action 1527: an injunction against Birdseye and Mr. Grabovica from trademarking the VCMS logo, and it pleads the additional facts to support that claim. Striking the counterclaim in Action 4669 would eliminate this claim for relief altogether. [22] For these reasons, we agree with Mr. Milosevic that, by striking his counterclaim, the motion judge deprived him of a claim that he was validly entitled to make in response to each of Birdseye’s actions – that the actions started against him were an abuse of process. It was not sufficient to strike the counterclaim in Action 4669 simply because the same type of claim was asserted in response to Action 1527. The counterclaim followed on the facts pleaded at paras. 16 to 19 of the statement of defence, which the motion judge had refused to strike. [23] Accordingly, the appeal is allowed, and the order of Doi J. is set aside. APPEAL C67708 [24] This appeal is in respect of the order of Fowler Byrne J. dismissing Birdseye’s motion to strike certain paragraphs of Mr. Milosevic’s Fresh as Amended Counterclaim in Action 1527 on the grounds that they disclose no cause of action and are frivolous and vexatious. Fowler Byrne J. dismissed the motion, concluding that Mr. Milosevic had addressed the flaws previously identified by Kumaranayake J. and that the pleading was not otherwise deficient. In particular, she concluded that the claim in respect of abuse of process was properly pleaded. She encouraged the parties to move beyond the pleadings stage to focus on discovery and then possible mediation or trial. Birdseye and Mr. Grabovica appeal from the order dismissing the motion. [25] Birdseye and Mr. Grabovica submit that it is plain and obvious that the claim for abuse of process discloses no reasonable cause of action, or alternatively that the claim is frivolous and vexatious and should be struck. Mr. Milosevic argues that the order under appeal is interlocutory and that the appeal should be quashed for want of jurisdiction. In the alternative, he asserts that the question of whether the claim for abuse of process could stand was already decided in his favour in the earlier motion before Kumaranayake J. [26] We agree that the order of Fowler Byrne J. is interlocutory. Birdseye’s motion was to strike paragraphs in Mr. Milosevic’s pleading as failing to disclose a cause of action and as frivolous and vexatious, relying on rr. 21.01(1)(b), 21.01(3)(d) and 25.11. An order dismissing such a motion is typically interlocutory: S.(R.) v. H.(R.) (2000), 195 D.L.R. (4th) 345 (Ont. C.A.), at paras. 13-15; Hopkins v. Kay , 2014 ONCA 514, at para. 7. The appellants’ reliance on Brown v. Hanley , 2019 ONCA 395, 2019 C.L.L.C. 220-044, as authority that the order under appeal is final, is misplaced. That case involved, among other things, the appeal of an order refusing to strike a claim under r. 21.01(3)(a) on the basis that the dispute was covered by a collective agreement. See Abbott v. Collins (2002), 62 O.R. (3d) 99 (C.A.), at paras. 6-7, where Morden J.A. distinguished between such an order, which determines jurisdiction on a final basis, and an order dismissing a motion under r. 21.01(1)(b) to strike pleadings for failure to disclose a reasonable cause of action, which is interlocutory. [27] As the order of Fowler Byrne J. dismissing Birdseye’s motion is interlocutory, any appeal lies to the Divisional Court with leave under s. 19(1) of the Courts of Justice Act , R.S.O. 1990, c. C-43. Accordingly, the appeal to this court is quashed. DISPOSITION [28] For these reasons, we allow the appeal in C67407, and set aside the order of Doi J. dated August 14, 2019, and we quash the appeal in C67708. [29] Mr. Milosevic is entitled to his costs of both appeals, and he may be entitled to costs of the motion before Doi J. If the parties are unable to agree on costs, they shall serve and file with the court at COA.E-File@ontario.ca their written submissions as follows: Mr. Milosevic shall provide his costs outline and written submissions of no more than three pages within 20 days, and Birdseye and Mr. Grabovica shall provide their written submissions limited to three pages, within 15 days thereafter. “Paul Rouleau J.A.” “K. van Rensburg J.A.” “L. B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Burns v. RBC Life Insurance Company, 2020 ONCA 347 DATE: 20200604 DOCKET: C67837 Gillese, Brown and Jamal JJ.A. BETWEEN Randolph Burns Plaintiff (Appellant) and RBC Life Insurance Company, Lauren McLean and Anna Oslizlok Defendants (Respondents) Sloan H. Mandel and Deanna S. Gilbert, for the appellant Barry G. Marta, for the respondents Heard: In-writing On appeal from the order of Justice Paul Perell of the Superior Court of Justice, dated December 3, 2019, with reasons reported at 2019 ONSC 6977 . REASONS FOR DECISION OVERVIEW [1] This appeal concerns the adequacy of the claims pleaded against corporate employees for torts allegedly committed in the course of their employment. [2] The appellant, Randolph Burns, brought an action seeking the payment of long-term disability (“LTD”) benefits under a policy of insurance issued by the respondent, RBC Life Insurance Company (“RBC Life”), as well as damages against RBC Life and two of its employees, the respondents, Lauren McLean and Anna Oslizlok. [3] After the defendants delivered a joint statement of defence, Ms. McLean and Ms. Oslizlok moved pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure to strike out the statement of claim as disclosing no reasonable cause of action as against them. At the same time, RBC Life moved for an order requiring Mr. Burns’ examination for discovery to proceed before that of RBC Life’s representative witness. The motion judge granted both motions. He struck out the statement of claim as against Ms. McLean and Ms. Oslizlok, without leave to amend, and granted RBC Life the relief it sought in respect of the examinations for discovery. The same law firm represented all the defendants. The motion judge awarded costs for both motions in the combined amount of $6,000. [4] Mr. Burns appeals that part of the order of the motion judge that struck out his statement of claim. Although he has not formally sought leave to appeal the costs order, Mr. Burns requests that the $6,000 award of costs against him be set aside. [5] For the reasons set out below, we allow the appeal in part, to the extent of granting Mr. Burns leave to amend his statement of claim. THE STATEMENT OF CLAIM [6] The RBC Life policy of disability benefits (the “Policy”) purchased by Mr. Burns provides for the payment of LTD benefits in the event of a “total disability”. According to the statement of claim, in June 2012, Mr. Burns stopped working as a result of pain in or around his lumbar spine, waist, and right lower extremity. In September 2012, RBC Life accepted that Mr. Burns was suffering from a total disability and approved the payment of LTD benefits to him. [7] RBC Life terminated Mr. Burns’ LTD benefits in October 2017. The statement of claim identifies Ms. McLean and Ms. Oslizlok as employees involved in the termination process. Mr. Burns pleads: 24. On or about October 30, 2017, on behalf of the Insurer, Lauren McLean advised Mr. Burns that his LTD benefits were being terminated. 26. On or about May 4, 2018, on behalf of the Insurer, Anna Oslizlok denied Mr. Burns' appeal of the termination of his LTD benefits. 27. On or about August 2, 2018, on behalf of the Insurer, Anna Oslizlok denied Mr. Bums' further appeal of the termination of his LTD benefits. [8] Mr. Burns advances two claims in his pleading. First, he alleges that the failure of RBC Life to pay his LTD benefits amounted to a breach of contract. [9] Second, he advances claims against RBC Life and the two individual defendants based in bad faith, negligence, and/or negligent misrepresentation. In paras. 29 and 30 of his statement of claim, Mr. Burns pleads that: 29. At all material times, the Defendants owed to Mr. Burns a duty of the utmost good faith. 30. At all material times, the Defendants represented to Mr. Burns that, in exchange for the premiums he paid, Mr. Burns would receive the benefits offered by the Policy in keeping with the terms, conditions, and definitions expressly set out therein. [10] In para. 31 of his statement of claim, Mr. Burns lists 45 particulars of his allegation that “the Defendants engaged in conduct that, jointly and/or severally, amounted to bad faith, negligence, and/or negligent misrepresentation conduct”. Eight of the particulars refer only to the conduct of RBC Life. The remaining particulars refer to conduct that the pleading attributes to the defendants collectively, without differentiating which of them engaged in any particular act. By way of illustration, the first five particulars pleaded in para. 31 of the statement of claim allege: 31. Mr. Burns pleads that in the course of the adjustment and appeals of his LTD claims, the Defendants engaged in conduct that, jointly and/or severally, amounted to bad faith, negligence, and/or negligent misrepresentation conduct including , but not limited to: (a) they terminated Mr. Burns' LTD benefits on the basis of an erroneous, extra-contractual, reckless, misleading, and/or bad faith interpretation of the language of the Policy; (b) they terminated Mr. Burns' LTD benefits on the basis of language, criteria, terms, and/or conditions that were not prescribed in the Policy and which they, instead, elected to import into the Policy; (c) they terminated Mr. Burns' LTD benefits on the basis of their unilateral interpretation of the phrase "gainful occupation" in the Policy and despite the Insurer's written admission of May 4, 2018 that "the term gainful occupation is not defined in the policy"; (d) they terminated Mr. Burns' LTD benefits on the basis of a single, 16 year old, extra-provincial case involving a different type of insurance policy and different type of benefits; (e) they "cherry picked" case law when interpreting the Policy and terminating Mr. Burns' LTD benefits; [11] Mr. Burns seeks payment of the LTD benefits under the Policy and special damages for expenses he has incurred. In addition, he seeks to recover against all the defendants $1 million in punitive, aggravated, and/or exemplary damages, in part on the basis of the following undifferentiated allegations contained in paras. 34 and 35 of the statement of claim: 34. Mr. Burns pleads that the Defendants knew or ought to have known that at or around the time that it terminated his LTD benefits and/or denied his appeal(s), Mr. Burns was under financial strain and was financially dependent upon the receipt of his LTD benefits. The Defendants nevertheless embarked upon a course of conduct that caused and/or aggravated Mr. Bums' vulnerable psycho-emotional state. 35. Mr. Burns pleads that in terminating his LTD benefits when it did, and without any material change since the Insurer had found him totally disabled for over five years, the Defendants engaged in bad faith, high handed, reckless, wilfully ignorant, and/or grossly arbitrary conduct. So as to condemn this conduct, to modify the Defendants' behaviour, and/or to deter the Defendants from engaging in such conduct in future, Mr. Burns pleads that an award of punitive, aggravated, and/or exemplary damages are warranted. [12] The motion judge held that Mr. Burns had not pleaded a viable cause against Ms. McLean and Ms. Oslizlok that would attach liability to them in their personal capacities because the allegations advanced against them did not manifest an identity or interest separate from RBC Life: at para. 36. Accordingly, he struck out the claim as against them without leave to amend: at para. 37. ANALYSIS [13] Mr. Burns submits that the motion judge erred by failing to follow the well-established jurisprudence that a cause of action in tort can lie against the employee of a corporate employer for conduct carried out in the usual course of employment: Sataur v. Starbucks Coffee Canada Inc. , 2017 ONCA 1017, 140 O.R. (3d) 307, at para. 4. According to Mr. Burns, had the motion judge given proper effect to that jurisprudence he could not have concluded that it was plain and obvious that Mr. Burns’ statement of claim disclosed no reasonable cause of action against Ms. McLean and Ms. Oslizlok. [14] We read the motion judge’s reasons in a different way. The motion judge referred to the well-established jurisprudence at several points in his reasons: at paras. 22-25 and 33. The crux of his reasons focused not on legal principles, but on whether Mr. Burns had properly pleaded the material facts to support separate tort and bad faith claims against the individual defendants. [15] We see no error in the motion judge’s statement, at para. 26, that “[w]here an employee is sued for his or her acts, the material facts giving rise to personal liability must be specifically pleaded”. That led him to conclude, at para. 35, that Mr. Burns “has not” pleaded such a claim against the respondent employees. We agree. [16] Rule 25.06(1) requires a statement of claim to contain a concise statement of the material facts on which the party relies for its claim. Each defendant named in a statement of claim should be able to look at the pleading and find an answer to a simple question: What do you say I did that has caused you, the plaintiff, harm, and when did I do it? [17] Mr. Burns’ statement of claim does not provide either Ms. McLean or Ms. Oslizlok with an individualized answer to that question. The heart of Mr. Burns’ claim against Ms. McLean and Ms. Oslizlok is found in paras. 29 through to 35 of his statement claim, much of which is reproduced above. None of those paragraphs of the statement of claim inform Ms. McLean or Ms. Oslizlok what each did individually that Mr. Burns alleges constitutes actionable wrongs against him for which he seeks a remedy, and when did they it. Instead, his pleading lumps the defendants together, without providing the necessary separate, differentiating material facts that could support a claim against each individual. [18] Mr. Burns relies on some comments made in Moynihan v. Rowe , 2018 ONSC 502, at paras. 37-38, that a statement of claim need not draw a distinction between the conduct of employees and that of the employer, and where it does not, it is always open to the defendant to seek particulars. [19] Those comments were made in obiter. The requirement for a proper pleading remains that set out in r. 25.06(1). As applied to a tort claim, the rule requires a plaintiff to set out the materials facts specific to each defendant that support a claim against the defendant that it owed a duty of care to the plaintiff, and by reason of specified conduct, breached that duty and caused injury or harm to the plaintiff. As this court noted in Sataur , at para. 5, in re-instating the statement of claim that had been struck out, in that case the plaintiff had pleaded “specific acts of negligence against each individual defendant for which each may be personally liable”: see also, ADGA Systems International Ltd. v. Valcom Ltd. , [1999] O.J. No. 27 (C.A.), at para. 39. [20] Since Mr. Burns’ statement of claim failed to plead specific acts of bad faith, negligence or negligent misrepresentation by Ms. McLean or Ms. Oslizlok, the motion judge did not err in concluding that Mr. Burns “has not” pleaded a claim against the individual employee defendants that complied with the jurisprudence governing personal liability in tort for the acts of an employee done in the course of employment: at para. 35. [21] However, the motion judge did err in concluding that Mr. Burns “cannot plead such a claim against the employees”: at para. 35. That conclusion was premature. The deficiencies in Mr. Burns’ pleading might well be cured by an appropriate amendment had the motion judge granted him leave to amend. [22] The motion judge denied Mr. Burns leave to amend but gave no reasons for doing so. As this court has stated, leave to amend should be denied only in the clearest of cases, especially where the deficiencies in the pleading can be cured by an appropriate amendment and the other party would not suffer any prejudice if leave to amend was granted: Tran v. University of Western Ontario , 2015 ONCA 295, at para. 26; South Holly Holdings Limited v. The Toronto-Dominion Bank , 2007 ONCA 456, at para. 6. [23] In the absence of reasons explaining why he denied leave to amend, the discretionary order of the motion judge is not entitled to deference. [24] Here, there was no reason to deny Mr. Burns leave to amend his statement of claim as an appropriate amendment might cure the pleading’s deficiency and there is no suggestion that the respondents would suffer litigation prejudice by granting leave to amend. Although we do not interfere with that part of the order of the motion judge striking out the statement of claim as against Ms. McLean and Ms. Oslizlok, we grant Mr. Burns leave to amend. [25] Given the deficiencies in Mr. Burns’ statement of claim, it is not necessary to resolve the dispute between the parties as to whether alleged bad faith conduct by the employees of an insurance company constitutes a distinct actionable legal wrong that can be pleaded against the employees in their personal capacities. The resolution of that dispute, if required, must await Mr. Burns amending his statement of claim to properly plead individualized claims against Ms. McLean and Ms. Oslizlok. DISPOSITION [26] Accordingly, we allow the appeal to the extent of varying para. 1 of the order to read: THIS COURT ORDERS that the Statement of Claim shall be struck as against the Defendants, Lauren McLean and Anna Oslizlok, with leave to amend. [27] If the parties are unable to resolve the matter of costs of this appeal and Mr. Burns wishes to pursue that matter, he shall file written cost submissions to a maximum of three pages, with the Court, within seven days of the date of release of these reasons. The respondents shall have a further seven days within which to file responding submissions, such submissions not to exceed three pages in length. “E.E. Gillese J.A.” “David Brown J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Burns v. RBC Life Insurance Company, 2020 ONCA 377 DATE: 20200610 DOCKET: C67837 Gillese, Brown and Jamal JJ.A. BETWEEN Randolph Burns Plaintiff (Appellant) and RBC Life Insurance Company, Lauren McLean and Anna Oslizlok Defendants (Respondents) Deanna S. Gilbert, for the appellant Barry G. Marta, for the respondents Heard: In-writing On appeal from the order of Justice Paul Perell of the Superior Court of Justice, dated December 3, 2019, with reasons reported at 2019 ONSC 6977 . COSTS ENDORSEMENT [1] By reasons for decision dated June 4, 2020, we allowed the appeal to the extent of granting the appellant leave to amend his Statement of Claim as against the individual respondents, Ms. McLean and Ms. Oslizlok. As the parties were unable to resolve the issue of costs, we heard brief cost submissions by teleconference on June 8, 2020. [2] The appellant seeks partial indemnity costs in the amount of $12,500. The respondents submit that they should be awarded partial indemnity costs in the amount of approximately $7,170 and no change should be made to the costs awarded by the motion judge. [3] In our view, success on the appeal was divided: the order of the motion judge striking out the Statement of Claim as against the individual respondents was not set aside but the order was varied to grant the appellant leave to amend his claim. Accordingly, we order no costs of the appeal. [4] The appellant sought to appeal the costs awarded by the motion judge. We reduce the costs awarded below from $6,000 to $3,000 payable only to RBC Life Insurance Company to reflect its success on the discovery-related part of the motion. “E.E. Gillese J.A.” “David Brown J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Caja Paraguaya de Jubilaciones y Pensiones del Personal de Itaipu Binacional v. Garcia, 2020 ONCA 412 DATE: 20200625 DOCKET:C66070 Pepall, Pardu and Paciocco JJ.A. BETWEEN Caja Paraguaya de Jubilaciones y Pensiones del Personal de Itaipu Binacional Plaintiff (Respondent) and Eduardo Garcia Obregon a.k.a. Eduardo Garcia a.k.a. Eddie Obregon, Claudia Patricia Garcia a.k.a. Patricia Garcia a.k.a. Claudia Patricia De Garcia a.k.a. Claudia Santisteban, Ligia Ponciano, Managed (Portfolio), Corp., Genesis (LA), Corp. (Ontario Corporation Number 1653094, Genesis (LA), Corp. (Alberta Corporate Access Number 2013145921), FC Int, Corp., First Canadian Int, Corp., Union Securities Limited, Scott Colwell, Marty Hibbs, Hibbs Enterprises Ltd., Columbus Capital Corporation, Antonio Duscio, Leanne Duscio , Leanne Duscio carrying on business as The Queen St. Conservatory, Catan Canada Inc., Vijay Paul, Greg Baker, Bradley F. Breen, Lou Maraj, 2138003 Ontario Inc., Mackie Research Capital Corporation, First Canadian Capital Markets Ltd., First Canadian Capital Corp., FC Financial Private Wealth Group Inc., Jason C. Monaco, Daniel Boase, Paolo Abate, Nikolaos Sylianos Tsimids, Genesis Land Development Corporation, Limited Partnership Land Pool (2007), and GP LPLP 2007 Inc. Defendants ( Appellant) Kevin Sherkin and Allison Farley, for the appellant Jacqueline L. King and Christopher Gaytan, for the respondent Heard: January 30, 2020 On appeal from the judgment of Justice Sean F. Dunphy of the Superior Court of Justice, dated October 12, 2018, with reasons reported at 2018 ONSC 5379. Paciocco J.A.: OVERVIEW [1] With the assistance of insider officers and others, Eduardo Garcia spearheaded a massive fraud against a Paraguayan pension fund, Caja Paraguaya de Jubilaciones y Pensiones del Personal de Itaipu Binacional (“Cajubi”). As a result, Cajubi lost $12,460,930. [2] One of Mr. Garcia’s former business associates, Mr. Antonio Duscio, assisted in rerouting approximately $7.4 million of the money that Cajubi ultimately lost. Mr. Duscio filtered approximately $3 million of this money through a corporation, Catan Canada Inc. (“Catan”). His wife, Ms. Leanne Duscio, testified that she was the sole shareholder of Catan. [3] When Cajubi brought an action against multiple defendants in Canada, Ms. Duscio was added as a defendant. The trial judge granted judgment against her in the amount of $3 million jointly and severally with her husband and Catan, finding her to have been a knowing assister relating to the Cajubi money that was routed through Catan. She alone appealed that portion of the decision. [4] For reasons that follow, I would allow her appeal from that decision and order a new trial. MATERIAL FACTS [5] With the complicity of Cajubi insiders (its President, Vice-President and Treasurer), Cajubi attempted to invest more than $34 million in Canadian investments proposed by Mr. Garcia. The bulk of this money was invested with three third party Canadian enterprises, but on less favourable terms and at greater risk than the elaborate fraudulent documentation disclosed. The balance of the money was diverted and used to pay kickbacks to Cajubi insiders and to enrich Mr. Garcia and his associates, including his wife, Claudia Patricia De Garcia. [6] One of those three Canadian enterprises was Union Securities Limited (“Union”). Ostensibly, Cajubi invested $14,099,000 through a managed commodities trading account operated by Union. In fact, just under $11,500,000 was placed with Union investments. [7] Mr. Garcia successfully controlled the flow of material information between Cajubi and Union to hide this fact, and to paint a false picture that enabled him to maintain and increase the contributions Cajubi was making to the falsified Union investments. He did so through a shell corporation he had set up, Managed (Portfolio) Corp. (“Managed Portfolio”), which he used to facilitate the transactions between Cajubi and Union. [8] This appeal concerns $3 million of the fraudulent Union investment, the only monies linked in any way to the appellant, Leanne Duscio. In simple terms, Mr. Garcia, with the assistance of Mr. Duscio, routed $3 million of the funds that had been invested with Union through a bank account of Catan, a corporation owned by Ms. Duscio. [9] The complex series of transactions that achieved the routing of money through the Catan account began on August 14, 2008, when Mr. Garcia opened a new bank account in the name of Managed Portfolio, designated as “Managed (Portfolio) Corp. ITF Cajubi”. The “ITF” was meant to indicate “in trust for”. [10] The next day, using a power of attorney that he had secured from Cajubi relating to the Union managed commodities trading account, Mr. Garcia diverted $3 million to the Managed (Portfolio) Corp. ITF Cajubi account. This transaction was not known to the Cajubi insiders complicit in the fraudulent schemes. [11] Proximate to the transfer, Mr. Garcia created false documentation purporting to show a $3 million “Demand Promissory Note” issued on August 22, 2008, by a corporation called Columbus Capital Corp. (“Columbus Capital”). This documentation represented that the promissory note was connected to Union, which it was not. Indeed, as I will describe shortly, Columbus Capital was not even incorporated until August 25, 2008, three days after Columbus Capital purportedly issued the promissory note. [12] On August 22, 2008, the date shown on the face of the fraudulent Demand Promissory Note, the $3 million was transferred by Managed Portfolio into a bank account owned by Catan. The deposit note described the money as “due to Columbus”. Immediately prior to the deposit, the balance in the Catan account was $292,238.57. Catan also held an American funds account which held an additional $13,469.37 USD at the time of the $3 million deposit into the Canadian account. [13] Leanne Duscio is the sole officer and director of Catan and its only shareholder. Catan was incorporated in January 2006 as a business vehicle for office rental income generated from a building Catan owns, as well as a dance studio operated out of that building by Ms. Duscio. [14] Notwithstanding Ms. Duscio’s legal authority to control Catan, the trial judge found that her bankrupt husband, Mr. Antonio Duscio, a former business associate of Mr. Garcia’s, was actually “the de facto controlling mind and will of Catan”, and “made virtually all of the financial decisions in relation to Catan, controlled all of its banking, arranged for the keeping of its books and records, etc.” [15] On August 25, 2008, three days after the $3 million Catan deposit, Columbus Capital was incorporated, with a business address in the Catan building. The trial judge found that at all material times, Mr. Duscio was also the de facto controlling mind and will of this corporation, even though, once again, he held no shares, directorships or corporate offices. [16] The Corporation Profile for Columbus Capital reveals that Mr. Garcia was the administrator and president of Columbus Capital at the time of its incorporation. A Mr. Greg Baker is registered as the first and sole director. Mr. Baker is an acquaintance of Mr. Duscio. Mr. Baker expected Columbus Capital to be used for a business that he and Mr. Duscio were launching, trading in refurbished computer equipment. He would supply the business contacts and Mr. Duscio, the capital. Accordingly, Mr. Duscio was given signing authority over Columbus Capital’s bank account, which enabled him to control Columbus Capital’s funds. [17] Although the $3 million was ostensibly to be placed with Columbus Capital, the funds were not simply transferred from Catan to Columbus Capital once Columbus Capital was incorporated. Instead, the trial judge found that over the next nine months, until June 1, 2009, more than $2.5 million in wire transfers was paid out of the Catan account for purposes linked to Columbus Capital. Without undertaking a close tracing on all funds in the Catan account, the trial judge estimated that “at least $400,000 of Cajubi’s funds were spent by Catan (under Mr. Duscio’s direction) that even Mr. Duscio could not find cause to charge to Columbus.” [1] [18] More than half of the Columbus Capital outlays from the Catan account, including the payment of significant sums to Mr. Garcia’s Guatemalan uncle, Mr. Nicholas de Leon, occurred within approximately two weeks after the August 22, 2008 deposit. The bulk of the remainder was paid out one month after the deposit, when, on September 22, 2008, $700,038.94 USD was wired in connection with a Columbus Capital expenditure. The final transfer to Columbus Capital of $513,931.92 CDN did not occur until June 1, 2009. [19] The trial judge itemized the “larger of the miscellaneous non-Columbus expenditures identified during the relevant time frame” that he concluded were linked to Cajubi funds. His breakdown of those funds is presented in the reasons for decision as follows: · Advances to Mrs. Duscio’s Dance Studio: $19,231; · Tony Duscio lawyers (paid as accounts payable): $76,558; · Tony Duscio lawyers (charged as shareholder advances): $17,000; · Payroll to Ms. Duscio starting in January 2009 ($750/wk ?? 22 = $8,250); · Leanne Duscio: $20,000: · Cash Withdrawals ($12,500); · John Duscio ($8,000); · BMW (shareholder advance): $25,890; · Tony Duscio cheque: $5,000; · Home Improvements: at least $32,000 identified. [20] In early June 2009, Mr. Baker discovered the $513,931.92 CDN transfer from Catan in the Columbus Capital bank account, an amount far beyond what the computer refurbishing business could account for. He also noted large commission payments that had been made to Mr. Nicholas de Leon, a name he was not familiar with. Concerned about the improper use of the Columbus Capital bank account, he arranged as the sole shareholder and director of Columbus Capital to change the signing officers on Columbus Capital’s bank account, shutting Mr. Duscio out. THE TRIAL JUDGE’S DECISION [21] On October 12, 2018, after a trial that spanned 17 days that included claims related to the transactions described, the trial judge gave judgment. [22] The trial judge imposed extensive liability against Mr. Garcia, his wife, and corporations Mr. Garcia used to assist him in his fraudulent activity. [2] The trial judge also found Cajubi to be entitled to judgment against Mr. Duscio, Ms. Duscio, and Catan, in the amount of $3 million arising from the Catan deposit, [3] and to a tracing order permitting Cajubi to trace its funds. [23] The basis for Mr. Duscio’s personal liability arising from the Catan deposit was simple and compelling. Mr. Duscio was the de facto directing mind and will of Catan, and he used his control over the financial affairs of the company to assist Mr. Garcia in arranging the transfer of what Mr. Duscio knew to be $3 million in trust money held by Mr. Garcia for Cajubi. When the funds were received by Catan, Mr. Duscio knew that the transfer was occurring under the pretense that it was for a promissory note purportedly issued by a company that had yet to be incorporated. He furnished the banking information to facilitate the deposit, assisted in obtaining forged signatures for the promissory note documentation, and arranged the payment at Mr. Garcia’s direction of a secret 10% commission to Mr. de Leon, knowing full well that it had not been approved by Cajubi. He also arranged for other payments having no connection to the promissory note. [24] It is helpful to set out with more specificity comments made by the trial judge relating to Mr. Duscio’s de facto control over Catan because they bear on Ms. Duscio’s appeal. [25] When recounting the material transactions in the course of his reasons for decision the trial judge said: Whatever the public record shows regarding ownership and control of Catan, the defendant Mr. Anthony Duscio was at all material times the de facto controlling mind and will of Catan. Mr. and Mrs. Duscio both agree that Mr. Duscio made virtually all of the financial decisions in relation to Catan, controlled all of its banking, arranged for the keeping of its books and records, etc. Mrs. Duscio was advised by her husband from time to time what needed signing and, when asked, did so with little apparent curiosity. She had little to no direct information about any of the business undertaken by Catan. There is no evidence that she invested anything in it or played anything but a passive role. Catan was for all intents and purposes Mr. Duscio’s alter ego , an alter ego whose usefulness was greatly enhanced following his bankruptcy. [26] The trial judge reiterated when finding Mr. Duscio liable that Mr. Duscio was the controlling mind and will of Catan, “even if his wife Leanne was the titular shareholder and signing officer. He arranged for all of the bookkeeping and banking and took care of matters electronically or arranged to have his wife sign what needed signing”. [27] The trial judge’s brief reasons for imposing liability on Mrs. Duscio warrant complete reproduction: As officers and directors – de jure in the case of Ms. Leanne Duscio and de facto in the case of Mr. Anthony Duscio – of Catan, the liability of Catan for breach of constructive trust by which it was bound falls equally upon the shoulders of Leanne Duscio and Anthony Duscio. These two both provided knowing assistance in Catan’s breach of trust: Air Canada . The particulars of the knowing assistance in Anthony Duscio needs no elaboration. He was one of the architects of the fraud perpetrated upon Cajubi and he actively and knowingly authorized and directed the dissipation of funds received by Catan that he knew or ought to have known came subject to a constructive trust in Cajubi’s favour. In Leanne Duscio’s case, I find that her passive acquiescence in her husband’s schemes went beyond mere trust and faith and crossed the line to wilful blindness. She knew that her husband had filed for bankruptcy earlier that year and she knew generally what reverses had led him there. She continued to sign as needed cheques and authorizations for very large quantities of money to transit through her company without due inquiry and in circumstances where she ought to have been on inquiry. She cannot hide behind her own wilful blindness to avoid the consequences of facilitating her husband’s fraud. [28] Later, when explaining Mr. Duscio’s liability relating to three other Columbus promissory note transactions, totalling an additional $4,379,958, the trial judge explained why Ms. Duscio was not similarly liable with respect to these transactions: “There is no evidence that Mrs. Duscio or Catan had any direct role in Columbus Capital or its misappropriation of funds.” [29] When summarizing his disposition, the trial judge said: The liability of Ms. Duscio and her company Catan is restricted to the Cajubi funds that were actually received by Catan ($3 million). Should the plaintiff uncover evidence supporting tracing other amounts found by me to be subject to a constructive trust into the hands of either Catan or Ms. Duscio, further application may be made on the basis of such additional evidence of knowing receipt of funds subject to a constructive trust. THE GROUNDS OF APPEAL [30] Ms. Duscio contends that the doctrine of knowing assistance is the sole basis for the $3 million judgment against her. She urges that the trial judge erred in the identification and application of the knowing assistance test, including by misapprehending the evidence. Cajubi disagrees but argues that the trial judge also based Ms. Duscio’s liability on her knowing receipt of Cajubi funds. The specific issues that arise can be stated as follows: A. Did the trial judge err by applying a constructive knowledge standard in finding Ms. Duscio liable based on knowing assistance? B. Did the trial judge make palpable and overriding errors in finding Ms. Duscio liable for knowing assistance? C. Did the trial judge base Ms. Duscio’s liability alternatively on the doctrine of knowing receipt? A. Did the trial judge err by applying a constructive knowledge standard in finding Ms. Duscio liable based on knowing assistance? [31] The doctrine of knowing assistance is a mechanism for imposing liability on strangers to a fiduciary relationship who participate in a breach of trust by the fiduciary. Strangers to a fiduciary relationship who are made liable on this basis are held responsible because of their “want of probity”, “meaning lack of honesty”: Air Canada v. M & L Travel Ltd. , [1993] 3 S.C.R. 787, at p. 812; Bikur Cholim Jewish Volunteer Services v. Penna Estate , 2009 ONCA 196, 94 O.R. (3d) 401 at para. 43. [32] Accordingly, the preconditions of knowing assistance liability have been structured to identify dishonest participation in a dishonest breach of trust. In DBDC Spadina Ltd. v. Walton , 2018 ONCA 60, 419 D.L.R. (4th) 409, at para. 211, van Rensburg J.A., in a dissenting opinion adopted by the Supreme Court of Canada as its reasons on appeal, 2019 SCC 30, 435 D.L.R. (4th) 379, identified the elements of knowing assistance in a fiduciary breach as: (1) a fiduciary duty; (2) a fraudulent and dishonest breach of the duty by the fiduciary; (3) actual knowledge by the stranger to the fiduciary relationship of both the fiduciary relationship and the fiduciary’s fraudulent and dishonest conduct; and (4) participation by or assistance of the stranger in the fiduciary’s fraudulent and dishonest conduct. [33] Two points relating to the “actual knowledge” requirement warrant elaboration, given the issues in this appeal. The first is that the “actual knowledge” of the “stranger” must include knowledge of a fiduciary relationship and “the fiduciary’s fraudulent and dishonest conduct ”: DBDC Spadina, at para. 211; Harris v. Leikin Group Inc ., 2011 ONCA 790, at para. 8. It is not enough for the stranger to know or suspect in some unspecified way that the fiduciary was up to no good. In this case, Ms. Duscio would be liable as a knowing assister only if she had “actual knowledge” that Catan held funds as trustee, and that she was participating or assisting Catan in fraudulent and dishonest conduct relating to those funds. [34] Second, the concept of “actual knowledge” is more expansive than the term “actual knowledge” denotes. Although “actual knowledge” by the stranger of the fiduciary relationship and of the fiduciary’s fraudulent and dishonest conduct will satisfy this requirement, so, too, will “recklessness or wilful blindness to the fiduciary relationship and the fiduciary’s fraudulent and dishonest conduct”: Air Canada , at p. 811; see also Harris , at para. 8. [35] I need say nothing more about the concept of recklessness, since the trial judge imposed knowing assistance liability based on wilful blindness. Wilful blindness, the concept of interest in this appeal, is well developed in the criminal law. It has been described as “deliberate ignorance” and exists where the subject suspects the relevant facts but deliberately chooses not to inquire because they do not wish to know the truth: R. v. Morrison , 2019 SCC 15, 375 C.C.C. (3d) 153, at paras 98, 100. A finding of wilful blindness can therefore be made where an affirmative answer can be provided to the question, “Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?”: R. v. Briscoe , 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 21. [36] Wilful blindness has similar meaning in knowing assistance cases. In Air Canada , at pp. 811-812, quoting from Carl-Zeiss-Siftung v. Herbert Smith & Co . (No. 2) , [1969] 2 All E.R. 367 (C.A.), at p. 379, Iacobucci J. described the alternative basis for knowing assistance liability where the stranger does not have “both actual knowledge of the trust’s existence and actual knowledge that what is being done is improperly in breach of that trust” by saying “of course, in both cases a person wilfully shutting his eyes to the obvious is in no different position than if he kept them open.” [37] To be clear, wilful blindness is a subjective standard of fault that depends on the stranger’s actual state of mind. This distinguishes wilful blindness from objective standards of fault based on what the subject ought to have known, such as negligence: Sansregret v. The Queen , [1985] 1 S.C.R. 570, at pp. 581-82, 584. [38] This distinction is crucial given the underlying theory of liability. In Air Canada , Iacobucci J. commented that “carelessness” involved in constructive knowledge does “not normally amount to a want of probity, and will therefore be insufficient to bind the stranger’s conscience”, as required in knowing assistance cases: at p. 812. In Citadel , La Forest J. described the kind of insufficient, constructive knowledge Iacobucci J. was referring to as “knowledge of facts sufficient to put reasonable people on notice or inquiry”: at para. 48. Rosenberg J.A., discussing Air Canada , observed that “want of probity” is necessary to capture the notion of being privy or party to a fraud and that “[i]t cannot be enough that the trustee was simply negligent or ought to have known that the co-trustee was committing a fraud or fraudulent breach of trust”: Bikur , at para. 43. [39] I am persuaded that the trial judge erred in this case by relying on constructive knowledge based on Ms. Duscio’s carelessness to ground his finding that Ms. Duscio “went beyond mere trust and faith and crossed the line to wilful blindness”. He said in material part: She knew that her husband had filed for bankruptcy earlier that year and she knew generally what reverses had led him there. She continued to sign as needed cheques and authorizations for very large quantities of money to transit through her company without due inquiry and in circumstances where she ought to have been on inquiry. She cannot hide behind her own wilful blindness to avoid the consequences of facilitating her husband’s fraud. [40] Although the trial judge identified certain facts that Ms. Duscio knew, he made no finding as to whether she knew or suspected that the money transiting through her company was trust money that was being employed in a dishonest or fraudulent breach of trust. This is a critical omission. Without such findings, a proper determination of wilful blindness cannot be made. He spoke instead of how Ms. Duscio “ought to have been on inquiry”. Describing what someone ought to have known or done is the language of objective fault or constructive knowledge, not the language of subjective wilful blindness. [41] My conclusion that the trial judge used constructive knowledge to support his knowing assistance finding is reinforced by another passage in his reasons for decision. Specifically, he said: As officers and directors – de jure in the case of Ms. Leanne Duscio and de facto in the case of Mr. Anthony Duscio – of Catan, the liability of Catan for breach of the constructive trust by which it was bound falls equally upon the shoulders of Leanne Duscio and Anthony Duscio. These two both provided knowing assistance in Catan’s breach of trust: Air Canada . [42] With respect, it is an error to construct liability for knowing assistance based on the status of the stranger as an officer in a corporation that has received trust property, when what is required is a finding of actual knowledge, personal recklessness or wilful blindness. [43] I have had the benefit of reading my colleague’s dissenting reasons in which she would find that the trial judge based his wilful blindness finding on Ms. Duscio’s subjective knowledge. I agree with my colleague that there was evidence on the record that could have supported a finding of subjective knowledge or subjective suspicion on Ms. Duscio’s part. The affidavit of August 2009 that Ms. Duscio swore in a different action attesting that, two months after the money had already been moved, she knew that approximately $500,000 had been loaned from Catan to Columbus Capital, is helpful in that regard. So, too, is the fact that Ms. Duscio benefited from some of the withdrawals that occurred while there was trust money in the account. Even the fact that she and her husband lived well beyond their incomes during the relevant period could point in that direction, notwithstanding that prior to the $3 million deposit, the Catan account already held enough money to cover the withdrawals that the trial judge found to have benefited the Duscios during the relevant period. However, the trial judge did not mention any of this in explaining his wrongful assistance finding, nor did he even allude to what Ms. Duscio knew or suspected. He spoke only of what she ought to have known. I cannot, in the face of the direct and exclusive objective-fault explanation he offered for his wilful blindness finding, read the trial judge’s decision as implicitly finding that Ms. Duscio had the requisite subjective fault. The fact that on isolated occasions in the 107-page decision the trial judge used language, without elaboration or explanation, that might be taken to suggest subjective knowledge on Ms. Duscio’s part does not assist me in that regard. [44] It must be remembered when reading the decision as a whole that the trial judge made numerous factual findings that would work against a finding of subjective knowledge or suspicion on Ms. Duscio’s part. Specifically, he found that Mr. Duscio was “at all material times the de facto controlling mind and will of Catan”; that he “controlled all of its banking, [and] arranged for the keeping of its books and records”; that he and Mr. Garcia had arranged for the deposit of the Cajubi funds; that he was responsible for the wire transfers paid from the account; that Ms. Duscio “had little to no direct information about any of the business undertaken by Catan”; and that “[t]here is no evidence that she invested anything in it or played anything but a passive role”. Nor was there evidence of any event that triggered a need for inquiry into a possible breach of trust that she shut her eyes to; there was no evidence that Ms. Duscio was even made aware that the money had been deposited, or that wire transfers had occurred. This was not a slam-dunk case for subjective wilful blindness. It is not the kind of case, in my view, where it is appropriate to infer that the trial judge applied the appropriate subjective standards of fault, notwithstanding that in his analysis he focused solely on an objective standard of fault. [45] I would find that the trial judge erred in law by applying a constructive knowledge standard in finding Ms. Duscio liable based on knowing assistance. This alone requires that the judgment against her be set aside. B. Did the trial judge make palpable and overriding errors in finding Ms. Duscio liable for knowing assistance? [46] Ms. Duscio contends that the trial judge made several palpable and overriding errors in finding her liable for knowing assistance. I will address only one of those alleged errors, as it is the only one that I would find to have occurred. I am satisfied that the trial judge committed a palpable error relating to his finding that Ms. Duscio continued to sign cheques and authorizations for very large quantities of money. Since this is the only finding the trial judge made that could show assistance by Ms. Duscio, a necessary condition to “wrongful assistance” liability, this error was overriding. [47] Specifically, the trial judge found: She knew that her husband had filed for bankruptcy earlier that year and she knew generally what reverses had led him there. She continued to sign as needed cheques and authorizations for very large quantities of money to transit through her company without due inquiry and in circumstances where she ought to have been on inquiry. She cannot hide behind her own wilful blindness to avoid the consequences of facilitating her husband’s fraud. [48] To support Ms. Duscio’s liability, this finding would have to relate to cheques and authorizations that are linked to Cajubi funds deposited into the Catan account. However, the trial judge had no evidence that could ground a finding that Ms. Duscio signed any of the cheques or authorizations after the Cajubi funds were deposited. [49] First, the trial judge found that it was Mr. Duscio who arranged for the $3 million deposit and the wire transfers of more than $2.5 million that the trial judge linked to Columbus Capital. There was no evidence that Ms. Duscio played any role in these wire transfers or had any knowledge that the deposit or wire transfer withdrawals had even occurred. [50] Second, Ms. Duscio’s testimony about signing cheques was not linked to the trust money. She acknowledged in her testimony to signing without due inquiry several documents relating to the acquisition and financing of Catan’s 20 Queen St. North property, and the litigation affidavit of August 2009 under her husband’s direction. She also agreed more generally that “I’ll just sign whatever [my husband] puts in front of me”. Despite this, she gave no specific evidence relating to signing any cheques that could be linked to Cajubi funds. No cheques or authorizations executed after the Cajubi deposit were put to Ms. Duscio during her cross-examination, and no other evidence was called to prove her signature on any relevant cheques or authorizations. [51] Although contemporaneous cheques were filed in the case, no admissions were made relating to their authorship. The trial judge did not proceed during the hearing on the basis that those cheques had been proved, since he advised counsel when cross-examining Ms. Duscio to either have her prove the documents she could or read in admissions on discovery to do so. Neither step was taken, and no other evidence was presented linking Ms. Duscio to any of the contemporaneous cheques or authorizations. [52] In my view the trial judge committed a palpable error by making the finding underlined in para. 49 above, relating as it must have to Cajubi funds, without evidence or admission. [53] This error is not only palpable, it is overriding. As indicated, Ms. Duscio’s liability for knowing assistance depended upon a finding that she assisted in the breach of trust. Cajubi argued before us that she did so by permitting Mr. Duscio to use Catan’s bank account to receive and disburse the Cajubi funds, but the trial judge made no mention of this theory of assistance. The only material finding the trial judge made that could amount to assistance was this: that she “continued to sign as needed cheques and authorizations for very large quantities of money to transit through her company without due inquiry”. This palpably erroneous finding had to be a lynch-pin to a finding of liability for knowing assistance. [54] I would therefore allow this ground of appeal, on this basis. C. Did the trial judge base Ms. Duscio’s liability alternatively on the doctrine of knowing receipt? [55] The theory of liability of strangers to the trust for knowing receipt rests in the law of restitution. Liability arises from the fact that the stranger has received trust property for its own benefit and in doing so, has been enriched at the beneficiary’s expense: Citadel , at para. 31. The stranger is therefore conscience-bound to restore the property received: Citadel , at para. 32. [56] Since liability rests in restitution and not wrongdoing, a lower level of knowledge will suffice than in knowing assistance cases. In knowing receipt cases, constructive knowledge, based on knowledge of facts that would put a reasonable person on notice or inquiry, may serve as a basis for restitutionary liability: Citadel , at para. 48. [57] The legal test for knowing receipt therefore requires that: (1) the stranger receives trust property (2) for his or her own benefit or in his or her personal capacity, (3) with actual or constructive knowledge that the trust property is being misapplied. In addition to actual knowledge, including wilful blindness or recklessness, requirement (3) can be met where the recipient, having “knowledge of facts which would put a reasonable person on inquiry, actually fails to inquire as to the possible misapplication of the trust property”: Citadel , at para. 49; Gold v. Rosenberg , [1997] 3 S.C.R. 767, at para. 74; see also Paton Estate v. Ontario Lottery and Gaming Corporation (Fallsview Casino Resort and OLG Casino Brantford) , 2016 ONCA 458, 131 O.R. (3d) 273, at para 62. [58] Where liability is imposed, the “measure of the restitutionary recovery is the gain the [defendant] has made at the [plaintiff’s] expense”: Citadel , at para. 30, citing Air Canada v. British Columbia , [1989] 1 S.C.R. 1161, at pp. 1202-03. [59] Since liability for knowing receipt may be imposed based on the kind of constructive knowledge the trial judge found in this case, Cajubi seeks to uphold the trial judge’s liability finding by urging that he imposed liability on Ms. Duscio for knowing receipt. I do not accept this contention, for these reasons: · Although the trial judge cited the doctrine of knowing receipt in para. 441 of his reasons for judgment he made no reference to knowing receipt when describing the liability of Ms. Duscio. Instead, he described Ms. Duscio’s liability as based on “knowing assistance in Catan’s breach of trust”; · The trial judge analyzed Ms. Duscio’s liability based on “wilful blindness”, a mental state that is not required for knowing receipt; · When the trial judge explained the liability of Ms. Duscio, he focused on the $3 million deposit, and Ms. Duscio never received this $3 million for her own benefit or in her personal capacity, necessary conditions to liability based on knowing receipt. The trial judge found correctly that Catan received this money; · Although the trial judge made findings that at least $400,000 of the Catan money was spent by Catan on non-Columbus Capital disbursements, some of which are itemized in para. 19 above as having been paid to Ms. Duscio, or arguably for her benefit, he did not find her liable in the amount that she had gained, the measure of restitutionary recovery for knowing receipt. Instead, the trial judge found her liable for the full $3 million paid into Catan, an amount of recovery appropriate in the circumstances only for knowing assistance; and · The trial judge made no effort to identify which of the itemized payments described in para. 19 above, or how much of that money, was received personally by Ms. Duscio or for her benefit, which he would have had to do to impose liability based on knowing receipt. [60] Cajubi argues that the trial judge found Ms. Duscio to be liable for knowing receipt when he said: The liability of Ms. Duscio and her company Catan is restricted to the Cajubi funds which were actually received by Catan ($3 million). Should the plaintiff uncover evidence supporting tracing other amounts found by me to be subject to a constructive trust into the hands of either Catan or Ms. Duscio, further application may be made on the basis of such additional evidence of knowing receipt of funds subject to a constructive trust. [61] This is not a finding of liability against Ms. Duscio based on knowing receipt. As paragraph 11 of the formal order confirms, the trial judge was advising the parties that should constructive trust funds be shown in the future by as yet uncovered evidence to be in the hands of Ms. Duscio, a “further” application may be made “on the basis of such additional evidence of knowing receipt of funds subject to a constructive trust.” [62] I have considered whether it is appropriate for this court to impose personal liability on Ms. Duscio as a constructive trustee, based on the constructive knowledge and receipt findings made by the trial judge that could support a finding of liability for knowing receipt (although that was not the trial judge’s conclusion). In my view, it is not appropriate to do so. First, the trial judge did not make the necessary factual findings to identify the precise funds, listed in para. 19 above, that Ms. Duscio received personally or for her benefit. Second, it is my view that this is a case where a substantial wrong has occurred, warranting a new trial under Courts of Justice Act , R.S.O. 1990, c. C.43, s. 134(6). Premised on a legal error, Ms. Duscio was ordered to pay $3 million. Meanwhile, Cajubi has not had the benefit of a knowing receipt determination involving Ms. Duscio, despite having pleaded this cause of action. Since I would order a new trial on the knowing receipt issue, a precise determination of liability based on knowing receipt can be made at the retrial, if appropriate. [63] One final point. None of what I say affects the validity of the contingent tracing order that trial judge made. Not only is the tracing order contingent, a tracing order does not depend upon a finding of liability for knowing receipt. Liability in tracing flows from the fact of receipt, and the extent of liability is dependent on the amount received: B.M.P. Global Distribution Inc. v. Bank of Nova Scotia , 2009 SCC 15, [2009] 1 S.C.R. 504, at paras. 78-79. A party holding identifiable property that another has a superior legal or equitable right to possess can be compelled under the rules of legal or equitable tracing to transfer that property to the party with the superior legal or equitable right, without the need for a finding of liability for knowing receipt, and without a finding of that the holder is a constructive trustee of that property. As La Forest J. emphasized in Citadel , at para. 57, “[t]he imposition of liability as a constructive trustee on the basis of ‘knowing receipt’ is a restitutionary remedy and should not be confused with the right to trace assets at common law or in equity.” He further said, at para. 58: Liability at common law [based on common law or equitable tracing rules] is strict, flowing from the fact of receipt. Liability in ‘knowing receipt’ cases is not strict; it depends not only on the fact of enrichment (i.e. receipt of trust property) but also on the unjust nature of that enrichment (i.e. the stranger’s knowledge of the breach of trust). [64] For this reason, I would therefore respectfully observe that the contingent tracing order made by the trial judge is more demanding than it needs to be. If Cajubi funds are traced into the hands of Ms. Duscio, and are identifiable under the rules of equitable tracing, on further application Ms. Duscio could be required to hand the funds over, or to hand over any lasting assets that have been acquired with those funds, without the need for a finding of actual or constructive knowledge on her part. CONCLUSION [65] I would allow the appeal and set aside the order made in para. 10 of the judgment that holds Leanne Duscio jointly and severally liable to pay to Cajubi $3 million. I would also order a new trial relating to the personal liability claims made against Leanne Duscio for knowing receipt of trust funds. Catan remains jointly liable with Mr. Duscio and Columbus Capital for the $3 million to be paid to Cajubi pursuant to para. 10 of the trial judge’s order. [66] I would set aside the costs order made against Leanne Duscio below. [67] I would order costs in this matter to be payable to Leanne Duscio in the amount of $30,000, inclusive of disbursement and applicable taxes, as agreed between the parties. “David M. Paciocco J.A.” I agree. G. Pardu J.A.” Pepall J.A. (Dissenting): [68] Knowing assistance and knowing receipt are torts that frequently find themselves in the company of civil fraud. They are torts that have evolved as our legal system has struggled to respond to dishonest dealings in society. [69] In this appeal, the trial judge presided over a 17-day trial involving Cajubi, a Paraguayan workers’ pension fund located in Paraguay, that was defrauded of over $20 million, a fraud that was largely masterminded by Canadians. As mentioned by my colleague, we dismissed the appeal brought by two of the perpetrators, Mr. and Mrs. Garcia, and their associated companies: 2020 ONCA 124, 96 M.P.L.R. (5th) 1. In addition to the judgment of $20,843,888 granted against the Garcias, the trial judge also ordered the appellant, Leanne Duscio, and her wholly-owned company, Catan Canada Inc. (“Catan”), to pay Cajubi $3 million. Mrs. Duscio is also the sole officer and director of Catan. Catan did not appeal this $3 million judgment against it. Nor did Anthony Duscio, the bankrupt husband of the appellant, appeal the $7,379,958 judgment granted against him in favour of Cajubi. [70] My colleague would allow Mrs. Duscio’s appeal relating to the $3 million award against her based on knowing assistance and would order a new trial on knowing receipt. His basis for allowing the appeal is that the trial judge erred by applying a constructive knowledge standard to the wilful blindness component of knowing assistance and made a palpable and overriding error relating to his finding that Mrs. Duscio continued to sign as needed cheques and authorizations for very large quantities of money to transit through Catan. [71] I would dismiss the appeal on knowing assistance, which would also render a new trial on knowing receipt unnecessary. In my view, read as a whole together with the record, I am not persuaded that the judgment awarded was in error. Trial Judge’s Reasons [72] In extensive reasons for decision, 107 pages in length, the trial judge addressed the case against the Garcia Defendants, as he called them. [4] Along with others, the Garcia Defendants orchestrated a massive fraud against the Cajubi pension fund in Paraguay. However, the Duscios were not mere bystanders to this fraud. [73] Mr. Duscio’s then company, Universal Settlements Inc. (“USI”), hired Mr. Garcia as a salesman around 2002. USI was in the viaticals business—it found investors to purchase life insurance policies from owners. Sadly, for the pension fund, through his work with USI, Mr. Garcia came into contact with Cajubi in 2005. [74] The trial judge introduced the Duscios in paragraph 14 of his reasons: Mr. Anthony Duscio, his wife Leanne Duscio and her company Catan Canada Inc. – the “Duscio Defendants” – stand in a class apart among the other defendants to this action. Their involvement (in the subject-matter of this proceeding at least) is limited to the “Columbus Notes” matter by which Cajubi was defrauded of almost $7.4 million. This was an utterly fraudulent investment scheme Mr. Duscio and Mr. Garcia hastily assembled to avoid sending back to Paraguay the proceeds of liquidation of the Union Securities investment. This scheme enabled Mr. Garcia to secrete more than $1 million of Cajubi’s funds out of Canada into the hands of a family member. Some or all of the remaining funds simply vanished in a variety of fraudulent transfers orchestrated by the Duscio Defendants without even a façade of propriety. While Mr. Garcia appears to have been taken by surprise by the extent of Mr. Duscio’s fraud, this does not affect the liability of either for the blatant and fraudulent misappropriation of the plaintiff’s funds. [75] At para. 329 and following, the trial judge described how Mr. Garcia caused $7,379,958 of the pension fund’s money to be transferred to Columbus Capital Corp. (“Columbus Capital”), discussed in more detail below. [76] Catan owned a heavily-mortgaged property on Queen Street in Kitchener, which it acquired in 2006. This building had no tenants, so Mrs. Duscio moved her dance studio, described by her as a hobby and for which she got paid $1000 – $1500 a month, into the building. Mrs. Duscio testified that the dance studio lost money each year. [77] Greg Baker’s daughter attended the dance studio and, as a result of this connection, Mr. Duscio was introduced to Mr. Baker. Mr. Baker asked Mr. Duscio to assist with start-up funds for a computer refurbishing and leasing business. The two discussed the venture and Mr. Duscio later discussed the venture with Mr. Garcia as well. In August 2008, Mr. Duscio arranged for Columbus Capital to be incorporated. Mr. Duscio had filed for bankruptcy in early 2008 and Mr. Baker became the sole officer and director of Columbus Capital. Catan’s building on Queen Street in Kitchener became Columbus Capital’s registered office. [78] Mr. Baker did not know where the funding came from for the computer leasing business, but transactions ensued, and he thought the venture was taking off. The trial judge found that Mr. Duscio controlled all of Columbus Capital’s finances, kept the books, and was the de facto controlling mind and will of Columbus Capital from inception. Tensions began to grow, however, and things fell apart when Mr. Baker discovered various banking ledgers with large amounts of money that he did not recognize. Mr. Baker locked Mr. Duscio out of Columbus Capital on June 9, 2009, and the company ceased carrying on business soon after. [79] The trial judge found that substantially all of the funds that went into Columbus Capital came from the Cajubi pension fund and from customers paying for purchases financed by the Cajubi pension fund. He also found that nothing had been recovered by Cajubi from Columbus Capital. [80] The trial judge found at para. 333 of his reasons that Mr. Duscio was the de facto controlling mind, will, and alter ego of Catan. Mrs. Duscio was advised by Mr. Duscio what needed signing and, when asked, did so with little apparent curiosity. She had little to no direct information about the business undertaken by Catan. There was no evidence that she invested anything in Catan or played anything but a passive role. However, she was the sole shareholder, officer, and director of Catan. [81] The trial judge described the Duscios’ circumstances at paras. 335 and 336 of his reasons: At the time of trial, Mr. Duscio had very recently obtained employment working in a factory while Mrs. Duscio works as a sales assistant in a retail store at a modest hourly wage. Despite their very modest joint income, the couple continues to maintain a lifestyle well beyond what their income would suggest. They live in a custom-built home outside of Kitchener that can only be described as palatial, have a property in Florida that they visit perhaps two times per year and have luxury cars registered to both addresses. Mr. Duscio had originally hoped to house USI in the Queen Street building but when that situation turned into litigation, Catan was left with a building and no tenant. Mrs. Duscio moved her dance studio from her home to the office and began a small-scale business that she described as more of a hobby out of the building. As of mid-2008, Garcia caused $7,379,958 of Cajubi’s money to be “invested” in Columbus Capital through the latter’s issuance of promissory notes. Duscio had little in the way of concrete plans for the building (it was eventually sold in 2012). [82] On August 22, 2008, Mr. Garcia caused $3 million of Cajubi’s money to be transferred directly to Catan. [5] By June 9, 2009, very little of the money transferred to Catan or Columbus Capital remained. The trial judge found that all of the funds deposited in Catan’s account were impressed with a constructive trust in favour of Cajubi. [83] Over the intervening ten months, Catan’s general ledger identified approximately $2 million being transferred to Columbus Capital. In addition, according to an affidavit sworn by Mrs. Duscio on August 20, 2009, which I will discuss in further detail, and on which she was cross-examined at trial, $513,931.92 was lent by Catan to Columbus Capital in June 2009. [84] In addition, $400,000 was spent by Catan. Some of the details of these disbursements in favour of the Duscios are described at para. 19 of my colleague’s reasons. [85] As the trial judge observed at para. 395 of his reasons: There is no evidence that Catan had any “business” beyond owning the 20 Queen Street building from which a small amount of rental income was derived. I need not examine or count every nickel to conclude as I do that all or substantially all of the funds spent by Catan from August 22, 2008 until June 1, 2009 went to personal expenditures of either Mr. Duscio or Mrs. Duscio. Cajubi’s money, once deposited at Catan, became a piggy bank that was drawn upon at will. Mrs. Duscio was given a salary she had not previously drawn, home improvements were made and paid for, luxury car payments were made, etc. [86] Money coming into Columbus Capital followed the same pattern as shown by Catan. The trial judge noted that this included expenditures of a clearly personal nature in favour of Mr. and Mrs. Duscio, having nothing to do with the computer leasing business. Examples given were Mrs. Duscio’s dance studio: $20,530; Mrs. Duscio advances: $31,522.81; Credit Nation: $999,936.10; and Home improvements of at least $21,000: at para. 405. [87] Having outlined the facts, the trial judge correctly described the elements of fraudulent misrepresentation, breach of fiduciary duty, knowing assistance, and knowing receipt. He relied on Air Canada v. M & L Travel Ltd. , [1993] 3 S.C.R. 787, and DBDC Spadina Ltd. v. Walton , 2018 ONCA 60, 419 D.L.R. (4th) 409, rev’d, Christine DeJong Medicine Professional Corp. v. DBDC Spadina Ltd. , 2019 SCC 30. [88] He wrote at paras. 441 and 442: The doctrine of knowing receipt requires a finding that the person has received trust property in his or her own personal capacity with actual or constructive knowledge of the breach of trust or fiduciary duty: DBDC at para. 37. It is thus only applicable as against the recipient of property found to be trust property (including property subject to a constructive trust) upon proof of the requisite level of knowledge. It is a form of liability that arises from the law of restitution and is a tool deployed, among other purposes, to trace trust funds that have been misappropriated and restore them to their rightful owner. The doctrine of knowing assistance is fault-based instead of restitution-based. It requires proof that the person, with knowledge, participates in or assists the defaulting trustee or fiduciary in a fraudulent or dishonest scheme: DBDC at para. 40. Actual knowledge includes recklessness or wilful blindness: Air Canada at para. 39. [6] [89] The trial judge found that the facts known to Catan established that the pension fund’s $3 million was received by Catan as a consequence of fraud and in breach of fiduciary duties owed to Cajubi by Mr. Garcia and his company. Accordingly, Catan’s funds were impressed with a constructive trust in favour of Cajubi and Catan breached its obligations as constructive trustee by failing to hold the funds separate and apart and by failing to take immediate steps to return them to the pension fund: at para. 470. He wrote that Catan violated its trust obligations to Cajubi as quickly and as often as possible, including by making expenditures on clearly personal items for the benefit of the Duscio family: at para. 471. [90] As mentioned, the trial judge granted judgment to Cajubi against Mr. Duscio and Columbus Capital in the amount of $7,379,958 and against Mrs. Duscio and Catan in the amount of $3 million and also made a tracing order. My colleague has already recited some of the trial judge’s conclusions at para. 472 and following, but for ease of reference, I will repeat paras. 472 to 474: As officers and directors – de jure in the case of Ms. Leanne Duscio and de facto in the case of Mr. Anthony Duscio – of Catan, the liability of Catan for breach of the constructive trust by which it was bound falls equally upon the shoulders of Leanne Duscio and Anthony Duscio. These two both provided knowing assistance in Catan’s breach of trust : Air Canada . The particulars of the knowing assistance of Anthony Duscio needs no elaboration. He was one of the architects of the fraud perpetrated upon Cajubi and he actively and knowingly authorized and directed the dissipation of the funds received by Catan that he knew or ought to have known came subject to a constructive trust in Cajubi’s favour. In Leanne Duscio’s case, I find that her passive acquiescence in her husband’s schemes went beyond mere trust and faith and crossed the line into wilful blindness. She knew that her husband had filed for bankruptcy earlier that year and she knew generally what reverses had led him there. She continued to sign as needed cheques and authorizations for very large quantities of money to transit through her company without due inquiry and in circumstances where she ought to have been on inquiry. She cannot hide behind her own wilful blindness to avoid the consequences of facilitating her husband’s fraud. [Emphasis added.] [91] The trial judge thus first concluded that Catan was liable for breach of constructive trust. He went on to conclude that Mr. and Mrs. Duscio “provided knowing assistance in Catan’s breach of trust”: at para. 472. [92] My colleague takes issue with one sentence in paragraph 474 in two respects. First, he states that the use of the words “without due inquiry” and “in circumstances where she ought to have been on inquiry” establish that the trial judge incorrectly applied an objective test to the knowledge component of wilful blindness. Second, he states that the trial judge made a palpable and overriding error in finding that Mrs. Duscio signed as needed cheques and authorizations for very large quantities of money to transit through her company, Catan. I will delineate why I reject these two arguments that anchor my colleague’s allowance of the appeal and the setting aside of the judgment of the trial judge. Analysis (1) Wilful Blindness [93] In this case, the trial judge found that Mrs. Duscio was wilfully blind in facilitating Catan’s breach of trust. My colleague reasoned that there was evidence on the record that could have supported a finding of subjective knowledge on Mrs. Duscio’s part. I agree. Indeed, there was ample evidence to support the trial judge’s finding of wilful blindness. My colleague takes issue with what he describes as Mrs. Duscio’s carelessness to ground the trial judge’s finding of wilful blindness and the application of a constructive knowledge standard. I do not agree that the trial judge’s finding of wilful blindness was based on a carelessness or constructive knowledge standard. (a) The trial judge’s language and Mrs. Duscio’s affidavit [94] First, although the trial judge did use the terms “without due inquiry’ and “in circumstances where she ought to have been on inquiry”, this does not preclude a finding of wilful blindness, and in any event, I would not read his reasons so narrowly as my colleague does. The trial judge used other words to describe Mrs. Duscio that import the requisite knowledge component: “acquiescence” (at para. 474), “facilitating” (at para. 474) and “orchestrated” (at para. 14). All of these words, each of which the trial judge used to describe Mrs. Duscio’s participation in the dishonest conduct of Catan, suggest subjective knowledge. He was also of the view that she had constructive knowledge, but this did not preclude his express or implicit finding of subjective knowledge. The evidence of such knowledge supports my conclusion that the trial judge was not limiting his basis for liability to constructive knowledge. [95] I will start first with Catan. As mentioned, the trial judge gave judgment against Catan for $3 million. The trial judge found that it received the $3 million as a consequence of fraud. At para. 470 of his reasons, the trial judge stated that Catan breached its obligations by, among other things, failing to return those funds to Cajubi. The judgment against Catan has not been appealed. As mentioned, Mrs. Duscio is the sole officer, director and shareholder of Catan. The trial judge did not make a finding that Catan had other signing officers, as he did with Columbus Capital. [96] On August 20, 2009, Mrs. Duscio swore an affidavit in support of an Application in which Catan was suing Columbus Capital. At the trial of the action under appeal, Mrs. Duscio was cross-examined on her sworn affidavit, which she testified that she recalled. In that affidavit, she makes oath and says that she is the President of Catan “and as such, [has] knowledge of the matters to which I hereinafter depose”. She then describes the following: her husband’s bankruptcy; the bankruptcy of Mr. Baker, whom she described as the Director of Columbus Capital; how Catan, an Ontario corporation, agreed to lend and did lend Columbus Capital $513,931.92; and how she was “genuinely concerned that Mr. Baker has misappropriated the Loan proceeds.” She spoke of Mr. Baker having closed Columbus Capital’s bank accounts without “our knowledge or consent” and also expressed concern about having made a loan to an undischarged bankrupt. Thus, although she claimed no knowledge of the $3 million, she sought the return of $513,931.92 of that amount. [97] Our system of justice in the civil arena is largely based on testimony given under oath and sworn affidavits. This is particularly the case with the increase of a paper record in summary judgment motions. Mrs. Duscio’s affidavit was referenced in her cross-examination and was a part of the evidence at trial. It defies reason that, having sworn such an affidavit, subjective knowledge of the fraud and breaches perpetrated by Catan was not imputed by the trial judge to Mrs. Duscio. At a minimum, it would be fair for the trial judge to draw an inference from this and other evidence that Mrs. Duscio was wilfully blind, as that term is legally understood. (b) The appellant’s receipt of benefits [98] Second, receipt of a benefit may also ground an inference that Mrs. Duscio knew of the fraud and the breaches: Air Canada , at p. 812. The trial judge found that there was no evidence that Catan had any “business” beyond owning the 20 Queen Street building from which a small amount of rental income was derived and that all or substantially all of the funds spent by Catan from August 22, 2008 until June 1, 2009 went to personal expenditures of either Mr. Duscio or Mrs. Duscio. This of course was Cajubi’s money. To use the trial judge’s language, Cajubi’s money, once deposited at Catan, became “a piggy bank” for the Duscios. Recall that at this time, Mr. Duscio was bankrupt. At the time of trial, Mr. Duscio had very recently obtained modest employment working in a factory, while Mrs. Duscio worked as a sales assistant in a retail store at a low hourly wage. She reported income of $25,500 and $22,437.08 for the years 2008 and 2009, yet the cheques to her from Catan, which based on the business records, appear to have been deposited into her Bank of Montreal bank account, far exceeded those amounts. In the years 2007, 2008 and 2009, on behalf of Catan, she reported losses of $95,981, $130,266 and $79,211 respectively. Catan’s taxable income was noted as zero and she is identified as the Company’s President and contact person. The electronic tax filing appears to certify that she has examined the return and that the information is accurate and complete. In her cross-examination, Mrs. Duscio reiterated that Catan didn’t have much day-to-day business other than collecting rent. A review of all of the account statements and Catan’s general ledger, which were before the trial judge, show that other than the fraudulent funds, no other material amounts were deposited into Catan. [99] The trial judge outlined some of the numerous benefits received by both of them. Despite their very modest joint income, the couple, who had been together for 35 years, continued to maintain a lifestyle well beyond what their income would suggest. They lived in a custom-built home outside of Kitchener that could only be described as palatial, had a property in Florida that they visited perhaps two times per year and had luxury cars registered to both addresses. Moreover, Mrs. Duscio received a salary she had not previously drawn, home improvements were made and paid for, and luxury car payments were made, all from Catan and hence Cajubi. She testified that her dance studio had lost money for each of the six years it had been in operation. And, Mr. Duscio was bankrupt. In essence, the pensions of the Paraguayan workers became pensions for the Duscios. (c) The trial judge’s finding of wilful blindness [100] Third, it cannot be ignored that the trial judge did make a finding that Mrs. Duscio was wilfully blind. This is unlike the Supreme Court’s decision in Citadel General Assurance Co. v. Lloyds Bank Canada , [1997] 3 S.C.R. 805, where, in concluding that the trial judge had improperly restricted her findings of knowing assistance to constructive knowledge, the court noted that there was no finding of wilful blindness or recklessness: at para. 23. This is not that case. [101] In essence, my colleague disregards this finding. Rather, relying on one sentence in the trial judge’s reasons, he concludes that the trial judge failed to understand the concept of wilful blindness and only applied an objective standard, based on Mrs. Duscio’s carelessness, to ground his finding. With respect, this is an overly narrow reading of the trial judge’s decision. As mentioned, stating that Mrs. Duscio ought to have been on inquiry does not preclude a finding of wilful blindness. Indeed, the fact that someone ought to have been on inquiry may be a factor to consider in whether they were wilfully blind: Trustees of the IWA v. Leroy , 2017 BCSC 158, 44 C.B.R. (6th) 221, at paras. 121-122. In Trustees of the IWA , the trial judge applied a subjective standard for wilful blindness, but also inferred wilful blindness from a combination of what the personal defendant subjectively knew and what she ought to have known about the corporate defendant’s breach of trust. [102] In the paragraph on Mr. Duscio’s liability, the trial judge explained that Mr. Duscio was one of the architects of the fraud who “knowingly authorized and directed the dissipation of the funds received by Catan”. The trial judge then went on to say that Mr. Duscio “knew or ought to have known ” that those funds were subject to a constructive trust in Cajubi’s favour (emphasis added). No one in this case suggests that the trial judge applied an objective standard for Mr. Duscio. It is clear that the trial judge considered, correctly, that what someone ought to have known may be a factor to consider in determining whether they were wilfully blind. [103] Moreover, in closing argument at trial, the trial judge was specifically referred to a decision that he had authored two months earlier in 1169822 Ontario Limited v. The Toronto-Dominion Bank , 2018 ONSC 1631, involving knowing assistance and wilful blindness. In that decision, the trial judge noted that actual knowledge is required for the equitable tort of knowing assistance and observed that this included wilful blindness and recklessness. He wrote at paras. 128 and 132-137 of that decision: The parameters of the equitable claim for knowing assistance in a breach of trust are quite clear and the required level of knowledge is a high one. Only actual knowledge of the existence and breach of the trust – or its moral equivalents wilful blindness or recklessness – will suffice to bind the stranger’s conscience in favour of the victim of the breach of trust and give rise to a remedy where the required action was not taken. The bank’s liability does not arise where only constructive knowledge of the breach can be shown: Air Canada at paras. 39-41. It has long been held that actual knowledge of fraud also extends to parties who are wilfully blind of the fraud or who are reckless as to its existence. They are each equivalent to each other in terms of the consequences that flow from having such knowledge and failing to act upon it. Both wilful blindness and recklessness are comparatively high standards of knowledge because they involve a level of knowledge that is considered to be morally equivalent to actual knowledge. They require a consideration of both the degree of actual knowledge and of the culpable attitude or mental state of the person whose knowledge is in question. They are concepts that are defined in part by contrast to what they are not. While a failure to inquire after being put on notice can be a component of wilful blindness or of recklessness, it can also be a component of constructive knowledge, the latter concept entailing a significantly lower level of knowledge and culpability. Wilful blindness or recklessness requires proof of culpable conduct that goes beyond “mere” negligence or laziness underlying a failure to inquire. It requires a combination of knowledge and conduct of a level that can fairly be equated to actual knowledge. The additional element I have described as “culpability” was described by Iacobucci J. in Air Canada as being “want of probity”. He described this as the element that differentiates wilful blindness or recklessness (either of which will bind the stranger’s conscience) from constructive knowledge (which normally will not): Air Canada at para. 41. Wilful blindness arises where a party is aware of the need for inquiry but declines to undertake it “because he does not wish to know the truth”; where “it can almost be said that the defendant actually knew”; where it can be said that the person suspected the fact and realized its probability but refrained from obtaining confirmation deliberately: R. v. Sansregret , [1985] 1 S.C.R. 570 at para. 22. It is to be distinguished from mere negligence in failing to obtain information. The required level of knowledge extends beyond knowledge of some risk of fraud to knowledge of the “clear probability” of it: Big X Holdings Inc. v. Royal Bank of Canada , 2015 NSCS 184 at para. 89. In Bullock v. Key Property Management Inc. , 1997 CanLII 3440 (ON CA) the Court of Appeal found that wilful blindness is premised on the existence of an actual suspicion that certain facts exist and not on the failure to take steps to inform oneself of those facts. Each of these definitions of wilful blindness intentionally sets this standard apart from mere negligence and thus attaches to a much narrower, more exceptional and thus more culpable range of conduct. In Bullock , it was not sufficient that the bank should have been on inquiry regarding its customer. [104] I accept that the trial judge’s reasons in the case under appeal would have benefitted from elaboration and more precision. It would have been preferable had he repeated the statements of law from 1169822 Ontario Limited in the Cajubi reasons. However, the trial judge in this case applied the same correct standard. [105] Furthermore, at para. 441, he noted that knowing receipt requires a finding that the stranger had actual or constructive knowledge of the breach of trust. In the next paragraph, he explained that knowing assistance requires a finding that the stranger had actual knowledge (which includes wilful blindness or recklessness) of the breach of trust. He specifically left “constructive knowledge” out of the explanation of knowing assistance, after including it in the explanation of knowing receipt the paragraph immediately before. I cannot conclude that the trial judge’s finding of wilful blindness was grounded in an objective standard. (d) The appellant’s testimony at trial [106] Fourth, Mrs. Duscio’s cross-examination at trial, peppered with “I don’t know” and “I can’t recall” answers, did not detract from the trial judge’s finding of wilful blindness. The following is an example of one of her answers: Q: Tony Duscio, okay, so you just signed the papers, you had no idea what was happening? A: Well, I’m not going to say I had no idea. He probably told me what was happening, and I – I’m not going to dispute him or disagree with anything he’s doing. I don’t know why I would, so I would have signed the papers, yes. Q: Okay. A: And probably not given it a lot of thought either. [107] Mrs. Duscio also testified that even though she signed whatever was put in front of her, she recognized that she had responsibility for the things she signed. [108] My colleague suggests that the excerpt above is restricted to the purchase of the office building, but again, with respect, he ignores the other possible global interpretation that treats her evidence as the summing up or culmination of her prior testimony. It is the trial judge who has the opportunity to see and hear the witnesses in the context of the trial as a whole, not this court. [109] Again, although it would have been preferable for the trial judge to elaborate, faced with the constellation of facts before him, it was open to him to find wilful blindness and to conclude that Mrs. Duscio was wilfully shutting her eyes to Catan’s dishonest dealings. Indeed, Mrs. Duscio is the very definition of someone who is wilfully blind. Frankly, an independent reading of her cross-examination testimony leads to no other reasonable conclusion. (e) The test for knowing assistance of breach of trust [110] Lastly, I reiterate that Mrs. Duscio was found liable for knowingly assisting Catan’s breach of trust. At paragraphs 31-33 of his reasons, my colleague repeatedly references fiduciary relationships and breach of fiduciary duty. However, this case raises the issue of how the doctrine of knowing assistance applies in circumstances of breach of constructive trust. [7] [111] The relevant test for knowing assistance of breach of trust is from Air Canada : (1) there must be a trust; [8] (2) a fraudulent and dishonest breach of that trust; (3) actual knowledge by the stranger of the fraudulent and dishonest breach of trust (wilful blindness or recklessness will also suffice) and (4) participation by or assistance of the stranger in the fraudulent and dishonest breach of trust . In Air Canada , the Supreme Court explained that the method by which a trust is created has an impact on the question of the stranger’s knowledge of the trust. The decision in Air Canada concerned a trust created by contract, so the Supreme Court stated that “whether the stranger knew of the trust will depend on his or her familiarity or involvement with the contract”: Air Canada , at p. 812. There was no mention in Air Canada of fiduciaries or fiduciary relationships. In circumstances of breach of constructive trust, the trustee does not necessarily owe fiduciary obligations: Oosterhoff, at p. 1132. Fiduciary relationships therefore do not always play a role in a case of knowing assistance of breach of constructive trust. [112] From Air Canada , it follows that, in cases of breach of constructive trust, whether the stranger knew of the trust will depend on his or her familiarity or involvement with the circumstances leading to the imposition of the constructive trust. As mentioned, Catan was impressed with a constructive trust because the funds were received in circumstances of dishonesty and fraud. Constructive trusts are imposed by law, so it is unhelpful to speak of strangers to a constructive trust “knowing” of, or even being wilfully blind to, the trust’s existence, as my colleague suggests. [113] Again, based on how the Air Canada test would apply in circumstances of breach of constructive trust, Mrs. Duscio was required to (1) know, or be wilfully blind to, the circumstances leading to the imposition of a constructive trust on Catan (2) know, or be wilfully blind to, Catan’s fraudulent activity [9] , and (3) participate or assist in Catan’s fraudulent activity. In cases of knowing assistance of breach of constructive trust, a finding of liability will depend on the particular circumstances of each individual case. Hence a case-by-case analysis is required. [114] Against this backdrop, the trial judge found Mrs. Duscio wilfully blind to the fraudulent means by which Catan received the funds. Her passivity did not preclude a finding of wilful blindness. A wide range of factors can be taken into account in inferring wilful blindness. In Sorrel 1985 Ltd. Partnership v. Sorrel Resources Ltd. , 2000 ABCA 256, for example, the Alberta Court of Appeal considered the respondents’ subjective knowledge of a “depressed market” to be relevant in determining whether they were wilfully blind. The issue was whether the personal respondents were liable for knowingly assisting a breach by Sorrel Resources Ltd. (“Sorrel”) of a trust relationship it had with the appellant, Sorrel 1985 Limited Partnership (the “Sorrel Partnership”). This turned, in part, on whether the personal respondents knew that Sorrel Partnership funds were at risk of being seized by creditors because of Sorrel’s vulnerability. The Alberta Court of Appeal held that they were wilfully blind or reckless of the fact even if they did not have actual knowledge. This was because “[t]hey had subjective knowledge that Sorrel had a serious working overdraft, the market was depressed and they were refinancing”: Sorrel , at para. 72. Knowledge of general facts like a “depressed market”, and of certain surrounding circumstances reflecting the financial health of a company, may be relevant to a wilful blindness assessment. [115] In this case, the trial judge focused, as he should have, on the fact that Mrs. Duscio knew about her husband’s bankruptcy and the circumstances that led him to his bankruptcy; that the Duscios had modest incomes but lived extravagant lives; and that Mrs. Duscio was Catan’s sole officer, director, and shareholder. The trial judge found that, given Mrs. Duscio’s subjective knowledge of these things, she was wilfully blind to the fraudulent means by which Catan received and disbursed funds, and Catan’s obvious breach of trust. She swore an affidavit referencing what she described as a loan to Columbus Capital in circumstances where, apart from a small amount of rental income, her company, as found by the trial judge, had no business. From all of these facts, the trial judge was entitled to find that she was wilfully blind and that these funds did not belong to Catan or to her. Mrs. Duscio’s conscience was sufficiently affected to justify the trial judge’s imposition of liability upon her. [116] Even if it were the case that the trial judge grounded his wilful blindness finding on an objective standard, which I do not accept, this court is permitted to review the record in order to determine if the finding of wilful blindness was open to the trial judge. In Wescom Solutions Inc. v. Minetto , 2019 ONCA 251, for example, the trial judge mistakenly applied an objective standard for wilful blindness, but this court nevertheless held that the trial judge’s error “in law in his articulation of the concept of wilful blindness” did not mean that the trial judge was wrong to conclude that the appellant was wilfully blind: Wescom , at para. 10. The trial judge’s mischaracterization of wilful blindness was not fatal because he had made findings of fact that established that the appellant was wilfully blind on a subjective standard. Again, my colleague agrees that there was evidence on the record that could have supported a finding of subjective knowledge on Mrs. Duscio’s part. (f) Conclusion on wilful blindness [117] Contrary to my colleague’s determination, I conclude that, read as a whole within the context of the entire record before him, it cannot be said that the knowledge component needed to anchor a finding of wilful blindness by Mrs. Duscio is absent from the trial judge’s reasons. Moreover, the trial judge’s conclusion was supported by the record. He was fully conversant with the detailed record, having presided over the trial for over three weeks and having trial managed the case beforehand. It was open to the trial judge to conclude that Mrs. Duscio was wilfully blind, particularly given her affidavit sworn on behalf of Catan that detailed its activities. This included Catan’s alleged entitlement to the $513,931.92 she stated that Catan had lent to Columbus Capital and her knowledge of her husband’s bankruptcy. Moreover, she had a modest income, she received extensive benefits from the company of which she was the sole officer, director and shareholder, and maintained an opulent lifestyle. She permitted her company to be used, signed Catan’s documents, and accepted the substantial fruits of her efforts. The trial judge understood the requirements of wilful blindness, determined that they were met, and did not simply apply a constructive knowledge standard to Mrs. Duscio’s conduct. Carelessness this was not. (2) Cheques and Authorizations [118] Dealing with the second argument, my colleague writes that the trial judge had no evidence that could ground a finding of liability relating to cheques and authorizations that were linked to Cajubi’s funds. He states that there is no evidence that Mrs. Duscio played any role in wire transfers. My colleague also states that no evidence was presented that linked Mrs. Duscio to the cheques or authorizations relevant to Cajubi funds. For the following reasons, I would not allow the appeal on this basis. [119] First, I do not see this as a ground of appeal in the appellant’s Notice of Appeal. There is no mention of a palpable and overriding error relating to the cheques and authorizations. Rather, the grounds enumerate inconsistent factual findings, Mrs. Duscio’s liability for knowing receipt, and the misapprehension of the law in Air Canada . See Rules of Civil Procedure , R.R.O. 1990, Reg. 194, r. 61.08(2). [120] Second, I have already addressed the linkage between Mrs. Duscio’s knowledge and the fraud and breach of trust by Catan. With respect, my colleague’s analysis appears to subtract Catan from the equation. All the trial judge had to conclude was that Mrs. Duscio was wilfully blind to Catan’s receipt and disbursement of fraudulent funds and its breach of constructive trust, and that she participated in that breach. [121] Recall that Mrs. Duscio was the sole officer, director, and shareholder of Catan; her husband was an undischarged bankrupt; [10] and Catan carried on virtually no business. Furthermore, there is no suggestion that Catan’s cheques were improperly admitted into evidence, [11] nor any argument that the numerous cheques that were filed in evidence before the trial judge were not signed by Mrs. Duscio. (This helps explain why the cheques were not the subject matter of the Notice of Appeal.) Moreover, Mrs. Duscio was also the recipient of many of them. Based on the business records, the cheques appear to have been deposited into her bank account. There can be no question that she knowingly permitted her company to be used for improper purposes. In spite of Mrs. Duscio’s more limited role than that of her husband, I do not see the trial judge’s statements that she continued to sign as needed cheques and authorizations to transit money through Catan as a palpable and overriding error. I would not allow the appeal on this basis. Conclusion [122] Lastly, in closing, I would also observe that knowing assistance is an equitable remedy. While I do not ground my dissent on equity, with respect, my colleague’s reasons ignore the equitable underpinning of the tort of knowing assistance. This case presented the trial judge with a Paraguayan pension fund that was defrauded of millions of dollars with the benefits accruing to the appellant and her husband along with the Garcias. The trial judge did his job, applied the correct legal principles, and reached a decision that was both equitable and legally sound. I would not disturb his decision. Given my decision, nor would I compel the parties to expend the time and expense on a new trial on the issue of knowing receipt. Disposition [123] I would dismiss the appeal with costs of $30,000, as agreed by the parties, inclusive of disbursements and applicable tax, to be paid by the appellant to the respondent. Released: JUN 25, 2020 “S.E.P.” “S.E. Pepall J.A.” [1] The trial judge identified the amounts as $2,079,136 paid before June 1, 2009, plus $513,931.92 transferred to Columbus Capital on that date. The actual amounts paid on Columbus Capital’s behalf may in fact have been nearly $100,000 higher than this. The trial judge achieved his figures by simply adding together disbursements from Catan’s Canadian and US accounts, apparently without accounting for exchange differences. Two transfers totalling $1,874,430.00 CDN were made from Catan’s Canadian account to its US account that can be linked to funding the $1,779,140.94 USD that was paid on Columbus Capital’s behalf out of the US account, producing an exchange differential of slightly less than $100,000.00 CDN. On this basis, the breakdown may, in fact, be over $2.6 million attributable to Columbus, and slightly over $300,000 remaining with Catan. [2] This panel recently denied the appeal from these decisions : Caja Paraguaya de Jubilaciones y Pensiones del Personal de Itaipu Binacional v. Garcia , 2020 ONCA 124. [3] Mr. Duscio was also found liable, along with Columbus Capital, to pay an additional $4,379,958 relating to other fraudulent Columbus notes. [4] The trial judge used the term “Garcia Defendants” to refer to Mr. Eduardo Garcia Obregon, his wife Mrs. Claudia Patricia Garcia (and all names used by each) as well as certain companies that played a role in the scheme against Cajubi: Managed (Portfolio), Corp., Genesis (LA), Corp. (Ontario), Genesis (LA), Corp. (Alberta), FC Int, Corp. and First Canadian Int. Corp. The trial judge also used the term “individual Garcia Defendants” to refer to Mr. and Mrs. Garcia. I will adopt the same terminology in my dissenting reasons. [5] As my colleague notes, the trial judge found that Catan’s Canadian dollar account had a balance of $292,238 prior to its receipt of Cajubi funds, and Catan’s US dollar account had a balance of $13,469.37 prior to its receipt of Cajubi funds: see para. 391. These amounts were used by the trial judge as benchmarks to determine how much of Cajubi’s money was funnelled through Catan to Columbus Capital, and how much of Cajubi’s money was spent by Catan itself: see paras. 392-394. In her cross-examination, Mrs. Duscio was not asked about these sums. She was asked about the mortgages registered on title of the 20 Queen Street building, to which she testified that she knew nothing. My colleague now attempts to infer either that Mrs. Duscio knew of this balance or that the trial judge did not take these amounts into account when making a finding of wilful blindness against Mrs. Duscio. None of the parties gave these amounts any significance during Mrs. Duscio’s cross-examination. [6] Though the majority decision of the Court of Appeal for Ontario in DBDC Spadina was reversed by the Supreme Court on appeal, the legal proposition the majority cited in paragraph 40, relied upon by the trial judge, is unassailable. [7] See, for example, A.H. Oosterhoff, Robert Chambers & Mitchell McInnes, Oosterhoff on Trusts: Text, Commentary and Materials , 8th ed. (Toronto: Carswell, 2014), at p. 1128, note 2, and p. 1132, note 23. [8] In Commercial Union Life Assurance Co. of Canada v. John Ingle Insurance Group Inc. (2002), 61 O.R. (3d) 296 (C.A.), Weiler J.A. suggested, in obiter, that a constructive trust is not sufficient for knowing assistance. In Transamerica Occidental Life Insurance Co. v. Toronto Dominion Bank (1999), 44 O.R. (3d) 97 (C.A.), however, this court specifically sent the issue of whether “TD can, in law, assist in the breach of a constructive trust on the basis of actions that took place before the constructive trust was declared to exist” to trial. The decision in Transamerica Occidental was a summary judgment motion so the court could have decided that a constructive trust is not sufficient for knowing assistance. In my view, there is no principled basis why, in appropriate circumstances, the doctrine of knowing assistance cannot be extended to cases of breach of constructive trust. See also Oosterhoff, supra note 7. [9] In this context, “dishonest and fraudulent conduct [signifies] a level of misconduct or impropriety that is morally reprehensible but does not necessarily amount to criminal behaviour”: Enbridge Gas v. Marinaccio , 2012 ONCA 650, 355 DLR (4th) 333, at para. 27. [10] Under the Business Corporations Act , R.S.O. 1990, c. B.16, s. 92, an undischarged bankrupt cannot be a director of a corporation: s. 118(1). [11] This trial proceeded as a hybrid trial, as is now common in civil actions. As such, there were trial management conferences regarding procedure and evidence and much of the evidence-in-chief was adduced by affidavit. Cross-examinations then ensued, followed by evidence given in reply.

COURT OF APPEAL FOR ONTARIO CITATION: Carleton Condominium Corporation No. 476 v. Wong, 2020 ONCA 363 DATE: 20200609 DOCKET: C67296 Paciocco, Zarnett and Thorburn JJ.A. BETWEEN Carleton Condominium Corporation No. 476 Plaintiff (Respondent) and Newton Wong Defendant (Appellant) Newton Wong, acting in person Cheryll Wood, for the respondent Heard: In writing On appeal from the summary judgment of Justice Marc R. Labrosse of the Superior Court of Justice, dated July 10, 2019, with reasons reported at 2019 ONSC 4207. COSTS ENDORSEMENT [1] The Appellant is ordered to pay costs in this appeal to the Respondent in the amount of $16,800.00, inclusive of taxes and disbursements. “David M. Paciocco J.A.” “B. Zarnett J.A.” “Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Chatsikiriakos v. Kilislian, 2020 ONCA 378 DATE: 20200612 DOCKET: C67935 Doherty, Hourigan and Fairburn JJ.A. BETWEEN Kathy Chatsikiriakos Plaintiff (Respondent/Appellant by Cross-Appeal) and Rita Kilislian and Rita Kilislian Dentistry Professional Corporation, C.O.B. as Downtown Dental Associates Defendants (Appellants/Respondents by Cross-Appeal) Mark H. Arnold, for the respondent (plaintiff) Avrum D. Slodovnick, for the appellants (defendants) Heard: In-writing On appeal from the judgment of Justice Cavanagh of the Superior Court of Justice, dated December 23, 2019 REASONS FOR DECISION [1] The appellants (“Kilislian”) were defendants in a wrongful dismissal action brought by the respondent (“Chatsikiriakos”). It appeared the parties had settled the action on the eve of trial. When the settlement funds were not forthcoming, the respondent brought a motion under r. 49.04 of the Rules of Civil Procedure for judgment in the terms of the settlement. The motion judge granted judgment. The appellants appeal from that judgment. [2] The motion judge also fixed the costs of the action on a partial indemnity basis in favour of the respondent in the amount of $51,557.12. The respondent seeks leave and, if leave is granted, appeals from that costs order. [3] For the reasons that follow, the appeal is dismissed, and the motion for leave to appeal costs is dismissed. [4] The appellants operated a dental practice. The respondent worked at the practice as a dental hygienist. The respondent claimed in about April 2017, the appellants proposed to unilaterally and fundamentally alter the terms of her employment, including her compensation. She eventually commenced a lawsuit, alleging constructive wrongful dismissal. [5] The appellants defended on various grounds. They alleged there had been no material change in the respondent’s working conditions, and the respondent had indicated she was anxious to continue her employment. [6] The respondent served two Offers to Settle on the appellants, one in April 2018 and the second in May 2018. In May 2019, right before the trial was scheduled to begin, the appellants accepted the second offer made a year earlier. That offer had two terms: · payment to the plaintiff of $75,000 (emphasis in the original); and · costs to the plaintiff in an amount to be agreed upon by counsel or following an assessment. [7] The appellants, through counsel, unequivocally accepted the offer. In accepting the offer, counsel for the appellants indicated, “we consider the case settled”. [8] The parties advised the trial court the matter had been settled and made arrangements to speak to costs. In June 2019, about one month after the appellant’s had accepted the settlement offer, counsel for the appellant advised the trial court the settlement was in place and he expected to be in funds that day. The funds were not paid to the respondent. [9] On the motion, the appellants argued that judgment should not issue in the terms of the settlement agreement for two reasons. First, the terms of the purported settlement were uncertain and did not contain terms essential to the settlement. The appellants submitted, in the settlement of wrongful dismissal claims, the classification under various heads of damages of the amount paid in the settlement is an essential element of the settlement agreement. Without that classification, the agreement to pay $75,000 to settle the claim, did not constitute a settlement agreement. [10] Second, the appellants argued, if there was a settlement agreement, the motion judge should exercise his discretion and decline to enforce the agreement on public policy grounds. The appellants submitted, among other things, the manner in which the respondent litigated the claim, in particular the use of threats and misrepresentations to intimidate and defame Mr. Curnew, the husband of Rita Kilislian, required the court to reject the settlement which was the product of those tactics. [11] The motion judge considered and rejected the arguments. The same arguments are renewed on appeal. We, too, reject them. Did the agreement contain the essential terms of the settlement? [12] It cannot be argued the classification of the amount of a settlement into various heads of damages is always an essential element of any agreement to settle a wrongful dismissal claim. This court has held the exact opposite: Perri v. Concordian Chesterfield , 2003 CarswellOnt 6240, aff’ 2004 CanLII 2904. [13] A settlement is an agreement. The categorization of the parts of the settlement under various heads of damage may or may not be an essential term of any particular settlement agreement. In the present case, there was nothing in the language of the Offer to Settle, or in the terms of the appellants’ acceptance of the offer to suggest the characterization of the amounts of the settlement under various damage heads was essential to, or played any part in, the agreement. Nor do any of the communications by the parties with the trial court, immediately after the settlement, lend any credence to the appellants’ assertion they regarded the characterization of the amounts of the settlement under various heads of damage as essential to the existence of the agreement they had entered into on the advice of counsel. [14] The two emails relied on by the appellants do not assist their argument. The first, dated May 19, 2019, specifically acknowledges the “$75,000 settlement” and goes on to propose a variation of that settlement. The variation in the settlement agreement proposed by the appellants addresses various concerns, including costs of the action, and the allocation of the settlement amounts as aggravated and moral damages. [15] The June 21, 2019 email also offers no support for the position there was no settlement agreement. Instead, in that email, counsel for the appellants suggests certain advantages to both parties in characterizing the amount agreed upon in the settlement in the manner suggested by counsel for the appellants. [16] There was nothing vague or uncertain about the terms of the settlement agreement. The appellants agreed to pay the respondent $75,000. The tax or other regulatory consequences of that payment, if any, to either party, were not any part of the negotiations leading up to the agreement. The absence of terms designating the settlement amount under various heads of damage had no impact on the existence or enforceability of the settlement agreement. Should the motion judge have refused to enforce the settlement on public policy grounds? [17] A court has a discretion to decline to enforce a settlement agreement on public policy grounds. That discretion is exercised sparingly. The moving party must demonstrate sufficiently compelling circumstances to justify the inevitable negative impact non-enforcement of an agreement will have on both the finality principle and the reasonable expectations of litigants who enter into settlement agreements. [18] As with the exercise of any discretionary power, this court will defer to the motion judge’s exercise of his discretion, absent demonstration of: · a clearly unreasonable result; · a material misapprehension of the evidence, or a failure to consider material evidence; and · a failure to correctly apply the controlling legal principles. [19] The motion judge addressed the arguments put forward by the appellants for non-enforcement, some of which are renewed in this court (reasons, paras. 10-15). He concisely and clearly rejected each. In doing so, he made his reasons for rejecting the arguments clear. For example, in addressing the argument the respondent had threatened “prosecution” of the appellants and Mr. Curnew, the motion judge observed the so-called threat consisted of one word in a lawyer’s letter sent long before the respondent made any settlement offer, and more than two years before the appellants accepted the settlement offer. [20] The motion judge also noted the absence of any evidence from Mr. Curnew on the motion. Mr. Curnew did not provide evidence that he was intimidated or coerced by the respondent’s litigation tactics, or that those tactics motivated him to encourage or advise the appellants to accept the settlement offer. [21] The appellants have not convinced us we should override the motion judge’s exercise of his discretion. In seeking to avoid the consequences of their settlement agreement, the appellants focused on the respondent’s litigation tactics. The respondent pointed the finger right back at the appellants and their litigation tactics. This litigation was personal and quickly became nasty. There is plenty of blame to go around on both sides for this unfortunate development. However, the tone of the litigation, the product of conduct on both sides, offers no reason to permit the appellants to walk away from their agreement to settle the claim and thereby deny the respondent the benefit of that agreement negotiated by the parties and their lawyers. The motion for leave to appeal costs [22] The respondent seeks leave to appeal the costs order made in respect of the settled action. There is no appeal from the costs order on the r. 49 motion. [23] This court grants leave to appeal costs sparingly. The respondent advances two submissions in support of the leave application. The respondent submits the motion judge erred in law by effectively refusing to consider whether the respondent was entitled to costs on a substantial indemnity basis. The respondent further submits, even if the motion judge properly held costs should be on a partial indemnity basis, he erred in awarding an amount substantially less than the amount claimed by the respondent without providing adequate reasons for doing so. [24] The motion judge did not refuse to consider the respondent’s claim for costs on a substantial indemnity basis. He acknowledged the respondent sought costs on that scale (reasons, para. 20). In refusing costs on a substantial indemnity basis, the motion judge noted the action was settled, obviously an important consideration in fixing costs of the action. The motion judge also determined he could not, on the record before him, make the kind of detailed credibility-based factual findings necessary to warrant costs on a substantial indemnity basis. In short, the record produced by the respondent and the forum chosen by the respondent to litigate costs did not lend themselves to the kind of analysis and fact-finding required to justify costs on a substantial indemnity basis. [25] Contrary to the respondent’s submission, the motion judge did consider whether he should order costs on a substantial indemnity basis. The reasons he gave for declining to do so were relevant to that determination, and supported by the evidence. It was for the motion judge to decide how much weight to give to those factors. We see no reason to grant leave on this issue. [26] The other argument advanced by the respondent addresses the quantum of the partial indemnity costs order made by the motion judge. The respondent contends the motion judge substantially reduced the quantum without providing any reasons. [27] The motion judge offered the following reasons for the quantum fixed in his costs order: · the action was settled (para. 22); · the action was brought under the simplified rules. The factual and legal issues were not complex (para. 27); · the manner in which the litigation was conducted contributed to the amount of time expended by counsel for the plaintiff (para. 27); and · the time claimed by counsel for the plaintiff was “far higher than is reasonable and proportionate having regard to the factors in r. 57.01” (para. 27). [28] The respondent suggests the motion judge’s reference to the manner in which the litigation was conducted referred only to the manner in which the appellants conducted the litigation. That is incorrect. The motion judge’s reference to the time claimed by plaintiff’s counsel as being “far higher than is reasonable and proportionate” follows directly after his reference to the manner in which the litigation was conducted. Clearly, the motion judge was referring to both sides when he alluded to the conduct of the litigation. [29] In fixing costs, the motion judge correctly identified the objective as an amount “that is fair and reasonable for the unsuccessful party to pay in the particular proceedings” (reasons, para. 26). The factors identified by the motion judge in fixing that reasonable amount provided a firm basis upon which to move significantly downward from the amount claimed by the respondent on a partial indemnity basis. We see no reason to interfere with his assessment. We will not grant leave to appeal costs on this issue. [30] Leave to appeal costs is refused. Costs of the appeals [31] The respondent was successful on the main appeal. The appellants were successful on the cross-appeal on costs. Both successful parties are entitled to their costs on a partial indemnity basis. [32] A review of the material indicates that the materials and issues relevant to the main appeal were somewhat more involved than those relating to the cross-appeal on costs. We will make an order as to costs on the main appeal that takes into account the appellants’ entitlement to costs on the cross-appeal. [33] The respondent shall have her costs on the main appeal in the amount of $7,000, inclusive of taxes and disbursements. There shall be no order as to costs on the cross-appeal. “Doherty J.A.” “C.W. Hourigan J.A.” “Fairburn J.A.”

WARNING This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017 , which deals with the consequences of failure to comply, read as follows: 87 (8) Prohibition re identifying child — 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. (9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. 142 (3) Offences re publication — A person who contravenes subsection 87(8) 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. COURT OF APPEAL FOR ONTARIO CITATION: Children's Aid Society of Toronto v. J.G., 2020 ONCA 415 DATE: 20200625 DOCKET: C67967 Doherty, Hourigan and Benotto JJ.A. BETWEEN The Children's Aid Society of Toronto Applicant (Respondent on Appeal) and J.G. Respondent Mother (Appellant) Andrew Burgess and Jessica Gagne, for the appellant Ian Ross and Elizabeth McCarty, for the Intervener the Office of the Children's Lawyer Simon Fisch and Karen Freed, for the respondent Children's Aid Society Heard: June 12, 2020 by video conference On appeal from the judgment of Justice Sharon Shore of the Superior Court of Justice, dated January 10, 2020, with reasons reported at 2020 ONSC 1135. Benotto J.A.: [1] Historically, it has been difficult for a biological parent to obtain the right to access a child placed in the extended care of a children’s aid society (previously called “Crown Wardship”). There was a legislated presumption against access and there was a strict test to be met. The legislation at the time, the Child and Family Services Act, R.S.O. 1990, c. C.11 (“ CFSA ”), required that an applicant establish that the relationship “is beneficial and meaningful” to the child and that the access would not impair the child’s opportunities for adoption. This changed in 2018 when the CFSA was repealed and replaced with the Child, Youth and Family Services Act , 2017, S.O. 2017, c. 14, Sched. 1 (“ CYFSA ”). The new legislation reflected a change in the approach to many aspects of child protection law, relating to children in care, including access. The former strict interpretation of a “beneficial and meaningful” relationship was expanded to incorporate a broadly-based best- interests analysis. [2] This court has referred to the significance of the change on more than one occasion. Yet, some lower courts continue to apply jurisprudence based on the old restrictive test. [3] Here, the trial judge applied the new approach to the determination of access for a mother and ordered access at the discretion of the children’s aid society. The appeal judge applied the old restrictive test, allowed the appeal and overturned the decision. [4] For the reasons that follow, I would allow the appeal and restore the trial judge’s order. FACTS [5] The underlying facts are not disputed. [6] The appellant is the mother of A.G., who is two years old. The child is the fifth child born to the appellant. The other four children are in care. The facts articulated in the decisions below with respect to A.G. and the four siblings clearly establish that the mother is not able to care for the child. In fact, she did not dispute the finding that the child be in the extended care of the respondent, the Children’s Aid Society of Toronto (“the Society”). She only seeks continued access. The visits had been once-a-week on a fully supervised basis at the Society offices. The father of the child took no part in the proceedings. DECISIONS BELOW The Ontario Court [7] The matter came before Sherr J. of the Ontario Court as a summary judgment motion for protection by the Society. He conducted a mini-trial in accordance with r. 16(6.2) of the Family Law Rules , O. Reg. 114/99. As part of that process he requested more evidence and heard oral evidence from the mother. Ultimately the mother consented to an extended society care order and the only issue before the court was her access to the child. Both the Society and the mother asked the court to make the determination on the basis of the evidence presented. [8] The trial judge set out in detail the positive and the negative aspects of the mother’s visits with the child. He also considered the pros and cons of the mother’s continued relationship with the child. One of the benefits of an ongoing relationship with the child included the fact that access to the child’s medical information and family history would be more readily available. [9] The Society urged the court to follow the line of cases dating back to the CFSA that narrowly interpreted the words “beneficial and meaningful”. The trial judge rejected that approach and determined, based on the wording of the CYFSA and this court’s decisions interpreting it, that a more expansive inquiry was required. [10] On the basis of this more expansive inquiry, he concluded that the benefits of the mother’s relationship with the child outweigh any detriments and that the relationship would be beneficial and meaningful for the child. He found that it was now, and would be in the future, in the child’s best interests for the biological mother to have access to the child at the discretion of the Society. The Superior Court [11] The Society appealed the order allowing the mother access to the child at its discretion. [12] The appeal judge concluded that the trial judge erred in assigning a new definition to the words “beneficial and meaningful” under the CYFSA . She reviewed the case law on the interpretation of the meaning of “beneficial and meaningful” and the different interpretations. She concluded that the more restrictive approach still applied. She also found that the trial judge erred by considering the potential for a future relationship because the court is called upon to consider whether the relationship “is” beneficial and meaningful, not whether it will become so in the future. Finally, she found that it was an error of law for the trial judge to refer to the future need for medical information, as this was entirely speculative. ISSUES ON THIS APPEAL [13] There are three related issues on this appeal: (i) Has the test for access under the CYFSA changed the meaning of a “beneficial and meaningful” relationship? (ii) Can the benefits of a future relationship be considered? and (iii) Did the trial judge err by referring to the child’s medical information and family history ? BACKGROUND [14] I will set out the legislative history and the case law. I will then discuss the significance of the changes in the CYFSA with respect to the determination of access. (1) LEGISLATIVE HISTORY [15] Since 2004, the statute dealing with children in need of protection was the CFSA . Access to “Crown wards” was governed by s. 59, which stated: Access: Crown ward (2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that, (a) the relationship between the person and the child is beneficial and meaningful to the child; and (b) the ordered access will not impair the child’s future opportunities for adoption. [16] The legislation also prevented a child from being adopted if there was an outstanding access order. When a child was about to be placed for adoption, the court was prevented from granting an access order except in extraordinary circumstances. Since courts had to choose between an access order or permanency for a child, the common law interpretation of the test for access to a Crown ward under the former CFSA was extremely, and intentionally, restrictive. [17] In 2011, the Legislature amended the CFSA to allow a child to be placed for adoption even when there was an outstanding access order. The amendments established a process for a Society to administratively terminate an access order by serving a notice of intention to place a child for adoption on persons named in the access order. The amendments broadened the ability for children to continue to have some form of contact with people who are important to them through “openness” after adoption. However, the test for access to a Crown ward did not change and courts continued to apply the same strict approach. [18] On April 30, 2018, the CFSA was replaced with the new CYFSA . The new legislation aimed to reduce the stigma of children in care, address Indigenous issues and import a broad best interests analysis into the determination of access. [19] There were many changes. Children who were previously described as “Crown wards” are now referred to as “in extended Society care”. [20] The two-part test for access in s. 59 was replaced with a holistic consideration of the child’s best interests. This is set out in ss. 105(5) and (6): When court may order access to child in extended society care (5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) unless the court is satisfied that the order or variation would be in the child’s best interests . Additional considerations for best interests test (6) The court shall consider, as part of its determination of whether an order or variation would be in the child’s best interests under subsection (5), (a) whether the relationship between the person and the child is beneficial and meaningful to the child; and (b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption. [Emphasis added] [21] Pursuant to s. 74(3), “best interests of a child” is a defined term that encompasses a very broad range of considerations: Best interests of child (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall, (a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained; (b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and (c) consider any other circumstance of the case that the person considers relevant, including, (i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, (ii) the child’s physical, mental and emotional level of development, (iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression, (iv) the child’s cultural and linguistic heritage, (v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family, (vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community, (vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, (viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent, (ix) the effects on the child of delay in the disposition of the case, (x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and (xi) the degree of risk, if any, that justified the finding that the child is in need of protection. (2) JUDICIAL INTERPRETATIONS [22] After the coming-into-force of the CYFSA , two lines of cases developed. Both professed to follow the new law. One line of cases followed the old test. The other line of cases took an expansive approach. [23] I turn to the case law under the CFSA and then refer to the two conflicting approaches that followed the implementation of the CYFSA . Case law under the CFSA [24] The most often cited case propounding the restrictive approach is Children’s Aid Society of the Niagara Region v. M.J., 2004 CanLII 2667 (Sup. Ct.) at paras. 45 and 46. In it, Quinn J. looked to the dictionary definition of the words “beneficial and meaningful” under the CFSA: What is a “beneficial and meaningful” relationship in s. 59(2)(a)? Using standard dictionary sources, a “beneficial” relationship is one that is “advantageous.” A “meaningful” relationship is one that is “significant.” Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough – it must be significantly advantageous to the child. He also addressed the pertinence of the future relationship: I read s. 59(2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent. [25] As time went by, judges routinely used the phrase “significantly advantageous” when interpreting the legislated “beneficial and meaningful” test. This was the genesis of the first line of cases. Case law under the CYFSA [26] After the new legislation came into force, the test set out by Quinn J. continued to be applied in some cases, e.g., Children’s Aid Society of Niagara Region v. B.P. and B.W ., 2018 ONSC 4371 and Children’s Aid Society of the Districts of Sudbury and Manitoulin v. C.H ., 2018 ONCJ 453. [27] In Niagara , Pazaratz J. adopted the “significantly advantageous” term and also concluded that only the existing relationship be considered, not the future one. He also found that there remains a “presumption against access” under the CYFSA . [28] In Manitoulin , Kukurin J. acknowledged that the CYFSA altered the test for access to a child in extended care but, for the terms “beneficial and meaningful” and “impair adoption”, he concluded at para 13: it might be argued that these have come down a notch in terms of importance, that they represent just two more factors among several that must be taken into account under the best interests analysis under the CYFSA , that they are no longer statutorily included as prerequisites for the access applicant; they are simply judicial considerations. I do not believe that this is really the end result of the legislative changes. [29] Other courts have taken a different approach, reflecting a flexible interpretation of the test. The approach is summarized by Sager J. in Jewish Family and Child Service of Greater Toronto v. K.B. , 2018 ONCJ 650, at paras. 141-43, aff’d Jewish Family and Child Service of Greater Toronto v. E.K.B. , 2019 ONSC 6214 : The introduction of the best interests test in the CYFSA brings a less rigid and more flexible approach to deciding whether to order access to a child placed in the extended care of the society, as a court is now permitted to give consideration to any factor it considers relevant, one can assume, on the well accepted principle in cases involving children that one size does not fit all. As the best interest analysis involves a consideration of what could be numerous factors, there cannot be a hard and fast rule as to how much weight a court must give any one factor including whether the relationship between the party seeking access and the child is beneficial and meaningful to the child. That must be determined on a case by case basis, by weighing all the relevant factors against the particular needs of the child before the court. This is a significant departure from the rigid test in the predecessor legislation. For some children who are the subject of an order of extended society care, a relationship with a parent may be in their best interests for a myriad of reasons. Some of those reasons would not have been sufficient to demonstrate a beneficial and meaningful relationship under the predecessor legislation to the CYFSA . The court ought not be confined to a one-dimensional definition of beneficial and meaningful under the CYFSA , as to do so would be to potentially ignore the variety of needs children have as a result of being removed from their parents' care, both at the date of the order and in the future. For this reason, the test was altered in a significant way to one of best interests. [Emphasis in original.] [30] This test has been endorsed and followed in numerous cases: Catholic Children’s Aid Society of Toronto v. R.H. , 2018 ONCJ 854; Children’s Aid Society of the Regional Municipality of Waterloo v. J.D ., 2018 ONCJ 963; L.M. v. Children’s Aid Society of the Region of Peel , 2019 ONSC 1566; Family and Children’s Services of Guelph & Wellington County v. A.I.S . , 2018 ONCJ 410 ; Catholic Children’s Aid Society of Toronto v. A.P. , 2019 ONCJ 631 ; Children’s Aid Society of Toronto v. R.S. , 2019 ONCJ 866 ; Family & Children’s Services v. B.S. , 2019 ONSC 6577 ; Children’s Aid Society of Halton Region v. S.O. , 2019 ONCJ 121 ; Children’s Aid Society of Peel v. C.D. , 2018 ONCJ 917 ; Jewish Family and Child Service of Greater Toronto v. K.B. , 2018 ONCJ 650, at para. 144 ; Highland Shores Children’s Aid Society v. J.G. and R.D.F. , 2019 ONSC 5476, at paras. 121 - 23 ; Children’s Aid Society of Toronto v. Y.M. , 2019 ONCJ 489, at paras. 305 - 308; Catholic Children’s Aid Society of Toronto v. R.H. , 2018 ONCJ 854, at paras. 99 - 101 ; Family and Children's Services of Guelph & Wellington County v. T.S . , 2018 ONCJ 411, at para. 54 ; and Children’s Aid Society of the Regional Municipality of Waterloo v. J.D. , 2018 ONCJ 963 , at para. 74 . DISCUSSION [31] The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: Bell ExpressVu Limited Partnership v. Rex , 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, citing Elmer A. Driedger, Construction of Statutes , 2nd ed. (Toronto: Butterworths, 1983), at p.  87. [32] I therefore begin with a broad consideration of the scheme of the CYFSA and its object. [33] A requirement of the CFSA was that the Minister publicly review the Act, or specified provisions of it, every five years. These reviews were to be conducted by the Ministry of Children and Youth Services to enable the government to better understand how its laws, programs and policies are experienced on the ground. The information gathered as part of these reviews provided an opportunity for learning and change, and also supported the Ministry and its partners to provide high-quality services for children, youth and families in Ontario. In September 2014, the third legislative review of the CFSA was announced. [34] The 2015 review [1] stressed the need for change for children in protection proceedings. It recommended a change in the language to reflect the realities of families and also recommended a change to the test for access to “Crown wards”. The CYFSA achieved both these objectives. [35] As this court said in Kawartha - Haliburton Children’s Aid Society v. M.W. , 2019 ONCA 316, 432 D.L.R. (4th) 497, and in L.M. v. Peel Children’s Aid Society , 2019 ONCA 841 , 149 O.R. (3d) 18, the new Act reflected a significant change for children in care. The age for protection was raised from 16 to 18. The archaic and stigmatizing term “Crown ward” was replaced with “extended society care”. Other key changes included: · Making services more culturally appropriate for all children and youth in the child welfare system, including First Nations, Inuit, Métis, to ensure that they receive the best possible supports; · Focusing on early intervention, to assist in preventing children, youth and families from reaching crisis situations in the home; and · Improving review of service providers to ensure that children and youth receive consistent, high-quality services across Ontario. [36] The paramount purpose of the Act remained as it had been: “to promote the best interests, protection and well-being of children” (s. 1(1)). Other purposes in s. 1(2) emphasize the best interests of children: (2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are to recognize the following: 1. While parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent. 2. The least disruptive course of action that is available and is appropriate in a particular case to help a child, including the provision of prevention services, early intervention services and community support services, should be considered. 3. Services to children and young persons should be provided in a manner that, i. respects a child’s or young person’s need for continuity of care and for stable relationships within a family and cultural environment, ii. takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons, iii. takes into account a child’s or young person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression, iv. takes into account a child’s or young person’s cultural and linguistic needs, v. provides early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests, and vi. includes the participation of a child or young person, the child’s or young person’s parents and relatives and the members of the child’s or young person’s extended family and community, where appropriate. 4. Services to children and young persons and their families should be provided in a manner that respects regional differences, wherever possible. 5. Services to children and young persons and their families should be provided in a manner that builds on the strengths of the families, wherever possible. 6. First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuit and Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family. 7. Appropriate sharing of information, including personal information, in order to plan for and provide services is essential for creating successful outcomes for children and families. [37] Most importantly for this case, the new Act changed the criteria for access to children in extended care by removing the presumption against access and making the child’s “best interests” predominant in determining access. As stated by this court in Kawartha and repeated in Peel , the change was not “just semantics” but represented “a significant shift in the approach to access for children in extended care.” Some of the changes to the test for access include: · The burden is no longer on the person requesting access to demonstrate that their relationship to the child is beneficial and meaningful and in no way will impair the child’s future adoption opportunities. · When the court undertakes a best interests analysis, it assesses whether the relationship is beneficial and meaningful to the child, and considers the potential impairment to future adoption opportunities, but only as part of this assessment and only where relevant; · There is no longer a “presumption against access” and it is no longer the case that a parent who puts forward no evidence will not gain access. and · While any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests. The changes referred to in Peel include: · Highlighting in the first statement of the Preamble that children are “individuals with rights to be respected and voices to be heard” and ensuring that children’s wishes are considered and given due respect when any decision is made that affects their lives; · Confirming that the aim of the CYFSA is to be consistent with, and build upon, the principles expressed in the United Nations Convention on the Rights of the Child; · Expanding the protections and unique considerations for all First Nations, Inuit and Métis children; · Expanding the age of “protection” to include 16 and 17 year olds; and · Specifically referencing siblings in the non-exhaustive list of persons who may seek access. This inclusion was made to specifically “promote the consideration of [sibling] access application[s], and as part of efforts to promote the rights and voice of children throughout the Act.” [38] These changes and this court’s statements clearly inform the analysis of the three issues articulated in this case. I turn to those issues now. Issue 1: Has the test for access under the CYFSA changed the meaning of a “beneficial and meaningful” relationship? [39] The respondent points out that the CYFSA did not change the words “a relationship between the person and the child is beneficial and meaningful to the child”. The respondents contend that, with the words still intact, the interpretation of the phrase stands, and the pre- CYFSA interpretation still applies. To support this proposition, the respondent relies on this court’s decision in Huron-Perth Children’s Aid Society v. J.L. , 2019 ONCA 809. The respondent says that, in Huron-Perth , this court endorsed the pre- CYFSA definition of beneficial and meaningful. [40] I do not agree. This court’s decision in Huron-Perth offers no support for the respondent’s position. The issues in that case had nothing to do with the test for access. [41] In Huron-Perth , t he first appeal judge considered fresh evidence and allowed the parents’ appeal on the issue of access, granting access between the parents and children. The parents then appealed to this court on the basis that the first appeal judge had not gone far enough. They submitted that, on the basis of fresh evidence, the trial judge should not only have awarded access but instead should have reversed the Crown wardship/no access order. This court saw no basis to interfere with the first appeal judge’s decision to grant access to the parents. This court’s decision does not endorse the pre-CYFSA approach to access for it had nothing to do with the access test. [42] In contrast, this court’s decision in Kawartha directly addressed the new access test . Kawartha overturned the Divisional Court decision below in part because applying the old restrictive access test was identified as a legal error. [43] The respondent also argues that the 2004 decision in Niagara reflects the proper approach to the determination of the words “beneficial and meaningful”. I disagree. It does not advance the scope or purpose of the legislation to apply dictionary definitions of a word or a phrase untethered from the context of the Act. [44] The respondent further argues that there is no reason to depart from the pre- CYFSA judicial interpretation of “beneficial and meaningful relationship” as meaning a “significantly advantageous” relationship. Again, I disagree. The judicial injection of the words “significantly advantageous” into the analysis may have applied under the old Act but it falls far short of the expansive best interests considerations under the new CYFSA . [45] The CYFSA is remedial legislation enacted for the protection of society’s most vulnerable children. It must be liberally construed to the benefit of the child. [46] The new access test is no longer a “beneficial and meaningful” test. It is now a best interests test with a statutory requirement to consider whether the relationship is beneficial and meaningful for the child as one aspect of that analysis. When a court considers a child’s best interests it should consider all relevant factors, including – as I discuss below – whether past, present or future. The new access test now permits the court to conduct a more holistic and comprehensive analysis of what is best for a child. [47] By adopting a best interests test to determine access, the legislature changed the previous highly restrictive test that had tended towards termination of access between children and those important to them. Access can be now be ordered for a child in extended care if it truly is in the overall best interests of the child. The overall best interests involve a consideration of the 15 articulated factors plus “any other circumstance of the case that the person [deciding the case] considers relevant”: s. 74(3)(c). Under s.105(6), whether the relationship is “beneficial and meaningful to the child” and only if the court considers it relevant , whether the ordered access will impair the child’s future opportunities for adoption remain relevant, but only as viewed through a global best interests lens. Issue 2: Can the benefits of a future relationship be considered? [48] The appeal judge concluded that the trial judge erred in law when he said, at para. 81, that a child’s best interests include “ all relevant factors, ‘whether they be past, present or future considerations’” (emphasis in original). The appeal judge concluded that “While this would be true for the factors set out in s. 74(3), it does not hold true when considering whether there is a beneficial or meaningful relationship between the child and the parent.” In coming to this conclusion, she relied on Manitoulin which held that the relationship “is” beneficial and meaningful. [49] I disagree. [50] The “beneficial and meaningful” test is not a separate pre-condition as it was before. Instead, it is a consideration within the context of the child’s best interests. [51] The child’s best interests clearly are not static. This is confirmed by the wording of s. 74(3) which requires the court to consider: (i) any other circumstance of the case; (ii) the child’s development of a positive relationship; (iii) continuity in the child’s care and the possible effect on the child of disruption of that continuity; (iv) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent [Emphasis added]. [52] The underlined words all demand considerations that continue through time. There is simply nothing in the plain wording of the current Act to suggest that access should be decided without reference to the future. [53] The trial judge did not err by taking future considerations into account. Issue 3: Did the trial judge err by referring to the child’s medical information and family history? [54] The trial judge considered as one of the benefits of access that it “could mean that [the child’s] medical information and family history will be more readily available”. The appeal judge concluded that this was speculation: “There was no evidence presented at trial in this regard and therefore this equates to an error of law”. [55] It was not an error of law to refer to medical history and information for several reasons. First, I have set out above that the best interests analysis properly includes consideration of the future. Second, this factor was only one of ten listed by the trial judge in his consideration of the benefits of access. Third, it was not speculative: the child had significant medical issues as a result of premature birth. There was no error in the trial judge’s common-sense conclusion that a child with significant medical issues could benefit from some form of continuing contact with his biological mother. Presumption and onus [56] Before concluding, I wish to address the respondent’s submissions with respect to presumption and onus. [57] The respondent submits that there remains a presumption against access and the onus rests with the person seeking access. [58] There is no longer a presumption against access. This was confirmed in Kawartha , at para. 31, and Peel , at para. 70 . [59] The issue of onus is more nuanced. [60] I do not find it helpful to import the concept of onus when the court is required to consider and balance the various factors that affect the life of a child in protection. The court is not called upon to determine past events and to make findings. Instead the court must consider and weigh a number of factors, past, present and future. [61] There is an analogy here to what has been said of the court’s approach when considering whether a young person should be tried in youth or adult court. Like the best interests analysis, the relevant legislation for youthful offenders requires the court to weigh and balance enumerated factors. [62] In R. v. A.O. , 2007 ONCA 144, 84 O.R. (3d) 561, this court considered the question of onus in connection with the then legislation regarding a transfer of a case from youth to adult court. The court said, at para. 33: [The section of the Act] refers to an onus of “satisfying” the youth justice court of the matters necessary for the imposition of an adult sentence. This wording tracks the language considered by the Supreme Court of Canada in R. v. M. (S.H.), 1989 CanLII 31 (SCC) , [1989] 2 S.C.R. 446, [1989] S.C.J. No. 93, 50 C.C.C. (3d) 503, at pp. 463-64 S.C.R., pp. 546-48 C.C.C. when it assessed the nature of the onus on a party seeking a transfer to adult court … Justice McLachlin, as she then was, distinguished an onus “to satisfy” from the criminal onus of proof beyond a reasonable doubt. Speaking for the majority, she said: Parliament set out in detail the factors which must be weighed and balanced, and stipulated that if after considering them the court was satisfied that it was in the interests of society and the needs of the young person that he or she should be transferred, the order should be made. Nor do I find it helpful to cast the issue in terms of civil or criminal standard of proof. Those concepts are typically concerned with establishing whether something took place. It makes sense to speak of negligence being established “on a balance of probabilities”, or to talk of the commission of a crime being proved “beyond a reasonable doubt”. But it is less helpful to ask oneself whether a young person should be tried in ordinary court “on a balance of probabilities”. One is not talking about something which is probable or improbable when one enters into the exercise of balancing the factors and considerations set out in [the Act]. The question rather is whether one is satisfied, after weighing and balancing all the relevant considerations, that the case should be transferred to ordinary court. [63] Similarly, the court here was not being asked to make findings of fact about past events. A child’s best interests in connection with future access involve a delicate weighing and balancing of multiple factors. It is not a fact-finding mission and the exercise is not assisted by determining what the onus is or where it lies. CONCLUSION [64] The CYFSA requires a new approach to determining access. I note too that access can come in many forms that depart from in-person visits. The exchange of gifts, emails, video chats or phone calls are all forms of access. The form and frequency of access should be tailored to the child’s specific needs and age-appropriate wishes. [65] I adopt the words of Sager J. relied on by the trial judge, as set out in Jewish Family and Child Service : The introduction of the best interests test in the CYFSA brings a less rigid and more flexible approach to deciding whether to order access to a child placed in the extended care of the society, as a court is now permitted to give consideration to any factor it considers relevant, one can assume, on the well accepted principle in cases involving children that one size does not fit all. The trial judge here endorsed this approach and added: When a court considers a child’s best interests it should consider all relevant factors, whether they be past, present or future considerations. That is what courts do in making custody and access decisions – there is a predictive element in all of these decisions. There is no need for a court to confine itself to past or present circumstances in conducting its analysis. The new access test now permits the court to conduct a more holistic and comprehensive analysis of what is best for a child. The more expansive analysis will permit courts to make the best possible decisions for children. [Emphasis in original.] [66] The trial judge applied the correct approach. [67] I would allow the appeal and restore the trial judge’s determination as to access. [68] No party requested costs, so I would not order costs. Released: June 25, 2020 “DD” “M.L. Benotto J.A.” “I agree Doherty J.A.” “I agree C.W. Hourigan J.A.” [1] Ontario, Ministry of Children and Youth Services, Report on the 2015 Review of the Child and Family Services Act (April 1, 2015).

COURT OF APPEAL FOR ONTARIO CITATION: Country Wide Homes Upper Thornhill Estates Inc. v. Ge, 2020 ONCA 400 DATE: 20200622 DOCKET: C67712 Doherty, Hourigan and Fairburn JJ.A. BETWEEN Country Wide Homes Upper Thornhill Estates Inc. Plaintiff (Respondent) and Wei Ge Defendant (Appellant) Derrick M. Fulton, for the appellant Emilio Bisceglia and Sonja Turajlich, for the respondent Heard: In Writing On appeal from the judgment of Justice Janet Leiper of the Superior Court of Justice, dated October 24, 2019. REASONS FOR DECISION Overview [1] On October 4, 2016, the parties signed an agreement of purchase and sale (“APS”) that forms the subject of this appeal. The respondent company is the vendor, developing a high-end neighbourhood called “The Enclave”. The appellant agreed to buy Lot 66. In accordance with the terms of the APS, the respondent built the appellant’s home. About a week before the date scheduled for closing, just over two years after the APS had been signed, the appellant claimed that the agreement was “null and void”. [2] The respondent sued the appellant for specific performance and brought a motion for summary judgment for breach of the APS. The motion judge granted the motion, concluding that the APS is valid and enforceable and that the respondent is entitled to specific performance of that contract. She gave the appellant 120 days to complete the transaction in accordance with the terms of the APS. [3] This is an appeal from that decision. The Alleged Errors in Granting Summary Judgment [4] We start with the standard of review. Absent an extricable error of law, deference is owed to findings on a summary judgment motion. This includes deference to factual determinations. Decisions as to whether there are genuine issues for trial are questions of mixed fact and law, and require palpable and overriding error before this court will interfere: Hryniak v. Mauldin , 2014 SCC 7 , [2014] 1 S.C.R. 87, at paras. 81-84. [5] We see no such errors. [6] The appellant’s primary issue on appeal rests with the motion judge’s conclusion that the materials filed by the appellant did not “provide any foundation for setting aside the agreement.” That conclusion is summarized in the following passage from the motion judge’s reasons: There is no issue with the agreement, its contents, or the steps taken after it was signed. The main complaints appear to be with the fact that it is a lengthy document, signed by a non-English speaker, and without solicitor review. Yet, the [appellant] does not say in his affidavit that he did not understand the contents: his words are more in the nature of argument than evidence. I agree with the [respondent]: there is no legal foundation for a defence that the agreement is void. The complaints are vague. No caselaw has been provided to establish that any of the complaints in the affidavit would give rise to a setting aside of the agreement. The purchaser has not established any misrepresentation. [7] The appellant argues that the motion judge was wrong in her conclusion that there was no evidence supporting the suggestion that the agreement was void. We disagree. [8] The appellant filed three affidavits on the motion. Two of them were sworn by counsel, largely focusing on a dispute over whether the motion should go ahead or be adjourned to a later date. The final affidavit was sworn by the appellant. The motion judge characterized the appellant’s affidavit in the following manner: [The purchaser’s] affidavit does not allege any details of any misrepresentation. It complains of the fact that there was a warning in the agreement concerning water and the vapour barriers. It also complains that he did not have an option for solicitor review. His pleadings, which were adopted as part of his evidence in the affidavit alleged misrepresentation, but again provided no details as to what the misrepresentation was. [9] A review of the appellant’s affidavit supports the motion judge’s characterization of its contents. [10] The appellant points to the fact that the APS contained a clause, required by the Ministry of the Environment, that warned about the ground water in the subdivision, and remediation efforts of lands within the development. The appellant argues that the import of that clause was not explained to him. As a Mandarin speaking purchaser, he says that he did not understand the clause. He also argues that he was pressured into the purchase, having been told that an offer would only be considered if there were no conditions attached. Accordingly, the appellant suggests that he was deprived of the ability to have a solicitor review the agreement. [11] The motion judge correctly concluded that these arguments did not support the suggestion that there had been misrepresentations. [12] In any event, the appellant had a Mandarin-English speaking real estate agent with whom he was able to fully communicate. He is not a novice to the real estate market. He initialed every page of the APS and its schedules, including the pages containing the Ministry of Environment warning. He also specifically initialled the crossing out of the condition involving solicitor review. Finally, each page of the APS contained the following block letter phrase: “oral representations do not form part nor can they amend this agreement.” These factors undermine the appellant’s position that he did not know and was misled about the contents of the APS. [13] The appellant also argues that the motion judge erred by failing to consider the impact that expert evidence may have had on calculating the decrease in property value arising from the Ministry of Environment warning. Yet, the appellant did not file any expert evidence on the motion, as would have been his right. He cannot now complain that the motion judge did not take into account something that may or may not materialize in the future. He was required to put his best foot forward on the motion. [14] The appellant also maintains that the respondent’s affidavit evidence was insufficient because the affiant, the Vice President of the respondent company, was not in the room when the APS was signed. There is no merit to this suggestion. The respondent’s affiant familiarized himself with all documents and had discussions with the real estate agent who was present at the time of signing. The affiant also states his source of knowledge wherever it is based upon information from a third party. [15] The appellant also claims that there was a breach of natural justice because he was denied an adjournment. The history of that denial is informative as to why this ground of appeal also fails. [16] Less than a week before it was scheduled to be heard, the appellant asked that the motion date be vacated. That request was denied. Then on the eve of the motion, the appellant filed materials in support of an application to adjourn. That application was denied. [17] The motion went ahead, but was adjourned for completion more than two months later. During that time, the appellant attempted to have the Divisional Court review the motion judge’s decision denying the adjournment request. The Divisional Court dismissed that application. On the return date for the motion, over the objection of the respondent, the appellant was permitted to file new affidavit evidence and a factum, all of which was taken into account by the motion judge. [18] In these circumstances, we are satisfied that the appellant was afforded natural justice. [19] The appellant also contends that, because there are a number of purchasers who refused to close their properties in the same subdivision, that the summary judgment in this case will risk inconsistent verdicts in the future. We do not agree. The other transactions will turn on their own details. The Alleged Error Relating to Remedy [20] Finally, the appellant claims that the motion judge erred in ordering specific performance of the APS. He says that: (a) there was insufficient evidence justifying specific performance; and (b) the motion judge misapprehended the evidence on this point. Again, we see no error in the motion judge’s reasons. [21] The motion judge correctly stated the law respecting when the court should consider ordering specific performance and the fact that this remedy is available to vendors: Matthew Brady Self Storage Corporation v. InStorage Limited Partnership , 2014 ONCA 858, 125 O.R. (3d) 121, at paras. 33-34, leave to appeal refused, [2015] S.C.C.A. No. 50. As set out in Matthew Brady , at para. 40, looking at the contract broadly, and the transaction as a whole, the key factors are: (i) whether on the facts as a whole, damages will afford the vendor an adequate and complete remedy or whether a money award will be sufficient to purchase substitute performance; (ii) whether the vendor has established some fair, real and substantial justification for the granting of specific performance; and, (iii) whether the equities as between the parties favour the granting of specific performance. [22] The motion judge took into account all of the facts, including that there is now a flood of inventory in the housing development, making it difficult to mitigate damages or quantify a fair amount for the failure to close. Indeed, as of the date of the motion, no houses in The Enclave had been sold for about a year. [23] Moreover, the motion judge concluded that there was no evidence that the property was a carbon copy of other properties without any unique characteristics and, in fact, there was evidence of a variety of changes and customizations. As noted by the motion judge, in accordance with the APS, the respondent customized the home at the appellant’s request as it was being built. While the appellant refers to these as “cosmetic changes”, the motion just judge came to a factual conclusion to the contrary. We defer to that finding of fact. As she pointed out, there were no fewer than five customizations, including the expansion of a bedroom and use of finishes selected by the appellant. As the motion judge said: “the bump out of the bedroom, and particular finishes on a $3 million property”, although not necessarily “highly unusual”, reflected a “set of qualities decided upon by the purchaser.” [24] We note that in responding to the alleged error in the motion judge’s reasons for specific performance, the respondent points to her having relied upon Landmark of Thornhill Limited v. Jacobson , [1995] 25 O.R. (3d) 628, in support of the proposition that the “defaulting party bears the onus of showing a lack of uniqueness”. The appellant has not suggested that the motion judge erred in that statement of law. As the matter was not argued before us, we decline to comment, but simply emphasize the holding in Semelhago v. Paramadevan , [1996] 2 S.C.R. 415, decided a year after Jacobson, where the court found that “specific performance should … not be granted as a matter of course absent evidence that the property is unique to the extent that its substitute would not be readily available ” [Emphasis added]. See also: Matthew Brady , at para. 31. [25] Regardless, the motion judge’s reasons do not turn on her view of the onus. Rather, they turn on her findings of fact, which include the determination that, at this stage, the $3 million home is unique and that damages would not be an adequate or complete remedy or substitute for specific performance. [26] We see no error in that conclusion. Application to Admit Fresh Evidence [27] On the eve of the appeal, the appellant asked for an adjournment because he said that he had “critical” evidence necessary to a just determination of the appeal. The appellant was granted the opportunity to file an application to admit fresh evidence. That application has now been received and considered. [28] The appellant filed an affidavit suggesting that Lot 66, along with all of the houses subject to similar litigation, has been listed for sale. The appellant argues that the listing of Lot 66 for sale is inconsistent with the respondent’s position on specific performance as it demonstrates the respondent’s belief that damages were capable of being assessed. [29] The appellant asks that the fresh evidence be admitted and the appeal be adjourned so that he can “develop that evidence through disclosures and examinations, in furtherance of its interest and that of the litigation as a whole inclusive of this appeal.”  The appellant argues that, through the development of the evidence, it will become clear that specific performance in not an available remedy and the integrity of the respondent will be adversely reflected upon, something that may inform other aspects of the litigation. [30] There is no need to hear from the respondent on this point. There is clear evidence of an email exchange between counsel, strongly suggesting that the listing of Lot 66 involved an administrative error, one that was immediately remedied once it was brought to the respondent’s attention. In other words, Lot 66 is not longer on the market. In any event, even if the listing of Lot 66 was not through administrative error, the brief listing of the property does not constitute evidence that is sufficiently cogent to have impacted the original decision granting specific performance or any other aspect of the decision. [31] The fresh evidence application is dismissed. Conclusion [32] The appeal is dismissed. [33] The appellant obtained a stay of the specific performance order pending appeal. Costs of that motion were reserved to the panel hearing the appeal. We would not impose costs on the fresh evidence motion as the respondent was not required to respond. Taking the motion to stay and the appeal into account, the appellant will pay costs in the amount of $10,000 to the respondent, inclusive of taxes and disbursements. “Doherty J.A.” “C.W. Hourigan J.A.” “Fairburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Couper v. Adair Barristers LLP, 2020 ONCA 372 DATE: 20200611 DOCKET: C67453 Lauwers, Huscroft and Thorburn JJ.A. BETWEEN Mark Couper Applicant (Appellant) and Adair Barristers LLP Respondent (Respondent) Mark Couper, acting in person John J. Adair, for the respondent Heard: In writing On appeal from the order of Justice Markus Koehnen of the Superior Court of Justice, dated August 29, 2019, with reasons reported at 2019 ONSC 5016. REASONS FOR DECISION [1] This is an appeal from the order of the motion judge dismissing the appellant’s motion opposing confirmation of the Assessment Officer’s report. [2] The appellant raises three issues on appeal. First, he says that the Assessment Officer did not have jurisdiction because the retainer was a contingency fee agreement; second, that the retainer did not comply with the requirements of the Solicitors Act , R.S.O. 1990, c. S.15 ; and third, that the motion judge misapprehended and ignored evidence and that the assessment should not have occurred until his solicitor’s negligence action against the respondent was determined. [3] We dismiss the appeal for these reasons. [4] First, although authority to conduct the assessment of the contingency fee agreement was not formally delegated to the Assessment Officer as required under s. 28.1(11) of the Solicitors Act , the motion judge conducted his own analysis as though the matter had first come before him. He found that the retainer agreement included a contingency fee and that the contingent nature of the retainer agreement was fair and reasonable and should be enforced. In light of this finding, the motion judge noted that he would have delegated the question of quantum, and the detailed assessments of the accounts that entailed, to an assessment officer, who could carry it out far more effectively. Given that this had already occurred, we agree that there was no reason that the exercise had to be repeated. [5] As Brown J.A. noted in Evans Sweeny Bordin LLP v. Zawadzki , r. 54.09(5) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 permits the motion judge to “confirm the [assessor’s] report in whole or in part or make such other order as is just”: 2015 ONCA 756, at para. 24. In our view, the procedure adopted by the motion judge was fair and appropriate in all of the circumstances, and it was not necessary to remit assessment of the accounts for reconsideration by another assessment officer when assessment already occurred. [6] We note that the respondent argued that the appellant was estopped from contesting the jurisdiction of the Assessment Officer, based on the appellant having clearly and unequivocally stated that he was not disputing the retainer and undertaking not to raise the issue of the Assessment Officer’s jurisdiction as a ground of appeal. Given our conclusion in para. 5 it is not necessary to address this argument, and we are not to be taken as endorsing the motion judge’s analysis in this regard. [7] Second, it is too late in the day for the argument that the retainer did not comply with some of the requirements of s. 28.1 of the Solicitors Act . The appellant did not challenge the validity of the retainer when he could have done so and cannot now raise this argument on appeal. [8] Third, we see no misapprehension of or failure to consider evidence. As for the appellant’s negligence action, the Assessment Officer considered and rejected the appellant’s submission concerning the competence of the representation provided by the respondent, finding that the appellant’s position “smack[ed] of recently invented objections”. The Assessment Officer found that the results achieved, and the degree of skill and competence demonstrated by the respondent justified the assessed legal costs. There is no basis to interfere with this finding on appeal. The assessment was not required to be delayed pending the outcome of the appellant’s negligence action. [9] The appeal is dismissed. The respondent is entitled to costs, which we fix in the amount of $5,000, inclusive of taxes and disbursements. “P. Lauwers J.A.” “Grant Huscroft J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Couper v. Rueter Scargall Bennett LLP, 2020 ONCA 352 DATE: 20200605 DOCKET: C67613 Gillese, Tulloch and Jamal JJ.A. BETWEEN Mark Couper Applicant (Appellant) and Rueter Scargall Bennett LLP Respondent (Respondent) AND BETWEEN Rueters LLP Applicant (Respondent) and Mark Couper Respondent (Appellant) Mark Couper, acting in person Fraser Dickson, for the respondents Heard: In Writing On appeal from the judgment of Justice Markus Koehnen of the Superior Court of Justice, dated November 12, 2019. REASONS FOR DECISION [1] In this appeal, Mark Couper seeks to overturn a judgment ordering him to pay Rueters LLP approximately $422,000 for legal fees and disbursements, pre-judgment interest, and costs. [2] For the reasons that follow, the appeal is dismissed. Background in Brief [3] In January 2011, Mr. Couper retained Rueter Scargall Bennett LLP, predecessor in interest to Reuters LLP (collectively “Rueters”), to represent him in a cross-border breach of contract case. Rueters was Mr. Couper’s third law firm to handle the litigation. [4] Rueters provided Mr. Couper with legal services until March 2013. During that period, Rueters significantly advanced the case. Among other things, it readied the matter for pre-trial and trial, amended the pleadings, obtained additional disclosure, conducted examinations for discovery, attended several pre-trial and case conferences, and defeated a motion for summary judgment. [5] However, in March 2013, Rueters terminated the lawyer-client relationship because Mr. Couper refused to follow its legal advice on important issues. The culminating incident occurred when Mr. Couper instructed Rueters to bring a summary judgment motion based on advice he had received from other lawyers and contrary to Reuters’ advice. Rueters refused to bring the summary judgment motion, which it viewed as unwise. Mr. Couper accepted the termination of the relationship and voluntarily retained new counsel to replace Rueters. [6] At the time of termination, Mr. Couper had paid only $10,000 of the fees of $333,951.50 (plus HST) which he owed Rueters. He also owed Rueters overdue disbursements of $2,703.12. [7] On April 16, 2013, the parties entered into a compromise compensation agreement (“CCA”) which resulted in a substantial fee reduction for Mr. Couper.  The CCA reduced Rueters’ fees to $300,000 (before HST); it also reduced the original premium of 5% of the judgment obtained to 1%. Both sums were payable on judgment or settlement. The CCA further provided that Mr. Couper would pay the outstanding disbursements within three months. He did not make that payment. [8] In April 2016, Mr. Couper succeeded at trial and obtained a judgment of almost $700,000. In July 2016, he was awarded costs of the trial of approximately $780,000. [9] In August 2017, Rueters issued an account in accordance with the CCA. The account included the still-unpaid disbursements. [10] Mr. Couper sought to have the account assessed but the Assessment Officer ruled he was without jurisdiction. Both parties then brought applications to determine appropriate fees for Rueters. [11] The applications judge found in favour of Rueters on both applications. By judgment dated November 12, 2019, Mr. Couper was ordered to pay Rueters $351, 402.75 plus prejudgment interest of $13,893.09 and costs of $57,548.46 (the “Judgment”). [12] Mr. Couper appeals the Judgment on three grounds. First, he submits that there was a reasonable apprehension of bias on the part of the applications judge. This submission is largely based on the applications judge having presided over Mr. Couper’s motion opposing the confirmation of an assessment award regarding the fees of his trial counsel. Second, he submits that the applications judge erred in finding that Rueters had good reason to withdraw from its representation of him and did not require court approval for its withdrawal. Third, he submits that the applications judge erred in enforcing the CCA, which he contends is invalid. No Reasonable Apprehension of Bias [13] There is no conduct of the applications judge that can be seen as evidence of prejudgment or bias on his part. On the contrary, the record shows that the applications judge acted fairly, and with patience and integrity, throughout these proceedings. [14] Further, the fact that the applications judge ruled against Mr. Couper in a related matter is inadequate to establish a reasonable apprehension of bias: Watt v. Beallor Beallor Burns Inc. , 2004 CanLII 19821 (Ont. C.A.), at paras. 13-14. Rueters had Good Reason to Withdraw and Court Approval was not Required [15] Mr. Couper asserts that the applications judge erred in determining that Rueters had good reason to withdraw from the solicitor-client relationship because the litigation was at a critical stage, he was prejudiced by its withdrawal, and court approval was required. [16] We reject this assertion and all of the arguments in support of it. [17] Counsel cannot abandon their clients on the eve of trial or a similarly acute point in the litigation. However, when Rueters terminated the solicitor-client relationship, the litigation was not at a critical stage. There were no imminent court dates nor was there work that could not be dealt with efficiently by new counsel. In fact, Mr. Couper’s new counsel was able to take the matter to trial quickly and was successful, obtaining judgment in his favour. [18] Nor was Mr. Couper prejudiced by Rueters’ withdrawal. In rejecting Mr. Couper’s claim of prejudice flowing from that withdrawal, the applications judge found that Rueters had no liability for any costs arising from the withdrawal because Mr. Couper was “the author of his own misfortune”. He found that Mr. Couper was responsible for the material breakdown in the relationship for reasons that included his insistence that Rueters pursue the summary judgment motion, a motion that could have been strategically and financially disastrous for him. We agree with the applications judge. [19] As for Mr. Couper’s contention that court approval was required, we begin by noting that Mr. Couper agreed that Rueters could remove itself from the record. Thus, in the circumstances of this case, there was no need for Rueters to obtain court approval. [20] In any event, we endorse the applications judge’s rejection of Mr. Couper’s after-the-fact explanation for why his agreement was based on a misunderstanding. We also agree with the applications judge that had Rueters made such an application, it would have obtained court approval to remove itself from the record. As the applications judge found and is described briefly above, Mr. Couper was responsible for the material breakdown in the solicitor-client relationship. [21] We conclude on this issue by noting that the findings of the applications judge show that going to court for such approval would have been ill-advised and both parties knew that. It was clearly in Mr. Couper’s best interests that the change in counsel be accomplished as quickly, inexpensively, discreetly, and efficiently as possible. That is precisely what transpired. The CCA was Valid [22] On this appeal, Mr. Couper has advanced a new issue, namely, that both his initial retainer agreement with Rueters and the CCA are invalid because they fail to comply with the requirements of Contingency Fee Agreements , O. Reg 195/04 to the Solicitors Act , R.S.O. 1990, c. S. 15 (the “Regulation”). He did not advance this issue on the Applications. Rather, he argued that Rueters had breached the agreements. [23] As Mr. Couper did not raise the validity of the agreements below, he cannot raise it on appeal. This court has repeatedly explained the general rule that appellate courts will not entertain entirely new issues on appeal. See, for example, Kaiman v. Graham , 2009 ONCA 77, 245 O.A.C. 130, at para. 18, and Chuang v. Toyota Canada Inc. , 2016 ONCA 852 , at para. 4. [24] In any event, even if the CCA were found not to comply with the Regulation, we agree with the applications judge’s implicit finding that the CCA was fair and reasonable. Therefore, it was enforceable. Disposition [25] The appeal is dismissed with costs to Rueters. If the parties are unable to agree on the quantum of those costs, they may make written submissions on that matter, to a maximum of three pages in length, such submissions to be received by this court no later than ten days from the date of release of these reasons. [26] Further, this court affirms the applications judge’s order that Mr. Couper’s New Jersey counsel, Snellings Law, shall pay to Rueters forthwith, from the funds that it is holding in escrow, all amounts to which Rueters is entitled pursuant to the Judgment. “E.E. Gillese J.A.” “M. Tulloch J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Deutsche Postbank AG v. Kosmayer, 2020 ONCA 410 DATE: 20200622 DOCKET: C67913 Juriansz, Pardu and Huscroft JJ.A. BETWEEN Deutsche Postbank AG Plaintiff (Appellant) and David Kosmayer, Dan Kosmayer, Kosmayer Enterprises Inc., Marketing Extensions Inc. and Kroum Vassilev Defendants (Respondents) Jonathan Bell, for the appellant Douglas B.B. Stewart, for the respondents Heard by video conference: June 18, 2020 On appeal from the order of Justice Bernadette Dietrich of the Superior Court of Justice, dated December 20, 2019, with reasons reported at 2019 ONSC 6997. REASONS FOR DECISION [1] We dismissed the appeal in this matter following the hearing. These are our reasons. [2] The appellant appeals from the motion judge order dismissing its action against the respondents. The motion judge found that the delay caused by the appellant was inordinate and inexcusable and put the possibility of a fair trial for the respondents at risk and dismissed the action as a result. [3] The appellant argues that the motion judge failed to consider the conduct of the respondents at various stages of the litigation and the contribution they made to the delay and erred in finding that the presumption of prejudice was not rebutted. [4] We disagree. [5] The motion judge addressed the appellant’s argument that both parties had contributed to the delay. She set out a chronology of the relevant events and the time taken for each. The motion judge found that “the action virtually ground to a halt” following delivery of the appellant’s initial affidavit of documents, and that the delay of over nine years since the commencement of the action was inordinate. [6] The motion judge considered the appellant’s excuses for its delay and found that they were neither reasonable nor persuasive. For example, she found that the respondents’ request to translate documents was reasonable and that the delay caused in translating the documents ought to have been foreseen. [7] The motion judge applied the relevant legal principles and made no error in doing so. Her decision that the appellants did not rebut the presumption of prejudice caused by the delay is a discretionary decision that is entitled to deference from this court. There is no basis to interfere with it. [8] The appeal is dismissed. The respondent is entitled to costs of $20,000, inclusive of taxes and disbursements. “R.G. Juriansz J.A.” “G. Pardu J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375 DATE: 20200612 DOCKET: M51262 and M51557 (C67841) Benotto, Zarnett and Thorburn JJ.A. BETWEEN The Trustees of the Drywall Acoustic Lathing and Insulation Local 675 Pension Fund Plaintiffs (Moving Parties [1] /Responding Parties [2] ) and SNC-Lavalin Group Inc., Kevin G. Lynch, Neil Bruce, Sylvain Girard, Jean Raby, Alain Rhéaume, Eric D. Siegel and Benita M. Warmbold Defendants (Moving Parties [3] ) Joel P. Rochon, Peter R. Jervis, Douglas Worndl, Ronald Podolny and Peter Proszanski, for the Trustees of the Drywall Acoustic Lathing and Insulation Local 675 Pension Fund,  moving parties in M51262 and  responding parties in M51557 Michael G. Robb, Garett M. Hunter, Anthony O’Brien, Karim Diallo, Erika Provencher and Serge Kalloghlian, for Ruediger Martin Graaf, responding party in M51262 and M51557 Katherine L. Kay, Daniel S. Murdoch and Libby Nixon, for SNC-Lavalin Group Inc., Kevin G. Lynch, Neil Bruce, Sylvain Girard, Jean Raby, Alain Rhéaume, Eric D. Siegel and Benita M. Warmbold, moving parties in M51557 Heard: In Writing Zarnett JA: INTRODUCTION [1] In 2019, two proposed class actions were commenced against SNC-Lavalin Group Inc. (“SNC”) and certain of its officers and directors (collectively with SNC, the “Defendants”). The class actions allege that the Defendants made misrepresentations and failed to make required disclosures affecting the price or value of SNC’s securities. [2] The first action was commenced by Ruediger Martin Graaf (the “Quebec Plaintiff”) in February 2019 in the Superior Court of Quebec (the “Quebec Action”). The second action was commenced by the Trustees of the Drywall Acoustic Lathing and Insulation Local 675 Pension Fund (the “Ontario Plaintiff”) in June 2019 in the Ontario Superior Court of Justice (the “Ontario Action”). [3] The Quebec Plaintiff and the Defendants each moved to stay the Ontario Action. On November 21, 2019, the motion judge, Belobaba J., dismissed each motion to stay: 2019 ONSC 6512. [4] The Quebec Plaintiff, taking the position that the dismissal of his request to stay the Ontario Action was a final order, has appealed the dismissal to this court. [4] As a precautionary measure, the Quebec Plaintiff has also filed a motion for leave to appeal the dismissal to the Divisional Court, in the event it is determined to be interlocutory. The Defendants did not appeal the dismissal of their request to stay to this court; they have instead moved for leave to appeal to the Divisional Court. [5] The Ontario Plaintiff now moves to quash the Quebec Plaintiff’s appeal to this court on the basis that the dismissal of his request to stay the Ontario Action is an interlocutory order and can only be appealed to the Divisional Court with leave. The Ontario Plaintiff submits that this court has no jurisdiction to hear the Quebec Plaintiff’s appeal. [6] The Defendants move for certain directions in the event that the Quebec Plaintiff’s appeal is determined to be properly before this court. [7] For the reasons that follow, I conclude that the dismissal of the Quebec Plaintiff’s request to stay the Ontario Action is an interlocutory order, not a final order. No appeal lies from it to this court. I would therefore quash the Quebec Plaintiff’s appeal. It follows that the Defendant’s motion for directions must also be dismissed. THE MOTION JUDGE’S DECISION [8] The motion judge described the situation giving rise to the motions to stay as follows: A law firm files a proposed national class action against the defendant in Quebec. A different law firm representing a different plaintiff files a proposed national class action against the defendant in Ontario. The pleadings in the two actions allege securities misrepresentations in the secondary market and end up being substantially similar in scope and content. The damages claim is in excess of a billion dollars. Neither action has yet been granted leave to proceed under provincial securities law or has been certified as a class proceeding. The leave and certification motions in both actions will be argued sometime next year. [9] The Quebec Plaintiff’s position is that the Quebec and Ontario actions are substantially similar in scope and content—they have substantially overlapping class definitions, class periods, defendants, impugned disclosure documents, and causes of action. [5] In other words, the actions advance substantially similar claims against substantially the same defendants, on behalf of substantially the same proposed class. [10] The motion judge stated that, in order to succeed, the Quebec Plaintiff had to show that the Ontario Action was an abuse of process because it was duplicative and served no legitimate purpose when it was commenced. The motion judge rejected the suggestion that it was, stating at para. 33: The question… is whether the Ontario action when filed was duplicative of the Quebec action as it was at that time. The answer is “no.” Abuse of process has not been…established on the evidence before me. The two stay motions must be dismissed. [11] In its Notice of Appeal to this court, the Quebec Plaintiff submits that the motion judge erred in the way he considered the duplicative and no legitimate purpose argument. He also submits that the motion judge should have considered broader matters, including “factors relevant to both the best interests of the class members and the fair and efficient administration of justice”. [12] Although the motion judge dismissed the motions to stay, he observed that the Quebec Plaintiff and the Defendants could argue, at the certification stage, that the Ontario Action should not proceed because of the Quebec Action. He stated at para. 41: If the Ontario action clears the leave hurdle and advances to certification, both the defendant as a party and [the Quebec Plaintiff] as a “participant”, could argue that the Quebec action should be preferred under the s. 5(1)(d) [of the Class Proceedings Act , 1992 , S.O. 1992, c. 6] analysis and the Ontario action should be stayed. The value of doing so at certification is that this court would have the benefit of a more complete record. [13] The motion judge went on to state that even if he were wrong that those arguments could be addressed at the certification stage, he was still required to dismiss the motions to stay that were before him. [14] Because of the view I take of the matter, I need not decide if the Quebec Plaintiff will or will not have a chance at the certification stage of the Ontario Action to argue for a stay, nor the extent (if any) to which any such argument would be restricted by the dismissal of the earlier stay motion. ANALYSIS [15] It is common ground between the Ontario Plaintiff and the Quebec Plaintiff that even though the Ontario Action is a proceeding under the Class Proceedings Act , 1992 , S.O. 1992, c. 6 (the “ Class Proceedings Act ”), the appeal route in this case is governed by the Courts of Justice Act , R.S.O. 1990, c. C.43 (the “ CJA ”). There is no provision in the Class Proceedings Act that governs appeals for this type of order: see, generally, Class Proceedings Act , s. 30. It is also common ground between the parties that under the CJA , an appeal lies to this court only if the order is final: s. 6(1)(b). If the order is interlocutory, the appeal lies to the Divisional Court, with leave: CJA , s. 19(1)(b). [16] An interlocutory order is one which does not determine the real matter in dispute between the parties—the very subject matter of the litigation—or any substantive right to relief of a plaintiff or substantive right of a defendant. Even though the order determines the question raised by the motion, it is interlocutory if these substantive matters remain undecided : Hendrickson v. KalIio , [1932] O.R. 675 (C.A.), at p. 678; Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.). [17] In Sun Life Assurance Co. of Canada v. York Ridge Developments Ltd. , 1998 CarswellOnt 4534 (C.A.), Weiler J.A. distinguished substantive matters, which are the subject of final orders, from procedural rights, which are not. She stated, at para. 13: As stated in Holmsted and Watson on Ontario Civil Procedure at 62-24: “…to be final an order must deal with the substantive merits as opposed to mere procedural rights, no matter how important the procedural rights may be. The test focuses on whether the order under appeal finally disposes of the rights of the parties, in the sense of substantive rights to relief (in the case of a plaintiff) or a substantive defence (in the case of a defendant).” [18] In Locking v. Armtec Infrastructure Inc. , 2012 ONCA 774, 299 O.A.C. 20, this court considered whether an order resulting from a ‘carriage dispute’ between competing Ontario class actions is final or interlocutory. In a carriage dispute, the court is called upon to consider which of two competing class actions should be allowed to proceed—in other words, which representative plaintiff and counsel should be allowed to continue with the action they commenced for the benefit of the class and which representative plaintiff and counsel should have their proposed class action stayed. Mr. Locking was unsuccessful in the carriage dispute and his action was stayed. The motion judge refused to stay the competing action and permitted it to continue. Mr. Locking sought to appeal the  decision to this court. [19] This court held that it did not have jurisdiction over Mr. Locking’s appeal because the disposition of a carriage dispute is interlocutory. The order staying Mr. Locking’s action did not bring an end to his proceedings, as his action was not stayed for all purposes, but simply as a class action. The stay did not determine or terminate the claim. He could still prosecute his lawsuit as an ordinary action. Furthermore, the refusal to stay the competing action did not make the disposition final. If the plaintiff in the competing action succeeded in obtaining certification, Mr. Locking could opt out of the class and continue with his own action. The only effect of the impugned order was to prevent Mr. Locking from bringing an application to have his action certified as a class proceeding. As the court stated, at para. 17, Mr. Locking had “not lost his right to sue the defendants. He may remain as part of the [competing] proposed class action and may also seek to actively participate to protect his interests pursuant to s. 14 of the [ Class Proceedings Act ] . He may also opt out and pursue his individual action independently.” [20] Applying these principles to this case, it is clear that the refusal to stay the Ontario Action at the request of the Quebec Plaintiff is an interlocutory order. The dismissal of his stay request does not determine the subject matter of the Ontario Action or of any action. It does not determine any substantive right to relief that the Quebec Plaintiff, the Ontario Plaintiff, or any potential class member has against the Defendants, nor does it determine any substantive defence. It does not terminate the Quebec Plaintiff’s right to proceed with the Quebec Action. It does not determine the Quebec Plaintiff’s right or any potential class member’s right to opt out of the Ontario Action if the latter is certified as a class proceeding. Nor does it determine anyone’s right to pursue an individual claim. [21] The refusal to stay the Ontario Action can only be said to affect the Quebec Plaintiff’s procedural rights. The Quebec Plaintiff considers that the class affected by the Defendants’ alleged wrongdoing would be better off if only the Quebec Action went forward as a class proceeding and the Ontario Action did not. Locking makes clear that, from an Ontario law perspective, a determination of which of two competing actions should proceed as a class action affects procedural rights. This is consistent with the view that the Class Proceedings Act is itself a procedural statute: Hislop v. Canada (Attorney General) , 2009 ONCA 354, 95 O.R. (3d) 81, leave to appeal refused, [2009] S.C.C.A. No. 264, at para. 42. [22] Although Locking was a contest between two competing Ontario actions, the conclusion it reached about appeal rights is applicable to this case where the contest is between competing proposed national class actions in different provinces. This is so because of the nature of the dispositions made on each type of motion and their lack of effect on substantive rights. It is not dependent on whether or not the factors that are considered in deciding a carriage dispute are the same as those to be considered on an interprovincial motion to stay. If anything, the conclusion that the refusal to stay the Ontario Action is interlocutory resounds with even greater force here than it did in Locking . There, Mr. Locking’s own action was stayed and he was prevented from seeking to have it certified as a class proceeding. Here, the Quebec Plaintiff’s action was not stayed and the order does not purport to affect his ability to seek its approval as a class proceeding. Even from a procedural standpoint, the refusal to stay the Ontario Action is less far-reaching than the order in Locking . [23] The Quebec Plaintiff notes that, before the motion judge, the Ontario Plaintiff argued that the motion to stay should not be conflated with a carriage motion. This argument was made by the Ontario Plaintiff in response to submissions on the proper factors to be applied for a motion to stay. The Ontario Plaintiff took the position that the Quebec Plaintiff was incorrectly asserting that  the test on a motion to stay should be taken from jurisprudence relating to carriage motions. The Quebec Plaintiff suggests that the Ontario Plaintiff’s position in the court below is a reason why Locking ought not to apply to the appeal route issue here. [24] I do not consider that point to be germane. First, the question before this court is one of jurisdiction, and jurisdiction cannot be conferred by the parties’ characterizations in the court below, for a different purpose, about the similarity to a carriage dispute (the characterizations are in any event conflicting). Second, the issue on the motions under consideration here is not what factors should be applied in deciding a motion to stay and how similar those factors are to the factors on a carriage motion; the issue is the similarity of the type of order that results from a carriage dispute and the type of order here. [25] The Quebec Plaintiff relies on the decision in Ontario v. Lipsitz , 2011 ONCA 466, 281 O.A.C. 67, leave to appeal refused, [2011] S.C.C.A. No. 407. He argues that Lipsitz stands for the proposition that the refusal to stay an action on the grounds of abuse of process results in a final order when the refusal does not leave open the right to argue abuse of process later in the action. As mentioned, it is unclear whether the motion judge’s decision has foreclosed any future arguments on whether the Ontario Action should be stayed in favour of the Quebec Action (see paras. 12 and 13 of these reasons). But in any event, Lipsitz is of no assistance to the Quebec Plaintiff. [26] In Lipsitz , the plaintiff alleged that several defendants improperly forced his sleep disorder clinics to close. After filing their statements of defence, the defendants moved to dismiss and to stay the plaintiff’s action. The motion to stay was premised on the assertion that the plaintiff’s action was a collateral attack on administrative decisions relating to the licensing of sleep clinics. The collateral attack/abuse of process argument was one of the defendants’ substantive responses to the merits of the plaintiff’s claim. The motion judge largely dismissed the defendants’ motion. In doing so, he finally disposed of the defendants’ substantive response that the plaintiff’s action was an impermissible collateral attack, without reserving the issue for trial. Accordingly, this court held that the motion judge’s order was final: Lipsitz , at paras. 40-41. [27] In contrast, the Quebec Plaintiff’s motion to stay did not raise for determination any of the Defendants’ substantive responses to the merits of the Ontario Plaintiff’s claim, let alone result in the determination of any such substantive response. [28] Nor is this case similar to cases like Smith Estate v. National Money Mart Company , 2008 ONCA 746, 92 O.R. (3d) 641, leave to appeal refused, [2008] S.C.C.A. No. 535, relied on by the Quebec Plaintiff. Smith Estate dealt with a refusal to stay an action in favour of arbitration. Sharpe J.A., at para. 30, considered the order final because it finally deprived the defendant of a substantive contractual right to arbitration. [6] Nor is this case similar to M.J. Jones Inc. v. Kingsway General Insurance Co. (2003), 233 D.L.R. (4th) 285 (Ont. C.A.), where the court held that a refusal to stay an action for lack of territorial jurisdiction over the defendant and on forum non conveniens grounds was final. As Sharpe J.A. stated, those motions finally determine substantive questions with constitutional implications about the power of the court to adjudicate claims against the defendant: M.J. Jones , at para. 10; see also Microvoice Applications Inc. v. Ice Consultants Inc. , 2004 CarswellOnt 6310 (C.A.). Nothing similar is present here. [29] The Quebec Plaintiff also submits, citing Smerchanski v. Lewis (1980) , 117 D.L.R. (3d) 716 (C.A.), at p. 720, that an order made in a contest between a party to an action and a non-party is final if it finally disposes of their rights in the issue raised between them. He argues that the order here is final because he is a non-party to the Ontario Action, and the decision of the motion judge finally determined whether he could obtain a stay of the Ontario Action on the grounds raised by him when the motion was decided. [30] I would not give effect to that argument. Smerchanski dealt with an order made during a trial, at the request of strangers to the action, to quash subpoenas directed to the strangers. The statement in Smerchanski must be read in light of what was in issue, and not as a statement that all orders made concerning non-parties are final. In CC&L Dedicated Enterprise Fund (Trustee of) v. Fisherman , 2001 CarswellOnt 3354 (C.A.), this court said, at para. 16: When given its broadest interpretation, the principle in Smerchanski v. Lewis, supra , does not fit comfortably with the general test for determining whether an order is interlocutory or final, as set out in Hendrickson v. Kallio , [1932] O.R. 675 (C.A.) and clarified in subsequent cases such as Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.). Smerchanski was not intended to mean that all orders directed to a non-party must be final, and the principle expressed therein should not be further expanded in that way. [31] Similarly, in Ambrose v. Zuppardi , 2013 ONCA 768, 368 D.L.R. (4th) 749, at para. 8, this court stated: “ Smerchanski should be restricted to cases in which there are like circumstances – a ruling made in the course of a trial quashing a subpoena of a witness in circumstances where the information sought to be obtained from the witness cannot be obtained from the [parties] themselves.” [32] The circumstances here are not like those in Smerchanski . Nor are they circumstances that should attract any variant of its principle. The Quebec Plaintiff is not a party to the Ontario Action in the formal sense. But he does not premise his request to stay the Ontario Action on being a complete stranger; rather he does so on the basis that the Ontario Action overlaps, in all material respects, including in respect of the class on whose behalf it is brought, with the Quebec Action. This case parallels the situation in Locking , where Mr. Locking was not a party to the competing class action, although he was a member of its proposed class. Mr. Locking’s status as a non-party to one of the actions, and the fact that he was affected by the result of the carriage dispute, did not make the order there final. The Quebec Plaintiff’s non-party status in the Ontario Action does not lead to a different result here. CONCLUSION [33] For these reasons I would quash the Quebec Plaintiff’s appeal. In light of that disposition, I would also dismiss the Defendants’ motion for directions. [34] If the parties are unable to agree on costs, I would require that they each make written submissions within ten days of the release of these reasons. Those submissions should not exceed two pages in length. Released: JUN 12, 2020 “MLB” “B. Zarnett J.A.” “I agree. M.L. Benotto J.A.” “I agree. Thorburn J.A.” [1] Moving parties in M51262, the motion to quash. [2] Responding parties in M51557, the motion for directions. [3] Moving parties in M51557. [4] Appeal file number C67841. [5] The Quebec Plaintiff also takes the position that the Quebec Action is slightly broader in scope. [6] In TELUS Communications Inc. v. Wellman , 2019 SCC 19, at para. 91 (per Moldaver J.), it was suggested that decisions under s. 7(6) of the Arbitration Act , 1991 , S.O. 1991, c. 17, cannot be appealed at all. Whether or not this affects the decision in Smith Estate , it further underscores the inapplicability of the jurisprudence on stays in favour of arbitration to the situation in the case at bar.

COURT OF APPEAL FOR ONTARIO CITATION: Edgeworth v. Shapira, 2020 ONCA 374 DATE: 20200611 DOCKET: M51258, M51278, M51370 (C67654) Doherty, Hourigan and Fairburn JJ.A. BETWEEN Annabelle Maritza Edgeworth Plaintiff (Appellant/Responding Party) and Karyn Shapira, Brian Levine, Northbridge General Insurance Corporation and Andrew Evangelista Defendants (Respondents/Moving Parties) Michael Kestenberg and Thomas M. Slahta, for the moving parties Karyn Shapira and Andrew Evangelista Todd Burke and Samaneh Frounchi, for the moving party Brian Levine David Zuber, for the moving party Northbridge General Insurance Corporation Rocco Galati, for the responding party Heard: in writing REASONS FOR DECISION [1] The appellant sued the respondents for conspiracy and intrusion on seclusion. She also sued the respondent Karyn Shapira for misrepresentation. Ms. Shapira moved to strike the appellant’s claim without leave to amend, save for the misrepresentation claim. The remaining respondents moved to strike the appellant’s entire claim against them without leave to amend. All respondents also sought an order removing Campisi LLP as lawyers of record for the appellant based on an alleged conflict of interest. [2] The motion judge struck the claims in conspiracy and intrusion on seclusion but granted the appellant leave to amend his claims regarding these torts. Further, the motion judge ordered Campisi LLP removed as lawyers of record for the appellant. The appellant appeals these decisions. [3] The respondents bring these motions to quash the appeal, submitting that the motion judge’s order striking parts of the statement of claim is interlocutory because it includes an order granting leave to amend. They further argue that the order removing the appellant’s lawyer is also interlocutory. Their position is that the correct appeal route is to the Divisional Court with leave. [4] We dismiss the motions to quash the appeal of the order striking the claim. The respondents are correct that an order striking a claim with leave to amend is interlocutory: Dobreff v. Davenport , 2007 ONCA 902, 88 O.R. (3d) 719. However, in this case, the motion judge’s order had the effect of foreclosing amendments to the claims struck. Therefore, the order was final. [5] Regarding the removal of the appellant’s lawyer, the respondent is right to describe this order as interlocutory: Marrocco v. John Doe , 2014 ONSC 5663 (Div. Ct.). An appeal of an interlocutory order that lies to the Divisional Court with leave should not be combined with an appeal of a final order to this court pursuant to our power under s. 6(2) of the Courts of Justice Act , R.S.O. 1990, c. C 43, if leave to appeal the interlocutory order has not yet been obtained from the Divisional Court: Cole v. Hamilton (City) , 60 O.R. (3d) 284, 2002 CanLII 49359, at paras. 15-16; and Mader v. South Easthope Mutual Insurance Co. , 2014 ONCA 714, 123 O.R. (3d) 120, at para. 55. [6] The motions to quash the appeal of the order to strike are dismissed. The appeal of the order removing Campisi LLP as lawyers of record for the appellant is quashed. Leave to appeal the removal of counsel order should be sought in the Divisional Court. Given the divided success in this court, we order that there be no costs of the motions. “Doherty J.A.” “C.W. Hourigan J.A.” “Fairburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Eks v. Tadeu, 2020 ONCA 425 DATE: 20200630 DOCKET: C67195 Feldman, Fairburn and Nordheimer JJ.A. BETWEEN Susan Elizabeth Eks Plaintiff/Defendant to Counterclaim (Respondent) and Kerri Lynn Tadeu Defendant/Plaintiff by Counterclaim (Appellant) Christopher Du Vernet and Carlin McGoogan, for the appellant David M. Adams and Matthew E. Taft, for the respondent Heard: In writing On appeal from the judgment of Justice Graeme Mew of the Superior Court of Justice, dated June 17, 2019, with reasons reported at 2019 ONSC 3745. REASONS FOR DECISION [1] Ms. Tadeu appeals from the trial judgment in which the respondent’s claim was dismissed as was the appellant’s counterclaim. It is the dismissal of the appellant’s counterclaim that is in issue in this appeal. [2] There is an unfortunate history between these two parties, who were neighbours, that involved the respondent, at one point, vandalizing the appellant’s home. This occurred after an earlier physical confrontation between the two. [3] The respondent was charged with criminal offences arising out of these incidents. She eventually pleaded guilty to the offences, received a suspended sentence and probation, and moved out of the neighbourhood. [4] A few years later, the appellant saw the respondent in her neighbourhood. The respondent was waiting outside the home of a friend of hers. The respondent said that she was picking up her friend in order to go and visit a mall. The appellant said that the respondent stared at her intently when she saw her. [5] The police were called but determined that there was no conduct that required their action. The appellant then sought a peace bond against the respondent. The request for the peace bond was dismissed when the appellant failed to appear for the hearing. [6] The respondent then commenced this action against the appellant alleging malicious prosecution, harassment and other claims. The appellant counterclaimed for intentional infliction of mental distress, negligence and other claims. [7] The trial was conducted as a summary trial. At its conclusion, the trial judge dismissed both the claim and the counterclaim. In detailed reasons, the trial judge concluded that none of the claims advanced by the respondent were made out. The trial judge also concluded that none of the claims by the appellant were made out. In this latter regard, the trial judge expressly rejected the evidence of a psychologist called by the appellant. He was critical of the psychologist for having rendered an opinion, in these circumstances, without having reviewed the appellant’s medical records. [8] In our view, the trial judge was entitled to reach the conclusion that he did respecting the psychologist’s evidence. The appellant also complains that the trial judge failed to consider the report of a psychiatrist which the insurer for the appellant’s employer had obtained which she says supported the psychologist’s evidence. The trial judge was not required to consider the psychiatrist’s report because it was not properly in evidence before him. The report was simply filed (it is not clear on what basis) and the psychiatrist was not called. [9] The appellant’s argument, at its core, is a quarrel with the trial judge’s factual findings. There does not appear to be any dispute (with perhaps one exception) that the trial judge correctly articulated the component parts of the various causes of actions that the appellant asserted. He then found that the facts did not sustain any of those causes of action. The trial judge was entitled to come to those conclusions. It is not for this court to interfere with those findings of fact absent palpable and overriding error, of which none is shown here. [10] The possible exception is with respect to the appellant’s complaint that the trial judge erroneously concluded that the appellant had failed to articulate the duty of care that she alleged regarding her negligence claim. He said, at para. 140: It is not sufficient to throw the words "negligence", "nuisance", "intimidation" and "interference with enjoyment of property" into a prayer for relief, but then not articulate what duty was owed. [11] Assuming without deciding that the trial judge imposed too high a burden on the appellant’s pleading, that does not change the fact that the trial judge concluded that the facts did not sustain a finding of negligence, however one might articulate the duty of care. [12] Finally, the appellant complains that the trial judge did not grant a permanent injunction against the respondent to ensure that the respondent’s conduct was not repeated. The trial judge’s decision on this relief was a matter entirely within his discretion. The appellant has not demonstrated any basis for this court to interfere with the manner in which the trial judge chose to exercise his discretion. [13] The appeal is dismissed with costs fixed at $3,500 inclusive of disbursements and HST. “K. Feldman J.A.” “Fairburn J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Foodinvest Limited v. Royal Bank of Canada, 2020 ONCA 387 DATE: 20200617 DOCKET: M51433 (C66522) Rouleau, van Rensburg and Roberts JJ.A. BETWEEN Foodinvest Limited Plaintiff (Appellant/Moving Party) and Royal Bank of Canada Defendant (Respondent/Responding Party) Glenroy K. Bastien, for the moving party Catherine Francis, for the responding party Heard: In writing van Rensburg J.A.: A. INTRODUCTION [1] This is a motion by Foodinvest Limited (“Foodinvest”) under s. 7(5) of the Courts of Justice Act , R.S.O. 1990, c. C.43, seeking to set aside an order of a single judge of this court for security for costs of its appeal. The appeal is of the summary judgment of Morgan J., dated December 27, 2018, dismissing Foodinvest’s action against the responding party, Royal Bank of Canada (“RBC”). In the action, Foodinvest alleged that it was a victim of fraud and claimed damages against its banker, RBC, for negligence, breach of contract, breach of trust, and breach of fiduciary duty. Foodinvest alleged that RBC had received notice that an account to which Foodinvest was forwarding funds was suspected to be fraudulent, and had failed to investigate and to notify its customer of the notice of possible fraudulent activity. B. HISTORY OF PROCEEDINGS [2] RBC brought its first motion for security for costs in March 2019. Foodinvest was ordered to pay $75,067.89 as security for costs (costs of $50,067.89 awarded against Foodinvest in the court below plus $25,000 for the estimated partial indemnity costs of the appeal). That order was set aside by a panel of this court, without prejudice to RBC renewing its motion for security for costs after Foodinvest had perfected its appeal: 2019 ONCA 728. While not interfering with the motion judge’s conclusion that Foodinvest had insufficient assets in Ontario to pay RBC’s costs, the panel concluded that the motion judge did not consider the justness of the order sought in all the circumstances of the case, with the interest of justice at the forefront, as directed by Yaiguaje v. Chevron Corporation , 2017 ONCA 827, 189 O.R. (3d) 1. The panel determined that it would not be just in the circumstances to order security for costs before the appeal was perfected. [3] The appeal was perfected on or about October 21, 2019 and scheduled to be heard on March 26, 2020. The hearing was adjourned. [4] RBC brought its second motion for security for costs returnable March 10, 2020. The grounds for the motion were that there was good reason to believe that Foodinvest had no assets in Ontario and was without means to satisfy the costs awarded at first instance or the costs of the appeal. RBC suggested that Foodinvest’s principal, Svetlana Zolotova, who had assets in Ontario, could either post security for costs or undertake responsibility for costs. RBC referred to Ms. Zolotova’s admission in her cross-examination in the summary judgment proceedings that she is the sole shareholder of Foodinvest. It noted that Ms. Zolotova had refused to produce the financial records of Foodinvest in those proceedings and had provided no financial disclosure in response to the motion for security for costs. RBC provided evidence that Ms. Zolotova is the registered owner of a home in Vaughan valued at approximately $1.3 million, against which the only registered encumbrance is a mortgage in its favour. [5] In her materials, Ms. Zolotova admitted that Foodinvest had no assets in Ontario. She asserted that Foodinvest is still operating but is impecunious and unable to raise money to post security for costs. She claimed that the appeal could not proceed if Foodinvest were required to post security for costs. She referred to the fact that €42,307.25 is being held to the credit of Foodinvest as physical evidence by the Public Prosecutor’s office in Warsaw, Poland and that this sum could be made available to pay costs if Foodinvest were not successful on the appeal. Her factum on the motion resisted an order for security for costs, and proposed in the alternative that, if security for costs were ordered, these funds could be made available. [6] The motion judge granted an order requiring Ms. Zolotova, in her capacity as sole director, officer and shareholder of Foodinvest, to post security for costs in the amount of the costs of $50,067.89 awarded by Morgan J. and $25,000 for the estimated partial indemnity costs of the appeal, by way of a personal undertaking to be responsible for these costs. She reserved the costs of the motion to the panel hearing the appeal. C. ISSUES ON REVIEW OF ORDER [7] An order refusing or granting security for costs is a discretionary order which is entitled to deference, absent an error of law or principle: Yaiguaje , at paras. 20-21. [8] Foodinvest submits that the motion judge erred in principle in ordering Ms. Zolotova to undertake to pay RBC’s costs in the court below and its estimated costs of the appeal, and that no order for security for costs ought to have been made in the circumstances. [9] RBC contends that the motion judge’s order reflected a proper exercise of her discretion. It argues that an order for security for costs was warranted because Foodinvest does not have sufficient assets in the jurisdiction to satisfy a costs award, and that there is nothing unjust in requiring Foodinvest’s principal to assume responsibility for RBC’s costs if it is unsuccessful on the appeal. [10] I agree with Foodinvest that the order for security for costs must be set aside. The motion judge erred in misapprehending that there was an agreement by Ms. Zolotova to provide a personal undertaking to pay the costs of the action and appeal brought by Foodinvest. As a result, she failed to apply the correct test and to carry out the required analysis to determine whether security for costs should be ordered against the appellant, Foodinvest . This required the consideration of whether RBC brought itself within the terms of the rule under which it was claiming security for costs, and whether it would be just to make an order for security for costs in the circumstances. In view of the errors of the motion judge, it falls to this panel to consider RBC’s motion for security for costs de novo. D. DISCUSSION (1) Relevant legal principles [11] In Yaiguaje , this court directed that “[i]n deciding motions for security for costs judges are obliged to first consider the specific provisions of the Rules governing those motions and then effectively to take a step back and consider the justness of the order sought in all the circumstances of the case, with the interests of justice at the forefront”: at para. 22. [12] An order for security for costs can be made under r. 61.06(1)(a) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, where it appears that there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal. In its second motion for security for costs, RBC did not rely on this rule. Rather, RBC relied on the combination of r. 61.06(1)(b) (where it appears that an order for security for costs could be made against the appellant under r. 56.01) and r. 56.01(1)(d) (where it appears that there is good reason to believe that a corporate plaintiff has insufficient assets in Ontario to pay the costs of the defendant). It asserted that Foodinvest lacked sufficient assets in Ontario to pay the costs awarded at first instance and the costs of the appeal. [13] This court discussed the interplay of rr. 61.06(1)(b) and 56.01(1)(d) in Health Genetic Center Corp. v. New Scientist Magazine , 2019 ONCA 968. In the context of a motion for security for costs of an appeal, the question under r. 56.01(1)(d) is whether there is good reason to believe that the corporate appellant (who was a plaintiff or applicant at first instance) has insufficient assets in Ontario to pay the costs of the appeal . Even where that threshold is met, the overriding consideration is whether an order for security for costs would be just, which must be considered holistically, taking into consideration the circumstances of the particular case: Health Genetic , at paras. 15-18; Yaiguaje , at para. 25. In Health Genetic , there was evidence that the corporate appellant had sufficient assets to pay costs of the appeal, but not to pay costs in the court below. The panel upheld the order of the motion judge refusing security for costs. (2) Application to this case [14] In the present case, although Foodinvest provided no financial disclosure, there is no dispute that it is a corporation with insufficient assets in Ontario to pay the costs of the appeal. The money being held by the Public Prosecutor in Poland to Foodinvest’s credit appears to be the only source of funds available to Foodinvest to pay a costs award in the event that it is unsuccessful on the appeal. I also accept that Foodinvest has not established that it is impecunious “in the extended sense that the shareholders and principals of the corporation are unable to fund security for costs”: Rhonmont Properties Ltd. v. Yeadon Manufacturing Ltd. , [2003] O.J. No. 1883 (C.A.), at para. 5. Although Ms. Zolotova’s affidavit asserted impecuniosity and stated that Foodinvest was unable to raise security from its shareholders, the evidence is that she is a shareholder, and that she has equity in a home located in Vaughan. [15] While RBC is able to bring itself within the scope of rr. 61.06(1)(b) and 56.01(1)(d), this is not sufficient to warrant an order for security for costs. Rule 61.06 is permissive, not mandatory. In every case where security for costs is sought, the court must “take a step back” and consider whether an order for security for costs would be just in all the circumstances of the case. The overarching principle to be applied is the “justness of the order sought”: Ravenda Homes Ltd. v. 1372708 Ontario Inc. , 2017 ONCA 556, at para. 4. Some relevant factors are the merits of the claim (in this case the appeal), any delay in bringing the motion for security for costs, the impact of actionable conduct by the defendants (or respondents) on the available assets of the plaintiffs (or appellants), access to justice concerns, and the public importance of the litigation: Yaiguaje , at para. 24. I would add that the court should give careful consideration to the amount and form of security sought by the moving party. And, “[c]ourts must be vigilant to ensure that an order that is designed to be protective in nature is not used as a litigation tactic to prevent a case from being heard on its merits, even in circumstances where the other provisions of rr. 56 or 61 have been met”: Yaiguaje , at para. 23. Each case must be considered on its own facts: “The correct approach is for the court to consider the justness of the order holistically, examining all the circumstances of the case and guided by the overriding interests of justice to determine whether it is just that the order be made”: Yaiguaje , at para. 25. [16] In my view, the interests of justice do not favour an award of security for costs in this case or the specific order that RBC sought and that was granted by the motion judge. [17] First, RBC delayed in bringing its motion. The setting aside of the first order for security for costs was without prejudice to RBC bringing another motion after the appeal was perfected. The appeal was perfected in October 2019, however RBC’s motion was heard only two weeks before the scheduled date of the appeal and after it had filed its materials responding to the appeal. Such a delay weighs against an order for security for costs: see Hilson v. 1336365 Alberta Ltd. , 2019 ONCA 727, at para. 11. Moreover, the fact that RBC brought its motion for security for costs after it had incurred all of its costs in connection with the appeal, except for the costs related to the hearing, calls into question the purpose of the motion. Motions for security for costs are meant to provide “a measure of protection” to the respondent for the costs that will be incurred on the appeal: Health Genetic , at para. 26, citing Combined Air Mechanical Services Inc. v. Flesch , 2010 ONCA 633, 268 O.A.C. 172, at para. 8. [18] Second, the appeal is not obviously or plainly devoid of merit. In its appeal, Foodinvest points to a number of specific errors that it submits the motion judge made in granting summary judgment. This is a relevant factor irrespective of whether a respondent moves for security for costs of an appeal under r. 61.06(1)(a) or under some other part of r. 61.06: Yaiguaje , at para. 24; Chinese Publications for Canadian Libraries Ltd. v. Markham (City) , 2017 ONCA 968. [19] Third, the particular order sought by RBC, requiring Foodinvest’s principal to give a personal undertaking to pay the estimated partial indemnity costs of the appeal as well as the costs awarded against Foodinvest in the court below, would provide it with something it did not have in the proceedings below – a judgment for costs that is enforceable against Ms. Zolotova personally. This is inappropriate, overreaching, and not a valid reason to seek security for costs. Contrary to RBC’s submission that there is nothing unfair about such an order, it would be unjust in the circumstances to require such an undertaking as the price for Foodinvest to proceed with an appeal that is not devoid of merit and that it has a right to pursue. [20] The motion in this case was for security for costs in Foodinvest’s appeal. Ms. Zolotova is not a party to the appeal. As already observed, the motion judge misapprehended the undertaking proposed by Foodinvest’s counsel. Specifically, what was offered was that, if the court concluded that security for costs was warranted, Ms. Zolotova was prepared to undertake to make available the monies to Foodinvest’s credit that were being held in Poland. It was not a concession that an order for security for costs was warranted, or that such an order could or should be made against Ms. Zolotova personally without her consent, and for the full amount of the costs RBC was seeking. [21] I disagree with RBC’s submission that, even without Ms. Zolotova’s consent, there was a basis for making an order requiring her to pay the costs of the appeal and of the proceedings below as security for the costs of Foodinvest’s appeal. RBC refers to one case, Printing Circles Inc. v. Compass Group Canada Ltd. (2007) , 88 O.R. (3d) 685 (S.C.), a decision of Corbett J. in the Superior Court, which it cites as authority for such an order. Its reliance on that decision, however, is misplaced. In Printing Circles , the corporate plaintiff had insufficient assets in Ontario to pay the costs of an action, but was not impecunious, because it could raise funds from its principal. The corporate plaintiff opposed an order for security for costs, and in the alternative proposed that an order for security for costs could be satisfied by way of a personal undertaking by its principal to pay costs. The defendant argued that the court could not accept such an undertaking in lieu of or as a form of security for costs. After considering various authorities, Corbett J. ordered security for costs against the corporate plaintiff, with the proviso that it could be satisfied by an undertaking provided by its principal. As such, the issue in that case was not whether an order for security for costs should be made against the corporate plaintiff’s principal, but whether, once the defendant made out a case for security for costs, the corporate plaintiff could satisfy the order by giving a personal undertaking from its principal to pay costs in the event that the corporate defendant did not pay them. See also 1056470 Ontario Inc. v. Goh , [2007] O.J. No. 2545 (Gen. Div.), at para. 15. [22] At its highest, the reasoning in Printing Circles would have permitted this court to accept an undertaking from Ms. Zolotova if the court concluded that Foodinvest must provide security for costs, and she had offered such an undertaking. While the court can order a corporate appellant to post security which, as a practical matter, the appellant may only be able to satisfy by funding from its shareholders, an order for security for costs under the combination of rr. 61.06(1)(b) and 56.01(1)(d) is against the corporate appellant itself, and not against its principal. [23] As a final point, I would emphasize that, when considering a motion under r. 61.06, the court must have regard to the interests of justice at all stages of its analysis: in determining whether an order for security for costs is warranted, and in determining the type and amount of security to be ordered. While r. 61.06 authorizes the court to order security for costs of the appeal and of the proceedings below, it does not follow that such an order will be made routinely. It is beyond the scope of this review motion to address this issue, except to observe that some justification must be offered by the moving party when the amount of security sought under r. 61.06 includes security for the costs awarded in the court below. E. DISPOSITION [24] For these reasons, I would set aside the order for security for costs and order costs to Foodinvest of this motion and the motion before the motion judge. If the parties are unable to agree on the amount of such costs, the court will receive written submissions limited to three pages each (in addition to Foodinvest’s costs outline), as follows: from Foodinvest within 20 days and from RBC within 15 days thereafter. Submissions are to be submitted electronically at the following email address: COA.E-File@ontario.ca. Released: June 17, 2020 (“P.R.”) “K. van Rensburg J.A.” “I agree. Paul Rouleau J.A.” “I agree. L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Formosa v. Persaud, 2020 ONCA 368 DATE: 20200611 DOCKET: C67456 Pepall, Hourigan and Roberts JJ.A. BETWEEN John Formosa and Steffen Nielsen Plaintiffs (Appellants) and Dorian Persaud and Gardiner Roberts LLP Defendants (Respondent) Julian Binavince, for the appellants Michael R. Kestenberg and David S. Lipkus, for the respondent, Gardiner Roberts LLP Heard: In Writing On appeal from the judgment of Justice Lorne Sossin of the Superior Court of Justice, dated August 22, 2019, with reasons reported at 2019 ONSC 4860. REASONS FOR DECISION [1] The appellants appeal from the judgment of Sossin J., dated August 22, 2019, in which he granted summary judgment dismissing the appellants’ action against their former counsel, Dorian Persaud and Gardiner Roberts LLP. The appellants only appeal the dismissal of their action against Gardiner Roberts LLP (“GR”). [2] The appellants were former managers of TSI International Group (“TIG”). TIG brought proceedings against the appellants alleging that they had stolen confidential and proprietary information. TIG also brought a motion seeking injunctive relief. Mr. Persaud acted for the appellants. [3] TIG was successful on the motion and the motion judge, Ricchetti J., described the appellants’ conduct as reprehensible and outrageous, stating that it was difficult to ascertain what, if any, defence could possibly succeed. [4] The appellants terminated Mr. Persaud’s retainer and hired GR to act for them instead. The retainer with GR lasted roughly 22 months. During that time, GR prepared the appellants’ statement of defence and counterclaim. In addition, GR represented the appellants in their unsuccessful response to TIG’s motion to strike their pleading, in filing a motion for leave to appeal that order, and on an unsuccessful motion seeking compliance with the injunctive relief that had been granted against them. [5] Ultimately the action with TIG was settled with the assistance of new counsel. The appellants then commenced this action against Mr. Persaud and GR for breach of contract and solicitor’s negligence. Mr. Persaud and GR brought a motion for summary judgment dismissing the appellants’ action. [6] The motion judge, Sossin J., found that each of the steps GR took was communicated to the appellants, considered by them, and resulted in instructions to take a certain course of action. The motion judge also found that the appellants knew the risks, were advised of their rights, and were active participants in the development of the litigation materials and strategy. Moreover, the motion judge found that GR did not cause the appellants’ damages, to the extent there were any. He concluded that GR was not professionally negligent. [7] In their factum on appeal, the appellants state that they commenced the action against GR based on errors in judgment, failure to properly advise them so they could make informed decisions, and failure to properly consider costs. [8] The motion judge addressed these claims and found against the appellants. [9] On appeal, the appellants advance numerous arguments, none of which are meritorious. [10] The motion judge applied the correct test for a summary judgment motion and did not reverse the burden. He correctly noted that GR, as the moving party, had the initial burden to establish there was no genuine issue requiring a trial. He was satisfied that this burden had been met based on the record before him, which included affidavits filed by two of GR’s lawyers that addressed the claims against them . In the absence of any expert report from either party, he relied on the record to determine that there was no professional negligence. We see no error in that analysis. See also McPeake v. Cadesky , 2018 ONCA 554. [11] The appellants complain that GR made errors in judgment. However, as stated by McLachlin C.J. in Hill v. Hamilton-Wentworth Regional Municipal Police , 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 73, the law of negligence accepts that professionals may make minor errors or errors in judgment that cause unfortunate results, without breaching the standard of care. Here, the motion judge found that the appellants were advised of the risks in litigation generally and in the TIG action specifically. His findings were fully supported by the record. Moreover, there is no dispute that the litigation strategy was to be aggressive with a view to motivating TIG to settle. We are fully satisfied of the merits of the motion judge’s findings. [12] There is no basis for the appellants’ argument that the reasons were inadequate. The reasoning and the route to the dismissal of the appellants’ claim are abundantly clear. [13] In light of our decision on the merits, there is no need to consider the additional basis of absence of any loss, relied upon by the motion judge. [14] For these reasons, the appeal is dismissed. If the parties are unable to agree on costs of the appeal, they may each make brief written submissions, not to exceed three pages in length. “S.E. Pepall J.A.” “C.W. Hourigan J.A.” “L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Harding v. Sokil, 2020 ONCA 422 DATE: 20200629 DOCKET: M51340 (C65293) Gillese, Brown and Paciocco JJ.A. BETWEEN Alexander J. Harding Plaintiff/ Defendant by Counterclaim (Moving Party) and Barbara Lynn Sokil Defendant/ Plaintiff by Counterclaim (Responding Party) and Alexander James Harding, Estate of Irene Francis Harding and Sharron Lynn-Duns Defendants to Counterclaim William R. Gilmour, for the moving party Babara Lynn Sokil, acting in person Heard: in writing REASONS FOR DECISION [1] This is a motion to dismiss the within appeal or, alternatively, require the appellant to post security for costs as a condition of continuing it (the “Motion”). BACKGROUND IN BRIEF [2] Alexander James Harding granted a vendor take back mortgage to Barbara Lynn Sokil when she purchased real property from him. Ms. Sokil defaulted on her obligations under the mortgage and Mr. Harding sued her for damages, interest, costs and possession of the property. Ms. Sokil filed a defence and counterclaim. [3] Mr. Harding moved for summary judgment. The motion judge found there were no genuine issues requiring a trial in the action or counterclaim and, by judgment dated March 19, 2018 (the “Judgment”), he ordered the relief that Mr. Harding sought – including a Writ of Possession – and dismissed the counterclaim. [4] Ms. Sokil filed a notice of appeal in this court. She then brought a motion to stay the Judgment pending appeal (the “Stay Motion”). [5] Justice Trotter heard the Stay Motion on May 1, 2018, and dismissed it. In his affidavit in support of this Motion, Mr. Harding attests that when Trotter J.A. was receiving costs submissions on the Stay Motion, Ms. Sokil indicated that “it didn’t matter what costs were ordered – she was not going to pay them”. Ms. Sokil takes no issue with this claim in her Motion material. [6] Justice Trotter ordered Ms. Sokil to pay Mr. Harding costs of $2,000 (all inclusive), such costs to be paid within sixty days (the “Costs Order”). In his endorsement, Trotter J.A. opines that the appeal “has no merit”. [7] The appeal was set down to be heard on April 19, 2019. Ms. Sokil failed to appear for the hearing, without notice to Mr. Harding. She seeks to have the appeal re-listed for a hearing. [8] It has been over a year since the Costs Order was made and Mr. Harding has not yet received payment of the costs. He brings this Motion in which he asks that Ms. Sokil’s appeal be dismissed for failure to pay the Costs Order and because, he alleges, Ms. Sokil’s conduct of the appeal to date has been “frivolous and vexatious”. Alternatively, Mr. Harding asks that Ms. Sokil be required to post security for costs as a condition of continuing with her appeal. [9] The Motion was scheduled to be heard, in writing, on June 22, 2020. [10] Ms. Sokil asks that the hearing of the Motion be adjourned. She also filed an affidavit replying to the Motion. In her affidavit, she takes issue with Trotter J.A. having expressed his opinion that the appeal had no merit, with the way in which the Motion had been brought and conducted, and with other aspects of Mr. Harding and his counsel’s conduct during the appeal proceeding. She asks that the Motion be dismissed. ANALYSIS [11] We deal first with Ms. Sokil’s request for an adjournment. The Motion was scheduled to be heard in writing on June 22, 2020. We have received all the documents necessary to fairly hear, consider and decide the Motion. In the circumstances, we see no basis for adjourning it. Accordingly, we reject the adjournment request. [12] In terms of the Motion, assuming that this court has the power to dismiss an appeal for failure to pay costs orders, we would not exercise that power in this case: Ms. Sokil has failed to pay only one costs order. [13] However, rule 61.06(1)(b) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, empowers the court to order security for costs of the proceeding and the appeal if an order for security for costs could be made against the appellant under rule 56.01. Rule 56.01(1)(c) authorizes an order for security for costs where the respondent has an order for costs against the appellant that remains unpaid.  That is the situation here. Under the Costs Order, Ms. Sokil was to have paid Mr. Harding $2,000 over a year ago.  That she has not done. [14] Ordering Ms. Sokil to pay security for costs would be just in the circumstances of this appeal: York University v. Markicevic , 2017 ONCA 651, at para. 22; Yaiguaje v. Chevron Corporation , 2017 ONCA 827, 138 O.R. (3d) 1, at para. 23. Not only has Ms. Sokil failed to pay the costs ordered by Trotter J.A., she said she would defy that costs order. Ms. Sokil has not prosecuted her appeal with diligence. As well, the merits of her appeal are very weak. [15] Accordingly, we will make an order that Ms. Sokil pay security for costs of the proceeding and the appeal. In quantifying the amount of security required, we bear in mind that costs of $5,650 and $2,675, respectively, were ordered against Ms. Sokil on the Summary Judgment motion and the dismissal of her counterclaim. We also bear in mind that Mr. Harding has estimated his costs of the appeal (to April 10, 2019) at $11,000. DISPOSITION [16] Accordingly, the Motion is granted with costs to Mr. Harding of $3,000, all inclusive. Ms. Sokil is ordered to pay these costs plus the Costs Order of $2,000 to counsel for Mr. Harding within thirty (30) days of the date of release of these reasons. [17] Ms. Sokil is further ordered to pay into court, as security for costs for the proceeding and the appeal, the amount of $19,000. Such payment shall be received by the court within forty-five (45) days of the date of release of these reasons. Until the security has been received by this court, Ms. Sokil may take no further steps in this proceeding. [18] If Ms. Sokil fails to pay the costs of this Motion ($3,000) and the Costs Order ($2,000) to Mr. Harding’s counsel within the stipulated time, or if she fails to comply with the security for costs order, the appeal shall be dismissed on motion by Mr. Harding. “E.E. Gillese J.A.” “David Brown J.A.” “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Iannuzzi v. Couper, 2020 ONCA 426 DATE: 20200630 DOCKET: C67311 Feldman, Fairburn and Nordheimer JJ.A. BETWEEN Anthony Iannuzzi Plaintiff (Respondent) and Mark Couper Defendant (Appellant) Mark Couper, acting in person Riaz Ahmed, for the respondent Heard: In writing On appeal from the judgment of Justice Wendy M. Matheson of the Superior Court of Justice, dated April 3, 2019. REASONS FOR DECISION [1] The respondent was the appellant’s landlord. The appellant found himself in financial difficulty. In 2008, the appellant requested that he be able to defer his rental payments to the respondent. The respondent agreed. On December 9, 2008, the appellant confirmed in writing that he owed rent for the entire year up to that time. He undertook to start paying rent again on January 1, 2010. He said that the back rent would become payable “when [his] lawsuit against [a third party] is settled”. He agreed to pay interest on the deferred rental payments, calculated at the rate of 10% annually starting with the missed payments on October 1, 2008. The respondent signed the letter confirming that agreement. [2] Although the date when the appellant was to start paying rent again got extended a few times, the substance of the original agreement did not change. On January 4, 2011, the appellant wrote to the respondent and enclosed a “loan agreement” that he had signed, acknowledging that he owed $69,806 in deferred rent and that he would repay that amount, with the ten percent interest, when the litigation he was involved in settled. The respondent refused to sign that loan agreement, claiming he had not agreed to anything with the appellant and that they needed to get together to discuss the matter. [3] The appellant started paying rent again in January 2011. In March 2012, the appellant gave the respondent two months’ notice. He had insufficient funds to cover two cheques for the April and May 2012 rent. The NSF cheques gave rise to a small claims court action, where the respondent sought the two months’ rent to cover those amounts. The appellant cross-claimed. At that point, there was no claim relating to the deferred rental payments. Ultimately, the small claims court matter settled, as reflected in a settlement agreement dated December 2014, where the appellant acknowledged he would pay the respondent $6,248.48, spread out over 15 months. The parties released and discharged each other “from all cause of actions and claims against each other.” [4] Ultimately the appellant’s litigation with the third party settled in July 2016, at which time the respondent commenced this action to obtain the substantial amount of deferred rent. The trial judge concluded that the parties had a clear contract for the deferral of the rent, on terms agreed to, including the timing of repayment and the interest to be paid. The appellant says that the trial judge erred in that conclusion. We do not agree. [5] The trial judge’s careful reasons for decision demonstrate that she understood the evidentiary record before her, and her conclusions are supported by the factual record and her findings of fact to which we defer. As found by the trial judge, the appellant’s position that there was no agreement is undermined by the appellant’s acknowledgement in his December 9, 2008 letter that there was an “agreement”. It is also undermined by his statement in the May 26, 2010 letter that it constituted an “agreement” that superseded all other “agreements”. [6] The appellant also maintains that the trial judge erred in finding that the release signed by the parties in the small claims action did not bar the action. The trial judge’s reasons for concluding that the general words of the release did not cover the claim relating to the deferred rent are sound and well supported by the evidence. The release did not refer to future claims or to the deferred rent. The small claims action did not include a claim for the deferred rent. Her conclusion that if the appellant wished to include the deferred rent claim in the release, he should have specifically addressed it, makes sense. This is particularly true given that the appellant’s own proposed loan agreement in January of 2011 made specific reference to the fact that the deferred rent obligations were “separate” from all non-deferred rent. [7] Finally, the trial judge did not err in finding that the deferred rents constituted a contingent loan not covered by the release, contingent on the appellant completing his litigation with the third party. The deferred rent was clearly contingent upon a future event and was properly characterized by the trial judge. [8] The appeal is dismissed. [9] Costs of the appeal are to be paid by the appellant to the respondent in the amount of $10,000, inclusive of disbursements and taxes. “K. Feldman J.A.” “Fairburn J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Karygiannis v. Toronto (City), 2020 ONCA 411 DATE: 20200624 DOCKET: C67742 Benotto, Zarnett and Thorburn JJ.A. BETWEEN James Karygiannis Applicant (Respondent) and City of Toronto and Ulli S. Watkiss Respondents (Respondents) and Adam Chaleff Intervenor (Appellant) Stephen Aylward and Zachary Al-Khatib, for the appellant Sean Dewart and Adrienne Lei, for the respondent James Karygiannis Mark Sibioni for the respondents, the City of Toronto and Ulli S. Watkiss Heard: May 27, 2020 by teleconference On appeal from the judgment of Justice William S. Chalmers of the Superior Court of Justice, dated November 25, 2019. Thorburn J.A.: 1. OVERVIEW [1] The appellant, Adam Chaleff is a Toronto voter. He appeals the application judge’s decision to grant the respondent, James Karygiannis, relief from forfeiture of his office arising out of the Municipal Elections Act, 1996, S.O. 1996, c. 32, Sched. (“the Act”) provisions relating to campaign finances. [2] The respondent was re-elected a Councillor for the City of Toronto on October 22, 2018. Like all candidates for City Council, he was required to provide a financial statement outlining his campaign income and expenses. [3] The respondent filed his financial statement on March 27, 2019. [4] Two complaints were received about his allocation of expenses and a compliance audit was ordered. The respondent was therefore allowed to file a Supplementary Financial Statement. [5] On October 28, 2019, the respondent filed a Supplementary Financial Statement that showed he exceeded the allowable spending limit for expressions of appreciation during the 2018 election. Section 88.23(2) of the Act provides that the penalty for doing so is, among other things, automatic forfeiture of office. [6] On November 6, 2019, after reviewing the Supplementary Financial Statement, the City Clerk noted that the expenses he had submitted exceeded the allowable limit and advised the respondent that he was removed from office. [7] Five days later, the respondent applied for relief from forfeiture, claiming this was simply a good faith error in categorizing his expenses. On November 25, 2019, the application judge granted relief from forfeiture. [8] The appellant, who intervened in the proceedings below, claims the application judge had no jurisdiction to grant relief from forfeiture. Even if he did, he should not have exercised his discretion to do so in the circumstances of this case. [9] In addressing the issue of whether there is jurisdiction to grant relief from forfeiture, I will first examine the rules governing spending limits for election campaigns and then look at the interpretation of the penalty provision of s. 88.23 based on the wording of the section, its meaning when considered in the context of the Act as a whole, and the intention of the legislators. I will then examine whether there is jurisdiction pursuant to s. 98 of the Courts of Justice Act, R.S.O. 1990, c. C.43, to allow relief from forfeiture. [10] For reasons that follow, I conclude there is no jurisdiction to provide relief from forfeiture in the circumstances of this case. I would grant the appeal and set aside the order below. I would substitute a declaration that the respondent is subject to the penalties under s. 88.23(2) of the Municipal Elections Act, including forfeiture of his office. 2. THE RULES GOVERNING CANDIDATES’ CAMPAIGN CONTRIBUTIONS AND EXPENSES A. LIMITS ON CONTRIBUTIONS AND EXPENSES [11] The Act includes rules governing a City Council candidate’s campaign income and expenses and penalties for contravening those rules. [12] There is no rule against raising more income than required to cover the candidate’s allowable expenses, but all surplus funds must be paid to the City at the end of the election campaign period. [13] The Act prohibits candidates from exceeding the spending limits allowed under the formulae prescribed by the Minister. [14] For the purposes of this appeal, there are three relevant categories of expenses: general spending, expressions of appreciation, and fundraising. [15] Spending allocations are tied to the number of electors in the ward. According to the prescribed formula, the respondent was informed that he was allowed: (a) General expenses of up to $61,207.80; (b) Expressions of appreciation expenses of up to 10% of the general spending limit, or $6,120.80; and (c) Fundraising expenses that are not subject to any spending limit. [16] Section 88.8(2) of the Act provides that a candidate can only receive contributions during a campaign period, which, in the case of this election, ended on December 31, 2018. However, under subparagraph 5 of s. 88.24(1), the election campaign period is deemed to re-commence if, among other things, the candidate incurs expenses related to a compliance audit. B. FINANCIAL DISCLOSURE TO THE CITY [17] Section 88.25 provides that all campaign expenses are required to be listed in a financial statement provided to the City Clerk. A campaign expense is defined in s. 88.19 as the cost of goods or services used in the campaign. [18] If a candidate files a supplementary financial statement, the supplementary financial statement may update what was in the first financial statement but cannot change the information in the first financial statement: s. 88.25(6). [19] Councillors may make corrections to a financial statement provided those corrections are made before the filing deadline: s. 88.25(3). C. PROCESS FOR ELECTOR COMPLAINTS [20] An elector may file an application with the City Clerk for a compliance audit if the elector believes on reasonable grounds that a candidate has contravened a provision of the Act relating to election campaign finances. The City Clerk is then required to forward the application to a three-member compliance audit committee comprised of members of the public appointed before the election. [21] Within 30 days of the committee’s receipt of the application, the committee must decide whether to grant the application and provide brief written reasons for their decision. The decision to grant the application may be appealed to the Superior Court of Justice within 15 days after the decision is made, and the court may make any decision the committee could have made : ss. 88.33(7)-(9). [22] If the committee decides to grant the application for an audit, it appoints an auditor licensed under the Public Accounting Act, 2004 , S.O. 2004, c. 8, to conduct a compliance audit of the candidate's election campaign finances. The auditor must provide a report to the compliance audit committee outlining any apparent contravention of the Act by the candidate. [23] If the auditor’s report finds there was an apparent contravention of the Act, the compliance audit committee is required to decide whether to commence a legal proceeding against the candidate. The committee must provide brief reasons for the decision: ss. 88.33(17)-(18). [24] Legal proceedings for Municipal Elections Act offences are brought before the Ontario Court of Justice: s. 92(2). D. TWO DIFFERENT PROCESSES AND TWO DIFFERENT PENALTIES [25] Sections 88.23(1)(c) and (2) of the Act provide that when a candidate files a document that shows on its face that the candidate incurred expenses exceeding the allowable expenses, the candidate forfeits his or her office and is ineligible to be elected again until the next election has taken place. [26] The full section reads as follows: Effect of default by candidate 88.23 (1) A candidate is subject to the penalties listed in subsection (2), in addition to any other penalty that may be imposed under this Act, (a) if the candidate fails to file a document as required under section 88.25 or 88.32 by the relevant date; (b) if a document filed under section 88.25 shows on its face a surplus, as described in section 88.31, and the candidate fails to pay the amount required by subsection 88.31 (4) to the clerk by the relevant date; (c) if a document filed under section 88.25 shows on its face that the candidate has incurred expenses exceeding what is permitted under section 88.20; or (d) if a document filed under section 88.32 shows on its face a surplus and the candidate fails to pay the amount required by that section by the relevant date. Penalties (2) Subject to subsection (7), in the case of a default described in subsection (1), (a) the candidate forfeits any office to which he or she was elected and the office is deemed to be vacant; and (b) 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. [27] The compliance audit committee may also decide to commence legal proceedings where a candidate appears to have committed an offence pursuant to s. 92(1). Section 92(1) reads as follows: 92 (1) A candidate is guilty of an offence and, on conviction, in addition to any other penalty that may be imposed under this Act, is subject to the penalties described in subsection 88.23 (2), (a) if the candidate incurs expenses that exceed the amount determined for the office under section 88.20; or (b) if the candidate files a document under section 88.25 or 88.32 that is incorrect or otherwise does not comply with that section. [28] Legal proceedings are brought before the Ontario Court of Justice. In such case, the candidate may be subject not only to the penalties listed above, but also a fine of up to $25,000, repayment of any excess amount, and/or up to six months’ imprisonment. [29] 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 88.23(2) 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. 3. THE EVENTS IN QUESTION A. THE SANTORINI GRILL DINNER [30] On December 21, 2018, approximately two months after the election, the respondent hosted a dinner party at Santorini Grill. His affidavit states that the dinner was only for donors and that these donors were invited to the dinner in exchange for their agreement to contribute to his campaign: Following voting day, I was approached by a number of people who expressed an interest in donating to my campaign. On December 21, 2018, I held a dinner party at Santorini Grill to which I invited persons who had agreed to contribute to my election campaign following election day. This was not an event to which my supporters in general were invited, but rather, was an event to which I invited only those persons who agreed to make contributions to my election campaign. It was an opportunity for people who had agreed to contribute to my campaign to network with one another, and was not open to the public or to my supporters in general. It was not a party for my supporters generally, but rather was a function only for persons who were invited in exchange for their agreement to contribute to my campaign. [31] The respondent spent $27,083.50 on the dinner and related expenses. [32] It is not clear from the record whether and if so, how many of the guests actually donated to his campaign, and when the funds were received. B. THE RESPONDENT’S FINANCIAL STATEMENTS The First Financial Statement [33] The respondent filed his Form 4 Financial Statement on March 27, 2019 (“the first Financial Statement”). The first Financial Statement provides that the respondent raised $217,669.44 and incurred the following expenses: REVENUE $217,699.44 ALLOWABLE EXPENSES LIMITS ACTUAL EXPENSES GENERAL SPENDING $61,207.80 $43,812.55 EXPRESSIONS OF APPRECIATION EXPENSES $6,120.80 0 FUNDRAISING EXPENSES No spending limit $47,259.86, including $27,083.50 for the Santorini dinner OTHER EXPENSES NOT SUBJECT TO SPENDING LIMITS No spending limit $5,000 for a victory night party [34] The first Financial Statement was audited by the respondent’s accountant before it was signed by the respondent and filed. The Complaints [35] The appellant and another candidate who ran against the respondent in the election filed applications for a compliance audit. They alleged that the respondent violated the Act’s campaign finance provisions by misallocating his expenses. [36] The appellant complained that the respondent miscategorized the Santorini dinner, held two months after the election, as a fundraising event and that he did so to circumvent the general spending limit. The appellant also complained of honoraria to 19 supporters allocated as a post rather than pre-voting expense, and the recording of promotional flyers as a fundraising expense. [37] The Compliance Audit Committee for the City of Toronto granted both applications and ordered a compliance audit in accordance with s. 88.33(10) of the Act. [38] The respondent re-opened his campaign to raise funds for the compliance audit. The Supplementary Financial Statement [39] The respondent filed a Supplementary Financial Statement on October 28, 2019. This was the last day he could have filed without being subject to automatic forfeiture for failure to file. [40] The Supplementary Financial Statement was prepared by a forensic auditor retained by the respondent. The respondent’s accountant also audited the Supplementary Financial Statement before the respondent signed and filed it with the City Clerk. [41] Contrary to s. 88.25(6), the Supplementary Financial Statement contained information different from the first Financial Statement: the Santorini dinner and victory party were reported as expressions of appreciation events not fundraising and “other” expenses, as they were in the first Financial Statement. A comparison of the information in the first and Supplementary Financial Statement is set out below: REVENUE FIRST FINANCIAL STATEMENT $217,669.44 SUPPLEMENTARY FINANCIAL STATEMENT $320,934.69 EXPENSES ALLOWABLE EXPENSES FIRST FINANCIAL STATEMENT SUPPLEMENTARY FINANCIAL STATEMENT GENERAL SPENDING LIMIT $61,207.80 $43,812.55 $44,212.55 EXPRESSIONS OF APPRECIATION SPENDING LIMIT $6,120.80 0 $32,083.50 including $27,083.50 for the Santorini dinner and $5,000 for a victory night party EXPENSES NOT SUBJECT TO SPENDING LIMITS (including Fundraising expenses) No spending limit $146,645.67 including $47,259.86 for fundraising (which included $27,083.50 for the Santorini dinner) and $5,000 for a victory night party $143,525.04 including $21,125.60 for fundraising expenses SURPLUS PAYABLE TO THE CITY $27,211.22 $101,113.60 [42] The City Clerk reviewed the Supplementary Financial Statement and saw that in the Supplementary Financial Statement, the respondent reported that he incurred expenses for expressions of appreciation in the amount of $32,083.50. This greatly exceeded the spending limit for expressions of appreciation of $6,120.80. [43] Section 88.23(2) of the Act requires automatic forfeiture of office if a financial statement filed under s. 88.25 shows on its face that the candidate exceeded the permitted spending limits. As a result, on November 6, 2019, the respondent was advised by the City Clerk that he had been removed from office. [44] Because the Supplementary Financial Statement was filed on the last day, there was no opportunity to correct the information contained in it. [45] The respondent claims the forensic auditor incorrectly allocated the expenses. [46] On November 12, 2019, the respondent brought an application before the Superior Court for relief from forfeiture. As of the application date, the compliance audit process had not yet concluded. 4. THE APPLICATION JUDGE’S DECISION [47] The application judge accepted that s. 88.23(2) of the Act stipulates that the respondent must automatically forfeit his office, since he submitted filings that, on their face, showed that he exceeded the spending limits provided in the Act. He also accepted that s. 88.23 contains no exception for inadvertence or good faith. [48] The application judge expressed doubt about whether s. 98 of the Courts of Justice Act could be invoked to grant relief from forfeiture. He questioned “whether the general provisions of the CJA can supersede the specific penalties set out in the MEA. ” [49] However, he held that s. 92(2) of the Act, which deals with campaign finance offences and provides relief from forfeiture for similar conduct to that covered by s. 88.23(1)(c), allowed him to grant relief from forfeiture in these circumstances. Although the respondent had not been charged with or convicted of an offence under s. 92(1) of the Act, the application judge held that the good faith exception in s. 92(2) also applies to the forfeiture of a candidate’s office pursuant to s. 88.23(2) of the Act. [50] The application judge found that “the error that set out the Santorini Grill in a different section in the Supplementary Financial Statement was made inadvertently” and “there was no attempt to hide the expense”. He held that it would be absurd not to interpret the legislation to allow relief from forfeiture as “this result could not have been intended by the Legislature.” He therefore found that "the exception set out in s. 92(2) of the MEA applies in the case of the automatic penalties set out in s. 88.23 of the MEA .” [51] In exercising his discretion to grant relief from forfeiture, he noted that his decision “applies only to the penalty of forfeiture as it relates to the fact that in the Supplementary Financial Statement the expense related to the Santorini Grill dinner under the heading of expenses related to parties and other expressions of appreciation”. He made no determination as to whether the expense is a fundraising expense, or an expense relating to an expression of appreciation saying: “Those issues are properly before the Committee and are the subject matter of the compliance audit.” 5. THE POSITIONS OF THE PARTIES [52] The issue of jurisdiction is a question of law reviewable on a standard of correctness: Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-10 . The exercise of discretion (assuming jurisdiction exists) involves questions of mixed fact and law and will not be interfered with in the absence of a palpable and overriding error: Housen , at para. 36 The Appellant’s Position [53] First, the appellant claims the words in s. 88.23 are clear and unambiguous and provide no exception for good faith errors. This, the appellant contends, is consistent with the intention of the legislators and a contextual analysis of the legislation. The legislature intended to provide a cost-effective and expeditious penalty for filing a financial statement under s. 88.25 that shows on its face that the candidate exceeded the permitted spending limits under the Act. There is therefore no jurisdiction to provide relief from automatic forfeiture of office. [54] Second, the appellant disputes the respondent’s assertion that s. 98 of the Courts of Justice Act applies, as the appellant claims this is a statutory penalty and that, in any case, the statutory regime necessarily precludes relief from forfeiture. [55] Third, the appellant claims this was not a good faith error and therefore, even if there were jurisdiction to grant relief from forfeiture, such relief is not warranted in this case. The Respondent’s Position [56] First, the respondent argues s. 98 of the Courts of Justice Act provides jurisdiction to grant relief from forfeiture in these circumstances and that to hold otherwise would lead to an absurd result. [57] Second, the respondent submits that the application judge properly exercised his discretion to grant relief from forfeiture in these circumstances. The respondent submits that the application judge correctly found that the forensic auditor mistakenly put the Santorini dinner in the wrong category in the Supplementary Financial Statement and the document therefore mistakenly shows that he spent more than he was permitted to pursuant to s. 88.20. He claims, however, that he did not spend more than he was permitted and that the Santorini dinner was correctly classified in the original filing as a fundraising expense. 6. ISSUES [58] The appellant raises two issues on this appeal: i. Whether there is jurisdiction to grant relief from forfeiture, and if so ii. Whether relief from forfeiture should be granted. 7. ANALYSIS AND CONCLUSION A. OVERVIEW: JURISDICTION UNDER SECTION 98 OF THE COURTS OF JUSTICE ACT [59] The parties agree that the application judge erred in asserting there was jurisdiction to provide relief from forfeiture in this case by invoking s. 92 of the Act to impute a good faith exception to the penalties set out in s. 88.23. A similar good faith exception was removed from what is now s. 88.23 in 2002. As such, the good faith exception in s. 92, which may be exercised by a judge of the Ontario Court of Justice upon convicting a candidate of an offence, cannot be interpreted as creating a power in a Superior Court judge to relieve a candidate from the automatic consequences in s. 88.23. [60] As such, the only issue in respect of the question of jurisdiction is whether relief from forfeiture is available under s. 98 of the Courts of Justice Act given the meaning of s. 88.23 as set out in the words of the provision, the context of the legislation and the intention of the legislators. [61] Section 98 of the Courts of Justice Act states that “[a] court may grant relief against penalties and forfeitures, on such terms as to compensation or otherwise as are considered just.” [62] The mere fact that a statutory scheme is involved does not preclude relief under s. 98: Poplar Point First Nation Development Corporation v. Thunder Bay (City ) , 2016 ONCA 934 , 135 O.R. (3d) 458, at para. 55, leave to appeal refused, [2017] S.C.C.A. No. 60. However, this court held in Poplar Point, at paras . 7, 44-45, 57, and 61, that relief from penalties or forfeiture is not available under s. 98: (a) in cases involving a true statutory penalty, or (b) when the statutory regime expressly or by necessary implication precludes relief. [63] To determine whether relief is available under s. 98 of the Courts of Justice Act in the circumstances of this case, it is important to start by examining the relevant provisions and the intention of the legislators who crafted those provisions. B. THE STATUTORY CONTEXT The Words in the Relevant Provision: Section 88.23 of the Act [64] Whether a statute gives jurisdiction to grant relief is a matter of statutory interpretation. Words in a statute are to be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Canada Trustco Mortgage Co. v. Canada , 2005 SCC 54, [2005] 2 S.C.R 601, at para. 10, citing 65302 British Columbia Ltd. v. Canada , [1999] 3 S.C.R. 804, at para. 50. [65] Where the words in a statute are clear and precise, the ordinary meaning of those words plays a dominant role in the interpretive process: Canada Trustco Mortgage Co., at para. 10 . [66] The words in s. 88.23 are clear: “ if a document filed under section 88.25 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.” [67] The ordinary meaning of those words is that where a document is submitted that on its face shows a candidate exceeded and thus violated the spending limit, the penalty is forfeiture of office. [68] The parties agree that the respondent contravened s. 88.23(1)(c) as the Supplementary Financial Statement filed shows on its face that the respondent incurred expenses exceeding what is permitted under s. 88.20 of the Act. The Supplementary Financial Statement provides that the respondent exceeded the allowable expenses for expressions of appreciation for supporters by over $25,000. Moreover, that allocation of funds is different than the allocation in the first Financial Statement. Section 88.23 in the Context of the Act: Comparing and Contrasting s. 88.23 and s. 92 [69] The conduct captured by s. 92(1) overlaps with the conduct captured by s. 88.23(1)(c). [70] Subsections 88.23(1) and (2) stipulate that it will be an act of “default” to file a document that, on its face, shows that the candidate exceeded the permissible spending limit. Section 92(1) makes it an offence for a candidate to exceed the permissible spending limits or file a financial statement under s. 88.25 that is incorrect or otherwise does not comply with the Act. In that sense, the conduct captured under s. 88.23(1)(c) is also captured by s. 92(1). [71] Both sections set out specific penalties for candidates who contravene those provisions that include forfeiture of office. [72] However, unlike s. 88.23, s. 92: a) provides broader penalties than just forfeiture of office and ineligibility to run in the next election, as provided in s. 88.23(2); and b) allows a judge to grant relief from the penalties set out in s. 88.23(2). This exception under s. 92(2) reads as follows: [I]f the presiding judge finds that the candidate, acting in good faith, committed the offence inadvertently or because of an error in judgment, the penalties described in subsection 88.23(2) do not apply. [73] The respondent concedes, and I agree, that s. 92(2) does not authorize a judge to grant relief from forfeiture before prosecution and conviction. [74] The respondent has not been charged with an offence under the Act as the compliance audit process is still ongoing. As a result, the application judge erred by relying on s. 92(2) to grant relief in these circumstances. The Purposive Interpretation of s. 88.23 of the Act [75] The legislature made a deliberate choice to simplify the process for enforcing the Act and remove the court’s ability to grant relief from forfeiture under s. 88.23. [76] Prior to 2002, what is now s. 88.23 of the Act included a provision that allowed relief from forfeiture of office upon an act of default. The exemption from forfeiture provision that was in effect until 2002 reads as follows: (6) The candidate may, on or before the 11th day after the notice is mailed, apply to the Ontario Court (Provincial Division) for a declaration that the penalties do not apply to him or her. (7) The court shall make the declaration if it is satisfied that the candidate, acting in good faith, committed the default inadvertently or because of an error in judgment. [77] In 2002, the provincial government decided to amend this provision of the Act to remove the court’s ability to grant relief from automatic forfeiture. [78] As early as 1986, the Advisory Committee on Municipal Elections had outlined the shortcomings of the previous elector-based enforcement model and therefore recommended a “mandatory and self-enforcing” enforcement mechanism. The Committee discussed the fact that many candidates fail to report their campaign contributions and expenses and observed that: Legal and court costs tend to discourage an elector from taking action so as to ensure that candidates comply with the provisions of s. 121 [ the campaign finance provisions of the Municipal Elections Act and related municipal by-laws.] We are of the view that disclosure should be mandatory and self-enforcing: we do not believe that electors should have to initiate legal action to ensure compliance. Therefore, if a candidate fails to comply with the proposed reporting requirements, he/she should be subject to the following penalties: 1. loss of deposit, 2. disqualification from office if elected; and 3. ineligibility to seek or hold municipal office for a specified period. [79] The opposition critic for Municipal Affairs and Housing outlined the same concern about the costs of enforcing the Act when proposing his own amendments during the discussion of the Standing Committee on General Government in 2002: Mr. Prue: If I could, by way of background, we have started to see that the section which was previously in the act is causing some considerable problems in municipal councils in Ontario. The two most famous cases probably are those that involve the city of Mississauga and the city of Toronto. In the case of the city of Mississauga, upon looking at the case of a person the council believed may have contravened the act, they set about a process, the hiring of an auditor, to get to the bottom of the case. It involved some $100,000 of the city of Mississauga's tax money . They then voted as a council near unanimously to take the alleged offender to court. That has so far resulted in about another $100,000 in legal fees, and it probably will not be finalized before the next election. So in effect you have a person serving the full three-year term of office whom the auditor, the city council, the mayor, everyone, believe probably has contravened the Municipal Elections Act to get there. Alternately, you have the case of the city of Toronto, which had two clearly well-documented cases of alleged improprieties against two of the members of the Toronto council. Upon the advice of the council and the mayor, who chose to do nothing, the aggrieved people are still before the courts nearly some two years later trying to get redress and to get people to listen to the complaint. Obviously, it is not working. So in the case where a city does something, there is a $200,000 bill attached to it; in the case where a city does nothing, the citizens get no redress. [Emphasis added] Ontario, Legislative Assembly, Official Report of Debates (Hansard) , 37th Parl., 3rd Sess., G-13 (18 November 2002), at p. G-230. [80] In 2002, the provincial government ultimately decided to address the problem by abolishing the saving provision in what is now s. 88.23, thus requiring the automatic removal of a candidate from office for any infraction listed in that section in all cases. [81] The Parliamentary Assistant to the Minister of Municipal Affairs explained that: [The amendment ] proposes more stringent penalties for candidates who either fail to file their required campaign records or file them late. Most candidates file their financial records on time, but some haven't met the deadline. Currently, a candidate who does not file on time is supposed to be disqualified from office and ineligible to run in the next election. What actually happens, though, is that candidates always appeal to the courts, and the courts invariably allow them to file later without penalty. This diminishes the accountability of the election process by allowing candidates to avoid disclosure. Ontario, Legislative Assembly, Official Report of Debates (Hansard) , 37th Parl., 3rd Sess., No. 38B (7 October 2002), at p. 1902. [82] These discussions related primarily to the cost of enforcing the Act’s disclosure requirements. [83] However, it is clear from excerpts of the debate preceding the amendment that the overall purpose for removing a good faith exception in what is now s. 88.23 was to deter the significant non-compliance by candidates, including elected councillors, in a cost-effective way. [84] As noted by Dunphy J. in Giannini v. City of Toronto , 2017 ONSC 1489, 137 O.R. (3d) 109 , at para. 27, “[t]he fact that more than 100 candidates from the last election in Toronto alone are currently in default strongly suggests that great caution should be exercised in considering disturbing the scheme of the legislation in question.” [85] Legislators noted the problem of allowing a good faith exception to be asserted, thus enabling an expensive process to go on for years while the councillor who violated the Act remained in office. The debates articulate policy reasons for making this amendment, including the desire to deter those who would not comply with filing deadlines and to enable the Act to be enforced expeditiously and in a cost-effective manner. [86] It is clear from looking at the legislative debates that the legislators intended to remove the good faith exception in what is now s. 88.23 of the Act. C. WHETHER S. 98 OF THE COURTS OF JUSTICE ACT GIVES THE COURT JURISDICTION TO GRANT RELIEF FROM FORFEITURE [87] Section 98 of the Courts of Justice Act provides that “[a] court may grant relief against penalties and forfeitures, on such terms as to compensation or otherwise as are considered just.” [88] Applying the rationale from Poplar Point , in order to obtain relief from forfeiture pursuant to s. 98 of the Courts of Justice Act , the respondent must establish both that: (1) s. 88.23(2) is not a true statutory penalty, and (2) the statutory regime does not expressly or by necessary implication preclude relief: Poplar Point , at paras. 7, 44-45, 57, and 61. [89] The reason s. 98 is not applicable to a true statutory penalty is that “granting relief from forfeiture would amount to rewriting or repealing the statute, revoking the very consequence for breach of the statute that the legislature prescribed”: Poplar Point, at para. 61. Automatic Forfeiture is a Statutory Penalty [90] The respondent claims the automatic forfeiture rule is not a “true statutory penalty”. The respondent contends that a statutory penalty only includes criminal or statutory offences and that s. 88.23(2) of the Act by itself does not create a statutory offence as it is a “purely administrative provision.” [91] I do not agree. [92] In Poplar Point, this court made clear that a “statutory penalty” is any penalty imposed for breach of any requirement of the statute: Poplar Point , at paras. 7, 58. [93] The observation at para. 61 of Poplar Point that “the ability to grant such relief from forfeitures and penalties is in the context of civil proceedings, and not criminal or statutory offences” simply acknowledges that s. 98, as part of Part VII of the Courts of Justice Act , only applies to “civil proceedings in courts of Ontario”: Courts of Justice Act , s. 95(1). [94] Nor do I accept the respondent’s characterization of s. 88.23 as an “automatic and purely administrative provision” which does not clearly preclude the ability of the court to exercise its discretion to grant relief from forfeiture. Section 88.23 sets out statutory requirements and consequences for breach of those statutory requirements. [95] While a breach of those same obligations can also be the basis of a proceeding under s. 92, that same breach still attracts a “statutory penalty” immediately upon default within the meaning of Poplar Point . Moreover, nothing in Poplar Point suggests a distinction between statutory penalties that are enforced through administrative or other means. [96] As a result, I conclude that s. 88.23(2) is a statutory penalty. Section 98 of the Courts of Justice Act cannot apply where granting relief would undermine the very consequences that the legislature prescribed for violating the provisions of the Act. [97] Because s. 88.23(2) is a statutory penalty, relief from forfeiture is not available to the respondent. In any event, I will address the second part of the test for obtaining relief from forfeiture pursuant to s. 98 of the Courts of Justice Act . Relief under s. 98 of the Courts of Justice Act is Necessarily Precluded by the Statutory Scheme [98] The respondent claims that in previous cases, relief was granted to some extent relying on s. 98. He says these cases highlight the absurdities that would result if relief under s. 98 were not available in this case. [99] Consideration of hypotheticals or other examples is useful when interpreting the meaning of legislation: Blue Mountain Resorts Limited v. Ontario (Labour) , 2013 ONCA 75, 114 O.R. (3d) 321 , at para. 38. It is presumed that the legislature does not intend to produce absurd consequences. It is important to look at the words read in their entire context, in their grammatical and ordinary meaning, seen harmoniously with the scheme of the Act: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 27. This is important to ensure that the true intention of the legislators is given effect. [100] The respondent points to cases such as Niagara Falls (City) v. Diodati , 2011 ONSC 2180, 106 O.R. (3d) 154 , when the court ordered relief from forfeiture because the mayor filed a financial statement that misallocated one of his campaign expenses. The financial statement showed that the candidate had exceeded the limit by $72.74, when he had in fact spent $82.07 less than the limit. The basis for this decision was that it would be absurd to do otherwise. [101] However, Diodati predates the decision of this court in Poplar Point, as do the decisions in Obina v. City of Ottawa , 2014 ONSC 4614, 28 M.P.L.R. (5th) 116, and Braid v. Georgian Bay (Township), 2011 ONSC 3618, 83 M.P.L.R. (4th) 335 , referred to by the respondent . [1] [102] In Poplar Point , the court noted that “[t]he question is … whether the language and scheme of the statute would exclude relief from forfeiture under s. 98”: at para. 55. See also Kingsway General Insurance Co. v. West Wawanosh Insurance Co. (2002), 58 O.R. (3d) 251 (C.A.) , at para. 13 . [103] The respondent submits that candidates who commit trifling errors that do not warrant prosecution forfeit their seat automatically and with no further recourse, while candidates who are subject to prosecution under s. 92 are able to request relief from forfeiture. The respondent says that without relief from forfeiture under s. 98 of the Courts of Justice Act , his only recourse is to encourage the compliance audit committee to bring legal proceedings against him pursuant to s. 88.33(17) of the Act so that he can be prosecuted and convicted under s. 92(1) and then seek relief from forfeiture under s. 92(2). That, he submits is absurd. [104] I disagree. [105] It is true that after a prosecution and conviction, s. 92(2) authorizes the Ontario Court of Justice to grant relief from the consequences of filing a document that shows on its face that the candidate exceeded one or more of the relevant spending limits where the judge is satisfied that the candidate acted in good faith and the error was inadvertent or the result of an error in judgment, as opposed to a deliberate act. [106] However, s. 88.23 provides clear automatic consequences for breach of very specific statutory requirements and the clear implication is that a candidate is not entitled to apply for relief from forfeiture in circumstances other than a s. 92 conviction. This is evidenced by the legislature’s deliberate choice to simplify the enforcement process and remove the ability of the court to grant relief from forfeiture under s. 88.23. The reasons for the removal were made clear in the legislative debates. [107] Unlike s. 92, s. 88.23 was meant to be a cost-effective and expeditious means of deterring and enforcing specific violations of the Act. Councillors are given the opportunity to change their financial statements before the filing deadline. Where there is a clear violation of these specific provisions of the Act, the municipality can remove the candidate immediately and at little cost. The legislative policy discussions describe the challenges resulting from including a good faith exception in s. 88.23 and the reasons for its removal. [108] Under the pre-2002 version of s. 88.23 of the Act, a candidate could apply to the Ontario Court (Provincial Division) for relief against automatic forfeiture of office, even if the candidate was not convicted of an offence. When that right existed, it by implication would have excluded s. 98 of the Courts of Justice Act , since it would have made no sense to have overlapping powers in the Superior Court to relieve against matters the legislature had already provided for in the Ontario Court. The removal of the right to apply to the Ontario Court, and the reasons why that was done, are inconsistent with a legislative intention to provide a right to apply to the Superior Court under the Courts of Justice Act . To so hold would undermine the very reason for the removal of the right to apply to the Ontario Court. [109] As such, s. 88.23 is a statutory penalty and the language and scheme of the statute, in light of its history, exclude relief from forfeiture under s. 98 of the Courts of Justice Act in these circumstances . 8. CONCLUSION [110] Municipal councillors are required to submit a financial statement outlining their income and expenses from the election campaign. Expenses are subject to clear spending limits and any income that exceeds the allowable expenses must be remitted to the City. [111] Section 88.23 of the Act provides for forfeiture of office where a candidate files a document that shows the candidate incurred expenses that exceed the spending limits. The wording of this penalty provision is express and clear. What is now s. 88.23 was amended in 2002 to remove a good faith exception. [112] Section 88.23 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. [113] This is to be contrasted with s. 92, which does provide relief from forfeiture but also carries greater jeopardy for the candidate, including fines and possible imprisonment. [114] This case is not about whether the respondent hid expenses as suggested by the application judge, but how he allocated his expenses and whether he exceeded the expense limits. [115] The respondent concedes that his Supplementary Financial Statement shows he exceeded his spending limit for the 2018 election by a significant amount and contrary to the rules. This triggered his automatic removal from office pursuant to s. 88.23(2). [116] The penalty imposed pursuant to s. 88.23 may be harsh in some cases but forfeiture is clearly what the legislators intended. It should be noted that honest errors can be corrected before the deadline for filing and, had the respondent submitted the Supplementary Financial Statement earlier, the statement could have been withdrawn and refiled to correct the errors in the statement. [117] Granting relief from forfeiture would amount to rewriting or repealing the statute, revoking the very consequence for breach of the statute that the legislature prescribed. The statutory penalty in s. 88.23 precludes relief from forfeiture under s. 98 of the Courts of Justice Act . [118] For these reasons I conclude there is no jurisdiction to grant relief from forfeiture. [119] As a result, I need not consider whether, if there were jurisdiction, the discretion ought to be exercised on the facts of this case. [120] In any event, unlike the cases in Diodati and Obina , the respondent has not clearly demonstrated to this court that this was a mere “clerical error”. [121] For these reasons, I would grant the appeal and set aside the order below. I would grant a declaration that the respondent is subject to the penalties under s. 88.23(2) of the Act. [122] No costs are sought and accordingly, I would award none. Released: June 24, 2020 (“M.L.B.”) “J.A. Thorburn J.A” “I agree. M.L. Benotto J.A.” “I agree. B. Zarnett J.A.” [1] In addition to the fact that these cases predate Poplar Point , they do not assist for the reasons set out below: Obina v. City of Ottawa , 2014 ONSC 4614, 28 M.P.L.R. (5th) 116: The respondent claimed a candidate could be required to forfeit their seat for filing financial statements three minutes late. However, in Obina , the candidate was barred from running in the next election not just because she filed her financial statements three minutes late, but also because she submitted her auditor’s report over three years past the deadline. In any case, the legislation has since been amended such that a candidate who files the financial statement within 30 days after the filing deadline is no longer subject to the penalties in s. 88.23(2) provided the late filing fee is paid: s. 88.23(9). Braid v. Georgian Bay (Township) , 2011 ONSC 3618, 83 M.P.L.R. (4th) 335: The respondent also argues a candidate could be required to forfeit his/her seat for filing an auditor’s report audited by someone eligible to be licensed under the Public Accounting Act, 2004 , but who is not. In Braid , the court held that doing so would not require a candidate to forfeit a seat under s. 88.23(2) (then s. 80). Braid is distinguishable as in Braid , the candidate had not failed to file an auditor’s report contrary to s. 88.23(1)(a) (then s. 80(1)(a)). Instead, the candidate filed one that did not comply with the Act. This constitutes an offence under s. 92(1) of the Act (then s. 92(5)), which makes it an offence to file a document under s. 88.25 (then s. 78) that is incorrect or otherwise does not comply with that section. However, it would not trigger automatic forfeiture of office and ineligibility to run in the next election unless the candidate was prosecuted and convicted.

COURT OF APPEAL FOR ONTARIO CITATION: Kerr v. Sezerman, 2020 ONCA 364 DATE: 20200611 DOCKET: M51249 and M51463 (C67584) Pepall, Hourigan and Roberts JJ.A. BETWEEN Thomas D. Kerr Plaintiff (Respondent/ Moving Party in M51249/ Responding Party in M51463) and Omur Sezerman Defendant (Appellant/ Responding Party in M51249/ Moving Party in M51463) and Oz Optics Ltd. and Zahide Sezerman Defendants (Appellants/ Responding Parties in M51249/ Moving Parties in M51463) Omur Sezerman, acting in person Nicholas Karnis, for the appellants OZ Optics Ltd. and Zahide Sezerman Thomas D. Kerr, acting in person Heard: in writing REASONS FOR DECISION [1] The respondent, Thomas Kerr, sued the appellants, OZ Optics Ltd., Omur Sezerman, and Zahide Sezerman, for constructive dismissal alleging that he suffered abuse and harassment in the course of his employment. [2] The appellants moved for summary judgment. In responding to the motion, Mr. Kerr served his own affidavit, as well as an affidavit sworn by Roger Branje, a former employee of OZ Optics Ltd. Mr. Sezerman, who is self-represented, conducted cross-examinations on the affidavits but did not serve notices of examination on either witness. [3] The appellants brought a motion to compel production of draft affidavits prepared by Mr. Kerr for Mr. Branje. Mr. Kerr opposed the motion, arguing that the draft affidavits were litigation privileged. The motion judge dismissed the motion, made an order prohibiting Mr. Sezerman from conducting any further examinations without first seeking leave of the court, and awarded costs of $1,500 in favour of Mr. Kerr. [4] The appellants appeal those orders to this court. Mr. Kerr has brought a motion to quash on the ground that the orders under appeal are interlocutory and must be appealed to the Divisional Court with leave. The appellants have in turn brought a motion for an order that, in the event this court determines the orders below are interlocutory, the appeal be transferred to the Divisional Court or, in the alternative, that they be granted an extension of time to seek leave to appeal to the Divisional Court. [5] We agree with the respondent’s submission that the orders appealed are interlocutory and that the correct appeal route is to the Divisional Court with leave. The appeal is quashed, the appellants must seek leave to appeal and any necessary time extension from the Divisional Court. [6] The respondent sought an order for his “full costs” of the motion to quash. He also sought costs on the motion to transfer. We see no reason to award costs on a higher scale. The appellants are jointly and severally liable for the respondent’s costs on these motions, which we fix in the all-inclusive sum of $1,000. Order to go accordingly. “S.E. Pepall J.A.” “C.W. Hourigan J.A.” “L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Kent v. Kent, 2020 ONCA 390 DATE: 20200617 DOCKET: C67851 Gillese, Brown and Jamal JJ.A. BETWEEN Ronald Gordon Kent Applicant (Appellant) and Elissa Laurel Kent, Graham William Blakely Kent and The Estate of Marian Laurel Graham Respondents (Respondents) Ronald Kent, acting in person Aleksandr G. Bolotenko, Phillipa C. Goddard and Miriam Vale Peters, for the respondents Heard: In Writing On appeal from the order of Justice Stephen T. Bale of the Superior Court of Justice, dated November 27, 2019. Gillese J.A.: [1] Pecore v. Pecore , 2007 SCC 17, [2007] 1 S.C.R. 795, provided welcome guidance on how to approach a gratuitous transfer of property from a parent into joint names with a capacitated adult child. It held that, in such circumstances, a rebuttable presumption arises that the child holds the property on resulting trust for the parent (para. 36). However, when the transfer is of real property and, following the transfer, the child and her husband occupy the property for a lengthy period, family law considerations enter the equation. How are the two sets of legal considerations to be reconciled? This appeal depends on the answer to that question. [2] The family law provisions engaged on this appeal are ss. 18(1) and 26(1) of the Family Law Act , R.S.O. 1990, c. F.3 (the “FLA”). For ease of reference, I set them out now. Matrimonial Home 18 (1) Every property in which a person has an interest and that is … ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home. Joint tenancy in matrimonial home 26 (1) If a spouse dies owning an interest in a matrimonial home as a joint tenant with a third person and not with the other spouse, the joint tenancy shall be deemed to have been severed immediately before the time of death. BACKGROUND [3] Marian Laurel Graham (“Marian”) had only one child, a daughter named Janice. Janice married Ronald Gordon Kent (“Gordon”) and they had two children: Elissa Laurel Kent (“Elissa”) and Graham William Blakely Kent (“Graham”). [4] Gordon is the appellant in this proceeding; the two children and Marian’s estate are the respondents (together, the “Respondents”). [5] In 1983, Marian bought a property in Fenelon Falls, Ontario (the “Property”) and began living on it. [6] In September 1996, Marian was the sole owner of the Property. She transferred title to herself and Janice as joint tenants (the “1996 Transfer”), for nominal consideration. Janice was an adult at that time. [7] At the time of the 1996 Transfer, Marian had a will dated July 24, 1978 (the “1978 Will”). Under the terms of the 1978 Will: Janice was the beneficiary; if Janice predeceased Marian, Janice’s issue alive at Marian’s death were the beneficiaries; and, if Janice predeceased Marian and had no issue alive at the time of Marian’s death, Gordon was the beneficiary. [8] After the 1996 Transfer, Marian continued to live alone on the Property. [9] In 2008, Janice, Gordon and their two children moved in with Marian. For the purpose of this appeal, I will assume that Janice and Gordon lived with Marian, on the Property, until Janice’s death on July 22, 2014. [1] Pursuant to Janice’s will, Gordon was the beneficiary of her estate. [2] [10] After Janice died, Gordon continued to reside with Marian on the Property. [11] Marian moved to a long-term care home in July or August 2015. Gordon continued to reside on the Property. [12] Marian paid all of the costs and expenses of the Property until she died in 2016, including after she moved into long-term care. At no time did Janice or Gordon pay rent while living on the Property. [13] On July 14, 2015, Marian made a new will (the “2015 Will”). The 2015 Will named Elissa and Graham as the executors and trustees. Clause 4(b) of the 2015 Will is the provision most relevant to this appeal. It reads as follows: 4. I GIVE, DEVISE AND BEQUEATH all my property of every nature and kind and wheresoever situate, … to my said Trustee[s] upon the following trusts, namely: (b) To transfer any home or condominium I may die possessed of to my son-in-law Ronald Gordon Kent , and my grandchildren, Graham William Blakely Kent and Elissa Laurel Kent . [Emphasis in the original.] [14] On July 30, 2015, Marian registered a survivorship application on title to the Property in her name alone. She then registered a transfer deed to the Property in which she conveyed the Property to herself, Elissa, Graham, and Gordon as joint tenants (the “2015 Transfer”). [15] After Marian’s death, questions arose as to the ownership of the Property. In March 2018, Gordon brought an application for a declaration that he owned a two-thirds share of the Property (the “Application”). [16] The Respondents opposed the Application. They claimed that Gordon, Elissa and Graham were each entitled to a one-third share of the Property. THE APPLICATION The Parties’ Positions on the Application [17] Gordon claimed a two-thirds entitlement to the Property. He maintained that when he and Janice moved in with Marian, the Property became their matrimonial home and it was their matrimonial home at the time of Janice’s death. Based on s. 26(1) of the FLA, he contended that the joint tenancy in the Property was deemed to have been severed immediately before Janice’s death with the result that, as the beneficiary under Janice’s will, he became a one-half owner of the Property with Marian as tenants-in-common.  After Marian’s death, based on her 2015 Will, Gordon said that he became entitled to an additional one-third share of Marian’s one-half interest in the Property. Hence, he claimed to be entitled to a two-thirds interest in the Property and that Elissa and Graham were each entitled to a one-sixth interest in it. [18] The Respondents contended that each of Gordon, Elissa and Graham were entitled to a one-third interest in the Property. They maintained that Marian transferred title to the Property to herself and Janice as joint tenants in 1996 for estate planning purposes. Thus, they argued, the 1996 Transfer raised the presumption of a resulting trust, Janice did not have a beneficial interest in the Property, s. 26(1) of the FLA did not apply, and Marian’s 2015 Will operated to give each of Gordon, Elissa, and Graham a one-third interest in the Property. [19] In reply, Gordon argued that he had rebutted the presumption of resulting trust and that the 1996 Transfer was a gift to Janice of a beneficial interest in the Property. The Decision Below [20] The application judge began his analysis by agreeing with the Respondents that if there was a resulting trust, s. 26(1) of the FLA did not apply. He then relied on Pecore to conclude that the 1996 Transfer from Marian to Marian and Janice, as joint tenants, raised the presumption of resulting trust. [21] Thus, the application judge saw the primary issue on the Application to be whether, on the whole of the evidence, Gordon had rebutted that presumption. The application judge noted that the evidence required to rebut the presumption is evidence of the transferor’s contrary intention, at the time of the transfer, on a balance of probabilities: Pecore , at para. 43. However, he also noted that evidence of events subsequent to the transfer could be admitted, provided it was relevant to the testator’s intention at the time of the transfer: Pecore , at para. 59. [22] The application judge observed that both the transferor (Marian) and the transferee (Janice) were deceased and there was no contemporaneous evidence of Marian’s intention in making the 1996 Transfer. He also noted that Gordon admitted he had “nothing to do with” the 1996 Transfer and only learned about it afterward. [23] The application judge found no evidence capable of rebutting the presumption of resulting trust. He described Gordon’s written summary of the evidence on which he relied to rebut the presumption as evidence that was “either equally consistent with the existence of a resulting trust, or begs the question”. He also observed that after Janice’s death, Gordon did not register an interest in the Property pursuant to her will nor had he produced any documents relating to the administration of her estate. The application judge added that because Gordon did not assert an interest in the Property until after Marian’s death, Marian’s evidence as to intention was unavailable. [24] The application judge found that the provisions in Marian’s 2015 Will and the 2015 Transfer suggested that Marian believed she was the sole owner of the Property. Further, he saw no evidence to suggest that those actions were self-serving or reflected a change of intention in relation to the 1996 Transfer. [25] Accordingly, by order dated November 27, 2019, the application judge dismissed the Application with costs to the Respondents. THE ISSUES [26] On appeal, Gordon makes three submissions. [27] First, he contends that as Janice was Marian’s only child and Marian was a widow, the 1996 Transfer was a completed gift to Janice. He says that the application judge erred in failing to so find. [28] Second, he argues that if the 1996 Transfer did raise the presumption of resulting trust, the 1978 Will in which Marian designated Janice as her residuary beneficiary rebuts the presumption. [29] Third, he submits that because Marian allowed Janice – an owner of the Property by joint tenancy – and her husband to live on the Property, beginning in 2008, Marian created a “matrimonial home circumstance” governed by s. 26(1) of the FLA, thereby removing any consideration of resulting trust. ANALYSIS Was the 1996 Transfer a Gift? [30] In submitting that the 1996 Transfer was a gift from Marian to Janice, Gordon asks this court to apply the legal principles relating to the making of inter vivos gifts. This submission cannot stand in the face of Pecore . Although Pecore concerned the gratuitous transfer of title to a bank account into the joint names of the parent and child, it is clear that its dictates are intended to encompass the gratuitous transfer of title to other forms of property from parent to adult capacitated child. The fact that Janice was Marian’s only child and Marian was a widow does not change the applicability of the legal principles in Pecore . [31] Consequently, the application judge was correct when he determined that the legal principles in Pecore applied and that the presumption of resulting trust arose in respect of the 1996 Transfer. And, as I explain below, I see no error in his determination that the presumption had not been rebutted. Therefore, the 1996 Transfer was not a gift of an interest in the Property to Janice. Was the Presumption of Resulting Trust Rebutted by the 1978 Will? [32] On this ground of appeal, Gordon argues that Marian’s 1978 Will naming Janice her trustee and residuary beneficiary was evidence that rebutted the presumption of resulting trust. He raised this same point on the Application in a document entitled “Evidence Points Rebutting any Presumption of Resulting Trust” (the “Document”). [33] The application judge did not deal specifically with Gordon’s argument that the 1978 Will was evidence capable of rebutting the presumption. However, he dealt with the Document as a whole, at para. 15 of his reasons, stating that all of the points in it were “equally consistent with the existence of a resulting trust, or begs the question”. [34] I see no error on the part of the application judge in so finding. [35] I would add the following observations, however. [36] Paragraphs 55 - 59 of Pecore provide guidance on what evidence was to be considered in determining Marian’s intention in making the 1996 Transfer. At para. 56, the Supreme Court reiterates the traditional rule that evidence adduced to show the transferor’s intention at the time of the transfer ought to be “contemporaneous, or nearly so” to the transaction. In paras. 57-59, the Court explains that evidence of intention arising subsequent to the transfer and which is relevant to intention at the time of the transfer is also admissible. However, the Court cautions judges to assess the reliability of such evidence and to determine what weight it should be given, guarding against evidence that is self-serving or that tends to reflect a change in intention. [37] The 1978 Will was made almost two decades before the 1996 Transfer was effected so falls into neither category of evidence: it was not “contemporaneous or nearly so” to the 1996 Transfer nor was it made subsequent to the 1996 Transfer. As the 1978 Will was operative at the time Marian made the 1996 Transfer, its provisions may provide context – but that does not elevate it to evidence of Marian’s intention in making the 1996 Transfer. [38] The application judge followed the dictates in Pecore in determining whether the presumption of resulting trust had been rebutted. After finding no contemporaneous evidence of Marian’s intention at the time of the 1996 Transfer, he considered evidence of events subsequent to the Transfer that were relevant to her intention at that time. He found that Marian’s actions in 2015 indicated that she believed she was the sole owner of the Property. He also found that Marian’s conduct in 2015 was neither self-serving nor reflective of a change in intention. [39] I see no palpable or overriding error in these findings. [40] It will be recalled that Janice died in July 2014 and that Marian took three significant steps in July 2015. First, Marian made the 2015 Will, in which she devised “any home” of which she might be possessed at the time of her death to Gordon, Graham and Elissa. Second, Marian registered a survivorship application on title to the Property in which she transferred title back into her name alone. In the survivorship application, Marian gives Janice’s date of death and states “The property was not a matrimonial home within the meaning of the Family Law Act of the deceased at the time of death”. Third, Marian registered the 2015 Transfer on title to the Property. The 2015 Transfer was from Marian to Elissa, Graham, Gordon, and herself, as joint tenants. [41] The application judge made no error in concluding that the presumption of resulting trust had not been rebutted. On the contrary, on the findings of the application judge, that conclusion appears inescapable. Was the Property a Matrimonial Home? [42] I do not accept Gordon’s submission that in allowing him, Janice, and their children to live on the Property together with her, beginning in 2008, Marian made the Property their matrimonial home and thereby removed any consideration of resulting trust. [43] Determining whether the Property was Janice and Gordon’s matrimonial home begins with a consideration of s. 18 (1) of the FLA. It will be recalled that s. 18(1) provides that: Every property in which a person has an interest and that is … ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home. [44] Although the application judge made no express finding on the matter, it appears beyond dispute that Janice and Gordon occupied the Property as their family residence, beginning in 2008 when they, together with their children, moved onto the Property and began living there with Marian. Thus, in determining whether the Property was Janice and Gordon’s matrimonial home, we must decide whether either Janice or Gordon had “an interest” in the Property within the meaning of s. 18(1). [45] Did Janice have an interest in the Property within the meaning of s. 18(1) of the FLA? In my view, she did not. [46] Janice became a joint tenant of the Property with Marian as a result of the 1996 Transfer. As I have explained, the 1996 Transfer raised the presumption of resulting trust and, on the findings of the application judge, the presumption was not rebutted. Thus, the 1996 Transfer had the effect of placing Janice on title to the Property in the capacity of a trustee. As this court stated at para. 45 of Spencer v. Riesberry , 2012 ONCA 418, it is self-evident that the duties and powers of a trustee are not an interest in the property within the meaning of s. 18(1) of the FLA because those powers and duties are held not in a personal capacity but in the fiduciary role of a trustee. Consequently, the 1996 Transfer did not give Janice an interest in the Property within the meaning of s. 18(1). [47] Did Gordon have an interest in the Property within the meaning of s. 18(1) of the FLA? In my view, he did not. In reaching this conclusion, I reject Gordon’s submission that s. 26(1) of the FLA gave him such an interest. Recall that s. 26(1) reads as follows: If a spouse dies owning an interest in a matrimonial home as a joint tenant with a third person and not with the other spouse, the joint tenancy shall be deemed to have been severed immediately before the time of death. [48] It is correct that when Janice died, she appeared on title to the Property as a joint tenant with Marian, a third person. However, as I have just explained, as Janice was on title to the Property in the capacity of a trustee, she did not have an interest in the Property within the meaning of s. 18(1) of the FLA. Thus, when Janice died, she did not own an interest in a matrimonial home as a joint tenant with Marian, a third person. Consequently, s. 26(1) does not apply and Gordon cannot claim an interest in the Property pursuant to it. DISPOSITION [49] Accordingly, I would dismiss the appeal with costs to the Respondents. If the parties are unable to agree on the quantum of those costs, they make written submissions on that matter, to a maximum of three pages in length, such submissions to be received by this court no later than ten days from the date of release of these reasons. Released: June 17, 2020 (“E.E.G.”) “E.E. Gillese J.A.” “I agree. David Brown J.A.” “I agree. M. Jamal J.A.” [1] On the Application, the Respondents disputed Gordon’s claim that the Property was the matrimonial home on factual grounds, as well as legal ones. Among other things, they said that Janice did not live full time on the Property between the fall of 2012 and October 2014 when she attended school in Peterborough and stayed in accommodation there. [2] Janice’s will further provided that if Gordon did not survive her or died within 30 days of her death, her estate was to go to her children.

WARNING This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017 , which deals with the consequences of failure to comply, read as follows: 87 (8) Prohibition re identifying child — 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. (9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. 142 (3) Offences re publication — A person who contravenes subsection 87(8) 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. WARNING THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO: 110(1)          Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. (2) Subsection (1) does not apply (a) in a case where the information relates to a young person who has received an adult sentence; (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community. (3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication. 111(1)          Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. 138(1)          Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b)  is guilty of an offence punishable on summary conviction. The court released its judgment in this matter to counsel and the appellant only, on May 8, 2020, after an in camera hearing. Following submissions from counsel who reviewed the unredacted judgment, the court released a redacted version of the reasons to the public. The full reasons along with the rest of the Court of Appeal file remain under seal. COURT OF APPEAL FOR ONTARIO CITATION: M.E. v. R., 2020 ONCA 429 DATE: 20200629 DOCKET: C67498 Lauwers, Hourigan and Fairburn JJ.A. BETWEEN M.E. Plaintiffs (Appellant) and Her Majesty the Queen in Right of Ontario , Children’s Aid Society of Toronto and Durham Children’s Aid Society Defendants ( Respondents ) M.E., acting in person Domenico Polla, for the respondent Her Majesty the Queen in Right of Ontario Scott C. Hutchison, for the respondents Children’s Aid Society of Toronto, Giovanna Asaro and Ada Lee (contempt appeal) Giovanna Asaro, for the respondent Children’s Aid Society of Toronto (summary judgment appeal) Heard: February 28, 2020 On appeal from the orders of Justice Paul B. Schabas of the Superior Court of Justice, dated September 23, 2019, with reasons reported at 2019 ONSC 5138 and 2019 ONSC 5141. COSTS ENDORSEMENT [1] We previously dismissed the appeal of the contempt order, allowed the appeal on one issue on the summary judgment appeal, and dismissed the balance of the summary judgment appeal . This endorsement addresses the effect of our order on the costs awarded by the motion judge and the costs of the appeals. [2] On the summary judgment motion, Ontario and the Children’s Aid Society sought their partial indemnity costs for the action, which totalled $60,000. The appellant did not provide costs submissions. The motion judge ordered all-inclusive costs of $35,000, to be paid by the appellant to the respondents if demanded. The Children’s Aid Society also sought costs for the contempt motion, and the motion judge awarded partial indemnity all-inclusive costs of $7,500. [3] Given that the case is now continuing, Ontario and the Children’s Aid Society are not entitled to their costs of the action. Further, due to the appellant’s partial success on the summary judgment appeal, a reduction in the costs awarded on that motion is appropriate. We reduce the costs awarded on the summary judgment motion to the all-inclusive amount of $10,000, to be paid in total to all respondents. There is no basis to interfere with the costs awarded on the contempt motion as the appeal of that order was dismissed and the costs ordered are fair and reasonable. [4] Regarding the costs of the appeal, the appellant and Ontario agreed to an order of no costs. The Children’s Aid Society seeks costs of the contempt appeal of $11,097 in substantial indemnity costs or, in the alternative, partial indemnity costs of $7,085. It also seeks partial indemnity costs, reduced by one-third, plus disbursements and HST (about $5,511.63 total), for the summary judgment appeal, which it submits is a reduced figure to reflect the appellant’s partial success on appeal. The appellant seeks costs for both appeals against the Children’s Aid Society but did not stipulate a figure. [5] As the successful party on the appeal of the contempt order, the Children’s Aid Society is entitled to its costs on a partial indemnity basis, which we fix in the all-inclusive amount of $3,500. Regarding the summary judgment appeal, there was mixed success, but the Children’s Aid Society was the more successful party, succeeding on three of four issues. Therefore, we order the appellant to pay to the Children’s Aid Society costs on a partial indemnity basis for that appeal, which we fix in the all-inclusive amount of $1,500. “P. Lauwers J.A.” “C.W. Hourigan J.A.” “Fairburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Magee (Re), 2020 ONCA 418 DATE: 20200626 DOCKET: C67531 Fairburn, Nordheimer and Harvison Young JJ.A. IN THE MATTER OF: Christian Magee AN APPEAL UNDER PART XX.1 OF THE CODE Sarah Weinberger, as amicus curiae , for the appellant Maura Jetté, for the respondent, Attorney General of Ontario Janice E. Blackburn, for the respondent, Person in Charge of Waypoint Centre for Mental Health Care Heard: In writing On appeal against the disposition of the Ontario Review Board dated August 8, 2019, with reasons dated September 5, 2019. Harvison Young J.A.: [1] Christian Magee appeals from a disposition of the Ontario Review Board (“the Board”), which ordered his continued detention at the Waypoint Centre for Mental Health Care (“Waypoint”). At the appellant’s annual review in 2019, there was a joint submission that the detention order include a condition that the appellant be transferred for a period of up to 90 days to the Forensic Unit at St. Joseph’s Healthcare Hamilton (“St. Joseph’s”) for the purpose of an independent psychiatric assessment with a view to a possible transfer to a less secure facility. The appellant would return to Waypoint after being assessed at St. Joseph’s. [2] The appellant and Waypoint have made a joint submission for an external assessment for three years in a row, from 2017 to 2019. At the 2019 annual review, the Attorney General of Ontario supported, for the first time, the appellant and Waypoint’s joint submission. The appellant has achieved maximum privileges at Waypoint and the evidence was that he can progress no further in that environment. [3] The Board rejected the joint submission. The sole issue on this appeal is whether the Board’s decision to reject this joint submission was unreasonable. For the following reasons, I conclude that it was. A. Background Facts [4] In 1977, the appellant was found not guilty of murder by reason of insanity. In 1980, the appellant was found not guilty on two further charges of murder, one charge of rape, and one charge of indecent assault, by reason of insanity. He has been detained at Waypoint (and its predecessor) for approximately 42 years and is now 72 years old. The appellant is diagnosed as suffering from sexual sadism, transvestitic fetishism, and antisocial personality disorder. There is no dispute that he remains a significant threat to the public and must remain the subject of a detention order. [5] While a patient at Waypoint, the appellant has had several external assessments over the years, as follows: · In 1985 at the Clarke Institute of Psychiatry for 90 days; · In 1991 at the Royal Ottawa Hospital for 60 days; · In 2003 at the Centre for Addiction and Mental Health for 90 days; and · In 2008 at the Brockville Mental Health Centre for 60 days. [6] The last assessment in 2008 occurred under Dr. Bradford, a leading psychiatrist on the use of medication for treating sex offenders. Since then, the appellant has taken Lupron, which has reduced his hormones to castrate levels. [7] The appellant’s attending psychiatrist, Dr. Danyluk, testified that the appellant is a “model institutional citizen”. She also noted that the appellant has several medical conditions – such as diabetes, heart issues, and obesity – that can affect his ability to reoffend. Dr. Marshall, PhD, is a registered psychotherapist at Waypoint. The Board commented that he is a “highly recognized sexual offender specialist”. He conducted weekly therapy with the appellant from approximately June to December 2018. In his report on the therapy, Dr. Marshall stated that the appellant was a “good participant” who had made “significant improvements to his functioning since coming to Waypoint.” [8] The appellant’s clinical team opined that he should continue to be detained at the all-male High Security Provincial Forensic Programs at Waypoint. It was also their unanimous opinion, however, that an assessment at St. Joseph’s would be appropriate for two reasons: first, to obtain a further risk assessment, as the last one was completed in 2008; and second, to obtain an independent second opinion as to whether or not the risk could be managed in a less secure facility. They were also of the view that, in order to conduct that assessment, “[i]t would be necessary to recreate a maximum security umbrella in a medium secure setting such as restricting him to his room during the night and 1:1 [staff to patient supervision] during the night hours to reduce the risk to female co-patients”. As the Waypoint clinical team noted, the appellant’s risk of reoffending in a less secure environment “remains high with potential catastrophic consequences.” [9] At the appellant’s annual hearing, Waypoint and the appellant submitted that the appellant should be assessed at St. Joseph’s. The Attorney General also supported this submission, stating that: I join and support the suggestion of an assessment…to take place at [St. Joseph’s]…the support is overwhelming, not only for the Disposition, but for the suggestion of assessment. And I don’t feel that the Attorney General should take any other, or that there is any other responsible position, given the fact that this is the evidence. [10] St. Joseph’s was not consulted as to its willingness to take the appellant. It advised Waypoint by letter that transferring the appellant to St. Joseph’s was not appropriate for several reasons. First, the appellant had numerous external assessments over the years, so a further assessment at St. Joseph’s was unnecessary. Second, there was a concern about limited resources available to create the necessary “maximum security umbrella” in the medium secure setting. Third, the appellant posed a high risk to female co-patients and the public, particularly given the nature of his offences. Fourth, St. Joseph’s saw the request for an assessment to constitute an effort to obtain a “springboard” for a permanent transfer to a less secure facility. St. Joseph’s did not apply for party status and was not present at the annual review. The letter was admitted as evidence on consent. B. The Board’s Reasons [11] The Board listed several reasons for rejecting the joint submission. [12] First, the Board was of the view that the need for the maximum secure umbrella in the less secure unit would defeat the likelihood of the assessment offering information about his ongoing security needs. The Board noted that a maximum secure umbrella at St. Joseph’s would be more restrictive than the appellant’s continued detention at Waypoint. [13] Second, the Board appeared to adopt St. Joseph’s conclusion that another assessment would be of little utility. This is because numerous external assessments had been done in the past and “many of the risk factors involved in the standardized assessment of sexual offenders are…unchanging in nature.” [14] Third, the Board was of the view that the four diagnoses mean that Mr. Magee continues to be a significant threat to the safety of the public. Although he has been taking Lupron now for over 10 years, the Board stated that “most of the index offences involve sadistic murder prior to the sexual rapes”. In the Board’s view, the assessment would mainly address the sexual deviancy part of the appellant’s diagnosis, and thus have limited value regarding the other diagnoses. [15] The Board concluded that given St. Joseph’s refusal to take on the proposed assessment, their concerns about safety, and its view that an assessment “is unlikely to produce any valuable information”, it would reject the joint submission for an assessment at St. Joseph’s. It ended by commending the appellant on his past year, noting that he had “done everything asked of him and all reports had been very positive”. [16] The appellant and Waypoint argue that the Board’s decision was unreasonable, and that in reaching its decision, the Board failed to exercise its inquisitorial duty, failed to consider the appellant’s interests, and misapprehended the evidence with the result that it did not order the least onerous disposition. [17] The respondent Attorney General submits the Board carefully considered the assessment request and reasonably determined that it was not necessary or appropriate. It maintains that the Board applied the law correctly and discharged its inquisitorial duty. Given the appellant poses a high risk to public safety, and the fact that St. Joseph’s opposed the proposal for an assessment there, it was open to the Board to reject the joint submission. C. APPLICABLE LAW (1) Standard of Review [18] Section 672.78 of the Criminal Code , R.S.C., 1985, c. C-46, provides that, (1) The court of appeal may allow an appeal against a disposition or placement decision and set aside an order made by the court or Review Board, where the court of appeal is of the opinion that (a) it is unreasonable or cannot be supported by the evidence; (b) it is based on a wrong decision on a question of law; or (c) there was a miscarriage of justice. [19] A reasonable decision is one that, having regard to the reasoning process and the outcome of the decision, properly reflects an internally coherent and rational chain of analysis: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at paras. 102-104. In addition, a reasonable decision must be justified in relation to the constellation of law and facts that are relevant to the decision. For instance, the governing statutory scheme and the evidentiary matrix can constrain how and what an administrative decision-maker can lawfully decide. Further, “[w]here the impact of the decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes”: Vavilov , at para. 133. The principle of responsive justification means that especially in such high-stakes cases, the decision maker must meaningfully explain why its decision best reflects the legislature’s intention. [20] A Board’s disposition will be unreasonable if the underlying reasons cannot bear even a somewhat probing examination: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 33. (2) The Statutory Framework [21] Section 672.54 of the Criminal Code lists the factors that the Board “shall” consider in making its disposition: · the safety of the public, which is the paramount consideration; · the mental condition of the accused; · the reintegration of the accused into society; and · the other needs of the accused. [22] Under s. 672.54, the Board must make a disposition that is “necessary and appropriate”. This has been interpreted to mean the disposition that is the least onerous and least restrictive: McAnuff (Re) , 2016 ONCA 280, 130 O.R. (3d) 440, at para. 22. Moreover, it is not simply the choice among three potential dispositions – absolute discharge, conditional discharge, or continued detention – that must be the least onerous and least restrictive. Conditions attached to a disposition must also be the least onerous and least restrictive option: Penetanguishene Mental Health Centre , at paras. 24, 67-71 . Put another way, a finding that a person poses a significant threat to the public and must therefore remain detained does not mean that the Board is excused from seriously considering the least onerous and restrictive options available. D. analysis [23] In this case, it was common ground that the appellant remained a significant threat to public safety and a detention order was required. At the same time, all the parties at the annual hearing supported the recommendation for an external assessment at St. Joseph’s as the least onerous and least restrictive disposition available. [24] The central problem with the Board’s decision is that it fails to engage with the requirement that it make the least onerous disposition, with regard to the factors in s. 672.54. This is evident in the reasons it gives for rejecting the joint recommendation of all the parties that the appellant be transferred to St. Joseph’s for an assessment. [25] While it is open to the Board to reject a joint submission, it must explain why it does so in light of the supporting evidence. As noted in Vavilov , at para. 127, the “principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties” (emphasis added). (1) The Need for a Maximum Security “Umbrella” [26] The Board’s first reason for rejecting the joint submission focused on the need for a maximum security umbrella while in the less secure unit. The Board’s view was that this would defeat the likelihood of the assessment providing information about the appellant’s ongoing security needs and create greater restrictions on his liberty than those which he was subject to at the time. [27] I agree with the appellant and Waypoint that the Board’s conclusion was not supported by the evidence. [28] The proposed assessment was to explore whether the appellant could ultimately move to a less secure environment, despite the fact that the assessment would occur in a more restrictive environment for the appellant in the short term. Dr. Danyluk gave evidence that the appellant was already “doing everything he can” to advance himself at Waypoint. The appellant had proactively sought therapy with Dr. Marshall and made notable progress. The appellant has also maintained the highest level of privileges at Waypoint “for many years”. The appellant has essentially exhausted all treatment options at Waypoint. [29] The evidence was that the only way to explore the possibility of a less onerous disposition was through the proposed external assessment. Dr. Danyluk testified that without such an assessment, she could not foresee other ways to assess the change in the appellant’s dynamic risk variables, which were factors relevant to whether the appellant could transition to a less secure environment. The assessment would provide a good “test run” of the appellant’s ability to interact with a different group of co-patients and to handle the frustration arising from a more restrictive environment during the assessment. Dr. Marshall testified that the opportunity to observe the appellant over a longer period, under new circumstances, would be very valuable. [30] The Board does not give any reason for reaching a conclusion contrary to this evidence. There was no evidence of any other alternative before the Board. [31] In addition, the reasons do not address the fact that it had previously ordered an independent assessment of the appellant under very similar security arrangements (that is, under a high security umbrella within a less secure, co-ed environment). The specific conditions at Brockville in 2008 required that the appellant be locked in his room for eight hours overnight and subject to direct staff observation should a female co-patient enter the unit. The independent assessment proceeded without incident, as did all the other assessments that have taken place over the last 42 years. [32] The Board did not explain why leaving the appellant detained in a high security unit is less onerous and restrictive than placing him in a more restrictive setting briefly, given the evidence that the period of restriction could result in an assessment supporting his long-term reintegration and liberty interests, at least through a move to a less secure environment. It is not clear that the Board appreciated that the temporary increase in security during the proposed assessment was necessary to explore a less onerous disposition in the long run. (2) The Utility of a Further Assessment [33] The Board found that there would be little utility in another assessment because the appellant had already undergone a number of assessments in the past. The Board states at para. 25 of its reasons: St. Joseph's letter refers to the number of external assessments that have been done while Mr. Magee has been at Waypoint and suggests that little would be gained from a further assessment “given that many of the risk factors involved in the standardized assessment of sexual offenders are static and therefore unchanging in nature”. [34] It is unclear why the Board chose to treat the letter as authoritative on the utility of an additional assessment, particularly given that the reasons do not address the fact that the hospital report, as well as Dr. Danyluk’s and Dr. Marshall’s evidence, thoroughly explain why another assessment should take place at St. Joseph’s. As already indicated, the Board heard that observing the appellant over an extended period in a new environment would allow an assessment of dynamic risk variables, which would otherwise be unavailable. [35] Further, another assessment would provide more current information, as the last assessment was completed in 2008, some 12 years ago. Notably, Dr. Bradford’s main concern after the 2008 assessment was that the appellant had “a distinct lack of insight” into his offences. This led Dr. Bradford to recommend continued detention in a maximum security setting. [36] There was evidence at the annual review before the Board that the appellant has made significant progress on his insight. In the hospital report, Dr. Marshall noted that: [The appellant] worked hard prior to and during the current therapy sessions to improve his sense of self-worth and was able to describe how this deficit had impacted him at the time of his offending. He demonstrated appropriate empathy for both the victims of his offending and their families. He was also able to describe the impact his offending had on his own family and how much he regretted the harm he had caused to many people through his offending. At no point in the therapy did Mr. Magee ever try to blame anyone else for his offending. Although he worked hard to understand the precipitating factors, he did not use them as excuses for his offending. [37] Dr. Marshall also testified that the appellant “gained a much more realistic view of relationships”. In particular, the appellant understood the importance of staying alone if a relationship was not conducive to his rehabilitation. [38] Dr. Danyluk called the appellant’s insight “limited” in that he “struggle[s] to understand sexual sadism as a construct”. However, she did state that the appellant was aware of the risk factors for offending, such as frustration or his mood. Moreover, “a number of dynamic risk variables seem to have changed”, such as the appellant’s view on relationships. As such, another assessment would be useful in providing further, independent input on how these variables may affect the appellant’s placement in a less secure environment. More generally, Dr. Marshall indicated that a second opinion would be useful to combat any bias or gaps in assessment that may have arisen from the appellant’s extremely long institutionalization at Waypoint. [39] Finally, there was evidence that the assessment would be especially useful if Dr. Bradford conducted it. He has niche expertise in medication to treat sex offenders. Waypoint does not have a resident psychiatrist expert on sex offenders. At the annual review, counsel for Waypoint also submitted that since Dr. Bradford had assessed the appellant before, he would be able to provide a particularly useful opinion on the appellant’s progress. [40] Given the evidence in support of the joint submissions, the requirement in s. 672.54 that the Board take account of the appellant’s interests, and the requirement of responsive justification as recently articulated in Vavilov , at para. 133, the reasons should have addressed the significant evidence in support of an external assessment at this time. Instead, the Board favoured St. Joseph’s conclusion on a narrow point, as articulated in a letter, without explaining why. [41] In addition, the Board appears to have misconstrued the purpose of the proposed assessment, which was to explore the possibility of a less onerous disposition. The assessment would achieve this goal by temporarily placing the appellant under a maximum secure umbrella, to allow for an updated, independent opinion on the appellant’s dynamic risk variables. The security umbrella may have increased restrictions on the appellant in the short-term. However, if the assessment provided information to support the appellant’s transfer to a less secure environment, then the long-term result would have been a less restrictive and less onerous disposition. [42] I am not satisfied that the Board’s reasons reflect adequate appreciation of these aspects, or the assessment’s long-term goal. (3) The Board’s Responsibilities as an Inquisitorial Body [43] There is a final general difficulty with the Board’s reasons. In closing, it stated: If in the future the Clinical Team at Waypoint is able to recommend an assessment that would address a combination of the sexual and sadistic features of Mr. Magee’s diagnoses and the safety issues, another panel of the Board may consider a future request for such an assessment. [44] The appellant and Waypoint say that even if it was reasonable to reject the joint submission, it was incumbent on the Board to consider what else could be done for the appellant. I agree. This duty arises partly from the Board’s mandate to consider the appellant’s interests under s. 672.54 of the Criminal Code and partly from its inquisitorial role. Notably, in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, the Supreme Court of Canada made it clear that the Board has a duty to search out evidence that favours the accused’s liberty interest. It stated at paras. 54-55: The…Review Board has a duty not only to search out and consider evidence favouring restricting NCR accused, but also to search out and consider evidence favouring his or her absolute discharge or release subject to the minimal necessary restraints, regardless of whether the NCR accused is even present. As a practical matter, it is up to the court or Review Board to gather and review all available evidence pertaining to the four factors set out in s. 672.54…The court and the Review Board have the ability to do this. They can cause records and witnesses to be subpoenaed, including experts to study the case and provide the information they require. [45] Here, there is no indication that the Board considered any dispositions other than accepting or rejecting the joint submission. The Board’s concluding comment implies that an assessment addressing both the sexual and sadistic features of the appellant’s diagnosis could be of value. Given this conclusion, and the fact that the appellant had reached his maximum privileges at Waypoint, the Board should have, at a minimum, explored other potential options with counsel, including inquiring whether Waypoint had considered other hospitals that might be more prepared to have the appellant . [46] The Board’s inquisitorial duties required it to do more than maintain the status quo. This is especially given that for three years in a row, the appellant and Waypoint have made a joint proposal for a temporary external assessment. The appellant has been at a standstill for a number of years. He has progressed as much as he can at Waypoint. [47] As an inquisitorial body, the Board is not to wait until it receives a recommendation that is framed in a fashion that is acceptable to the Board. The Board erred by failing to proactively consider how the appellant could progress further, such as, for example exploring with counsel whether another hospital or ways of addressing St. Joseph’s concerns. Again, the fact that very similar arrangements had been put in place for the Brockville assessment in 2008 suggest that the proposed assessment is possible. E. Disposition [48] For these reasons, I would allow the appeal and return the matter to the Board for a new hearing. Released: June 26, 2020 “JMF” “A. Harvison Young J.A.” “I agree Fairburn J.A.” “I agree I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Martin v. Watts, 2020 ONCA 406 DATE: 20200624 DOCKET: C67749 Rouleau, van Rensburg and Roberts JJ.A. BETWEEN Karen Enid Elaine Martin Applicant (Respondent) and David Blair Watts Respondent (Appellant) Michael Rappaport, for the appellant Gordon S. Campbell, for the respondent Heard: in writing On appeal from the order of Justice Mary A. Fraser of the Superior Court of Justice dated October 23, 2019 and from the costs order dated December 3, 2019. REASONS FOR DECISION A. Overview [1] This appeal turns on whether the motion judge erred in striking out the appellant’s pleadings and foreclosing his participation in the trial of this family law proceeding because of his failure to comply with various court orders. [2] The motion judge struck the appellant’s answer and amended answer about a month before the scheduled trial date because of the appellant’s ongoing failure to comply with several court orders to pay costs, as well as his share of household expenses for the matrimonial home, and to provide material financial disclosure. Her order provided the appellant the opportunity to bring a motion to determine whether he should be permitted to participate in some manner at trial, including the possibility of having his pleadings reinstated, if, within eight days of her order, he paid the outstanding amounts owing under the orders and provided the requisite disclosure. She also removed appellant’s counsel as his solicitor of record because of the possibility that he may have to appear as a witness at trial if the appellant reinstated his pleadings and was allowed to participate. The motion judge ordered that the appellant pay the respondent costs of the motion in the amount of $6,000. [3] The appellant did not comply with the court orders and request reinstatement of his answer and amended answer. In this appeal, he continues his challenge to his obligations under the court orders requiring payment of costs and household expenses and maintains that he has materially complied with the court-ordered financial disclosure. He alleges the motion judge’s order striking his pleadings was “judicial retaliation”. He also submits that the motion judge erred in removing his counsel as solicitor of record and that MacLeod J. made errors of law in deciding an earlier motion. [4] As we shall explain, we agree with the motion judge’s determination that the appellant failed to comply with the various court orders that formed the basis for her order striking the appellant’s answer and amended answer and that the appellant’s failure was wilful and egregious. We reject any suggestion of judicial retaliation. Since the appellant’s other grounds are contingent on the reinstatement of his pleadings or involve MacLeod J.’s April 19, 2018 order which is not under appeal, it is not necessary to deal with them. We dismiss the appeal. B. Issues and Analysis (1) The Motion Judge Did Not Err in Striking the Appellant’s Answer and Amended Answer [5] The appellant submits that the motion judge erred in striking his answer and amended answer because, contrary to her findings, he had satisfied the outstanding court orders to pay costs and household expenses, and to make further financial disclosure. According to the appellant, the motion judge failed to apply the correct test for striking pleadings and to consider all relevant factors, including materiality and proportionality. This situation was not, the appellant argues, one of the exceptional and egregious cases which fits within the test for striking pleadings. [6] We are not persuaded by these submissions. [7] The motion judge correctly referenced and applied the relevant legislative provisions and legal principles. As the motion judge noted, r. 1(8)(c) of the Family Law Rules , O. Reg. 114/99, permits the court to strike out documents filed by a party for failure to comply with a court order. She further acknowledged that the exercise of the court’s discretion to strike pleadings and exclude trial participation is one that should be exercised sparingly, in exceptional cases, and only where no other remedy would suffice: Roberts v. Roberts , 2015 ONCA 450, 65 R.F.L. (7th) 6, at para. 15; Kovachis v. Kovachis , 2013 ONCA 663, 367 D.L.R. (4th) 189, at para. 24. Such an order is driven by the particular facts of each case, which the motion judge carefully reviewed in her decision. [8] We see no error that would allow us to intervene. It was reasonable and appropriate for the motion judge to exercise her discretion to strike the appellant’s answer and amended answer in the circumstances of this case. (a) The Court Orders Were Wilfully Breached [9] We agree with the motion judge’s conclusion that the appellant’s failure to comply with these court orders was inexcusable, wilful and egregious. [10] By October 2019, when the respondent’s motion to strike the appellant’s pleadings for failure to comply with court orders came before the motion judge, more than two years had elapsed from the commencement of the proceedings on September 8, 2017. The only real substantive issue in dispute in these proceedings was the equalization of the parties’ net family properties. This included the appellant’s challenge to a marriage contract that limits his share of the value of the matrimonial home. There had been at least nine court appearances, including four case management conferences. Most of them were instigated by the appellant’s unmeritorious motions and his failure to comply with court orders. [11] The motion judge found that the appellant had failed to fully comply with the following orders and that his failure to do so was unjustified, wilful and egregious: 1. On May 18, 2018, MacLeod J. ordered the appellant to pay the costs of his unsuccessful motion in the amount of $5,500. On March 22, 2019, Aston J. ordered these costs payable within 30 days. 2. On December 12, 2018, Mackinnon J. ordered the appellant to pay forthwith the costs of his unsuccessful motion in the amount of $3,470. 3. On May 21, 2019, the case management judge, MacEachern J., ordered the appellant to pay, starting June 1, 2019, the monthly sum of $900 into the parties’ joint account for household expenses given he was continuing to reside in the matrimonial home. Since the appellant moved out of the matrimonial home in July 2019, his obligation to pay expenses was capped at $900. 4. On July 5, 2019, MacEachern J. ordered the appellant, among other things, to provide a complete and accurate financial statement within 14 days and to provide statements with respect to his BMO chequing or savings accounts within 30 days. While the appellant had filed another financial statement on June 26, 2019, MacEachern J. noted that it was materially deficient and did not address all the issues previously identified. She had ordered, on November 19, 2018, each party to serve and file an updated sworn financial statement, updated certificates of financial disclosure (Form 13A), and a comparison of net family properties statement. On February 22, 2019, MacEachern J. ordered the appellant to serve and file a sworn financial statement to update his 2017 financial statement within 15 days, noting that he was in breach of the November order. On May 21, 2019, she ordered the appellant to serve and file a complete and accurate financial statement by May 28, 2019. [12] The appellant has not complied with these orders. [13] First, there is no question that the appellant has not to-date satisfied the orders to pay costs by any payment. [14] The appellant maintains that he has effectively paid the cost orders because he is entitled to set them off against the amounts under the mortgage and letter of credit that he says the respondent wrongly registered against title to the matrimonial home without his knowledge or consent. [15] We agree with the motion judge’s conclusion that the appellant’s argument has no merit. As she explained: While any issue of the responsibility for the use of and repayment of the parties’ joint line of credit may be an issue in the determination of the claim for an equalization of the net family properties … this [does not absolve the appellant] from making the payment of costs as expressly ordered. [16] We note that the appellant did not raise this argument or otherwise request a set off at the time these orders were made. It appears that this or a similar argument was raised before the case management judge when the respondent signalled her intention to bring a motion to strike the appellant’s pleadings. On May 21, 2019, MacEachern J. clearly reinforced the appellant’s obligations to comply with the court orders notwithstanding his other claims: The [appellant’s] obligation to comply with the existing court orders, and specifically the outstanding cost orders, was again specifically discussed at the case management conference on May 21, 2019. I repeat the wording included in my endorsement of February 22, 2019 - the cost orders are binding on the [appellant]. He is required to comply with those orders. The orders require him to pay $8,970 in costs to the [respondent]. Those orders are not discretionary. They are not a suggestion. They are not contingent on the [appellant’s] other claims in this matter, which will be determined at trial. The [appellant] is required to comply with the orders, and pay the costs forthwith. [Emphasis added.] [17] Second, with respect to the outstanding household expenses, the appellant offered no explanation for his failure to pay them to the motion judge or on appeal. The order was not appealed or set aside. As the motion judge noted, the appellant’s failure to comply with the order is wilful and egregious. [18] Finally, the appellant has not complied with the order for financial disclosure. [19] The most basic obligation in family law proceedings is the duty to disclose financial information and this obligation is immediate and ongoing: Roberts , at para. 11; Manchanda v. Thethi , 2016 ONCA 909, 84 R.F.L. (7th) 374, at para. 13, leave to appeal refused, [2017] S.C.C.A. No. 29. As this court in Manchanda stated, at para. 13, “after continual admonitions by the courts and the legislature that parties to a matrimonial proceeding must produce financial documentation, wilful non-compliance must be considered egregious and exceptional”, with the result that “[t]hose who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.” [20] The motion judge correctly determined that this is the case here. Notwithstanding several admonitions and opportunities to produce basic financial information, the appellant has failed to meet his fundamental disclosure obligations as a party to family law proceedings. We reject the appellant’s submission that he has substantially complied with his statutory and court-ordered obligations. While he purported to file an updated financial statement on June 26, 2019, this was materially deficient. No updated sworn financial statement addressing the identified deficiencies was filed following the July 5, 2019 order. Nor did the appellant provide his BMO account statements as ordered. [21] The significance of the appellant’s continuing and willful failure to produce material financial information was brought home to him on more than one occasion. As the case management judge noted in her July 5, 2019 endorsement: [The appellant’s] failure to provide a complete and accurate financial statement almost 22 months after [the respondent] initiated this Application … prevents the parties, and this court, from focusing on the key issues in dispute …. This focus is not possible without [the appellant] first providing a complete and accurate sworn financial statement. In other words, the appellant’s failure to comply materially interfered with the adjudication of the dispute and the administration of justice. [22] In consequence, we find no error in the motion judge’s determination that the appellant failed to comply with the court orders and that his failure was wilful and egregious. (b) The Motion Judge Properly Exercised Her Discretion to Strike the Answer and Amended Answer [23] There is no basis to interfere with the motion judge’s conclusion that this was an exceptional circumstance in which it was appropriate to strike pleadings for failure to comply with court orders. [24] The appellant must bear the consequences of his continued failure to comply with court orders; a consequence of which he had been repeatedly warned. The appellant’s failure to fully satisfy these outstanding orders, notwithstanding the many clear reminders, directions, and further generous opportunities to do so, can only be interpreted as his wilful disregard and flouting of the authority of the court. His failure to pay them and provide full and accurate financial disclosure caused further needless expense and delay and wasted judicial resources and those of the parties. [25] This conduct has no place in family law proceedings, which are designed to promote the most expedient and least costly resolution and adjudication of disputes in the very difficult context of matrimonial breakdown. Pointed and continued disregard for legislative and court-ordered obligations undermines the orderly administration of justice and erodes the legitimate expectation of litigants and the public that these obligations will be respected. At a certain point, a party’s non-compliance with his or her most fundamental obligations may result in the imposition of limits on that party’s rights to participate. That is the case here. By his repeated failures to meet his basic responsibilities, the appellant has forfeited his right to participate in these proceedings. (2) The Process was Fair [26] The appellant contends that the motion judge’s order was in retaliation for his complaint to the Canadian Judicial Council about the motion judge’s judicial colleague, who had made one of the cost orders in issue against the appellant. [27] The appellant’s suggestion is completely unfounded. The appellant bears the burden of rebutting the strong presumption of judicial impartiality. This kind of very serious allegation must be supported by cogent evidence. There is no basis on the record for this suggestion. The motion judge’s reasons disclose her fair and thorough consideration of the issues before her. As we have explained, her conclusions are correct in law and fact. Her order allowing the appellant yet another opportunity for compliance and her temperate cost order demonstrate the fairness of her disposition of this issue. [28] Accordingly, this submission has no merit. (3) Other Issues [29] Other issues raised on appeal, such as the removal of the appellant’s counsel of record, are contingent on the appellant reinstating his pleadings or involved MacLeod J.’s April 19, 2018 order. As the appellant did not reinstate his pleadings within the time allotted by the motion judge and has been unsuccessful on his primary ground of appeal, and as MacLeod J.’s April 19, 2018 order is not the subject of this appeal, it is unnecessary for us to consider the other grounds raised by the appellant. C. Disposition [30] For these reasons, the appeal is dismissed. [31] The respondent is entitled to her costs in the amount of $18,500, inclusive of disbursements and applicable taxes. “Paul Rouleau J.A.” “K. van Rensburg J.A.” “L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Michel v. Spirit Financial Inc., 2020 ONCA 398 DATE: 20200619 DOCKET: C66925 & C66926 Benotto, Zarnett and Thorburn JJ.A. DOCKET: C66925 BETWEEN Alexander Michel Plaintiff (Respondent) and Spirit Financial Inc. , Franz Kramer And Gunther Kramer Defendants (Appellants) DOCKET: C66926 AND BETWEEN Franz Kramer, Christa Schmidt and Gunther Kramer Plaintiffs (Appellants) and Alexander Michel Defendant (Respondent) Michael A. van Bodegom and Daniel W. Veinot, for the appellants Franz Kramer and Spirit Financial Inc, and respondent on cross-appeal, Gunther Kramer Jeffrey Kriwetz and Alexander Hora, for the respondent/appellant on cross-appeal, Alexander Michel Heard: in writing On appeal from the judgment of Justice P.J. Flynn of the Superior Court of Justice, dated April 10, 2019, with reasons reported at 2019 ONSC 2254. REASONS FOR DECISION [1] Many years ago, the appellant Franz Kramer and the respondent Alexander Michel were co-workers and friends. Michel gave Kramer various sums of money that Kramer invested in his company Spirit Financial Inc. Whether the advances made were loans or an investment by Michel in Spirit became a source of dispute between the former friends. It led to an action by Michel against Kramer, the company and Kramer’s son Gunther Kramer, and another action by Kramer, his spouse and Gunther against Michel for slander. The trial judge determined that the advances were demand loans, that Kramer had engaged in fraudulent activities to which Spirit was an accomplice, and he gave judgment against Kramer and Spirit for over two million dollars. He dismissed Kramer’s action against Michel. [2] For the reasons that follow, we allow the appeal in part, because recovery on several advances made by Michel in 2000 and 2001 is statute barred. BACKGROUND [3] In the late 1990s and early 2000s Kramer and Michel trained and worked together as airline pilots. Kramer then became involved in mortgage lending through Spirit Financial. Kramer was the director, president and sole “controlling will and mind” of the company. Gunther was the Secretary-Treasurer until 2014. [4] Over nine years, between 2000 and 2010, Michel advanced significant sums to Kramer: 949,504 Euros and 100,119 Swiss francs. Two promissory notes dated May 12, 2000 represent the only documentation. The first promissory note was from Spirit to Michel for 140,000 Deutschmarks at 7% interest, which Kramer replaced with a promissory note from himself at an interest rate of 6%. According to the trial judge, Michel “didn’t know Spirit and only wanted to deal with Kramer, whom he obviously trusted. And Kramer accepted that. There were no further Promissory Notes. So, the 2nd Promissory Note was meant to replace the first and commenced the two pilots’ business relationship.” [5] In March and April 2009, Michel demanded repayment on the loans. Kramer resisted at first but then made a series of four payments of 7,273 Swiss francs and 149,770 Euros between April 20, 2009 and October 21, 2009. These payments equalled about $232,500 Canadian. No other payments were made. [6] When Michel sued for return of his money, Kramer brought an action against him alleging that Michel had harassed and threatened him and his family. The action was fashioned in slander. DECISION BELOW [7] Kramer argued that the advances were investments in Spirit Financial, not demand loans. The trial judge found that the advances were loans to Kramer repayable at 6% interest. He held that the action on loans and the promissory notes was not statute barred because Kramer made, or caused to be made, partial payments in 2009 which extended the limitation periods. [8] The trial judge made various findings of improper activities by Kramer in the way Michel was induced to make the loans, the way the funds were moved into and out of Spirit, and the lack of any proper accounting. He held that Spirit Financial was also liable for the same amounts as Kramer because it was controlled by Kramer and was “an accomplice to [his] fraudulent activities.” However, Gunther was not liable because he likely did not have much say in his father's business while he was director and officer. [9] The trial judge ordered that the parties calculate the amounts owing and include a chart with their cost submissions. In the result, he ordered that Kramer and Spirit Financial pay Michel the Canadian equivalent of 1,572,938.38 Euros and 149,626.98 Swiss francs, inclusive of pre-judgement interest. [10] The trial judge dismissed the slander action which he considered to be simply a “gag and chill” device and thus improper. [11] The trial judge awarded Michel substantial indemnity costs. After adjusting for costs owed to Gunther, Michel was awarded $200,000 in costs. ISSUES [12] The appellants Kramer and Spirit Financial submit that the trial judge erred by: 1. failing to apply the limitation period; 2. holding Spirit liable in addition to Kramer; 3. improperly calculating damages; 4. engaging in procedural unfairness; 5. dismissing the slander action; and 6. awarding costs on a substantial indemnity basis. [13] Michel cross appeals alleging that Gunter (an additional respondent on the cross-appeal) should also have been held liable. ANALYSIS The limitation period [14] The trial judge made a finding of fact that all the advances made by Michel to Kramer and Spirit were loans. The loans were advanced from 2000 to 2009, during which time the Limitations Act , R.S.O. 1990, c. L.15 was largely replaced by the Limitations Act, 2002 , S.O. 2002, c. 24, Sched. B . On January 1, 2004 the basic limitation period for demand loans was changed from six years from the date of the loan to two years from the date of the demand: Hare v. Hare , 83 O.R. (3d) 766 (C.A.), at para. 11 and Limitations Act, 2002 , at s. 5. (1) The Promissory Notes of 2000 and the Loans between May 15, 2000 and September 6, 2001 [15] The first five loans were made on May 15, 2000, January 2, 2001, May 2, 2001, June 8, 2001 and September 6, 2001. These loans and the promissory note were captured by the “old” Limitations Act. The trial judge said that “Kramer’s Limitation Defence cannot succeed. The partial payments made after Michel’s demand had the effect of extending the limitation period.” [16] The difficulty here is that the limitation period had already expired for these loans when the partial payments were made and could not be revived. See Cross Bridges Inc. v. Z-Teca Foods Inc. , 2016 ONCA 27, at para. 10: “for an acknowledgement to reset the limitation clock, it must be made before the expiry of the limitation period applicable to the claim”. The first repayment made to Michel, was more than a year too late for even the most recent of the five loans to be saved from the statute bar. [17] Likewise, the two Promissory Notes dated May 12, 2000 were captured by the six-year limitation period from their stated due date on June 1, 2001. [18] The trial judge erred in finding otherwise. (2) Loans between November 17, 2004 and February 1, 2009 [19] The appellants accept that on March 28, 2009, the respondent demanded payment in full of all money loaned. The four repayments beginning April 20, 2009, were in relation to that same debt. In St. Hilaire v. Kravacek ( 1979), 26 O.R.(2d) 499 (C.A.), this court held at para. 12 that: “a payment by a debtor to his creditor, from which a new promise to pay the debt may be inferred, has the effect of starting afresh the running of a period of limitation.” The loans between November 17, 2004 and February 1, 2009 are covered by the two-year limitation period in the new Act but are saved by acknowledgments of debt. (3) Loans on July 11, 2003 and October 27, 2003 [20] The appellants concede at para. 35 of the their factum that the loans made on July 11, 2003 and October 27, 2003 were not statute barred: “While the advances made on July 11, 2003, and October 27, 2003, were subject to the former 6-year limitation period, the limitation period with respect to those loans did not expire prior to the commencement of the action (at least, as against Spirit Financial) as the partial repayments in 2009 extended the applicable limitation period.” [21] Therefore, only the loans in 2000 and 2001 and the two promissory notes are statute barred. [22] We reject the argument that the partial payments, having been made by Spirit, did not extend the limitation period for a claim against Kramer. Based on the trial judge’s findings Spirit and Kramer must be considered one and the same for these purposes. Liability of Spirit and Kramer [23] Spirit argues that the trial judge erred in holding it liable because he found that the note and the loans were between Michel and Kramer and because Michel only pled that Spirit was liable in the alternative, not jointly. [24] We conclude that both Kramer and Spirit are liable. [25] The jurisprudence with respect to separating personal from corporate liability typically considers an attempt to hold individuals liable for corporate debts. But the analysis is instructive even though the question here is whether the corporation should be held liable in addition to the individual. A separate legal entity will be disregarded when there is “complete control” and “conduct akin to fraud”: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Sup. Ct.), at pp. 432-33; aff’d (1997) 74 A.C.W.S. (3d) 207 (C.A.). It may also be disregarded where those in control of a corporation expressly direct a wrongful act: 642947 Ontario Ltd. v. Fleischer (2001), 56 O.R. (3d) 417 (C.A.) at para. 68. [26] The trial judge held that Spirit was completely controlled by Kramer and that Spirit was being used as a shield for fraudulent or improper conduct. He found that: (i) Kramer was “the controlling will and mind of both Spirit”; (ii) Kramer was “simply transferring all of the money in each between his own pockets”; (iii) Spirit was “just a plaything of Kramer’s”; and (iv) Spirit “must be considered an accomplice to Kramer’s fraudulent activities.” [27] These findings of fact would be sufficient to pierce the corporate veil and hold Kramer liable for obligations of Spirit – here they have a different but equally well-founded consequence. When Kramer directed Spirit to participate in – be an accomplice to – wrongful conduct, Spirit was rendered liable for that conduct. When the controlling mind of the corporation directs it to do a wrongful act it can scarcely be argued that the corporation commits the act with impunity. [28] It was open to the trial judge to come to this conclusion even though Michel’s pleading alleged alternative theories of liability. The alternatives were whether the advances were loans, or whether they were investments. But the claims made were against all defendants and we see nothing in the pleading precluding a finding of liability against both Spirit and Kramer for the wrongdoing that the trial judge found. Damages [29] Kramer and Spirit Financial argue that the trial judge erred by (i) finding that the advances were made on an interest rate of 6% when there was no agreement as to the interest rate on the evidence, or when the agreed-upon interest rate varied; and (ii) not deducting non-resident tax withholdings that Spirit Financial paid on behalf of Michel. [30] An appellate court should only intervene in the award of damages where “the trial judge made an error of principle or law, or misapprehended the evidence, or it could be shown there was no evidence on which the trial judge could have reached his or her conclusion, or the trial judge failed to consider relevant factors in the assessment of damages, or considered irrelevant factors, or otherwise, in the result, made ‘a palpably incorrect’ or ‘wholly erroneous’ assessment of the damages”: 2105582 Ontario Ltd. (Performance Plus Golf Academy) v. 375445 Ontario Limited (Hydeaway Golf Club) , 2017 ONCA 980, 138 O.R. (3d) 561, at para. 64, citing Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, [2001] 2 S.C.R. 943, at para. 80. [31] It was open to the trial judge to conclude that the interest rate was 6% and that the non-resident tax allegation was part of Kramer’s “arrogant deceit” and did not apply. Allegation of procedural unfairness [32] On the last day of evidence before the trial judge, Kramer conceded that Michel’s Swiss franc advances were still available and belong to Michel. The trial judge found that he “agreed to pay those funds to Michel in accordance with a signed direction”. He then “endorsed the Trial Record accordingly”. [33] Kramer and Spirit Financial argue that, by doing so, the trial judge prejudged the issues and did not provide adequate reasons. [34] We do not agree. It was open to the trial judge to endorse the record on the basis of this admission. This was clearly explained and the reasons throughout were sufficient. Appeal from dismissal of the slander action [35] The trial judge’s decision to dismiss the slander action was based on his findings of fact which are entitled to deference on appeal. There is no basis to interfere with that decision. Costs [36] Kramer and Spirit Financial submit that there was no basis for imposing costs on a substantial indemnity basis. [37] The trial judge made his decision to award substantial indemnity costs to Michel in part because of the fraud perpetuated on him, in part because Kramer did not admit facts laid out in Michel’s Request to Admit but primarily because Kramer used the slander action to defend Michel’s claims. [38] A court should set aside a costs award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong: Hamilton v. Open Window Bakery Ltd ., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. [39] We see no reason to interfere here. The cross-appeal [40] Michel alleges that the trial judge erred in dismissing his claim against Gunther. The trial judge found that Gunther “probably didn’t have much say in his father’s business while he was officer and director”. This finding was open to the trial judge on the evidence and supports the dismissal of the debt action against him. Likewise, we would not interfere with the trial judge’s finding that the loan was partially repaid on April 20, 2009. CONCLUSION [41] The appeal is allowed in part to reduce the damage award by the amounts of the loans between May 15, 2000 and September 6, 2001 . The appeal is otherwise dismissed. The cross-appeal is dismissed. The appeal with respect to the slander action is dismissed for the reasons given by the trial judge. [42] If the parties cannot agree on the calculation of damages and the costs of the appeal, they may submit written submissions limited to five pages within 14 days from the release of these reasons.” “M.L. Benotto J.A.” “B. Zarnett J.A.” “Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Mullings v. Robertson, 2020 ONCA 369 DATE: 20200611 DOCKET: M51181 (C66780) Lauwers, Paciocco and Fairburn JJ.A. BETWEEN Owen Cornelius Mullings Appellant (Moving Party) and Jacqueline Alice Dian Robertson Respondent (Responding Party) Owen Cornelius Mullings, acting in person Lauri Daitchman, for the respondent Heard: In writing REASONS FOR DECISION [1] The self-represented applicant, Mr. Owen Mullings, appealed a Family Court decision resolving numerous issues between the applicant and his former common law spouse, Ms. Jacqueline Robertson. On December 13, 2019, the applicant’s appeal was dismissed: 2019 ONCA 979. He now moves, pursuant to rr. 37.14(6) and 59.06(2) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, to have the appeal decision set aside and he seeks leave for a new hearing. He also asks for interim relief and he asks this court to order the payment of sums in his favour, and relief from costs orders made in the appeal and at the Family Court trial. [2] Rule 61.16(6.1) refers to the two rules the applicant invokes. It provides that a decision of a panel of this court may only be varied or set aside pursuant to rr. 37.14 or 59.06. [3] For its part, r. 37.14 has no application here. This is not a case involving an order obtained on motion without notice, a failure to appear on a motion, or an order of the registrar: r. 37.14(1). [4] As for the court’s authority to reconsider a decision under r. 59.06, that authority is “limited and will be exercised sparingly and only where it is clearly in the interests of justice to do so”: Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP , 2017 ONCA 840, at para. 6., leave to appeal dismissed, [2017] S.C.C.A. No. 366. This court will set aside a decision and rehear a case on its merits only in rare circumstances: see First Elgin Mills Development Inc. v. Romandale Farms Limited , 2015 ONCA 54, 381 D.L.R. (4th) 114, at para. 7. [5] In support of his application, the applicant argues that the appeal decision contains numerous “errors”. In each case he submits that this court “failed to consider that the trial judge erred” in making findings by arriving at decisions contrary to the preponderance of evidence or based on misapprehensions of the evidence. The misapprehensions of the evidence he identifies amount to no more than the failure by the trial judge to make the findings and orders the applicant advocates. In substance, the grounds the applicant offers in support of his request that this court’s decision be set aside and a new hearing be held amount to expressions of disagreement with the correctness of the appeal decision. Although made in the context of a criminal appeal, Charron J.A.’s comments in R. v. H. (E.), 115 C.C.C. (3d) 89 (Ont. C.A.), at pp. 101-102, leave to appeal refused, [1997] S.C.C.A. No. 256, are apt: [T]o the extent that an application to reopen an appeal is a challenge to the correctness of a decision … the application to reopen is an attempt to vest the Court of Appeal with a jurisdiction which is reserved to the Supreme Court of Canada. … The power to further review the matter no longer belongs to this court. [6] We see no basis upon which it would be in the interests of justice to set aside the appeal decision. The proper route in contesting the appeal decision was for the applicant to have sought leave to appeal from the Supreme Court of Canada. [7] The motion is dismissed. “P. Lauwers J.A.” “David M. Paciocco J.A.” “Fairburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Neufeld v. Neufeld, 2020 ONCA 395 DATE: 20200619 DOCKET: C66749 MacPherson, Pardu and Huscroft JJ.A. BETWEEN Janet Lee Neufeld Applicant (Respondent) and Wilmer Jack Neufeld Respondent (Appellant) Donna Wowk, for the appellant Bryan Smith, for the respondent Heard: In writing On appeal from the judgment of Justice R.A. Lococo of the Superior Court of Justice, dated February 27, 2019, with reasons reported at 2019 ONSC 1277. REASONS FOR DECISION [1] The appellant Wilmer Neufeld (“Wilmer” or “the appellant”) and the respondent Janet Neufeld (“Janet” or “the respondent”) were married on June 12, 1993. It was the second marriage for Wilmer and the first for Janet. [2] Wilmer had two daughters from his first marriage, Sarah and Ashley. They lived with their mother and had regular access visits with Wilmer. [3] Janet and Wilmer had two children together: William (“Billy”), born in 1995, and Bridgette, born in 1996. [4] Throughout their marriage, Janet and Wilmer lived in a dwelling on McNab Road in Niagara-on-the-Lake. Wilmer was a substantial and successful farmer. Wilmer and Janet together were shareholders of Neufeld Farms. Janet did not work outside the home after Billy was born in 1995. [5] In November 2014, Janet brought an application for divorce and ancillary relief that included the division of property and spousal support. A divorce decree was granted, effective in April 2016. [6] In order to calculate the amount required for equalization of net family property, it is necessary to determine the valuation date, the date on which the parties separated with no reasonable prospect of resuming cohabitation. There is a huge difference between the parties on this issue. Wilmer says that the separation occurred around June 2000 when Janet moved into separate quarters (an apartment-style unit attached to the main house) where she has lived ever since. Janet’s position is that the separation occurred on about July 2014, four months before she commenced the divorce application. [7] In the divorce proceedings, a case conference judge ordered the trial of an issue to determine the date of separation on a final basis. During the summer of 2018, Lococo J. presided over this trial which lasted 19 days. After an extensive review of the evidence and many relevant case authorities, the trial judge concluded: [76] I have also concluded that Janet has established that the parties separated in July 2014, as she contended. Janet considered the triggering event to be her confrontation with Wilmer on July 20, 2014, following his angry reprimand of Brigitte for turning off his alarm clock. In my view, the real significance of those events was that Janet resulting decision [ sic ] to retain a lawyer to commence divorce proceedings, which she did after returning to the McNab residence a few days later. I consider the fact that she retained a lawyer for this purpose to be an objective indication of her intention to live separate and apart from Wilmer. I therefore find that the parties’ date of separation was July 31, 2014. I am also satisfied on the evidence that there was no reasonable prospect of reconciliation between the parties as of that time. [8] The appellant appeals from the trial judge’s decision on three grounds. [9] First, the appellant contends that the trial judge failed to sufficiently address the credibility and reliability of the parties and other witnesses. In particular, the appellant contends that the trial judge “does not analyze the credibility of Janet’s evidence … the word ‘credibility’ cannot be found in the 78-paragraph Trial Reasons … he makes no comment on Janet’s credibility or reliability – overall or on a particular matter. There is simply no description or analysis of the quality of her evidence or why he might prefer her evidence where it conflicts with other evidence, despite Janet giving evidence over the course of 7 days.” [Appellant’s factum, at para. 52, emphasis in original.] [10] We do not accept this submission. Throughout his reasons, the trial judge undertook a credibility analysis on the evidence of all the witnesses relating to contested issues. Although the trial judge did not use the specific words ‘credible’ or ‘credibility’, it is obvious who he found credible and reliable both on specific issues and overall. [11] To take but one example on credibility, the trial judge gave clear reasons for believing Janet, not Wilmer, on the important issue of when sexual relations between the parties ceased: [75] … (a) While Janet and Wilmer did not share a bedroom in the one-story section of the house, I accept Janet’s evidence that prior to 2000, she slept apart from Wilmer in one of the other bedrooms in the main house, starting at some point after the children’s birth. I also accept her testimony that the parties continued to have sexual relations, both before and after 2000, even though they occupied separate bedrooms. While Wilmer’s testimony on the latter point was somewhat of a moving target, he conceded that the parties continued to have sexual relations (albeit infrequently) after Janet began sleeping in the one-story section. He also testified that intimate relations ceased a few years later, but he was unable to state when with any degree of certainty. [12] To take but one example on reliability, the trial judge was, in a permissible way, cautious about accepting the evidence of the parties’ children (age 23 and 24 when they testified: [21] Billy and Bridgette appeared to me, however, to be honest and generally objective in their testimony. That being said, while they were young adults when they testified, their evidence to a significant extent related to events that occurred when they were young children or related to matters which occurred in private between Janet and Wilmer. As a result, I generally found their testimony of only limited assistance in determining the ultimate issue of the parties’ separation date. [13] Second, the appellant submits that the trial judge made palpable and overriding errors with respect to findings or inferences of fact, such that his judgment cannot stand. The appellant points to only two examples, in a 19-day trial, of this category of error. [14] The appellant says that the trial judge stated correctly that Janet drew a pre-tax annual salary of $40,000 from Neufeld Farms but then said, incorrectly, that “the evidence did not indicate any difference in these arrangements before and after 2000”: at para. 24. In fact, says the appellant, Wilmer gave uncontradicted evidence that he reduced Janet’s salary by $500 per month after she moved into the separate apartment in 2000. [15] This is hardly a palpable error. The essential point is that Janet received a salary from Wilmer throughout their marriage. The trial judge recorded this. The fact that he did not state that there was evidence (from Wilmer) that the salary changed in a minor way at some point in the marriage is not an error. Even if it were an error, it is far removed from being ‘overriding’; at best, it would be minor, bordering on inconsequential. [16] The appellant says that the trial judge erred when he stated that “there was no direct evidence (other than Wilmer’s testimony) that Janet knew about his other relationships.”: at para. 75(k). The appellant submits that this is incorrect because there was a reference in the notes from Janet’s doctor about an affair and Billy and Bridgette testified that their mother would talk to them about their father’s unfaithfulness. [17] Again, it is difficult to see how this could be an overriding (i.e., it affects the result) error in a 19-day trial. This is especially so given Janet’s testimony that she suspected that her husband had extramarital affairs during their marriage. [18] Third, the appellant asserts that the trial judge erred by treating the parties so unevenly that it gives rise to a reasonable apprehension of bias. [19] We emphatically reject this ground of appeal. It is, in a word, outlandish. The appellant does not point to a single word the trial judge said during a 19-day trial that would suggest that he treated any of the parties or witnesses unfairly. Moreover, the matters to which the appellant does point – his treatment of the evidence of Janet and Wilmer, his failure to refer to certain evidence of the witnesses and in documents, and his reference to a potential limitation period – are, at most, potential grounds of appeal anchored in legal error, not bias. An allegation of judicial bias should not be made lightly because, by definition, it challenges the integrity of the judge in relation to the core of the judicial function – to preside impartially over the case before the judge: see R. v. S.(R.D.) , [1997] 3 S.C.R. 484, at paras. 31-32. [20] The appeal is dismissed with costs. If the parties cannot agree on costs, the respondent must submit her costs submissions within 21 days of the release of this judgment and the appellant must submit his costs submissions within 21 days thereafter. Submissions by each party cannot exceed five pages. “J.C. MacPherson J.A.” “G. Pardu J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Peter B. Cozzi Professional Corporation v. Cato, 2020 ONCA 423 DATE: 20200626 DOCKET: C67725 Juriansz, Pardu and Huscroft JJ.A. BETWEEN Peter B. Cozzi Professional Corporation Plaintiff (Appellant) and Kingston Cato Defendant (Respondent) D. Jared Brown, for the appellant Kate Barretto, for the respondent Heard: June 18, 2020 by videoconference On appeal from the order of Justice Sandra Nishikawa of the Superior Court of Justice, dated August 29, 2019. REASONS FOR DECISION [1] This appeal was dismissed from the bench for the reasons of the motion judge. [2] The respondent’s costs are fixed in the amount of $20,000 inclusive of disbursements and applicable taxes. “R.G. Juriansz J.A.” “G. Pardu J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Peter B. Cozzi Professional Corporation v. Szot, 2020 ONCA 397 DATE: 20200617 DOCKET: C66741 & C67463 Gillese, Brown and Jamal JJ.A. DOCKET: C66741 BETWEEN Peter B. Cozzi Professional Corporation Applicant (Appellant) and Jerzy Szot Respondent (Respondent) DOCKET: C67463 AND BETWEEN Peter B. Cozzi Professional Corporation Applicant (Appellant) and Jerzy Szot Respondent (Respondent) D. Jared Brown, for the appellant Dennis Ong, for the respondent, Jerzy Szot Diane Gillies, for the respondent, the Public Guardian and Trustee, Litigation Guardian for Quoc Nguyen Heard: May 27, 2020 by videoconference On appeal from the order of Justice Sandra Nishikawa of the Superior Court of Justice, dated February 22, 2019, with reasons reported at 2019 ONSC 1274, 90 C.C.L.I (5th) 282 (C66741), and from the order dated August 29, 2019, with reasons reported at 2019 ONSC 5071 (C67463). By the Court: A. overview [1] The central question in these two appeals is whether the appellant, a lawyer practising through a professional corporation, is entitled to the proceeds of a $100,000 after-the-event legal protection insurance policy (the “ATE Policy”) of his client, Mr. Quoc Nguyen. After-the-event insurance, sometimes known as “adverse costs insurance”, insures a plaintiff against the risk of an adverse costs award in litigation or provides coverage for disbursements incurred by a plaintiff’s lawyer. The appellant claims the proceeds of Mr. Nguyen’s policy for disbursements for representing him in a motor vehicle personal injury action. [2] The judge at first instance (the “application judge”) ruled that the appellant was not entitled to the insurance proceeds under a written contingency fee agreement with Mr. Nguyen dated April 6, 2016 (the “CFA”). She ruled that because Mr. Nguyen was a person under disability represented by a litigation guardian, the CFA required court approval under s. 5 of Contingency Fee Agreements, O. Reg. 195/04, (the “CFA Regulation”), passed under the Solicitors Act , R.S.O. 1990, c. S.15, which was never obtained and which she declined to provide. [3] The application judge also dismissed the appellant’s later motion for a charging order over the insurance proceeds to secure his legal fees and disbursements under s. 34 of the Solicitors Act . She held that the motion was precluded by the rule against collateral attack, issue estoppel, and the doctrine of abuse of process. In any event, she ruled that the appellant failed to meet the test for a charging order because his work had not been instrumental to the recovery or preservation of the property at issue; he had simply served as an insurance intermediary to sell his client the ATE Policy. [4] The appellant now appeals both orders of the application judge. [5] At the conclusion of the oral hearing of the appeals, we dismissed both appeals, with reasons to follow. These are our reasons. B. Background [6] The detailed procedural history of these proceedings is provided in the two decisions of the application judge: Peter B. Cozzi Professional Corporation v. Szot, 2019 ONSC 1274, 90 C.C.L.I. (5th) 282, and Peter B. Cozzi Professional Corporation v. Szot, 2019 ONSC 5071. The essential background is as follows. (i) The motor vehicle action [7] On January 14, 2003, Mr. Jerzy Szot’s car rear-ended Mr. Nguyen’s car. In May 2007, the appellant commenced a motor vehicle personal injury action on Mr. Nguyen’s behalf against Mr. Szot, the respondent. Mr. Nguyen’s spouse at the time, Ms. Hoan Phan, was his litigation guardian. In October 2006, Ms. Phan had been appointed as Mr. Nguyen’s guardian of property, and in November 2011 was appointed as his guardian of the person. [1] (ii) The CFA and ATE Policy [8] On April 6, 2016, Mr. Nguyen, his social worker, and a Vietnamese translator met with the appellant at his law office. Ms. Phan was not present. [9] At the meeting, Mr. Nguyen entered into the CFA with the appellant. He also signed a “Retainer Agreement Addendum” (the “Addendum”), which authorized the appellant to provide information about Mr. Nguyen’s file to DAS Legal Protection Insurance Company Limited (“DAS”) to obtain after-the-event insurance. The same day, the appellant concluded a business agreement with DAS that authorized him to serve as its insurance intermediary. [10] The CFA provided that Mr. Nguyen agreed to pay all disbursements incurred by the appellant on his behalf, without regard to the success of his claim for damages, and that Mr. Nguyen assigned all proceeds from his litigation protection insurance to the appellant as security for those disbursements. [11] On Mr. Cozzi’s advice, Mr. Nguyen bought the ATE Policy from DAS. The policy provided: “Your policy attaches to your Contingency Fee Agreement and operates for the duration of that Agreement.” Although it was completed in 2016, the start date for the ATE policy was October 14, 2005. (iii) The order for costs and disbursements against Mr. Nguyen [12] In May 2017, Mr. Nguyen’s motor vehicle action proceeded to a jury trial. The jury found Mr. Szot liable for the collision and awarded Mr. Nguyen general damages and damages for past loss of income, but at an amount below the applicable statutory deductible at the time. [13] On June 22, 2017, Archibald J. granted Mr. Szot’s threshold motion for a declaration that Mr. Nguyen was not entitled to any non-pecuniary damages. After deducting from the jury award the income replacement benefits that Mr. Nguyen had received, Archibald J. found that Mr. Nguyen’s net damages for loss of income were reduced to zero, and that Mr. Nguyen’s total damages were also reduced to zero. He granted judgment for Mr. Szot and ordered Mr. Nguyen to pay Mr. Szot costs of the action in the amount agreed to between the parties of $90,790, inclusive of HST, and disbursements of $71,000, for a total of $161,790: see Nguyen v. Szot , 2017 ONSC 3705, 69 C.C.L.I. (5th) 222. (iv) The ATE Policy proceeds are paid to the appellant in trust [14] Over the next few months, a dispute arose between the appellant and Mr. Szot’s insurer, Aviva Insurance Company of Canada (“Aviva”), as to who was entitled to the proceeds of the ATE Policy. [15] On July 19, 2017, the appellant applied to DAS for payment of the policy proceeds on behalf of Mr. Nguyen. He included a copy of Archibald J.’s costs judgment and claimed $37,858.91 for his own disbursements. [16] Shortly afterwards, Aviva wrote to DAS seeking payment of its costs. DAS responded that amounts under the ATE Policy were payable to Mr. Nguyen. [17] On August 9, 2017, Mr. Nguyen signed a direction authorizing the appellant to pay $68,636.73 from the ATE Policy proceeds towards his disbursements and HST , with the balance to be applied to the costs ordered by Archibald J. When Mr. Nguyen signed this direction, neither Ms. Phan nor a Vietnamese interpreter was present. [18] On August 10, 2017, DAS paid the funds from the ATE Policy to the appellant, in trust for Mr. Nguyen. [19] On September 25, 2017, each of Mr. Nguyen (attending with his Vietnamese interpreter) and Ms. Phan separately obtained independent legal advice about, and signed an authorization confirming, the CFA and Addendum. [20] When Aviva learned that the appellant had moved the policy proceeds from his trust account to his general account, it brought an urgent motion for a direction that they be returned to and held in the trust account pending the determination of entitlement to the funds. On September 12, 2017, Monahan J. granted Aviva’s motion. (v) The first ruling: 2019 ONSC 1274 [21] On February 22, 2019, the application judge dismissed the appellant’s application and Aviva’s cross-application for declarations as to their entitlements to the proceeds of the ATE Policy. [22] The application judge ruled that the appellant was not entitled to the proceeds because the CFA was unenforceable. She ruled: (i) the CFA did not have the court’s approval as required by s. 5 of the CFA Regulation; (ii) the appellant never obtained instructions from Ms. Phan to conclude the CFA, and Mr. Nguyen lacked the capacity to do so; and (iii) the CFA did not comply with the Solicitors Act and the CFA Regulation in other respects. She also ruled that Mr. Nguyen could not have made an informed decision about the direction he signed on August 9, 2017, because neither Ms. Phan nor his Vietnamese interpreter was present. Lastly, she determined that the independent legal advice obtained by Mr. Nguyen and Ms. Phan and their approval of the CFA and Addendum in September 2017 were after-the-fact and ineffective. [23] The application judge also ruled that Aviva was not entitled to the proceeds of the ATE Policy. The only beneficiary under the ATE Policy was Mr. Nguyen; Aviva was neither a party to the ATE Policy nor a named beneficiary; and none of the exceptions to the doctrine of privity of contract applied. [24] Because neither Mr. Nguyen nor Ms. Phan participated in the proceedings before the application judge, the application judge was concerned that neither fully understood the potential consequences to them. She therefore directed Ms. Phan and the Public Guardian and Trustee (the “PGT”) to attend before her on April 24, 2019, to determine whether Ms. Phan would continue to act as Mr. Nguyen’s guardian of property, or whether it was necessary to appoint the PGT as Mr. Nguyen’s litigation guardian. She also ordered the proceeds of the ATE Policy to be held in the appellant’s trust account pending further order of the court. [25] In March 2019, the appellant filed a notice of appeal from the order of the application judge dismissing his application. Aviva did not appeal the order dismissing its cross-application. (vi) The application judge appoints the PGT as Mr. Nguyen’s litigation guardian and orders the insurance proceeds paid into court [26] Neither Ms. Phan nor the PGT attended before the application judge on April 24, 2019. [27] On May 28, 2019, the application judge appointed the PGT as Mr. Nguyen’s litigation guardian. She also ordered the amounts being held in trust by the appellant to be paid into court. [28] On June 7, 2019, the appellant brought a motion for leave to appeal to the Divisional Court the order requiring payment of the proceeds into court. When the motion was scheduled to be heard, the appellant asked the Divisional Court to adjourn the motion pending the determination of the two appeals before this court. We were advised that the motion for leave to appeal remains pending before the Divisional Court. (vii) The second ruling: 2019 ONSC 5071 [29] On August 29, 2019, the application judge dismissed the appellant’s motion for a charging order over the proceeds of the ATE Policy to secure the appellant’s outstanding disbursement account of $80,689.06 and outstanding fee accounts of $19,310.94 and $11,872.22, for a total of $111,872.22. [30] She ruled that the motion sought essentially the same relief as the appellant’s earlier application – that the proceeds of the ATE Policy be applied to the appellant’s disbursements – though now through the mechanism of a charging order. She held that the motion was an impermissible collateral attack on her earlier decision and was also precluded by the doctrines of issue estoppel and abuse of process. [31] She also held that, in any event, the appellant did not meet the test for a charging order under s. 34(1) of the Solicitors Act . She found that there were no “fruits of the litigation” over which the appellant could claim a charging order, noting that “Mr. Nguyen recovered nothing in the litigation and is more indebted after the litigation than before it. Since no property was recovered or preserved in the proceeding, there can be no charging order.” She also rejected the suggestion that the appellant was instrumental in the “recovery or preservation” of the asset over which the charging order was sought. She found that the appellant simply sold the ATE Policy to Mr. Nguyen as an insurance intermediary. Finally, she agreed with the PGT that the appellant “should not be rewarded for brokering a contract between Mr. Nguyen and DAS when he knew that Mr. Nguyen had a litigation guardian and was incapable of entering into a contract.” [32] The application judge rejected the suggestion that the appellant’s claim for a charging order was an access to justice issue. She held that the appellant had shown no reason for the court to grant him quantum meruit as equitable relief, and to the contrary, had “provided ample grounds for concern” about his conduct in relation to Mr. Nguyen. [33] Lastly, the application judge rejected the applicant’s contention that the court should nevertheless determine his fees and disbursements under s. 19 of the Solicitors Act . She ruled that because this issue could and should have been raised on the appellant’s original application, she declined to address it now. She also stated that it would be inappropriate to assess the appellant’s fees and disbursements on a quantum meruit basis as the appellant’s entitlement to the proceeds of the ATE Policy was under appeal. C. analysis [34] The appeals raise two main issues: 1. Did the application judge err in finding the CFA to be unenforceable? 2. Did the application judge err in dismissing the motion for a charging order? [35] As we will elaborate, our answer to both questions is “no”. (1) Did the application judge err in finding the CFA to be unenforceable? [36] Section 5 of the CFA Regulation provides: 5. (1) A solicitor for a person under disability represented by a litigation guardian with whom the solicitor is entering into a contingency fee agreement shall, (a) apply to a judge for approval of the agreement before the agreement is finalized; or (b) include the agreement as part of the motion or application for approval of a settlement or consent judgment under rule 7.08 of the Rules of Civil Procedure. [37] Mr. Nguyen was a person under disability throughout the action and was represented by a litigation guardian, Ms. Phan. Still, the appellant concluded the CFA and Direction with Mr. Nguyen directly, not with Ms. Phan. As the PGT notes in its factum, the appellant’s instructing client was Ms. Phan, as litigation guardian, not Mr. Nguyen. [38] Nor did the appellant comply with s. 5(1)(a) of the CFA Regulation, which required him to apply to a judge for approval of the CFA before it was finalized. [39] And the appellant does not contend that s. 5(1)(b) applies. As the application judge noted, the appellant did not apply for approval of a settlement under r. 7.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [40] The appellant now asserts that the application judge erred by not enforcing the CFA under s. 24 of the Solicitors Act . He says that s. 24 permits a court to enforce a contingency fee agreement that breaches s. 5(1)(a) of the CFA Regulation, if the court finds that the contingency fee agreement is “fair and reasonable”. Section 24 provides: 24 Upon any such application, if it appears to the court that the agreement is in all respects fair and reasonable between the parties, it may be enforced by the court by order in such manner and subject to such conditions as to the costs of the application as the court thinks fit, but, if the terms of the agreement are deemed by the court not to be fair and reasonable, the agreement may be declared void, and the court may order it to be cancelled and may direct the costs, fees, charges and disbursements incurred or chargeable in respect of the matters included therein to be assessed in the ordinary manner. [41] We reject the appellant’s argument, for two reasons. [42] First, as conceded by counsel for the appellant during oral argument, this argument was not raised before the application judge. It therefore cannot be raised on appeal. As a general rule this court will not entertain entirely new issues on appeal: see, e.g., Kaiman v. Graham , 2009 ONCA 77, 245 O.A.C. 130, at para. 18. [43] Second, in any event, even if we assume that s. 24 could apply to a contingency fee agreement entered into by a person under disability without the participation of their litigation guardian, the application judge declined to approve the CFA. Based on the findings she made, we conclude that the CFA was not fair, reasonable, and in Mr. Nguyen’s best interest. As a result, we would not enforce it under s. 24. [44] The fairness requirement of s. 24 concerns “the making of the fee agreement and whether the client fully understood and appreciated the nature of the agreement that he executed”: Chrusz v. Cheadle LLP , 2010 ONCA 553, 272 O.A.C. 1, at para. 31. The application judge’s findings confirm that this standard was not met: · The CFA was executed by Mr. Nguyen, not by Ms. Phan, who was not present. The appellant “was aware of this and ought to have ensured that Ms. Phan was present when he asked Mr. Nguyen to enter into the CFA.” Once Ms. Phan was appointed litigation guardian, the appellant “was required to obtain instructions from her.” It was not open to the appellant “to disregard” Ms. Phan’s role as litigation guardian. Given the appellant’s relationship with Mr. Nguyen, Mr. Nguyen “might have signed anything” that the appellant requested. · A capacity assessment ordered by the Superior Court found that Mr. Nguyen “had little understanding” of his civil action. He “lacked the capacity to instruct his lawyer and to make decisions concerning the financial and legal matters involved in his litigation.” · The timing of the signing of the CFA “suggests that it was entered into solely for the purpose of obtaining the ATE Policy.” [45] The appellant has advanced no basis to impugn any of these findings of the application judge, which are entitled to appellate deference: Chrusz , at paras. 13, 37. Based on these findings, we decline to approve the CFA under s. 24 of the Solicitors Act . [46] The appellant also asserts that Mr. Nguyen’s agreement to pay disbursements under the CFA is severable and should be enforced, even if the CFA is invalid. He also relies on s. 9 of the CFA Regulation, which he says provides him with a first charge on the proceeds of the ATE Policy. Section 9 provides: 9. (1) If the client is responsible for the payment of disbursements or taxes under a contingency fee agreement, a solicitor who has paid disbursements or taxes during the course of the matter in respect of which services were provided shall be reimbursed for the disbursements or taxes on any funds received as a result of a judgment or settlement of the matter. (2) Except as provided under section 47 of the Legal Aid Services Act , 1998 (legal aid charge against recovery), the amount to be reimbursed to the solicitor under subsection (1) is a first charge on the funds received as a result of the judgment or settlement. [47] Once again, these arguments were not raised before the application judge, and therefore cannot be raised on appeal. [48] In any event, on these facts, we would not order the payment of disbursements under the CFA: the CFA was concluded with a person under disability and was found to be unenforceable. As explained above, we would not enforce it either. (2) Did the application judge err in dismissing the motion for a charging order? [49] The appellant’s second appeal seeks to overturn the application judge’s order dismissing his motion for a charging order. The application judge held that the motion was a collateral attack on her earlier decision, precluded by issue estoppel, and an abuse of the court’s process. She also held that, if she was wrong in these conclusions, the appellant failed to meet the test for a charging order. [50] Because we conclude that on these facts it was fully open to the application judge to find that the appellant failed to meet the test for a charging order, it is unnecessary to address whether the motion was precluded by the doctrines of collateral attack, issue estoppel, and abuse of process. [51] The appellant sought a charging order under s. 34(1) of the Solicitors Act : 34 (1) Where a solicitor has been employed to prosecute or defend a proceeding in the Superior Court of Justice, the court may, on motion, declare the solicitor to be entitled to a charge on the property recovered or preserved through the instrumentality of the solicitor for the solicitor’s fees, costs, charges and disbursements in the proceeding. [52] The principles governing the granting of a charging order under s. 34(1) were summarized by this court in Weenan v. Biadi , 2018 ONCA 288, 141 O.R. (3d) 276, at paras. 14-15: · To obtain a charging order on the monies in issue, the onus is on the solicitor to demonstrate that a charging order is warranted; · The decision is discretionary. In deciding whether to exercise that discretion, the court must “balance the circumstances and equities of each case and client”; and · To obtain a charging order, the solicitor must demonstrate that: i. the fund or property is in existence at the time the order is granted; ii. the property was “recovered or preserved” through the instrumentality of the solicitor; and iii. there must be some evidence that the client cannot or will not pay the lawyer’s fees. [53] The appellant asserts that the motion judge erred in concluding that the appellant had not established that his work was instrumental to the recovery or preservation of the property. Repeating the argument he made before the application judge, he contends that he arranged for the ATE Policy and performed the work on Mr. Nguyen’s civil action that led to payment of the policy proceeds. [54] The application judge rejected these arguments. She found that the appellant “simply sold Mr. Nguyen the ATE Policy” as an insurance intermediary. She agreed with the submission of the PGT that the appellant “should not be rewarded for brokering a contract between Mr. Nguyen and DAS when he knew that Mr. Nguyen had a litigation guardian and was incapable of entering into the contract.” She also found that the ATE Policy proceeds were not the “fruits of the litigation” because “Mr. Nguyen recovered nothing in the litigation and is more indebted after the litigation than before it. Since no property was recovered or preserved in the proceeding, there can be no charging order.” [55] We see no error in the application judge’s findings or in her exercise of discretion based on the evidence before her. [56] We also agree with the submission of the PGT in its factum that “the facts of this case are nothing less than shocking”, and that it would offend the principles of fairness and justice to reward the appellant, through the payment of fees and disbursements, for entering into the CFA with Mr. Nguyen, brokering an insurance contract between him and DAS, and having Mr. Nguyen sign a direction to him, when he knew that Mr. Nguyen was incapable of making these decisions and had a litigation guardian from whom the appellant was supposed to take instructions. D. Disposition [57] The appeals are dismissed. The appellant is ordered to pay costs of $20,000 to the respondent Mr. Szot and $11,000 to the PGT, inclusive of disbursements and taxes. Released: June 17, 2020 (“E.E.G.”) “E.E. Gillese J.A.” “David Brown J.A.” “M. Jamal J.A.” [1] In December 24, 2015, Mr. Nguyen’s claim for statutory accident benefits in an arbitration at the Financial Services Commission of Ontario was dismissed: Nguyen v. TD Home and Auto Insurance Co. , 2015 CarswellOnt 20301. A statutory appeal and an application for judicial review of this decision brought by the appellant on Mr. Nguyen’s behalf were also dismissed: Nguyen v. TD Home and Auto Insurance Co., 2017 CarswellOnt 2650; Nguyen v. TD Home and Auto Insurance Company , 2018 ONSC 7166 (Div. Ct.).

COURT OF APPEAL FOR ONTARIO CITATION: Pinder Estate v. Farmers Mutual Insurance Company (Lindsay), 2020 ONCA 413 DATE: 20200625 DOCKET: C64857 van Rensburg, Benotto and Harvison Young JJ.A. BETWEEN Clarkson Murray Pinder, Douglas Michael Pinder, Cindy Pinder, Estate Trustees of the estate of Joyce Pinder, deceased, and Cindy Pinder Plaintiffs (Appellants) and Farmers Mutual Insurance Company (Lindsay) Defendant (Respondent) Earl A. Cherniak, Q.C. and Alfred M. Kwinter, for the appellants Martin P. Forget, for the respondent Heard: December 10, 2019 On appeal from the judgment of Justice Mary E. Vallee of the Superior Court of Justice, sitting with a jury, dated May 9, 2018, with reasons for decision on post-trial motions reported at 2018 ONSC 2910, and the costs judgment, dated January 25, 2019, with reasons reported at 2019 ONSC 610. van Rensburg J.A.: I. OVERVIEW [1] This is an appeal of a judgment after trial by judge and jury dismissing the claims of the appellants, Joyce Pinder and Cindy Pinder and of the award of costs against them. [1] The appellants, who were mother and daughter, made a claim under their home insurance policy after a fire destroyed the house owned by Joyce and occupied by Cindy, along with most of its contents. The respondent, Farmers’ Mutual Insurance Company (Lindsay) (“Farmers’ Mutual” or the “insurer”), denied coverage, and litigation resulted. The appellants sued for a declaration of coverage under their insurance policy and for damages, alleging that the insurer had acted in bad faith in handling and denying their claim. The insurer also brought a claim seeking to recover from the appellants the amount it had paid out to Joyce’s mortgagee. [2] The jury answered all applicable questions against the appellants. Based on the jury’s answers to these questions, the trial judge concluded that the appellants had violated statutory condition 4 of their fire insurance (by failing to notify the insurer of a material change in risk), with the effect that their policy was voided, and that they had made wilfully false statements in their Proof of Loss, vitiating their claim pursuant to statutory condition 7. The trial judge dismissed the appellants’ claim under the policy, as well as their claim for damages based on breach of the insurer’s duty to act in good faith, and their claim for punitive and aggravated damages. She refused to grant the appellants relief from forfeiture. She awarded damages of $97,143.97 against Cindy and Joyce (the insurer’s pay-out of the outstanding mortgage on the house) and awarded the insurer costs of both proceedings in the total amount of $616,843.27. A significant portion of the costs were awarded on a substantial indemnity basis. [3] There are several grounds of appeal that principally relate to the trial judge’s instructions to the jury on the factual issues they had to determine in respect of statutory conditions 4 and 7. The appellants also take issue with the trial judge’s decision to refuse them relief from forfeiture and assert that the trial judge erred in her costs award. [4] For the reasons that follow, although there are certain issues in respect of which I would find for the appellants, I am satisfied that their claim was properly dismissed on the basis of the wilful misstatements in the Proof of Loss, and that there was no error in the trial judge’s dismissal of the motion for relief from forfeiture. I would therefore dismiss the appeal of the judgment dismissing the appellants’ action. [5] With respect to the costs judgment, in my view, the trial judge erred in awarding costs on a substantial indemnity basis from the date of the insurer’s offer to settle. I would allow the costs appeal and substitute an order for partial indemnity costs in favour of the insurer in the all-inclusive amount of $430,000. II. FACTS (1) The loss [6] The appellants brought an action against the insurer, seeking coverage for their losses under their home insurance policy following a fire, and asserting that the insurer had acted in bad faith in its handling of their claim. [7] The fire took place in the early morning hours of February 2, 2004 at a house in Lindsay, Ontario that was purchased by Joyce in 1999, and occupied by her daughter Cindy and Cindy’s son. Joyce paid the mortgage and property taxes and Cindy was responsible for paying utilities. Cindy owned the contents of the house. [8] On the night of the fire, Cindy’s son was staying overnight with his grandmother and Cindy was at her boyfriend’s home, where they were busy sanding floors. Cindy and her boyfriend returned to her home at approximately 3:30 a.m. to find the house on fire. The fire destroyed the house and its contents, and claimed the lives of Cindy’s two dogs. [9] The house had been heated by a gas furnace. In July 2003, the gas supply to the house had been cut off. Cindy’s evidence was that she was using a wood stove as her primary source of heat, supplemented by space heaters when it was very cold. She testified that when she left the house the evening before the fire, she had left a log in the wood stove and the space heaters in three rooms turned half on. [10] Cindy and Joyce retained Tom Yates, an independent insurance adjuster, to assist with their insurance claim. They filled out and signed a Proof of Loss, dated March 29, 2004. The Proof of Loss claimed $172,412 for the house, $104,000 for the contents, and $26,000 for Cindy’s additional living expenses. Cindy prepared a Schedule of Loss that listed the contents that she claimed were lost in the fire. The Schedule of Loss was attached to the Proof of Loss. As stated in the Proof of Loss, the Schedule of Loss “forms part of [the] proof”. The Proof of Loss and Schedule of Loss were prepared with the assistance of Mr. Yates. [11] The insurer requested additional information about the items listed in the Schedule of Loss that were valued at over $500. There was a great deal of evidence at the trial about the steps taken to ascertain the existence and value of the various items that Cindy claimed to have lost in the fire. [12] Cindy’s evidence was that she indicated, to the extent she was able, where and when she had purchased or acquired each item, where each item was located in the house, and her belief as to its replacement cost. She did not provide proof of purchase for a number of items, claiming that she had paid for a significant number of items in cash and had inherited other items from family members. The insurer’s evidence was that Cindy had failed to attend at the house to review the items on her list and that she had not provided evidence of the existence or value of certain items that they had expected her to be able to provide. [13] The insurer paid an advance to Cindy for the contents and the cost of certain alternate living expenses. The insurer also paid the sum of $97,143.97 to Joyce’s mortgagee. [14] Farmers’ Mutual formally denied coverage by letter dated May 27, 2004, addressed to Mr. Yates. The reasons were that (1) the appellants failed to notify the insurer of the change in the heating system of the premises, which constitutes a material change in the risk contrary to statutory condition 4, voiding the policy; and (2) the appellants made wilfully false statements with respect to the contents claim, and the claim for alternate living expenses, contrary to statutory condition 7, vitiating their right to recover. [2] [15] The appellants invoked the appraisal provisions of the policy under s. 128 of the Insurance Act , R.S.O. 1990, c. I.8. The insurer resisted and, following an order of this court, the appraisal proceeded. An appraisal award was made, dated March 30, 2007. The appellants’ loss was fixed at $182,382.50 on a replacement cost basis and $104,375 on an actual cash basis for the building claim. With regard to the contents claim, the loss was adjusted at $88,808.81 and the additional living expenses claim was fixed at $10,725.60. The parties agree that the appraisal award was provisional. Because they were involved in litigation, the appraisal did not consider whether or not the specific items listed in the Schedule of Loss existed or had been damaged or destroyed by the fire, but only established their value. (2) The terms of the appellants’ insurance policy [16] The appellants’ home insurance policy was in force for the term February 26, 2003 to February 26, 2004. The policy provided for limits of $130,000 for the house and $104,000 for the contents, on a replacement cost basis. Both Cindy and Joyce were listed as insureds. [17] The declaration page indicated that the primary heat was “Central Furnace”. It also stated: “No Wood Heating Unit in use other than an Unaltered Masonry Fireplace, Wood Pellet, Wood or Combination Furnace”. [18] Pursuant to s. 148 of the Insurance Act , the policy contained statutory conditions applicable to fire insurance contracts, including the following: Material Change 4. Any change material to the risk and within the control and knowledge of the insured avoids the contract as to the part affected thereby, unless the change is promptly notified in writing to the Insurer or its local agent, and the insurer when so notified may return the unearned portion, if any, of the premium paid and cancel the contract, or may notify the insured in writing that, if the insured desires the contract to continue in force, the insured must, within fifteen days of the receipt of the notice, pay to the insurer an additional premium, and in default of such payment the contract is no longer in force and the insurer shall return the unearned portion, if any, of the premium paid. Requirements After Loss 6. (1) Upon the occurrence of any loss of or damage to the insured property, the insured shall, if the loss or damage is covered by the contract (a) forthwith give notice thereof in writing to the insurer; (b) deliver as soon as practicable to the insurer a proof of loss verified by a statutory declaration, (i) giving a complete inventory of the destroyed and damaged property and showing in detail quantities, costs, actual cash value and particulars of amount of loss claimed, (ii) stating when and how the loss occurred, and if caused by fire or explosion due to ignition, how the fire or explosion originated, so far as the insured knows or believes, (iii) stating that the loss did not occur through any wilful act or neglect or the procurement, means or connivance of the insured, (iv) showing the amount of other insurances and the names of other insurers, (v) showing the interest of the insured and of all others in the property with particulars of all liens, encumbrances and other charges upon the property, (vi) showing any changes in title, use, occupation, location, possession or exposures of the property     since the issue of the contract, (vii) showing the place where the property insured was at the time of loss. (c) if required, give a complete inventory of undamaged property and showing in detail quantities, cost, actual cash value; (d) if required and if practicable, produce books of account, warehouse receipts and stock lists, and furnish invoices and other vouchers verified by statutory declaration and furnish a copy of the written portion of any other contract. (2) The evidence furnished under clauses (1) (c) and (d) of this condition shall not be considered proofs of loss within the meaning of conditions 12 and 13. Fraud 7. Any fraud or wilfully false statement in a statutory declaration in relation to any of the above particulars, vitiates the claim of the person making the declaration. (3) The trial [19] The trial took place over 15 days in December 2017. Cindy testified. Other witnesses for the appellants were Mr. Yates, Cindy’s son, Cindy’s friend and former house cleaner, as well as the police officer who investigated the fire for arson. Joyce, who was 91 years old at the time, did not testify, but some of her discovery evidence was read in as part of the insurer’s case. [20] The insurer’s witnesses were Luc Coutu, the claims representative for Farmers’ Mutual, Shawn Barrett, a co-owner of the restoration company Chem-Dry of the Kawarthas, Durham and York (“Chem-Dry”), a real estate agent who listed the house for sale before the fire, and a home inspector who attended the house the day before the fire. [21] The following are the relevant jury questions and answers: Question 1: Did the plaintiffs use portable electric heaters as their primary source of heat after July 2003 when the gas supply to the property, 49 Rideout Street Lindsay, was cut off? Answer: Yes. Question 2: If your answer to the above question is yes, was the change of the heat source within the knowledge and control of either plaintiff? Answer: Yes. Question 3: If your answer to the above question is yes, did the change in heat source constitute a material change in risk that the plaintiffs were required to report to the defendant? Answer: Yes. Question 4: If your answer to question one is yes, did the plaintiffs report the change in heat source to the defendant promptly and in writing? Answer: No. Question 5: Did the plaintiffs make a wilfully false statement in the Proof of Loss form and the schedules? Answer: Yes. Question 6: If your answer to the above is yes, having regard to Exhibit 1 [the insurer’s list of items it questioned], please indicate, on the attached sheets, the items about which the plaintiffs made wilfully false statements. Answer: [The jury checked off 39 of the 68 items listed in Exhibit 1.] Question 11: Was the conduct of the defendant insulting, high-handed, spiteful, malicious, or oppressive with respect to the manner in which it handled the plaintiffs’ claim such that it warrants an award of aggravated damages? Answer: No. [22] The jury did not provide answers to the remaining questions, which dealt with whether the insurer had breached its duty to act in good faith and punitive damages, in the event that the jury answered “no” to Questions 1 and 5. [23] After the jury gave its verdict, the insurer moved for judgment dismissing the appellants’ claims and an order requiring repayment of the funds it had paid to Joyce’s mortgagee. The appellants brought a cross-motion requesting the following: (1) that judgment not be entered in accordance with the jury’s verdict, on the basis that there was no evidence at trial to support the jury’s answer to Question 1, and that its verdict was therefore perverse; (2) relief from forfeiture; (3) judgment in accordance with the property appraisal and Proof of Loss; and (4) the dismissal of the insurer’s motion. [24] The insurer’s motion was granted, the cross-motion was dismissed, and judgment was entered for the insurer. In dismissing the cross-motion, the trial judge found that there was sufficient circumstantial evidence before the jury to support its answer to Question 1, that the appellants were using portable electric heaters as their primary heat source at the time of the fire. She also refused to grant relief from forfeiture on the basis that this was not a case of imperfect compliance. [25] The parties made written submissions on costs and attended to provide oral submissions to the trial judge. The trial judge awarded costs of $616,843.27 against the appellants. Substantial indemnity costs were awarded after the date of the insurer’s offer to settle, dated November 19, 2010. III. ISSUES [26] The appellants raise a number of issues on appeal. Although the issues were stated somewhat differently by the appellants in their factum and in oral argument, I have organized the issues, and will address them in my reasons, as follows: 1. Was there a reversible error with respect to statutory condition 4? In particular: a. Was there evidence to support the jury’s finding (in response to Question 1) that electric heaters were the primary heat source in the house? b. Did the trial judge err in her instructions in response to a question from the jury about the meaning of “primary heat source”? c. Was there evidence to support the jury’s finding (in response to Question 3) that the change in heat source constituted a material change in risk? 2. Was there a reversible error with respect to statutory condition 7? In particular: a. Did the trial judge err in her instructions to the jury about the evidence of certain witnesses? b. Did the trial judge err in her instructions about the intention required for a “wilfully false statement”? c. Did the trial judge err in failing to instruct the jury to consider separately whether each of Joyce and Cindy made wilfully false statements? 3. Did the trial judge err in refusing relief from forfeiture? 4. Did the trial judge err in her award of costs? [27] If they are successful on appeal, the appellants ask that this court set aside the dismissal of their action and grant judgment in their favour, in the amounts set out in the appraisal award. If necessary, they ask that a new trial be ordered to resolve Cindy’s claim. The appellants also ask that the costs award be set aside or reduced. IV. ANALYSIS (1) Was there a reversible error with respect to statutory condition 4? [28] Statutory condition 4 required “[a]ny change material to the risk and within the control and knowledge of the insured” to be promptly notified in writing to the insurer, failing which the insurance contract would be avoided as to the part affected thereby. [29] The insurer’s position, as it went to the jury [3] , was that the electric heaters, which were turned half on when the fire occurred, were used as the primary heat source, and that this was a material change in risk that was not disclosed to the insurer. Cindy testified that she was using a wood stove as her primary heat source, which she supplemented with electric heaters when it got very cold. [30] The appellants make three arguments with respect to statutory condition 4. First, they submit that there was no evidence to support a positive answer to Question 1. Second, they argue that the trial judge misdirected the jury in her response to their question on the definition of “primary heat source”. Third, they contend that there was no evidence on what constitutes a material change in risk. I would not give effect to the first argument, but I would give effect to the second and third arguments, with the result that the conclusion that the appellants were in breach of statutory condition 4 cannot stand. (a) There was evidence to support the jury’s answer to Question 1 [31] The appellants’ first argument is that there was no evidence to support the jury’s affirmative answer to Question 1: “Did the plaintiffs use portable electric heaters as their primary source of heat after July 2003 when the gas supply to the property, 49 Rideout Street Lindsay, was cut off?”. [32] The appellants submit that the only witnesses to testify on this issue were unanimous that the primary heat source was the wood stove, and that the portable electric heaters were used as a supplemental heat source on very cold days. They explain that, because Cindy was not cross-examined on this point, there was no contradictory evidence. They point to the evidence of Mr. Coutu, the insurer’s claims representative, who admitted that he had heard no one testify at trial that the appellants were using electric heaters as their primary heat source. [33] This argument can be addressed briefly. The same argument was made to and rejected by the trial judge in the appellants’ motion asking that she refuse to enter a verdict reflecting the jury’s answer to Question 1. [34] In her written reasons, the trial judge stated the following, at paras. 13 to 15: Cindy Pinder’s evidence was that she left home at approximately 5:30 p.m. on Sunday, February 1, 2004 and returned at approximately 3:30 a.m. on Monday February 2, 2004 to find the house on fire. According to a statement that she gave to the insurer on Monday February 2, 2004 at 3:30 p.m. right after the fire, Cindy Pinder said that on the night of the fire, there was one stick of wood in the wood stove. It was “one of the bought wood.” She agreed that it was a “fire log”. Three space heaters were turned “half on”. Her trial testimony was consistent with this. The fact that a witness, Mr. Coutu, testified that he had not heard any evidence at trial that the plaintiffs were using ceramic or electric heaters as their primary source of heat does not determine this matter. The question was for the jury to decide. There is no dispute that the defendant did not challenge Cindy Pinder on this evidence. Nevertheless, it was open to the jury to believe some, none or all of her evidence. In his closing submissions, defence counsel reminded the jury of the rooms in the house where the portable electric heaters were located (kitchen, bathroom and bedroom) and the fact that there was only one log in the wood stove at 5:30 p.m. when Ms. Pinder left. He suggested that the three portable electric heaters were used to heat approximately half of the space in the residence. He asked the jury to draw an inference that Cindy Pinder was using the portable heaters as her primary source of heat. It was open to the jury to draw that inference. Plaintiffs’ counsel did not object to the defendant’s closing address. [35] I agree with the trial judge that whether the appellants were using electric heaters as their primary heat source was a question for the jury to decide, based on the evidence, and not on Mr. Coutu’s recollection of the evidence. Although no witness contradicted Cindy, and she was not challenged on this point in cross-examination, it was open to the jury to conclude, based on the circumstantial evidence before them, that the space heaters were being used as the primary source of heat in the home. This circumstantial evidence included the fact that the gas had been turned off, the number of space heaters in use, and their location in various rooms of the house. [36] Accordingly, I would not give effect to the appellants’ argument that there was no evidence to support the jury’s answer to Question 1. [37] There were, however, two other problems in relation to the insurer’s defence based on breach of statutory condition 4 in this case. I turn to these now. (b) The trial judge’s answer to a jury question about the “primary heat source” resulted in misdirection on a material issue [38] In the course of their deliberations, the jury asked the following question: We would like to know the correct meaning of primary heat source, what is the definition? Is the only source of heat the same as primary source of heat? That is, if the wood stove is out and the electric heaters are on, they are the only source of heat, but are they now the primary source of heat? [39] After discussing the question with counsel, the trial judge recalled the jury and provided the following response: There is no definition of the meaning of primary heat source. And I’m going to read to you from Exhibit 2, Page 10, which is the statement that Ms. Pinder gave to Mr. Coutu on February 2, 2004, and I’m reading from about half the way down the page. Luke: Now, you mentioned there was a wood stove. So there was a wood fire on at that time? Cindy: There was one stick of wood in it and it was one of the bought wood. Luke: Fire logs? Cindy: Yes. [Luke:] And what other source of heat did you have in the house? Cindy: Had heaters on. Luke: What kind of heaters? Cindy: Space heaters. One in the kitchen. One in the bathroom. One in the bedroom. And they were turned half on. So that is the answer to your question. [40] The appellants submit that the trial judge did not respond in any meaningful way to the jury’s question, with the effect that the jury was misdirected with respect to Question 1. [41] The insurer asserts that the jury received a proper and complete answer to their question: it was correct for the trial judge to respond that there was no definition of “primary heat source” because this was not a term that was defined anywhere in the insurance policy. Moreover, according to the insurer, it would have been inappropriate for the trial judge to provide an answer to what, in the end, was a hypothetical question. [42] In R. v. Grandine , 2017 ONCA 718, 355 C.C.C. (3d) 120, this court confirmed the importance of a trial judge’s full and proper answer to any question asked by the jury. Brown J.A. explained, at para. 62: Jury questions indicate some jurors need help. They are having a problem with an issue in the case. A question usually concerns an important point in the jury’s reasoning, identifying an issue on which the jury requires direction: R. v. W.D.S. , [1994] 3 S.C.R. 521, at paras. 14-18; R. v. M.T. , 2012 ONCA 511, 289 C.C.C. (3d) 115, at para. 114. Answers to jury questions are extremely important, carrying an influence far exceeding instructions given in the main charge. The practical reality is that such answers will be given special emphasis by jurors: R. v. Naqlik , [1993] 3 S.C.R. 122, at p. 139; W.D.S. , at para. 16. Consequently, a trial judge must fully and properly answer a question asked by the jury: R. v. Stubbs , 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 95. See also R. v. Goudreau , 2019 ONCA 964, at paras. 36-37. [43] The jury’s question in this case indicated that they needed help with the meaning of “primary heat source”. Specifically, they requested guidance on whether a heat source that was being used at the time another heat source failed would become a “primary heat source”. It was the gist of Cindy’s evidence that she was using the wood stove as her primary heat source, and that the electric heaters were only used as back-up. There was also evidence that, on the night of the fire, three electric heaters were turned on halfway and that there was only one log in the wood stove from 5:30 p.m. until the time of the fire. [44] In his submissions on the jury question, the appellants’ trial counsel proposed, at one point, that the jury be told that the primary source of heat would be the main source of heat that was used to heat the home on a day-to-day basis. The insurer’s counsel argued that, because “primary heat source” was not defined in the insurance policy, the jury should be informed that there was no definition, and that to go any further other than to summarize some of the evidence that was heard would be to answer a hypothetical question. The trial judge appears to have accepted the argument of the insurer’s counsel. [45] Not all errors in a jury charge will amount to misdirection. The question on appellate review is whether the charge provided the jury with adequate assistance to determine the questions it had to decide: Samms v. Moolla , 2019 ONCA 220, at para. 48; Little v. Floyd Sinton Limited , 2019 ONCA 865, 149 O.R. (3d) 38, at para. 18. The adequacy of the trial judge’s response to the jury’s question must be assessed in light of the fact that the jury is seeking clarification on an issue that is assumed to have taken on some prominence, at least in the mind of one juror. The trial judge’s response must, however, like the rest of the charge, be considered as a whole: R. v. Graham , 2019 ONCA 347, 377 C.C.C. (3d) 205, at para. 35. [46] In my view, the trial judge’s response to the jury’s question was inadequate to the extent that it constituted a misdirection on an important issue at trial. When the jury asked for a definition of “primary heat source”, their question continued: “Is the only source of heat the same as primary source of heat? That is, if the wood stove is out and the electric heaters are on, they are the only source of heat, but are they now the primary source of heat?” It is apparent that the jury was concerned about how they should assess the evidence that, when Cindy left the home, there was only one log in the wood stove. The jury ought to have been told that the primary heat source was the source of heat that was relied on to heat the home on a daily basis, which appears to have been the common understanding of counsel. [47] The insurer’s position was that the space heaters were being used regularly as the primary heat source. No one at trial had suggested that the space heaters, which were set at 50 percent power at the time, would automatically become the primary heat source if the fire in the wood stove had gone out. Yet, this was the focus of the jury’s question. The trial judge’s answer was not responsive to the jury’s concern. As a result, the jury may well have reasoned, incorrectly, that, because there was only one log on the fire at 5:30 p.m. the night before, the fire in the wood stove would have gone out at some point, so that, at the time of the fire the space heaters had automatically become the primary heat source. (c) There was no evidence to support the conclusion that the change in heat source constituted a material change in risk [48] Although it is unnecessary for the disposition of this part of the appeal, I will comment briefly on Question 3: “Did the change in heat source constitute a material change in risk that the plaintiffs were required to report to the defendant?” [49] The breach of statutory condition 4 was not in the appellants’ failure to report a change in heat source. Rather, it was in their failure to report something that would be a material change in risk. After concluding, in response to Questions 1 and 2, that there was a change in the primary heat source that was within the knowledge and control of either appellant, the jury had to determine whether the change in heat source constituted a “material change in risk”. Indeed, the first four jury questions had to be answered in the insurer’s favour for the policy to be voided for breach of statutory condition 4. While a change in heat source could be a material change in risk, this was not conceded in the trial, and it was a separate question for the jury to determine. [50] In her charge to the jury, the trial judge provided the following instructions on statutory condition 4 and the insurer’s obligation to prove a material change in risk: Regarding what is material, every fact is material which would, if known, reasonably affect the minds of prudent and experienced insurers in deciding whether they will accept the contract or in fixing the amount of the premium to be charged if they accepted the contract. The insured is not required to believe that the change is material to her policy. A change in primary heat source may be a material change in risk. The critical point is the knowledge of the insured. Regarding it, the change is decisive. [51] Counsel had agreed that this was the appropriate formulation of the test to establish what constitutes a “material change in risk”. This test was stated in Johnson v. British Canadian Insurance Co. , [1932] S.C.R. 680, at p. 686. See also Pereira v. Hamilton Township Farmers’ Mutual Fire Insurance Co. (2006), 267 D.L.R. (4th) 690 (Ont. C.A.), at para. 65. [52] When summarizing the evidence relating to material change in risk, the trial judge gave the following instructions to the jury regarding the lack of evidence on the issue of materiality: [T]here was no evidence in this trial regarding what could reasonably affect the minds of prudent and experienced insurers in deciding whether they will accept the contract or in fixing the amount of the premium to be charged. You must keep this in mind when you are answering question three. [53] This instruction was a response to the concern raised by the appellants’ trial counsel during pre-charge discussions regarding the lack of evidence at trial on what constitutes a “material change in risk”. [54] There was no evidence at trial by an underwriter, or any other qualified witness, as to what would constitute a material change in risk for an insurer in accepting the contract or fixing the amount of the premium. Indeed, counsel for both parties objected when the other side invited their respective witnesses (Mr. Yates, in the case of the appellants and Mr. Coutu in the case of the insurer) to provide an opinion on this point. Counsel’s objections were grounded in the fact that the witnesses were not qualified to provide evidence on whether the alleged change in the primary heat source would have affected the insurer’s decision to provide coverage or the amount of the premium. The trial judge agreed and upheld the objections. After the trial judge ruled that Mr. Coutu could only testify that there was a change in the heating system, the insurer’s counsel remarked that he “may have to call an underwriter”, but no underwriter was called to testify. [55] In his closing address, when discussing whether the alleged change in heat source constitutes a “material change in risk”, the insurer’s counsel argued that, because the homeowner’s questionnaire requested particulars of the type of heating, and the primary heat source was indicated on the declaration page of the policy, heating was an “important issue” for the insurer and was thus “material”. However, this is not evidence that the change in heat source would have affected the insurer’s decision to accept the contract or to charge a certain premium. [56] Again, there was no evidence in this trial, as the trial judge observed in her instructions to the jury, to establish what “reasonably affects the minds of prudent and experienced insurers in deciding whether they will accept the contract or in fixing the amount of the premium to be charged.” By contrast, in Wolfe v. Western General Mutual Insurance (2000), 21 C.C.L.I. (3d) 210 (Ont. S.C.), a case referred to by counsel, where a change in heat source was found to have been a material change in risk, the insurer tendered evidence from a retired underwriting manager who testified about industry practices in affording coverage and setting premiums: see para. 14. [57] Without evidence to support the jury’s affirmative answer to Question 3, there could be no finding that the appellants had failed to notify the insurer of a material change in risk, and that they therefore were in breach of statutory condition 4. (d) Conclusion on statutory condition 4 [58] Accordingly, both the trial judge’s failure to provide an adequate response to a question by the jury with respect to the definition of “primary heat source”, and the absence of evidence to support the jury’s answer to Question 3, call into question the conclusion that the appellants were in breach of statutory condition 4. If that were the only reason for denial of their claim, I would have been inclined to allow the appeal, on the basis that these errors produced a “substantial wrong or miscarriage of justice”: Courts of Justice Act , R.S.O. 1990, c. C.43, s. 134(6). However, as I will explain, with respect to statutory condition 7, there was no error in the trial judge’s directions respecting certain evidence, her instructions on the law, or her conclusion that the appellants’ wilful misstatements vitiated their claim. I turn to those issues now. (2) Was there a reversible error with respect to statutory condition 7? [59] The appellants argue a number of points with respect to statutory condition 7, which I have grouped as follows: 1. Did the trial judge err in her instructions about the evidence of certain witnesses? 2. Did the trial judge err in her instructions respecting the intention required for a wilful misstatement? 3. Did the trial judge err in her formulation of Question 5, by not requiring the jury to consider separately whether Cindy or Joyce made wilful misstatements? [60] I will address each question in turn. (a) The trial judge did not err in her instructions to the jury about the evidence of certain witnesses [61] The appellants assert that the trial judge erred in: (1) instructing the jury not to consider whether the appellants were “honest people”; (2) failing to instruct the jury to disregard the opinion evidence of Mr. Barrett, who was not a qualified expert witness; and (3) failing to caution the jury about Mr. Coutu’s credibility after he was improperly allowed to remain in the courtroom while other witnesses testified. The appellants contend that these errors compromised the fairness of the trial. [62] For the following reasons, I would not give effect to these arguments. (i) The trial judge properly instructed the jury not to consider whether the appellants were “honest people” [63] In his closing address, the appellants’ trial counsel repeatedly framed the issue between the parties as whether Cindy and Joyce were “honest people”. He stated: This case comes down to whether Cindy Pinder and Joyce Pinder are honest people. Either they’re honest people or they’re not, and if they’re not honest people then you will answer certain questions in a certain way, and that will be the end basically[.] [I]f we don’t get past the first part of this case, the policy part, you won’t have to consider the second part, because you’ll have decided that these are honest people, if that’s the case, and that’ll be the end of it[.] On one side, you have an insurance company that is acting in a certain way, and on the other hand, you have two people, because they’re both being denied the claim because of wilfully false statements, both of them, what they’re doing, and decide who is being dishonest. Who is being honest – Is anyone being dishonest? They decided to call Cindy and Joyce liars, “you’re liars”, because that gets them off the hook on the entire claim[.] [64] The insurer’s counsel objected on the basis that it was wrong to characterize the case as whether or not Cindy and Joyce were “honest people”. The trial judge agreed. At the outset of her charge, she instructed the jury that, in relation to whether a wilfully false statement was made, they were not to consider “the broad question of whether the plaintiffs [were] honest people” or “whether the plaintiffs [were] the sort of people who would scam an insurance company”. She reviewed the elements required for a wilful misstatement, which she addressed in greater detail later in the charge. [65] The appellants submit that this instruction was wrong. They assert that the trial judge ought not to have instructed the jury to disregard the submission about whether they were honest people because they could have been honestly mistaken in making various statements in the Proof of Loss. [66] I disagree. The trial judge recognized the difference between the “honest people” submission the appellants’ trial counsel was putting to the jury and the point of law their appellate counsel makes on appeal – that the appellants could have made an honest mistake in completing the Proof of Loss. In the course of her charge, the trial judge properly instructed the jury that honest mistakes do not amount to a wilfully false statement when she stated: A statement will not be a wilfully false statement if the person who made the statement had an honest belief in its truth. The honest belief in the truth must be grounded in a reasonable foundation. A person making a statement cannot shut his or her eyes to the facts or purposefully refrain from inquiring into them. [67] While it was relevant for the jury to consider whether Cindy had an honest belief in the truth of the statements she made about the existence and value of items listed in the Schedule of Loss, it was not appropriate for the appellants’ trial counsel to simply frame the issue as whether she and her mother were “honest people”. As the trial judge pointed out, the jury was not called upon to answer the “broad question” of whether Cindy and Joyce were “honest people”. The issue was whether they had made wilfully false statements in the Proof of Loss. There was no error in the trial judge’s direction on this point. (ii) No trial unfairness resulted from the inclusion of Mr. Barrett’s opinion evidence [68] As noted above, Mr. Barrett was a co-owner of Chem-Dry, an insurance restoration company. He had been at the house after the fire on February 3, 2004, but had no recollection of inspecting its contents at that time. Nevertheless, he testified about what was listed in a general inventory that was prepared by three of his employees during their site visit on February 16, 2004. The employees were not called as witnesses. [69] In his direct examination, Mr. Barrett testified that the employees were instructed to prepare a list of items they could “visibly see”. Many of the items on the appellants’ Schedule of Loss were not on the Chem-Dry inventory list. Mr. Barrett was asked whether if certain items, such as televisions, a laptop, a printer and a scanner, had been present at the house, remnants would have been identifiable. [70] The appellants’ trial counsel objected to Mr. Barrett providing what he characterized as “almost [bordering] on expert evidence”, and he made essentially the same argument that is made on appeal: Mr. Barrett, who was not present when the inventory list was prepared, ought not to have been permitted to provide evidence about whether specific items would have been identifiable in the home after the fire. This would amount to opinion evidence, without Mr. Barrett having been qualified as an expert. The trial judge acknowledged that Mr. Barrett was not an expert, but nevertheless permitted him to provide such evidence based on his experience working in the restoration industry. Mr. Barrett was then asked whether specific items such as televisions, laptops and ghetto blasters would be recognizable after a fire. He essentially testified that it would be “very variable”, but that you would typically have some remnant that would be recognizable. [71] The appellants argue that the trial judge should not have included this portion of Mr. Barrett’s evidence in her charge to the jury and ought to have instructed the jury to disregard it. [72] I agree that Mr. Barrett ought not to have been permitted to offer an opinion about whether the remnants of certain specific objects would be identifiable on a site after a fire, without ensuring that he was qualified to provide such an opinion. The fact that Mr. Barrett had relevant experience might well have permitted him to be qualified. However, the trial judge would have had to consider whether it would be appropriate for him to provide such opinion evidence in a case where he was called as a fact witness, and where he had no personal recollection of the contents of the house. [73] That said, whether or not Mr. Barrett should have been prevented from testifying about whether, in his experience, the remnants of certain objects might be recognizable after a fire, his evidence on this issue could not have greatly assisted the insurer. Mr. Barrett admitted that he personally had not been involved in preparing the inventory list, that he had no personal recollection of any of the contents from his one visit to the site, that the direction to his employees was to list items they could “visibly see”, that the extent to which any remnants would be visible would depend on variables, including where the fire started and the extent of the damage, and that, in this case, the house was damaged by smoke and water, and some parts were difficult to access. Under cross-examination Mr. Barrett admitted that his employees prepared a “quick list”, and that they were not asked to look for the remnants of anything or to check for items such as fur coats, remnants of a laptop computer or walkie talkies. [74] Although better direction could have been given about the proper limits and scope of Mr. Barrett’s evidence, in my view, the jury was equipped to understand the limits to his evidence with respect to what items were identified in the general inventory list prepared by his employees at the time. [75] Moreover, the jury was also provided with the evidence of Mr. Coutu, which was much more significant. Mr. Coutu was at the house on a number of occasions after the fire, and testified about the process for confirming the contents that were claimed. He was vigorously cross-examined on what he observed and did not observe at the house, including the remnants of various objects. [76] In light of the above, I am not convinced that the inclusion of Mr. Barrett’s opinion evidence or the trial judge’s failure to provide the jury with instructions on this point resulted in trial unfairness or a miscarriage of justice. These errors would not have made a difference to the outcome of the trial: see Little , at para. 41. (iii) The trial judge did not err in failing to caution the jury about Mr. Coutu’s credibility [77] The appellants contend that the trial judge ought to have cautioned the jury about Mr. Coutu’s credibility because he had improperly remained in the courtroom, contrary to the trial judge’s order excluding witnesses (under r. 52.06 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194). The appellants argue that Mr. Coutu had the opportunity to tailor his evidence, in particular after having heard the evidence of Mr. Barrett, who testified before him. [78] Mr. Coutu was the claims representative responsible for the appellants’ file at Farmers’ Mutual from the time of the fire until 2008 or 2009. He was present throughout the trial as the insurer’s representative. When the trial judge made an order excluding witnesses, Mr. Coutu was permitted to remain in the courtroom after the insurer’s counsel confirmed that Mr. Coutu was his “instructing client”. [79] Mr. Coutu’s role became an issue when, in the course of his cross-examination, he was questioned about the absence of certain documents in the affidavit of documents he had sworn five years earlier on behalf of the insurer. After the insurer’s counsel objected, counsel debated, in the absence of the jury, whether Mr. Coutu was in fact attending the trial “on behalf of” the insurer. The appellants’ trial counsel pointed to the fact that Mr. Coutu had remained in the courtroom as the insurer’s representative at the time the order excluding witnesses was made. Ultimately, the trial judge instructed the jury that Mr. Coutu was at trial as a “fact witness” called by the insurer. Mr. Coutu confirmed that he was not at the trial “on behalf of the company” but that he still worked for the company. [80] Nothing further was said about Mr. Coutu’s status as a representative of the insurer, and the appellants’ trial counsel did not seek any direction to the jury with respect to their treatment of his evidence. [81] I would not give effect to the appellants’ arguments, made for the first time on appeal, that Mr. Coutu’s evidence ought to have been excluded from the trial or that the trial judge ought to have instructed the jury that the fact that he remained in the courtroom while other witnesses testified should be taken into consideration in their assessment of his credibility. [82] First, Mr. Coutu was the insurer’s representative at the trial. When the trial judge made her order excluding witnesses, she properly permitted Mr. Coutu to remain in the courtroom. Mr. Coutu had primary responsibility for the appellants’ claim for several years, although he was not involved after 2008 or 2009. There is no requirement that the specific decision maker for a corporate defendant attend court as that party’s representative (although that may often be the case). Whether or not Mr. Coutu was the “instructing client”, he was entitled to remain in the courtroom as the insurer’s representative. [83] Second, the appellants’ trial counsel knew that Mr. Coutu would be testifying on behalf of the insurer. He was the claims representative who had investigated the claim. He had attended at the house, compiled lists of items he questioned, written letters expressing concern about some of the items, and ultimately denied the claim. When the order was made excluding witnesses, the appellants’ trial counsel could have asked for a direction from the trial judge, under r. 52.06(2), that Mr. Coutu testify first, if there was a concern about his opportunity to hear the evidence of other defence witnesses, such as Mr. Barrett. No such request was made. Nor was there a request from the appellants’ trial counsel that the trial judge direct the jury to consider, in their assessment of Mr. Coutu’s credibility, the fact that he had been present for the testimony of other witnesses. [84] Finally, the appellants do not point to any specific aspect of Mr. Coutu’s evidence that might have been tailored to respond to evidence of other witnesses. [85] Accordingly, I would not give effect to this ground of appeal. (b) There was no error in the trial judge’s instructions on the intention required for a “wilfully false statement” [86] Although not raised in their factum, in oral argument the appellants’ counsel repeated certain arguments that were made to and rejected by the trial judge: (1) that the jury should have been instructed that the insurer was not alleging fraud; (2) that the trial judge should not have told the jury that the appellants’ intention was not relevant; and (3) in the alternative, that Question 5 should not have been left with the jury. [87] I note that there were extensive arguments before the trial judge about whether the mental element of a “wilfully false statement” was the same as that required for fraud. The insurer’s counsel had taken pains to insist that fraud was not being alleged. He pointed to the fact that statutory condition 7 spoke of “fraud or [a] wilfully false statement in a statutory declaration” (emphasis added) as vitiating a claim. There were many cases put to the trial judge, and referred to on appeal, that suggest that the same mental element would be relevant whether the misstatements in the Proof of Loss were alleged to have been fraudulent or wilfully false. The fact that the insurer was not relying on “fraud”, or avoided using “fraud” terminology in describing the appellants’ conduct was not in itself a reason to remove Question 5 from consideration by the jury. [88] The real issue here is whether there was any reversible error in the trial judge’s instruction to the jury about what the insurer had to prove in order to make out a wilful misstatement. [89] At the outset of her charge, after directing the jury not to consider whether the appellants were “honest people”, the trial judge stated: In Mr. Kwinter’s closing address you heard him make some comments to the effect that the Pinders did not intend to deceive or mislead the insurer. I am instructing you to disregard all the comments about intentions. In Mr. Kwinter’s closing address, he asked you to consider whether the plaintiffs were honest people. That statement is too broad in relationship to what you must consider when reaching your verdict. After the break, Mr. Kwinter said words to the effect that a wilfully false statement is one that a person makes knowing it to be false, without belief in its truth, or recklessly without caring whether it is true or not. That is a correct statement regarding part of the law that applies to wilfully false statements. In applying this part of the test, you will have to consider these three factors and determine, in part, whether Cindy Pinder made a statement on Exhibit 1, whether she made it knowing it to be false, whether she made it without believing that it was true or whether she made it recklessly without caring whether it was true or not. You will have to consider each statement separately. You are not to consider the broad question of whether the plaintiffs are honest people. You must not consider whether the plaintiffs are the sort of people who would scam an insurance company. I will have more to say about the law that applies to wilfully false statements later on in my charge. [Emphasis added.] [90] Later in her charge, the trial judge stated: A wilfully false statement is one that a person makes: 1.knowing it to be false; 2.without belief in its truth, or; 3.recklessly without caring whether it is true or not. The intention of the insured with respect to the statement is not something that you should take into account. An insured owes a duty to her insurer of honesty and accuracy. A statement will not be a wilfully false statement if the person who made the statement had an honest belief in its truth. The honest belief in the truth must be grounded in a reasonable foundation. A person making a statement cannot shut his or her eyes to the facts or purposefully refrain from inquiring into them. [91] The trial judge’s instruction about what was required to establish a wilfully false statement addressed the necessary mental element: that the appellants must have known that the statements in the Proof of Loss were false, or alternatively that they made the statements without belief in their truth or recklessly without caring whether they were true or not. She also explained how a statement would not be wilfully false if the person making it held an honest belief in its truth. The statement, as part of these instructions, that “intention” was not something to take into account, must be understood in context: to respond to the “honest people” submission and suggestion by the appellants’ trial counsel that the insurer was accusing the appellants of being the type of people who would perpetrate an insurance scam. The jury was not required to find that, in making the statements in the Proof of Loss, the appellants were setting out to commit insurance fraud or had some other motive. As this court stated in Gregory v. Jolley (2001), 201 D.L.R. (4th) 729 (Ont. C.A.), at paras. 15, 20, leave to appeal refused, [2001] S.C.C.A. No. 460, citing Derry v. Peek (1889), 14 App. Cas. 337 (H.L.), at p. 374, the motive or purpose of the insured in making the false statement is not the issue. (c) There was no error in the formulation of Question 5 [92] The appellants argue that Question 5 was phrased incorrectly to refer to wilfully false statements made by both Joyce and Cindy. They submit that the trial judge ought to have instructed the jury to consider whether Cindy or Joyce made wilfully false statements. They argue that this was necessary so that it could be determined whether, as a legal matter, Joyce’s claim for the house would be affected by any wilfully false statements that were made by Cindy with respect to the contents. [93] Statutory condition 7 provides that “[a]ny fraud or wilfully false statement in a statutory declaration in relation to any of the above particulars, vitiates the claim of the person making the declaration.” The “above particulars” referenced in statutory condition 7 includes the obligation in statutory condition 6 to deliver a Proof of Loss verified by a statutory declaration, “giving a complete inventory of the destroyed and damaged property and showing in detail quantities, costs, actual cash value and particulars of amount of loss claimed.” [94] Jury Question 5 stated: “Did the plaintiffs make a wilfully false statement in the Proof of Loss form and the schedules?” (emphasis added). Similarly, in Question 6, the jury was required to indicate on the attached sheets “the items about which the plaintiffs made wilfully false statements”. However, on the attached sheets, the question was phrased as “[h]ave either of the plaintiffs made a wilfully false statement to the defendant in relation to their claim for any of the following items?” (emphasis added). [95] Joyce and Cindy both signed a single Proof of Loss that asserted a claim for the building, the contents and the additional living expenses, and indicated that the payments for their claim (except for the claim for living expenses which was to be paid only to Cindy) would be made to them jointly. The Proof of Loss stated: “We Cindy Pinder and Joyce Pinder do solemnly declare that the foregoing claim and statements are to the best of [our] knowledge and belief true in every particular, and [we] make this solemn declaration conscientiously believing it to be true and knowing that it is of the same force and effect as if made under oath”. [96] It was Cindy who had filled out the Schedule of Loss, which details the contents that she claimed were lost or damaged in the fire and provides the original and replacement cost for each item. The Schedule of Loss was attached to the Proof of Loss. The Proof of Loss specifies that “[a] particular account of the loss is attached hereto and forms part of this proof.” [97] Because Joyce did not testify at trial, there was no evidence from Joyce to explain what she knew and her state of mind when she signed the Proof of Loss. The evidence of Mr. Yates, the appellants’ independent adjuster, was that Joyce was not involved in the preparation of the Proof of Loss. [98] The appellants submit that Question 5 should have asked whether Joyce or Cindy made wilfully false statements because they had separate insurable interests: Joyce owned the house and Cindy owned the contents. Notwithstanding that they both signed the Proof of Loss, they did not, and could not have, asserted a claim for property in which they had no insurable interest. The appellants contend that the only wilfully false statements that were alleged to have been made were in relation to the claim for the contents of the house, which were owned by Cindy, and no one suggested that Joyce owned or was making any claim in respect of the contents. [99] The appellants refer to case law for authority that, in accordance with the modern approach to statutory interpretation, Joyce and Cindy had distinct and severable claims under the insurance contract: see Scott v. Wawanesa Mutual Insurance Co. , [1989] 1 S.C.R. 1445, at p. 1455, per La Forest J. (dissenting); National Bank of Greece (Canada) v. Katsikonouris , [1990] 2 S.C.R. 1029. The appellants note that in Wigmore v. Canadian Surety Co. (1996), 139 D.L.R. (4th) 164 (Sask. C.A.), the Saskatchewan Court of Appeal held that, if the insurance contract can be said to be several, the claim of an innocent co-insured is not vitiated by the wilfully false statements of a co-insured. [100] The insurer urges the court not to give effect to this argument, made for the first time on appeal. It points out that it was the appellants’ trial counsel who insisted that Question 5 be formulated to refer to both Cindy and Joyce. Moreover, the insurer asserts that the claims of Joyce and Cindy were always treated together, as they ought to have been, since, as a matter of law, when she signed and swore the Proof of Loss, Joyce was bound by any wilful misstatement made by Cindy. The insurer relies on the British Columbia Court of Appeal decision Sienema v. British Columbia Insurance Co. , 2003 BCCA 669, 21 B.C.L.R. (4th) 321, which upheld a decision vitiating the claim of an innocent co-insured who signed and swore, without reading it, a Proof of Loss containing wilfully false statements made by a co-insured. The insurer notes that the Proof of Loss in this case combined the claims for the building loss, the contents loss, and the additional living expenses. [101] In Bruff-Murphy v. Gunawardena , 2017 ONCA 502, 414 D.L.R. (4th) 65, at para. 69, leave to appeal refused, [2017] S.C.C.A. No. 343, the court described the failure to object to a civil jury charge as fatal to a request for a retrial on appeal based on misdirection or non-direction, except where the error has resulted in a substantial wrong or a miscarriage of justice. In Montepeque v. State Farm Mutual Automobile Insurance Company , 2017 ONCA 959, 75 C.C.L.I. (5th) 1, Laskin J.A. explained that “[i]n a civil case, the failure to object at trial is usually fatal on appeal because ‘it is an indication that trial counsel did not regard as important or necessary the additional direction now asserted’”: at para. 34, citing Marshall v. Watson Wyatt & Co. (2002), 209 D.L.R. (4th) 411 (Ont. C.A.), at para. 15. This is especially the case where trial counsel not only neglected to object to what is criticized on appeal, but specifically endorsed the approach taken at trial : Goodwin (Litigation guardian of) v. Olupona , 2013 ONCA 259, 205 O.A.C. 245, at para. 95. [102] The appellants ask the court to determine that Joyce had a separate insurable interest and to intervene on the basis that to do otherwise would result in a grave injustice to Joyce: she was the owner of the house, with a separate insurable interest, and her claim in respect of the house ought not to be vitiated by reason of Cindy’s wilful misstatements about the contents. The appellants seek the court’s intervention notwithstanding the position of their trial counsel, including his insistence on the formulation of Question 5, which they say was in error. [103] I am not prepared to intervene in this case. The appellants’ trial counsel’s insistence that Question 5 refer to both Joyce and Cindy, along with his failure to request that statutory condition 7 be addressed separately for Cindy and Joyce to reflect their separate insurable interests in the contents and the house, did not result from oversight. It was part of a deliberate trial strategy. The appellants should not be entitled to resile from a position that their counsel actively advanced at trial: see Goodwin , at para. 95. [104] Moreover, as I will explain, when the opportunity arose to address the very issue the appellants seek to raise here, the appellants’ trial counsel indicated that this was not necessary, with the result that the issue was removed from consideration by the trial judge. The question of separate insurable interests was not overlooked. It was, in effect, conceded. In these circumstances, even if it is open to this court to intervene in certain cases notwithstanding the failure of trial counsel to object, I would not do so. [105] As noted above, it was the appellants’ trial counsel who asked that Question 5 be phrased to refer to “the plaintiffs”. When discussing the language of Question 5, the appellants’ trial counsel stated: “Well, would be ‘Plaintiff s ’ because they both signed – they both claimed to have signed the declaration, so it should be plural ” (emphasis added). [106] The appellants’ trial counsel’s insistence that Question 5 refer to both Cindy and Joyce is consistent with the way that he presented the case at trial. He dealt with Cindy and Joyce throughout the trial as though their interests were the same. [107] The appellants’ trial counsel repeatedly referred to the alleged wilfully false statements as relating to both Joyce and Cindy. Indeed, at various points throughout the trial, he stressed that both Cindy and Joyce had signed the Proof of Loss, attesting to the truth of what was stated. For example, when the insurer’s counsel questioned Mr. Yates regarding the fact that there was no discussion or information from Joyce as to the existence of the ring that Cindy claimed to have owned, the appellants’ trial counsel intervened and made the following statement: “Joyce did swear the proof of loss along with Cindy. I think that should be very clear to the jury. Both of them swore to the truth of the proof of loss.” Moreover, in his closing address, the appellants’ trial counsel stated the following in an effort to enhance Cindy’s credibility as to the truth of the statements made in the Schedule of Loss: “Cindy Pinder swears, as her mother swears, I own these items, this is what they cost or this is what it’ll cost to replace [them].” While only Cindy was responsible for preparing the Proof of Loss, the appellants’ trial counsel inferred that Joyce’s credibility was also at issue. This was emphasized during the trial by repeated references to whether Cindy and Joyce were “honest people”. [108] At no time did the appellants’ trial counsel insist upon the separate treatment of the claims of Joyce and Cindy. As the insurer’s counsel pointed out on appeal, the major thrust of the appellants’ case at trial was that the insurer had acted in bad faith, and although Cindy’s credibility had obvious weaknesses, Joyce’s credibility did not. By the time of the trial, Joyce was 91 years old and was hard of hearing. She did not testify at trial. This may help to explain why the appellants’ trial counsel chose to deal with Cindy and Joyce’s claims together, and not to emphasize that only Cindy was making the alleged wilful misstatements. [109] In his closing address, the appellants’ trial counsel repeatedly referred to Joyce and Cindy together, and he noted that the insurer was alleging that they had made wilfully false statements. This prompted an objection by the insurer’s counsel, who requested a corrective instruction. In the course of his submissions, the insurer’s counsel argued that, while only Cindy was alleged to have made the misstatements, he was relying on Joyce’s execution of the Proof of Loss as binding her to the wilful misstatements made by her daughter. I set out the entire discussion because it was at this point that the very issue the appellants raise on appeal was before the court and that any issue about Joyce and Cindy’s interests being considered separately ought to have been addressed by the appellants’ trial counsel: Mr. Forget: [T]here’s been no suggestion that Joyce has made, participated in the contents claim or Joyce has made a false, a wilfully false statement. By a matter of law because she executed the proof of loss, she basically owns the proof of loss and owns the false statements contained there. The Court: So you said on the one hand there’s been no suggestion that Joyce did certain things … because she signed it, she owns it. So then are you saying that Joyce made wilfully false statements? Mr. Forget: Yes. She made, she The Court: Because she signed it? Mr. Forget: This is how she made the wilfully, she executed the proof of loss without having a genuine belief in the truth of the contents … this elderly lady, she executed the proof of loss that was prepared by an adjuster and she didn’t read it. The court said you own the statement that is contained, and the reason why I didn’t expect that we’re going to get into that, and that’s why I didn’t say it in my closing submissions is, get into that issue, is because, as a matter of law, she executed, she owns it, but Mr. Kwinter’s now saying that there’s an allegation that she made wilfully false statements suggesting to this jury that she was part of this, and she was reckless, and she was, you know, made knowingly, that’s not accurate. The Court: So you’re not saying that she made statements that were wilfully false?... Seems like you’re going in, well I won’t say in circles, but contrary to yourself. Mr. Forget: Okay. The law is, you execute a proof of loss, you have to have a genuine belief in the truth of the statements contained period. She signed the proof of loss. She owns the statements. To the extent that the contents of the proof of loss, including the schedule is false, she owns that false. Mr. Kwinter: That doesn’t make sense. Mr. Forget: That’s, absolutely, that’s what the authorities suggest. So that avoids, if I can, that avoids a person such as, I believe it’s [indiscernible] to say I didn’t read it. I don’t know what’s in there. I didn’t read it. My lawyer prepared it or my adjuster prepared it or my representative prepared it. That avoids that, because you have a duty to ensure that the contents contained therein are accurate. So that applies in this case to Joyce, because she executed the proof of loss. The Court: But you haven’t made an issue of that in this case. I understand your legal position … but there really hasn’t been anything in this trial about Joyce making false statements. Mr. Forget: No, there hasn’t been. The Court: No, so you’re just saying from a legal … perspective. Mr. Forget: Yes, and I didn’t make it because she wasn’t involved at all in the preparation of the schedule, and that The Court: Your allegation is that Cindy made wilfully false statements. Mr. Forget: Yes, if I could kind of break it down. The schedule of loss, the written schedule, the May 12, 2004 letter, that’s all Cindy, but what happens is the schedule of loss is contained, is attached to the proof of loss that’s signed by Joyce. By signing it, she owns the statement, and that’s, I can give you the cite for that. The Court: I understand what you’re saying from the legal perspective … but does it really make any practical difference. Mr. Forget: It makes a practical difference, I didn’t think it did, that’s why I rise now, and that’s why I didn’t make this huge issue of it yesterday. It doesn’t make a difference, except that the submissions that were made were that Joyce made wilfully false statements, acted recklessly, made statements knowing, that, as a matter of law, she did because she executed the proof of loss. So I believe, all I’m asking Your Honour, is that in your charge, that you make a comment with respect to that to respond to. The Court: So I think maybe the difficulty we’re getting into is, Mr. Kwinter made a few statements, which I will say were, perhaps overstating it, made them tongue in cheek, sarcastically, so when he said Joyce made wilfully false statements, as a question … he’s not saying that Joyce made wilfully false statements. That would be contrary to his client’s position. Mr. Forget: Yes. The Court: So that’s why, you’re getting into the issue now, but I don’t think Mr. Kwinter made a submission that she did. In fact, I think what he said was to the opposite. Mr. Forget: Yeah. You’re absolutely correct, Your Honour, but he suggested that the insurance company’s suggesting that she did. The Court: Alright. Mr. Forget: So, and it’s not a matter of evidence. It’s not a matter, because all she did, and that’s acknowledged, is she executed the proof of loss which contains false statements, and that’s the – I can provide you with that. The Court: No, I read that case. Mr. Forget: Yes, so as a matter of practical reality, the jury should not, could, should not be going into the jury room thinking well this is all Cindy, Joyce has nothing to do with this. Joyce does have something to do as a matter of law because she executed the proof of loss. The Court: Mr. Kwinter, I’m not sure I need to hear from you on this, but if you wish to say something, of course you can. Mr. Kwinter: Well, I mean, Joyce had to sign it because it’s her house. I don’t think anybody applied their mind to whether she was [indiscernible] contents or not, but I don’t think it matters. If they’re going to reject the claims, they’re going to reject them both. I think it’s, practically, I don’t think it matters. The Court: All right, thank you very much. I will think about this over the evening. [Emphasis added.] [110] There is nothing to indicate that anything further was said on this issue. The trial judge’s ruling on the various objections of counsel did not address this point. [111] Whether Joyce was bound by Cindy’s misstatements, and whether Joyce and Cindy had separate insurable interests that ought to have been considered separately, were legal issues that, if contested, would have had to have been determined by the trial judge. The appellants’ trial counsel did not, however, take the position that Joyce and Cindy’s claims should be considered separately, choosing instead to deal with their claims together, likely for strategic purposes. The insurer had provided case law to the trial judge, and was advancing his argument about why Joyce, having signed the Proof of Loss, would be bound by Cindy’s misstatements. It was at this point that the appellants’ trial counsel had the opportunity to address the legal issue – to argue that Joyce was not bound by Cindy’s misstatements as a matter of law, and that their interests ought to be considered separately. [112] If the appellants’ trial counsel had made this argument at this point in the trial and obtained a ruling that Cindy and Joyce’s claims were separate and that, as a matter of law, Joyce was not bound by Cindy’s misstatements, it would have required a rewording of Question 5, an instruction to the jury to consider the evidence separately for Joyce and Cindy, particularly on the question of what was said about the contents of the house, and a corrective instruction about the references in the appellants’ closing that the insurer’s counsel had objected to. [113] However, instead of arguing that Cindy and Joyce’s claims should be treated separately, the appellants’ trial counsel stated, “[i]f [the jury is] going to reject the claims, they’re going to reject them both … I don’t think it matters”. Not only did the appellants’ trial counsel fail to insist that the claims be dealt with separately, he effectively conceded the point by stating his position that the claims would stand or fall together. [114] There is no reason to interfere, essentially second-guessing the trial strategy of counsel. For these reasons, I would not give effect to this argument on appeal. (3) Did the trial judge err in refusing relief from forfeiture? [115] Relief from forfeiture was not addressed in the appellants’ notices of appeal, and was touched on only briefly in their factum, to submit that the trial judge ought to have given separate consideration to whether Joyce was entitled to relief from forfeiture, even if Cindy was not. In oral argument, the appellants’ counsel also submitted that relief from forfeiture ought to have been granted to both appellants because, once the value of the claim was determined by an appraisal, there was no prejudice to the insurer resulting from Cindy’s misstatements in relation to the contents. [116] The insurer asserts that relief from forfeiture is not available in respect of statutory condition 7, and that, in any event, there was no error in the trial judge’s refusal to grant relief from forfeiture. [117] I would not give effect to the appellants’ arguments. A decision to grant or refuse relief from forfeiture is highly discretionary. Appellate intervention is warranted only where the judge below erred in principle, failed to take into consideration a major element of the case, misapprehended, disregarded or failed to appreciate relevant evidence, or made a finding or drew an inference not reasonably supported by the evidence: Monk v. Farmers’ Mutual Insurance Company (Lindsay) , 2019 ONCA 616, 92 B.L.R. (5th) 1, at para. 78, leave to appeal refused, [2019] S.C.C.A. No. 384. No such error has been demonstrated here. [118] Relief from forfeiture was sought in this case under s. 129 of the Insurance Act and s. 98 of the Courts of Justice Act. Section 129 of the Insurance Act applies in the specific context of forfeiture or avoidance of insurance resulting from imperfect compliance with a statutory condition as to the Proof of Loss or other matter required to be done with respect to the loss. It provides: Where there has been imperfect compliance with a statutory condition as to the proof of loss to be given by the insured or other matter or thing required to be done or omitted by the insured with respect to the loss and a consequent forfeiture or avoidance of the insurance in whole or in part and the court considers it inequitable that the insurance should be forfeited or avoided on that ground, the court may relieve against the forfeiture or avoidance on such terms as it considers just. Section 98 of the Courts of Justice Act is a general provision that provides: “A court may grant relief against penalties and forfeitures, on such terms as to compensation or otherwise as are considered just”. [119] In Kozel v. Personal Insurance Co. , 2014 ONCA 130, 372 D.L.R. (4th) 265, at para. 58, LaForme J.A. held that s. 98 of the Courts of Justice Act can apply to contracts of insurance governed by the Insurance Act . However, he suggested, as did Brown J.A. in Monk , at para. 79, that s. 98 operates in respect of a breach of a statutory condition, where the breach took place before the loss. [120] The trial judge referred to both s. 129 of the Insurance Act and s. 98 of the Courts of Justice Act . She concluded that relief from forfeiture was available in the case of imperfect compliance with a requirement. She rejected the appellants’ submission that “in the absence of fraud, errors on the proof of loss were made only inadvertently or carelessly, that they constitute only imperfect compliance and, therefore, the court can grant relief from forfeiture”. She concluded that this was not a case of imperfect compliance and that relief from forfeiture was thus not available. [121] The trial judge did not err in refusing relief from forfeiture in this case. I agree that, in the circumstances of this case, relief from forfeiture was not available or warranted under s. 129 of the Insurance Act . Even assuming, without deciding, that s. 98 of the Courts of Justice Act can apply to a “post-loss” breach of a statutory condition, the appellants would not be entitled to relief from forfeiture under this provision. [122] In addition to being limited to instances of imperfect compliance, relief from forfeiture requires the consideration of three factors: 1) the reasonableness of the insured’s conduct; 2) the gravity of the breach; and 3) the disparity, if any, between the value of the property forfeited and the damages caused by the breach: Monk , at para. 79; Kozel , at para. 59. While these three elements must be considered and balanced by the court in determining whether the insured is entitled to relief from forfeiture in the circumstances of each case, the reasonableness of the insured’s conduct “lies at the heart of the relief from forfeiture analysis”: Monk , at para. 93. Accordingly, a “party whose conduct is not seen as reasonable will face great difficulty in obtaining relief from forfeiture”: Monk , at para. 93. [123] Here, the appellants’ conduct was not reasonable and the conduct that vitiated the appellants’ claims was serious. The jury concluded, in their response to Question 6, that the appellants had made 39 wilfully false statements in the Proof of Loss. The evidence suggested that a number of the items claimed were either not owned by Cindy or did not exist at all. As noted by the trial judge, the jury’s findings on Question 6 were inconsistent with the appellants’ assertion of inadvertence or carelessness. Relief from forfeiture was properly refused in the circumstances of this case, whether under s. 129 of the Insurance Act or s. 98 of the Courts of Justice Act (assuming, without deciding, that s. 98 could apply). [124] As for the appellants’ contention that the insurer would not be prejudiced if relief from forfeiture were granted because the appraisal fixed the value of the contents, I disagree. The appraisal valued the contents claimed by the appellants, while assuming that they existed. The wilful misstatements here went beyond the exaggeration of the value of certain items. Accordingly, it cannot be said that the appraisal eliminates the prejudice to the insurer. In any event, this was not a case of “imperfect compliance” and the unreasonableness of the appellants’ conduct, as well as the severity of their breach, preclude relief from forfeiture in the circumstances of this case. [125] Finally, I would not give effect to the appellants’ submission that the trial judge erred in failing to consider separately whether Joyce was entitled to relief from forfeiture in respect of her claim for the value of the house. There is no indication that this argument was made to the trial judge, and for good reason. As I have already explained, the appellants’ case at trial assumed that Joyce and Cindy’s claims stood or fell together and that, if wilful misstatements were made, they were made by both appellants. I have already concluded that there was no error in the failure to treat Cindy and Joyce’s claims separately. As such, it is not open to the appellants to attempt to separate their claims for the purpose of relief from forfeiture. As a result of the jury’s answers to Questions 5 and 6, which were formulated in accordance with the appellants’ trial counsel’s deliberate trial strategy, both Cindy and Joyce were found to have made 39 wilfully false statements in the Proof of Loss. [126] Given my conclusion that the trial judge did not err in refusing to grant relief from forfeiture, it is unnecessary to determine whether, as the insurer submits, relief from forfeiture is generally not available in relation to statutory condition 7. In the circumstances of this case, the appellants were not entitled to relief from forfeiture in any event. (4) Did the trial judge err in her costs award? [127] The appellants seek leave to appeal the costs award of $616,843.27. The costs award included partial indemnity costs up to the date of the insurer’s offer to settle, and substantial indemnity costs thereafter. The appellants submit that the trial judge erred in two ways. First, they contend that the trial judge incorrectly stated in her reasons for decision on costs that they had not contested the amount of costs, and that she failed to undertake any analysis of whether the amount of costs sought by the insurer was fair and reasonable in the circumstances. Second, they submit that the trial judge erred in awarding costs on a substantial indemnity scale from the date of the insurer’s offer to settle to the close of trial. [128] Since costs awards are discretionary, intervention on appeal is warranted only where the trial judge has made an error in principle or if the costs award is plainly wrong: Hamilton v. Open Window Bakery Ltd. , 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27; Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at paras. 19-20. Leave to appeal a costs award will only be granted where there are strong grounds to find that the trial judge erred: Hobbs v. Hobbs , 2008 ONCA 598, 240 O.A.C. 202, at paras. 32-33. [129] For the reasons that follow, I would grant leave to appeal the costs award, and reduce the insurer’s costs of the proceedings in the court below to the partial indemnity amount of $430,000, inclusive of taxes and disbursements. While I would not give effect to the appellants’ first argument, I agree with the appellants that the trial judge erred in principle in awarding substantial indemnity costs from the date of the insurer’s offer to settle. [130] The record on appeal contains the parties’ written submissions on costs, as well as a transcript of their oral submissions. The insurer sought costs on a substantial indemnity basis for the entire proceeding (including its action to recover the mortgage pay out), in the sum of $646,842.10, on the grounds that the appellants were wholly unsuccessful in their claim of bad faith and their claim for $1 million in punitive damages. In the alternative, the insurer sought substantial indemnity costs from the date of its offer to settle made in November 2010. The alternative claim for costs (based on partial indemnity costs to the date of the offer and substantial indemnity costs thereafter) was $616,843.27. The appellants’ position before the trial judge was that no costs should be awarded to the insurer notwithstanding its successful defence of the action, in light of various allegations of misconduct and delay on the part of the insurer. [131] The trial judge denied the appellants’ argument that the insurer should be deprived of its costs. She rejected the appellants’ allegations that the insurer demonstrated bad faith by engaging in tactics to delay the action and wear them down. She found that the appellants had significantly contributed to the delay in the action. She further found that there was no trial unfairness caused by the insurer’s failure to call a witness to speak to their decision to deny coverage, and that there was no trial unfairness or bad faith that resulted from the fact that the insurer had not provided particulars regarding the alleged wilfully false statements. [132] The trial judge noted that the appellants did not contest the amount of costs the insurer sought, just the entitlement. She then turned to the question of the scale of costs that should be awarded to the insurer. She noted that, on November 19, 2010, the insurer offered to settle the appellants’ action and the insurer’s action for the recovery of the amount it had paid out to Joyce’s mortgagee, by a dismissal of both actions without costs. [133] The trial judge considered the conduct of the insurer before it made its offer to settle. She referred, at paras. 60 and 61 of her reasons, to the insurer’s refusal to attend the appraisal until after the appellants brought a motion, its unsuccessful appeal of the order that followed the motion, as well as its unsuccessful motion for summary judgment and appeal in the mortgage action. She stated that, while costs were likely addressed on these motions, this was not a case where substantial indemnity costs should be awarded from the outset of the matter, and she concluded that the insurer was entitled to partial indemnity costs up to the date of the offer. [134] The trial judge then considered whether substantial indemnity costs should be awarded after the date of the offer. She provided her reasons for awarding such costs at para. 63, as follows: I agree with the defendant’s submission that the plaintiffs took a very aggressive approach in their claim for punitive damages. They made hard-hitting allegations to attack the integrity of the defendant. The plaintiffs’ position was that the defendant’s investigation was a sham, that the defendant had called them liars and fraudsters, that they had to bring the defendant to the court kicking and screaming regarding the appraisal issue and that the defendant had dragged out the litigation in the hope that the plaintiffs would give up or that Joyce Pinder would not last until the trial. The plaintiffs knew before trial that Cindy Pinder would have credibility problems and that their own adjuster’s evidence was that the insurer’s approach during the adjustment period was reasonable and expected. The allegation that the plaintiffs might “give up or die” because of delay caused by the defendant was particularly reprehensible because the plaintiffs were responsible for a good part of the delay in the action. As noted above, an examination of Joyce Pinder was scheduled for August 2007. She finally attended in February 2015. The plaintiffs made bad faith allegations which they could not substantiate. [135] The trial judge awarded costs to the insurer in the sum of $616,843.27. This represented partial indemnity costs up to the date of the insurer’s offer to settle and substantial indemnity costs thereafter, in accordance with the bill of costs provided by the insurer. [136] The appellants’ first argument is with respect to the assessment of the insurer’s costs. The appellants submit that the trial judge erred when she stated that they did not contest the amount requested for costs, and in failing to consider whether the amount awarded for costs was “fair and reasonable”, by assessing the costs sought in the insurer’s bill of costs. I disagree. [137] Apart from asserting that the insurer should not have its costs in relation to three failed motions it brought in the course of the trial (for a mistrial after the opening address of the appellants’ trial counsel, to amend the statement of defence, and to strike the jury after the appellants’ closing address), the written submissions of the appellants on costs were directed solely to the question of entitlement. The appellants’ position before the trial judge was that the insurer should not be awarded any costs, essentially because of the way it had treated them and their claim. [138] The appellants’ written submissions to the trial judge did not take issue with the number of hours spent by the insurer’s counsel or their hourly rates. The appellants’ trial counsel did not argue that the amount of costs was disproportionate to the claims made in the action or the length and complexity of the proceedings. The thrust of the appellants’ response to the claim for costs was that the insurer’s alleged misconduct should not be condoned by an award of costs. The trial judge was right when she said that the appellants had not contested the amount requested. [139] I disagree with the appellants’ argument on appeal that the trial judge ought to have considered whether it was fair and reasonable for the insurer’s counsel to bill nearly 1,300 hours for trial preparation and attendance and over 950 hours for the pre-trial stages of the litigation. This argument was not made to the trial judge, nor were any submissions made that would have assisted in a review of the specific time spent and hourly rates claimed at each stage of the proceeding. [140] Typically, the total amount of costs to be awarded in a “protracted proceeding of some complexity cannot be reasonably determined without a critical examination of the parts which comprise the proceeding”: Murano v. Bank of Montreal (1998), 163 D.L.R. (4th) 21 (Ont. C.A.), at para. 100. However, the critical examination of the various parts of the proceeding cannot be performed in a vacuum. In the circumstances of this case, with litigation that was outstanding for 13 years, the trial judge needed the assistance of the appellants’ trial counsel in her assessment of the insurer’s costs if she was to make any reduction to the costs claimed by the insurer, which were supported by its detailed bill of costs. [141] The insurer’s costs submissions explained that this was not a typical insurance claim, addressing the complexity of the litigation and the various steps that were required before, during, and after the trial. There was no suggestion by the appellants that the amount sought was unreasonable or excessive. Even with respect to the insurer’s three unsuccessful motions, the appellants did not propose a specific reduction. Nor did the appellants’ trial counsel provide his own bill of costs, dockets or costs outline, which would have informed an assessment of the proportionality and reasonableness of the costs that were claimed by the insurer. [142] A claim that the opposing party’s costs are excessive without providing evidence of one’s own costs in the litigation is “no more than an attack in the air”: Risorto v. State Farm Mutual Automobile Insurance Co. , 2003 ONSC 43566, 64 O.R. (3d) 135, at para. 10. Counsel were intimately familiar with the issues in the case and the various procedural steps that were taken. In these circumstances, if there was a concern about the amount of time the insurer’s counsel recorded in relation to a particular step, it was incumbent on the appellants’ trial counsel to address it so that the trial judge could have the tools and an informed basis for assessing the reasonableness and proportionality of the costs that were claimed. Without such submissions, it was entirely appropriate for the trial judge to observe that the quantum of costs was not at issue, and to proceed to determine entitlement and the scale of costs to be awarded. [143] I turn now to the appellants’ second argument: that the trial judge erred in awarding substantial indemnity costs from the date of the insurer’s offer to settle. [144] The appellants assert that the trial judge erred in principle in awarding substantial indemnity costs from the date of the insurer’s offer. They submit that she failed to distinguish between zealous advocacy of the appellants’ claim and true reprehensible conduct deserving of sanction. The appellants contend that their conduct was not reprehensible; rather they advanced a valid and arguable claim of bad faith and sought punitive damages. They argue that the fact that they were unsuccessful in these claims and that findings of fact and credibility were made against them did not warrant an award of substantial indemnity costs. [145] The insurer asserts that the trial judge was entitled to exercise her discretion to award substantial indemnity costs because she found reprehensible conduct that was deserving of sanction. The appellants levelled allegations against the insurer that were egregious and unfounded, and were made in the hopes of securing sympathy and unjustified favour from the jury. [146] I begin with the principle that an award of substantial indemnity costs is exceptional. Other than under r. 49.10 of the Rules of Civil Procedure (where a plaintiff recovers more than its offer to settle), substantial indemnity costs should only be awarded after trial [4] where the court deems that a party’s conduct was reprehensible, scandalous or outrageous: Clarington (Municipality) v. Blue Circle Canada Inc. , 2009 ONCA 722, 100 O.R. (3d) 66, at para. 29. The fact that proceedings have little merit is no basis for awarding costs on an elevated scale: Young v. Young , [1993] 4 S.C.R. 3, at p. 134. As noted by this court in Net Connect Installation Inc. v. Mobile Zone Inc. , 2017 ONCA 766, 140 O.R. (3d) 77, at para. 8, “[s]ubstantial indemnity costs is the elevated scale of costs normally resorted to when the court wishes to express its disapproval of the conduct of a party to the litigation. ” [147] In its written submissions to the trial judge, the insurer stated the following: [T]he law is settled that where an insured alleges the insurer has breached its duty of good faith and makes allegations of improper conduct required to justify an award of punitive damages and fails the insurer is entitled to its costs fixed on a substantial indemnity scale. Similar submissions were made orally, and the insurer referred to a number of cases where bad faith claims had failed and substantial indemnity costs were awarded. The insurer’s submissions to the trial judge on this point were incorrect. [148] In Hamilton , the Supreme Court emphasized that the fact that a party makes unsuccessful allegations of fraud or dishonesty will not lead inexorably to the conclusion that substantial indemnity costs are warranted, since not all unsuccessful attempts to prove fraud or dishonesty on a balance of probabilities amount to “reprehensible, scandalous or outrageous conduct”: at para. 26. Similarly, the failure of a plaintiff to prove a claim of punitive damages or breach of the duty of good faith against an insurer does not in itself justify an award of substantial indemnity costs. There must be a finding that the plaintiff engaged in conduct which is deserving of sanction. [149] While there are cases where substantial indemnity costs have been awarded where plaintiffs made “empty” or “unsubstantiated” bad faith allegations, typically there is specific conduct on the part of the unsuccessful party that extends beyond challenging the conduct of the insurer or presenting its case vigorously. For example, in Sagan v. Dominion of Canada General Insurance Company , 2014 ONSC 2245, 29 C.C.L.I. (5th) 284, where the plaintiff’s statement of claim contained “a litany of unsupported allegations of bad faith, misconduct and incompetence against the defendant”, and the plaintiff provided no evidence to support those allegations, substantial indemnity costs were awarded for the hearing of the defendant’s successful summary judgment motion. In DiBattista v. Wawanesa Mutual Insurance Co. (2005), 78 O.R. (3d) 445 (S.C.), aff’d on other grounds 83 O.R. (3d) 302 (C.A.), substantial indemnity costs were awarded after trial against plaintiffs who made serious allegations of intentional acts undertaken in bad faith, which they disseminated in the media. I n Bustamante v. Guarantee Co. of North America , 2015 ONSC 94, 42 C.C.L.I. (5th) 202, the court awarded substantial indemnity costs on a motion for summary judgment dismissing a claim for accident benefits, concluding that there was no foundation whatsoever for the plaintiff’s claims of fraud and bad faith and that the plaintiff was trying to intimidate the insurer with exaggerated claims. In Alguire v. The Manufacturers Life Insurance Company (Manulife Financial) , 2018 ONCA 202, 14 O.R. (3d) 1, this court upheld an award of substantial indemnity costs where the appellant’s claim of bad faith had no “air of reality” and the appellant had fabricated his testimony. [150] In my view, the trial judge erred in principle in awarding substantial indemnity costs in this case. The appellants’ conduct did not reach the level of conduct that is deserving of sanction. The conduct that the trial judge viewed as reprehensible did not extend beyond vigorously challenging the insurer’s conduct in the context of their punitive damages and bad faith claims. [151] A fair reading of the trial judge’s reasons is that she awarded substantial indemnity costs because the appellants made a number of hard-hitting allegations attacking the integrity of the insurer in the context of their punitive damages and bad faith claims. The appellants made these allegations knowing before trial that Cindy would have credibility problems and that Mr. Coutu would testify that the insurer’s conduct was reasonable. [152] The trial judge specifically referred to the following allegations made by the appellants: that the insurer’s investigation was a sham; that the insurer had called them fraudsters; that they had to bring the insurer to court kicking and screaming regarding the appraisal issue; and that the insurer had dragged out the litigation in the hope that they would give up and that Joyce would not last until the trial. [153] The allegations referred to by the trial judge were made in the context of the appellants’ claims against the insurer for bad faith and punitive damages (in addition to coverage under their insurance policy). In making these claims, the appellants necessarily challenged the insurer’s handling of their claim and relied on the alleged misconduct of the insurer. Some of the allegations were made in the opening address of the appellants’ trial counsel, prompting an unsuccessful motion for a mistrial. [5] There was nothing improper per se in the fact that the allegations were made or in the way they were stated by counsel; indeed, there is no indication that the trial judge issued any form of corrective instruction to the jury following the opening addresses. The fact that the appellants persisted with these allegations (some of which were repeated in counsel’s closing address), despite certain weaknesses in their case (Cindy’s credibility problems and Mr. Coutu’s anticipated evidence), and were ultimately unsuccessful, is not egregious or reprehensible conduct warranting an award of substantial indemnity costs. The vigorous pursuit of an unsuccessful claim does not by itself justify an award of costs on an elevated scale: see Upchurch v. Oshawa (City) , 2014 ONCA 425, 27 M.P.L.R. (5th) 179, at paras. 31-33. Moreover, adverse findings of credibility do not justify an award of substantial indemnity costs: Hunt v. T.D. Securities Inc. (2003), 229 D.L.R. (4th) 609 (Ont. C.A.), at paras. 147-150, leave to appeal refused, [2003] S.C.C.A. No. 473. [154] The appellants’ bad faith and punitive damages claims, which were asserted in the context of seeking coverage under their insurance policy, were not empty, baseless or entirely without foundation. This case is distinguishable from those where plaintiffs made gratuitous claims of bad faith against their insurer for ulterior purposes or without any foundation or evidence to substantiate their allegations. [155] Although the trial judge characterized the allegation that the appellants might “give up or die” because of delay as “particularly reprehensible” when the appellants were responsible for a good part of the delay in the action, this submission of counsel was not the kind of reprehensible conduct that would justify an award of substantial indemnity costs against the appellants. The insurer was responsible for some delay in the proceedings and the trial judge did not instruct the jury to disregard this submission. As this court noted in Clarington , at para. 45, “a distinction must be made between hard-fought litigation that turns out to have been misguided, on the one hand, and malicious counterproductive conduct, on the other”. [156] The trial judge’s findings do not support an award of substantial indemnity costs, nor are costs on an elevated scale supported by a fair reading of the record. Accordingly, I would give effect to this ground of appeal, and substitute an order for partial indemnity costs in favour of the insurer. [157] Unfortunately, the insurer’s counsel did not provide a bill of costs setting out its costs of the action on a partial indemnity basis, except to provide a proposed amount for partial indemnity costs for the period preceding its offer to settle. Applying an appropriate discount to the substantial indemnity costs awarded by the trial judge, and accounting for taxes and disbursements, I would reduce the insurer’s costs to the all-inclusive amount of $430,000. V. DISPOSITION [158] For these reasons, I would allow the costs appeal and reduce the trial judge’s costs award to $430,000, inclusive of taxes and disbursements. I would otherwise dismiss the appeal. [159] Taking into consideration the appellants’ success on its costs appeal, I would award the insurer costs before this court fixed at $40,000, inclusive of taxes and disbursements. Released: June 25, 2020 (“K.M.v.R.”) “K. van Rensburg J.A.” “I agree. M.L. Benotto J.A.” “I agree. Harvison Young J.A.” [1] Joyce passed away in July 2019, following the trial and before the hearing of the appeal. Although her estate trustees are now appellants on behalf of Joyce’s estate, for ease of reference I refer in these reasons to Joyce and Cindy as the appellants. [2] At trial, the focus was on the alleged wilfully false statements in respect of items listed in the Schedule of Loss. [3] The insurer’s counsel argued, unsuccessfully, that the change in heat source occurred as soon as the gas was shut off, and that Question 1 should be framed accordingly. The trial judge agreed with the appellants’ trial counsel that, unless the statement of defence was amended, the insurer was bound by its pleading, which claimed that the material change in risk was the use of electric heaters as the primary heat source. The trial judge refused to allow the amendment. [4] I note that r. 20.06 provides that the court may order costs of a motion for summary judgment by a party on a substantial indemnity basis if: (a) the party acted unreasonably by making or responding to the motion; or (b) the party acted in bad faith for the purpose of delay. [5] Although the initial objection of the insurer’s counsel is in the record on the appeal, counsel’s submissions on the motion for a mistrial and the trial judge’s ruling dismissing the motion were not transcribed. It appears from the transcript that, immediately after the ruling, the first witness was called.

WARNING THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO: 110(1)          Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. (2) Subsection (1) does not apply (a) in a case where the information relates to a young person who has received an adult sentence; (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community. (3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication. 111(1)          Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. 138(1)          Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b)  is guilty of an offence punishable on summary conviction. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Alexis, 2020 ONCA 334 DATE: 20200601 DOCKET: C61399 & C62320 Feldman, Gillese and Miller JJ.A. DOCKET: C61399 BETWEEN Her Majesty the Queen Respondent and Marcus Alexis Appellant DOCKET: C62320 AND BETWEEN Her Majesty the Queen Respondent and Brian Funes Appellant Michael W. Lacy and Bryan Badali, for the appellant Marcus Alexis Erin Dann and Sarah Weinberger, for the appellant Brian Funes Michael Bernstein, for the respondent Heard: November 18, 2019 On appeal from the convictions entered by Justice Joseph M. Fragomeni of the Superior Court of Justice, sitting with a jury, on March 13, 2015, and from the sentence imposed on September 23, 2015. B.W. Miller J.A.: [1] On April 16, 2011, two masked assailants attempted an armed robbery of a poker tournament at a banquet hall in Brampton. Just before the tournament was to begin, one of the assailants stormed into the hall, demanded the tournament registration money, and struck the tournament organizer on the head with his handgun. The gun discharged into the ceiling. Sam Parker – the tournament organizer – fell to the ground, then wrestled with the assailant for control of the gun. One of the tournament patrons – Kearn Nedd – came to Mr. Parker’s aid. During the resulting fray, the second assailant opened fire from the doors of the banquet hall, spraying the hall with nine bullets. One of the shots hit Mr. Nedd, killing him. The two assailants fled in a waiting vehicle. [2] The first assailant, G.O., was also hit by gunfire from the second assailant. G.O. was taken to hospital by his confederates. A warranted search of his cell phone, among other investigative steps, led police to Kmar Kelly, John Morrone, Nirmalan Satkunananthan, and the appellants Marcus Alexis and Brian Funes. [3] Mr. Satkunananthan told police that he was the “inside man” at the tournament. He said that he brought the tournament to Mr. Funes’s attention, and Mr. Funes asked him to contact him from inside the tournament and tell him how many people were there and where the money was being collected. Mr. Satkunananthan did so. [4] Mr. Morrone was initially charged with Mr. Nedd’s murder but agreed to become a Crown witness in exchange for immunity and participation in the witness protection program. Mr. Morrone testified that he was approached by Mr. Funes to plan the robbery on his behalf. At the time, Mr. Morrone was a drug dealer who also planned and executed robberies once or twice a month. According to Mr. Morrone, he recruited his associates G.O., Mr. Kelly, and Mr. Alexis. Mr. Morrone also supplied the guns. On Mr. Morrone’s account, G.O. was to run in and grab the money, Mr. Alexis would “control the situation” using his firearm, and Mr. Kelly would be the getaway driver. Neither Mr. Morrone nor Mr. Funes would be present at the scene of the robbery. [5] Mr. Morrone told the police that the two masked assailants were G.O. and Mr. Alexis, and furthermore that Mr. Alexis had confided to him that he was the assailant who opened fire on the banquet hall. [6] Mr. Alexis and Mr. Funes were jointly tried before a jury. Mr. Alexis was convicted of first degree murder and Mr. Funes was convicted of manslaughter. A. Issues on appeal [7] On appeal, Mr. Alexis argues that the trial judge: a. erred in his instruction on forcible confinement as a basis for constructive first degree murder; b. failed to sufficiently relate the evidence at trial to the legal issues in his instructions to the jury; and c. provided an unnecessarily complex jury instruction, leaving open routes of liability that were not available on the evidence. [8] Mr. Funes argues that the trial judge erred by: a. leaving party liability as an aider or abettor under s. 21(1) of the Criminal Code , R.S.C. 1985, c. C.46, with the jury; and b. failing to relate the law to the evidence in his instructions on ss. 21(1) and 21(2) in addressing whether Mr. Funes possessed the necessary mens rea . Mr. Funes also appealed from sentence. His appeal from sentence was ordered to be heard following the appeal from conviction, depending on the result. B. Alexis appeal (1) Introduction [9] The main issue at trial for Mr. Alexis was whether the Crown had proven the identity of the shooter beyond a reasonable doubt. The Crown’s theory was that not only was Mr. Alexis present at the robbery, but according to Mr. Morrone, Mr. Alexis acknowledged that he was the shooter. The defence’s main argument was that Mr. Morrone’s identification of Mr. Alexis as the shooter was not credible. None of the eyewitnesses were able to identify Mr. Alexis. [10] Mr. Alexis was charged with first degree murder. The Crown relied on both planning and deliberation under s. 231(2) of the Criminal Code and constructive murder under s. 231(5)(e) (forcible confinement) to make out first degree murder. [11] Mr. Alexis argues that the trial judge’s charge on the requisite link between the forcible confinement and the murder was inadequate, that the trial judge failed to adequately relate the evidence to the legal issues, and that the trial judge gave a charge that was overly complex. As explained below, I disagree, and would dismiss the appeal. (2) Forcible confinement instruction [12] The trial judge instructed the jury that there were two routes through which it could convict Mr. Alexis of first degree murder. The first was constructive murder: if Mr. Alexis was found to have committed the murder “while committing” the offence of forcible confinement, he would be guilty of first degree murder pursuant to s. 231(5)(e) of the Criminal Code . The second route would be if the murder was found to have been a planned and deliberate killing, pursuant to s. 231(2) of the Criminal Code . [13] There is no dispute that the trial judge’s charge to the jury adequately stated the law with respect to the elements of the second route, planning and deliberation. But Mr. Alexis argues that the charge did not adequately explain the necessary conceptual link between the murder and the forcible confinement for the first route – constructive first degree murder – and risked leaving the jury with a misunderstanding of what was required for a conviction on that basis. [14] Mr. Alexis does not argue that the trial judge misstated the law with respect to constructive murder. He submits that the charge was nevertheless incomplete. More was required in the circumstances of this case to communicate to the jury that a temporal link between the offences was not in itself sufficient to establish constructive murder. [15] As explained below, I do not agree. The form of jury charge that was given in this case was substantially the same as one that has been expressly accepted by this court on numerous occasions, including recently in R. v. Niemi , 2017 ONCA 720, 355 C.C.C. (3d) 344, leave to appeal refused, [2019] S.C.C.A. No. 117. Nothing in the circumstances of this case rendered the instruction misleading or inadequate. In particular, it would not have misled the jury into concluding that only a temporal link was required to establish constructive murder. (a) “While committing” – the causal link [16] Section 231(5) of the Criminal Code deems culpable homicide to be first degree murder when “the death is caused […] while committing or attempting to commit” an enumerated offence, in this case, forcible confinement. The rationale for this elevation of culpability was expressed in R. v. Paré , [1987] 2 S.C.R. 618, at p. 633, as “the [offender’s] continuing illegal domination of the victim which gives continuity to the sequence of events culminating in the murder”. The victim who has been dominated in the commission of the predicate offence need not be the same victim who was murdered: R. v. Russell , 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 43. [17] The salient phrase in s. 231(5) – “while committing” – has received extensive judicial commentary. This phrase has been interpreted as imposing the requirement that the murder and the predicate offence be distinct, yet part of “the same series of events”: R. v. Kimberley (2001), 56 O.R. (3d) 18, at para. 108, leave to appeal refused, [2002] S.C.C.A. No. 29. The two offences must be “linked together […] in circumstances that make the entire course of conduct a single transaction”: R. v. Pritchard , 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 35. [18] A temporal link is not sufficient; it is not enough that the two offences be committed in succession. There must also be a causal link between the two offences: Pritchard , at para. 35. This link may be established in various ways. One way is where one offence was committed to facilitate the other, whether the predicate offence facilitated the commission of the murder or the murder facilitated the commission of the predicate offence: Russell , at paras. 43 and 48. Similarly, the causal link may be established where each offence was committed to facilitate some third offence, where the offences taken together can aptly be described as a single transaction. (b) The jury charge [19] The relevant portion of the jury charge reads as follows: In order for Marcus Alexis to be guilty of first degree murder Crown counsel must also prove beyond a reasonable doubt that Marcus Alexis murdered Kearn Nedd while he was committing the offence of unlawful confinement. This does not mean that the murder and the unlawful confinement have to happen at exactly the same time, the same moment, but it does mean that the murder and the unlawful confinement must be closely connected with one another, in the sense that they must be part of the same series of events. They must both be part of a single on-going transaction. And again, to answer this question you have to consider the entire course of conduct of Marcus Alexis’ conduct. Look at the whole series of events that took place at the time of the shooting, the confinement, all of the witnesses you heard with respect to what was happening at the banquet hall. Look at the whole series of events. The evidence may show that the murder and the unlawful confinement were all part of a continuous series of events that was really a single on-going transaction. On the other hand, the evidence may indicate otherwise. It is for you to say. Use your good common sense. If you are satisfied beyond a reasonable doubt that the unlawful confinement and murder of Kearn Nedd were part of the same series of events, you must find Marcus Alexis guilty of first degree murder on this basis of liability. [20] It is readily apparent that the trial judge followed Watt’s Manual of Criminal Jury Instructions , 2nd ed. (Toronto: Thomson/Carswell, 2015), which recommends the use of the following language in explaining the meaning of “while committing”: Were the (attempt to commit) (specify listed offence) and the murder of (NOC) part of the same series of events? In order for (NOA) to be guilty of first degree murder, Crown counsel must also prove beyond a reasonable doubt that (NOA) murdered (NOC) while s/he was committing (or, attempting to commit) the offence of (specify listed offence) . This does not mean that the murder and the (attempt to commit) (specify listed offence) have to happen at exactly the same moment, but it does mean that the murder and the (attempt to commit) (specify listed offence) must be closely connected with one another, in the sense that they must be part of the same series of events. They must both be part of a single ongoing transaction. To answer this question you have to consider the entire course of (NOA) 's conduct. Look at the whole series of events in order to decide whether you are satisfied beyond a reasonable doubt that the murder and the (specify listed offence or attempt) were part of a continuous series of events that was a single ongoing transaction. The evidence may show that the murder and the (attempt to commit) (specify listed offence) were all part of a continuous series of events. Or it may not. [21] In Niemi , this court expressly approved of the above instruction, holding that it “communicates effectively that more than a temporal connection is required for the murder and underlying offence to be linked” for the purposes of s. 231(5). In Niemi , the trial judge went beyond the specimen instruction and added the further sentence that “a single, ongoing transaction is a sequence of events or course of conduct that is interrelated or linear, ongoing and connected through time.” The appellant in that case objected to the addition on the basis that it suggested that nothing more than a temporal connection was required. This court rejected that argument, holding that the instruction had to be taken as a whole, and that even if the added sentence was read in isolation, the use of the phrase “a sequence of events or course of conduct that is interrelated” made it clear that something more than a temporal connection was required. [22] Mr. Alexis argues that the Niemi charge was in fact superior to the present charge. He argues that for the jury to understand that a causal connection was required, it was not sufficient for the trial judge to tell the jury that the acts had to be part of “the same series of events”. The jury ought to have been told that it needed to find that the events were “interrelated”. Otherwise, the jury would be misled into thinking that all that mattered was the “serial nature” of the offences, in the sense that one happened after the other. [23] In oral argument, Mr. Alexis advanced a different argument: that the trial judge ought to have expressly instructed the jury that it had to find that the forcible confinement facilitated the murder. [24] I do not agree with either submission. For the judge to have instructed the jury that it had to find that the forcible confinement facilitated the murder would have been inaccurate. The instruction that the murder and the confinement had to be closely connected, in the sense of being part of “the same series of events” and a “single, on-going transaction” was correct. It is inherent in the concept of a series of events, in the context of the charge read as a whole, that there must be some unifying relation among the events. The continuing course of domination, in the language of Paré , is that unifying relation. Nothing more was required in the circumstances of this case. [25] On the theory articulated by Mr. Alexis, any confinement had ended or been interrupted by the time of the murder, severing any causal link between it and the murder. Mr. Alexis says that any confinement was interrupted because by the time of the murder, the attempted robbery had failed, and the first assailant had been overpowered and was struggling with Parker over control of the gun. A necessary implication of this argument is that once the attempted robbery was abandoned, any confinement in support of the robbery must also have ended; that is, the robbery and the confinement were necessarily co-extensive. [26] It should be noted that the predicate offence was not attempted robbery. It was confinement. It was not axiomatic that any confinement must have ended when the robbery attempt was abandoned. And, even if the confinement had ended, it does not necessarily follow that the temporal and causal link between the confinement and the murder was severed. [27] There were several options available to the jury to find a confinement occurred that was linked to the murder both temporally and causally. The confinement, on the Crown’s theory, could have been of a security guard (who had been detained at gunpoint by the second assailant, and at the time of the shooting was hiding in the bathroom), of Mr. Parker (who was struggling to get control of the gun from G.O.), of the tournament patrons (some of whom were on the floor, with tables pulled on top of them), or all of them. [28] While arguably some of these confinements had ended by the time of the shooting, there was ample evidence upon which the jury could have found otherwise. There was evidence that all the exits from the banquet hall had been chained shut or otherwise barred by the tournament organizers in advance of the tournament. The sole exception was the entrance where Mr. Alexis had positioned himself with a gun. [29] It was for the jury to determine whether Mr. Alexis (alone or in concert with G.O.) had confined one or more persons, when those confinements ended, and whether, even if they had ended, they were still temporally and causally linked to the murder. [30] The charge enabled the jury to understand what it had to decide. Much like in Niemi , the language of a close connection and a “single on-going transaction” would have communicated to the jury that more than a temporal connection was required. [31] Mr. Alexis also argues that the trial judge erred by not reviewing Crown and defence positions in relation to the causal link. [32] Again, I disagree. The relationship between the confinement and the murder was obvious. Counsel for Mr. Alexis was provided an opportunity to review the draft jury charge and made no request that it be changed to better address the issue of the causal link. She chose not to address this issue in her closing submissions, focusing instead on the central issue of the identification of the shooter. It was not an error for the trial judge not to have articulated positions that defence counsel chose not to advance. (3) Relating evidence to the issues [33] Mr. Alexis argues that the trial judge failed in his obligation to review the evidence and relate it to the issues in the case.  Although the trial judge reviewed the evidence, Mr. Alexis argues that it was the type of seriatim , witness-by-witness summary that this court has frequently criticized as ineffectual, because it fails to equip the jury to understand how the evidence relates to the issues, and to the parties’ positions on those issues: see, e.g., R. v. Newton , 2017 ONCA 496, 349 C.C.C. (3d) 508, at paras. 15-16; R. v. Barreira , 2020 ONCA 218, at paras. 26-40. [34] For example, Mr. Alexis argues that the trial judge ought to have instructed the jury that, on the question of the identity of the shooter, the primary evidence was that of Mr. Morrone. Because Mr. Morrone was a Vetrovec witness, the trial judge ought to have directed the jury that if it had a reasonable doubt about the truthfulness of his evidence, it was required to acquit Mr. Alexis. He ought, at the same time, to have directed the jury’s attention to whether there were eyewitness descriptions of the shooter that corroborated Mr. Morrone’s evidence, and by setting out the defence position that Mr. Kelly – Mr. Morrone’s cousin – was the actual shooter and that Mr. Morrone was covering for him by pinning the blame on Mr. Alexis. [35] I would not accept this argument. In my view, the trial judge’s charge adequately conveyed to the jury the relationship between the evidence and the issues, particularly in light of the trial judge’s detailed Vetrovec warning in respect of Mr. Morrone and his careful review of Mr. Morrone’s evidence on cross-examination. [36] There is a wide latitude given to trial judges in organizing and drafting their charges. As Doherty J.A. stated in R. v. Bouchard , 2013 ONCA 791, 305 C.C.C. (3d) 240, at para. 40, aff’d 2014 SCC 64, [2014] 3 S.C.R. 283: Evidence […] can be reviewed in minute detail or more generally by reference to topics or relevant areas of the evidence. Neither type of review is inherently right or wrong. If a trial judge, after full consultation with counsel, and with counsel’s at least tacit approval, settles on one method, it would be a rare case where an appeal would be allowed on the basis that the other method of reviewing the evidence was essential to a proper jury instruction. [37] Here, there was a substantial amount of evidence that related to multiple accused, each facing a different charge. The trial judge provided an extensive summary of the evidence. In the context of a four-month trial, this is neither surprising nor inappropriate. The summary was neither unfocussed nor disorganized. It followed a structure that the trial judge explained to the jury at the outset: (1) testimony as to the key events: tournament, robbery, and shooting; (2) the evidence of witnesses who saw the two men coming and leaving the banquet hall; and (3) the evidence of the two key Vetrovec witnesses. The charge, read as a whole, sufficiently related the evidence to the matters in issue. I also note that although defence counsel at trial initially raised this issue in response to an early draft of the charge, after the trial judge made changes to the draft charge, she did not pursue it further. [38] With respect to the evidence of Mr. Morrone – the key witness in the trial – the trial judge gave a strong Vetrovec warning. He directed the jury that it would be dangerous to rely on Mr. Morrone’s uncorroborated evidence. Mr. Alexis does not argue that the Vetrovec warning was deficient in any way. [39] Later in the charge, the trial judge reviewed the cross-examination of Mr. Morrone in detail. That review served to remind the jury of how thoroughly Mr. Morrone’s evidence was challenged on the key issue for Mr. Alexis: the identity of the shooter. It raised the defence theory that Mr. Morrone was covering for Mr. Kelly, the actual shooter. The trial judge reminded the jury of Mr. Morrone’s evidence that he loved Mr. Kelly like a brother, as well as his denial in response to counsel’s suggestion that Mr. Kelly was the actual shooter. Further, near the conclusion of the charge, in setting out the position of the defence, the trial judge reviewed the differing eyewitness evidence and Mr. Morrone’s close relationship with Mr. Kelly. [40] In the circumstances, it would have been clear to the jury that the key issues in the case against Mr. Alexis turned on the evidence of Mr. Morrone, that his evidence had been challenged extensively in cross-examination, and that it was essential that they take great care before relying on his evidence. It was open to the trial judge to structure the charge as he did, and his approach does not reflect error. (4) Unnecessarily complex charge [41] This ground of appeal was not pursued at the hearing. In any event, I would reject it. While the charge could have been more concise, it was not overly complex. (5) Conclusion [42] I would dismiss the appeal of Mr. Alexis. C. Funes appeal (1) Introduction [43] Mr. Funes was not present at the robbery. On the Crown’s theory, the poker tournament heist was his project and he retained Mr. Morrone – as a general contractor – to plan and oversee it. On the defence theory, Mr. Morrone was the originating and directing mind of the robbery and Mr. Funes was at most a simple intermediary, forwarding information to Mr. Morrone that he received from Mr. Satkunananthan on the tournament floor. [44] Mr. Funes was charged with manslaughter with a firearm under s. 236(a) of the Criminal Code . In the charge to the jury, the trial judge explained that there were two bases on which they could convict Mr. Funes of manslaughter: (1) under s. 21(1), a route of liability he referred to as “Unlawful Act Manslaughter”; and (2) under s. 21(2) as “Common Unlawful Purpose” manslaughter. [45] As explained below, I agree with Mr. Funes that the first of those routes of liability was not available on the evidence. It was an error for the trial judge to have left it with the jury. As it is impossible to know which of the two routes the jury took in determining Mr. Funes to be guilty of manslaughter, there is a risk that he was found guilty based on an erroneous understanding of the law. I would set aside the conviction and order a new trial. (2) Instruction on party liability for manslaughter [46] Section 21 of the Criminal Code reads as follows: Parties to offence 21 (1) Every one is a party to an offence who (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it. Common intention (2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. [47] Liability under s. 21(1) is intended for offenders “who participate in the offence actually committed, whether as a principal, an aider, or an abettor”: R. v. Simon , 2010 ONCA 754, 104 O.R. (3d) 340, at para. 39, leave to appeal refused, [2010] S.C.C.A. No. 459. Section 21(2), on the other hand, extends liability beyond the offence “actually committed” to persons who participated in an “unlawful enterprise with others and either knew or, in most cases at least, should have known that one (or more) of the other participants in the original enterprise would likely commit the offence charged in pursuing their original purpose”: Simon , at para. 41. [48] In his instruction to the jury on s. 21(1), the trial judge told the jury that to convict Mr. Funes of manslaughter under this route to liability, they would have to be convinced beyond a reasonable doubt that: (a) Mr. Funes had participated in an unlawful act – the planning, organizing, and implementation of the armed robbery – as a perpetrator, aider, or abettor; (b) the unlawful act (the armed robbery) was objectively dangerous; and (c) the unlawful act caused Mr. Nedd’s death. [49] Mr. Funes is satisfied with the instruction under s. 21(2) but argues that the s. 21(1) instruction went wrong from the outset. I agree. [50] In this case, the offence “actually committed” for the purposes of s. 21(1) was the unlawful killing of Mr. Nedd. The unlawful act which caused Mr. Nedd’s death was the second assailant’s firing his firearm into the crowded banquet hall. Mr. Funes would have to have participated in this unlawful act as a principal, aider, or abettor to be liable for manslaughter under s. 21(1). [51] At trial, both the Crown and the defence took the position that robbery was the unlawful act forming the basis for manslaughter. This led the trial judge into error. Were the relevant offence robbery for the purpose of s. 21(1), it would make s. 21(1) and s. 21(2) largely indistinguishable. [52] In R. v. Kelly , 2017 ONCA 920, 138 O.R. (3d) 241, a case involving a party to the same robbery as in this case, Doherty J.A. concluded that the accused’s liability for manslaughter flowed exclusively from s. 21(2). Doherty J.A.’s reasoning at paras. 25-26, applies equally here: On the Crown’s case, the [accused] was an aider in the robbery and a party to the common unlawful purpose of committing a robbery. There was no evidence that he did anything for the purpose of aiding the robbers in harming any of the victims of the robbery. The [accused’s] role in planning or executing the robbery could not make him an aider in the homicide that occurred during the robbery. I think this was quintessentially a case for the application of s. 21(2). The [accused], having allegedly agreed to the commission of one crime, the robbery, was alleged by the Crown to be responsible for the commission of a second crime committed by one of the parties to the robbery in the course of carrying out the common unlawful purpose. Section 21(2) addresses exactly that kind of criminal culpability. [53] The respondent submits that this court should be reluctant to take too much from the decision in Kelly because the accused in that case played a different role in the robbery and the evidence heard in each case was different. In my view, the differences between the accused and the evidence do not affect the applicability of the principles of party liability set out in that case by Doherty J.A. [54] The respondent points to three aspects of the evidence to argue that the jury could have concluded that Mr. Funes assisted the assailants in harming the victims of the robbery: 1. Mr. Funes must have known that they would need force to commit the robbery; 2. Mr. Funes retained Mr. Morrone, who had a reputation for armed robbery; and 3. Mr. Funes took various steps to facilitate the robbery. [55] In my view, all these factors speak to Mr. Funes’s participation in the robbery and his knowledge or foresight about the potential consequences of the robbery. This is relevant under s. 21(2) – whether Mr. Funes knew or ought to have known that bodily harm was a probable consequence of carrying out the robbery. But in this case, this evidence does not speak to whether Mr. Funes “did anything for the purpose of aiding the robbers in harming any of the victims of the robbery”: Kelly , at para. 25. There was no evidence, for example, that Mr. Funes had any role in procuring the firearms or providing them to the two assailants. Mr. Morrone’s evidence was that Mr. Funes did not encourage or direct the use of firearms in the robbery. He testified that Mr. Funes was not involved in the detailed planning of the robbery and that they did not discuss the use of firearms. And Mr. Funes was not present for the robbery to assist the assailants in harming the victims. [56] As in Kelly , Mr. Funes’s role “in planning and executing the robbery could not make him an aider in the homicide that occurred during the robbery”: at para. 25. [57] The respondent also relies on Mr. Funes’s actions after the robbery, such as participating in the cleanup, and says that this evidence “was capable of supporting a reasonable inference of [his] knowledge and intent before the robbery”. I accept that this was circumstantial evidence going to Mr. Funes’s knowledge (and therefore relevant under s. 21(2)), but in the absence of any evidence that he did anything for the purpose of aiding the robbers in harming the victim, it cannot on its own support liability under s. 21(1). (3) Prejudice [58] The Crown argues that there was an overwhelming case for conviction under s. 21(2), and that even if it was an error to leave s. 21(1) available to the jury, no harm was done, and this court ought to apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code . [59] Whatever the strength of the case under s. 21(2), it cannot be said that there was no prejudice to Mr. Funes in leaving s. 21(1) available. [60] First, we cannot know which of the two possible routes to liability the jury took. There is a possibility that Mr. Funes was found guilty under a section of the Criminal Code that could not apply to his actions, and not found guilty under the section that could. [61] Second, the level of mens rea required for a conviction for aiding in an offence under s. 21(1) – as explained to the jury in this case by the trial judge – is less than what is required for a conviction under s. 21(2). Section 21(2) contains an additional requirement that the Crown establish that the accused had the objective foresight that his confederate would commit the secondary offence in the course of carrying out the common purpose. [62] By contrast, the trial judge told the jury that under s. 21(1), all they had to find was that Mr. Funes participated in planning or carrying out the robbery, that robbery was “objectively dangerous”, and that the robbery “caused” Mr. Nedd’s death. Accordingly, in this case, s. 21(1) presented an easier route to conviction than s. 21(2), which compounds the potential prejudice to Mr. Funes of the erroneous charge. [63] This is sufficient to allow the appeal and order a new trial. It is unnecessary to address Mr. Funes’s further grounds of appeal. Mr. Funes’s appeal from sentence is, as a result, moot. D. DISPOSITION [64] I would dismiss the appeal of Mr. Alexis. I would allow the conviction appeal of Mr. Funes, set aside the conviction, and order a new trial. Released: “KF” JUN 1 2020 “B.W. Miller J.A.” “I agree. K. Feldman J.A.” “I agree. E.E. Gillese J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, 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. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. C.C., 2020 ONCA 396 DATE: 20200619 DOCKET: C67431 MacPherson, Pardu and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and C.C. Appellant C.C., acting in person Jessica Smith Joy, for the respondent Heard: June 15, 2020 by Videoconference On appeal from the convictions entered on February 28, 2018 and the sentence imposed on September 5, 2018 by Justice Brenda M. Green of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant was convicted of sexual interference with a person under 16 years of age and invitation to touching with a person under 16 years of age. [2] The complainant was eight to nine years old at the time of the alleged incidents. Her parents were separated. The complainant’s principal residence was with her mother. Her father had liberal access and the complainant spent some weekday nights and every second weekend at his home. [3] The appellant was the complainant’s father’s best friend and lived in his house. He was very close to the complainant who regarded him as an ‘uncle’. The father trusted the appellant explicitly and the complainant and the appellant were often alone together in the house. [4] In 2016, when the complainant was 15 years old, she told a school guidance counsellor, then her parents, and finally the police that in 2009/2010, when she was eight to nine years old, the appellant sexually assaulted her. These assaults, she said, took place one to two times per week for about a year. [5] At the trial, the complainant, her mother and her father testified. Although in her testimony the complainant described a year-long pattern of sexual abuse on many occasions, she focused on three incidents that she specifically described in detail: the birthday incident, the pornography incident, and the sexual intercourse incident. [6] The trial judge found that the complainant was a reliable and credible witness. She convicted the appellant of sexual assault, sexual interference, invitation to sexual touching, and exposing his genitals. The sexual assault and exposing genitals charges were conditionally stayed on the basis of R. v. Kienapple , [1975] 1 S.C.R. 729. [7] The trial judge imposed a sentence of six years imprisonment in addition to credit for 56 days of pre-sentence custody. The trial judge observed that the sentence would have been longer but for the fact that the appellant had been on bail for a lengthy period of time before the trial. [8] The appellant appeals from the conviction and the sentence. [9] On the conviction appeal, the appellant makes three arguments. [10] First, the appellant contends the trial judge failed to address credibility and reliability concerns with respect to the complainant’s evidence and ignored flaws in the Crown’s case that were capable of raising a reasonable doubt. [11] We do not accept this submission. The trial judge engaged in a very extensive and careful analysis of the testimony of a teenager trying to recall and describe traumatic events that had taken place approximately nine years before when she was eight or nine years old. The trial judge’s conclusion that the complainant was both credible and reliable was well supported by the evidence she accepted. [12] Second, the appellant submits that since the trial judge did not accept that actual intercourse took place during one of the alleged assaults, this should have led her to reject the complainant’s testimony about all of the alleged sexual events. [13] We are not persuaded by this submission. A trial judge is entitled to accept all, some or none of a witness’ testimony. As stated above, in this case the trial judge engaged in a lengthy and careful review of the complainant’s evidence. For the most part, she believed the complainant. On one point – i.e., whether there was actual sexual intercourse on one occasion – the trial judge was entitled to conclude, based on the complainant’s description and the surrounding circumstances relating to her disclosure, that she was not satisfied beyond a reasonable doubt that this component of the complainant’s description of a particular assault was made out. This inured to the appellant’s benefit. [14] Third, the appellant asserts that the complainant’s willingness to go to the appellant’s basement room belies her testimony that she was sexually abused almost weekly for an entire year. [15] We disagree. The complainant was an eight-year-old girl who loved and trusted her ‘uncle’. It would be wrong to say that she must have had the intellectual and physical capacity to say ‘No’ to her uncle. [16] On the sentence appeal, the appellant contends that the trial judge erred by not rejecting the entire incident where the complainant said that actual sexual intercourse occurred. [17] We disagree. The trial judge was entitled to base her sentence on her findings relating to all of the events, including her partial acceptance of the complainant’s testimony relating to this particular event. [18] The appellant submits that, in fashioning his sentence, the trial judge did not give sufficient weight to his character letters or his own history of sexual abuse as a boy. [19] The character letters were very general. Moreover, one of the overriding factors in sentencing a person who has sexually abused a child is to acknowledge the terrible harm child complainants suffer in these situations. The sentence imposed by the trial judge in this case is faithful to that overarching goal. [20] The conviction appeal is dismissed. The sentence appeal is dismissed except for the $200 victim surcharge per offence, which is set aside. “J.C. MacPherson J.A.” “G. Pardu J.A.” “Gary Trotter J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, 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. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. C.P., 2020 ONCA 379 DATE: 20200615 DOCKET: C65700 Watt, Trotter and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and C.P. Appellant Paul J.I. Alexander, for the appellant Nicole Rivers, for the respondent Heard: by video call on June 8, 2020 On appeal from the conviction entered on June 8, 2018 and the sentence imposed on August 3, 2018 by Justice Marcella Henschel of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant was convicted of assault and sexual assault of his then wife. He argues that the trial judge misapprehended the evidence and thus erred in: 1. finding the complainant had no motive to fabricate; 2. finding that the WhatsApp message, correctly translated, amounted to an admission of guilt; and 3. finding that the complainant had disclosed the sexual assault allegations to her family prior to the request for immigration documentation. [2] We would not give effect to any of these grounds. [3] As far as the finding that there was no motive to fabricate, the trial judge concluded that the record did not support the appellant’s claim that the complainant came up with the allegations after learning (and believing) that she could be subject to deportation on the basis that the marriage lasted less than two years unless she established that the marriage ended because of abuse. The trial judge’s conclusion was open to her on the evidence. Most significantly, the trial judge found that the complainant had told her parents of the abuse months before she returned to Canada and learned about any possible immigration consequences of the marriage breakdown. [4] The trial judge carefully considered both parties’ evidence as to the meaning of the WhatsApp message. She rejected the appellant’s explanation of the slapping incident because it made no sense in light of his evidence that he had “accidentally” hit her when he had tapped her on the shoulder to ask her to shut off her laptop and she turned around. She was entitled to do so. She considered this in the context of the evidence as a whole. Read fairly, we do not agree that the trial judge misapprehended the appellant’s evidence on the way in which the slap occurred. Moreover, even if she had, this difference was not material because the appellant’s version makes no more sense in the circumstances, and particularly in light of the complainant’s reaction. [5] In addition, the trial judge was entitled to accept the complainant’s version of the WhatsApp message. [6] Finally, we do not agree that the trial judge misapprehended the evidence that the complainant had previously disclosed “everything” to her parents as including the incident of sexual abuse. It is clear that she at the very least disclosed the slapping incident. Even if the trial judge had inappropriately concluded that “everything” included the sexual assault incident, the appellant’s argument that the sexual assault was material to the immigration consequences of the breakdown of the marriage was entirely speculative. The evidence fell short of establishing that the complainant personally thought she could be deported although she knew the rules and knew that she had to follow a process “step by step”. Read as a whole, the reasons provide ample support for the trial judge’s rejection of the argument that the complainant fabricated the sexual assault allegation because she was afraid of being deported. [7] Finally, we are jointly asked to delay release of this decision until the pandemic passes. We see no basis for doing so. [8] As agreed by the parties, the victim surcharge imposed by the trial judge should be set aside. The appeal is otherwise dismissed. “David Watt J.A.” “Gary Trotter J.A.” “A. Harvison Young J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, 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. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Carbone, 2020 ONCA 394 DATE: 20200618 DOCKET: C64304 Doherty, Watt and Hourigan JJ.A. BETWEEN Her Majesty the Queen Respondent and Braydon Anthony Martin Carbone Appellant Michael Lacy and Deepa Negandhi, for the appellant Jerry Brienza, for the respondent Heard: January 30, 2020 On appeal from the conviction entered by Justice R. Villeneuve of the Ontario Court of Justice on December 14, 2016. Doherty J.A.: I [1] The appellant was convicted of one count of invitation to sexual touching, contrary to s. 152 of the Criminal Code , R.S.C. 1985, c. C-46 after a trial by judge alone. He appeals his conviction only. [2] The appellant raises several grounds of appeal. I accept his contention that the trial judge failed to properly apply the burden of proof when evaluating the conflicting versions of events presented in the evidence. That error requires a new trial. [3] I will also consider three of the other arguments advanced by the appellant, although I am not satisfied any should succeed. One argument seeks a stay, based on an alleged breach of s. 11(b) of the Charter . The other arguments address the elements of the offence created by s. 152 of the Criminal Code . They raise issues that could arise on a retrial. One of those arguments also engages an important jurisprudential question arising out of the Supreme Court of Canada’s decision in R. v. Morrison , 2019 SCC 15, [2019] 2 S.C.R. 3 and its impact on this court’s jurisprudence relating to the mens rea requirement in s. 152. II the evidence [4] The trial judge heard two very different stories. The Crown’s case, based on the evidence of the complainant, H.J., and her friend, A.G., [1] described an arrangement reached through Facebook messaging by which H.J and a third friend, K.M., would provide sexual services to the appellant in exchange for tattoos. The three girls went to the appellant’s home, which also served as his tattoo parlour. H.J., and perhaps K.M., provided sexual services to the appellant. He gave each girl a tattoo as agreed upon. All three girls were 14 years old. [5] The appellant testified. On his version of events, he rejected H.J.’s offer to exchange sexual services for tattoos and told the girls each tattoo would cost $35.00. The girls came to his home, he applied the tattoos, and requested payment. They told him their mother would come by later to pay for the tattoos. She never came. The appellant called H.J. and threatened to go to her parents and the police if he was not paid by the following Friday. On Friday morning, the police arrived at the appellant’s door and arrested him. The appellant insisted he was never alone with any of the three girls and never requested, solicited, or permitted any sexual activity with any of the girls. (i) The Crown’s evidence [6] H.J., A.G., and K.M. wanted to get tattoos. A.G. contacted the appellant through Facebook to inquire about getting tattoos. After A.G.’s initial contact, H.J. also contacted the appellant on Facebook. She suggested the appellant provide each girl with a tattoo in exchange for sexual services. After some negotiation, H.J. and the appellant reached an agreement. H.J. would give the appellant “a blowjob” before he did any tattoos. K.M. would have sex with him after he had finished all of the tattoos. H.J. testified she destroyed the Facebook messages containing these negotiations, fearing her parents would find them. [7] The three girls went to the appellant’s home to get their tattoos a day or so later. The appellant met them at the door, clad only in a towel. The girls went into the house, the appellant put on some clothes, and the four sat downstairs talking and smoking marihuana. [8] A short time later, the appellant and H.J. went upstairs to his bedroom. The appellant confirmed H.J. was still prepared to provide sexual services in exchange for the tattoos. The appellant undressed and H.J. performed oral sex on the appellant. Afterwards, she and the appellant returned downstairs where A.G. and K.M. were waiting. The appellant took each girl upstairs in turn for a tattoo, starting with H.J., then A.G., and finally K.M. [9] H.J. testified that when she was performing oral sex, she saw many tattoos on the appellant’s body, including one on his penis. She could not describe the tattoo. Pictures taken of the appellant after his arrest confirmed he had a tattoo on his penis. [10] After the appellant had applied the tattoos, he spent some time alone with K.M. According to the arrangement described by H.J., K.M. was to have sex with the appellant after all three girls received their tattoos. K.M. was subpoenaed, but did not appear at trial to testify. [11] H.J. and her friends left the appellant’s home about an hour and a half after arriving. Later that afternoon, H.J. received a Facebook message: H. that was amazing. Best I ever had. Gold medal. [12] The sender of the message was identified only as “Facebook user”. H.J. indicated in her prior messaging with the appellant that he had identified himself by name. She testified, however, the above-quoted Facebook message was part of the same conversation stream as the earlier messages between her and the appellant. H.J. was confident the message came from the appellant and referred to the oral sex she had performed earlier that day. [13] According to H.J., the appellant did not ask her about her age or if she had permission from her parents to get the tattoo. She had not told her parents about her plans to get a tattoo. [14] A.G.’s evidence [2] was consistent in many respects with H.J.’s testimony. When A.G. went to the appellant’s home to get her tattoo, she understood from H.J. that arrangements had been made whereby H.J. and K.M. would provide sexual services to the appellant in exchange for the tattoos. Shortly after the three girls arrived at the appellant’s home, H.J. and the appellant went upstairs. They returned about 20 minutes later. According to A.G., H.J. told her the appellant had a tattoo on his penis. H.J. did not recall that conversation. A.G. also recalled H.J. telling her that she had told the appellant the true age of the girls. H.J. did not give evidence to that effect. [15] Neither H.J. nor A.G. saw anyone other than the appellant in the appellant’s home. (ii) The defence evidence [16] The appellant, who was 31 years old, operated a licenced tattoo parlour out of his home where he lived with his fiancée. The appellant had operated the business for several months and was aware of health board rules, including the rule requiring parental consent before any persons 16 years of age or younger could be tattooed. [17] The appellant testified that A.G. contacted him over Facebook to inquire about tattoos for herself and her friends. The appellant asked A.G. how old she was and she said she was 16 years old. He told her he charged $35.00 per tattoo. [18] Later the same day, H.J. contacted the appellant. She suggested the appellant provide tattoos for each of the girls in exchange for sexual services. The appellant rejected this offer, telling H.J. he did not do tattooing for sexual favours. He had a fiancée and he needed the money. The appellant testified he never seriously contemplated the exchange proposed by H.J. He agreed there were references to the sex for tattoos proposal in subsequent Facebook messages exchanged with H.J. before she and her friends arrived at his home. The appellant insisted, however, that he never said anything in those messages suggesting he would exchange tattoos for sexual favours. The appellant could not produce the Facebook messages because his fiancée had destroyed them after he was arrested. According to the appellant, he was angry when his fiancée told him she had destroyed the messages because he believed they would exonerate him. [19] The appellant testified the three girls came to his residence a day or so later. A friend was staying with the appellant. The three girls visited with the friend and smoked some marihuana while the appellant went upstairs to prepare the tattoo patterns. To the appellant’s knowledge, the three girls stayed together the entire time they were in his home. He was never alone with any one of them. All three girls were together when each received their tattoos from the appellant. [20] The appellant’s fiancée arrived home after two of the girls had been tattooed but before the third had received her tattoo. She spoke briefly with the girls. [21] The appellant indicated that he usually applied a tattoo first and then requested payment from the customer. He followed his usual practice with H.J. and her friends. When he asked for his money, the girls told him they did not have it, but their mother would be by later that day to pay for the tattoos. The appellant found it strange that three girls, who were all the same age, had the same mother, but he did not ask any questions. One of the girls had produced a permission slip signed by somebody, who the appellant presumed to be the girls’ mother. The appellant did not request the mother’s contact information. [22] H.J. had given the appellant her cell phone number. After the mother did not appear with the money, the appellant called H.J. and told her that if she did not pay him, he would speak with her parents and, failing payment, would go to the police. H.J. assured him she would pay by the upcoming Friday. When Friday morning came, the police arrived at the appellant’s home and arrested him. He initially thought he was arrested for tattooing underage girls. He eventually, however, understood he was being arrested on criminal charges alleging sexual activity with H.J. and her friends. [23] The appellant testified he was concerned about the age of the three girls because it was against the health board rules to give persons 16 years of age or younger a tattoo without their parents’ permission. He could lose his licence if he ran afoul of those rules. When asked what steps he took to determine the girls’ ages, the appellant indicated one of them had told him in the Facebook conversations the girls were 16. The appellant also testified the girls looked 16. [24] The appellant did not ask for any identification. No parent contacted him about the tattoos, although, according to him, he indicated in the Facebook conversations that, because the girls were 16, one of their parents had to contact him before he could give them tattoos. Although the appellant said he saw a permission slip, he did not keep that slip or make a copy of it. [25] The appellant’s fiancée testified after the appellant. When her evidence was complete, the defence asked to recall the appellant to testify to one matter counsel had inadvertently failed to bring out in his evidence. The trial judge allowed counsel to recall the appellant. [26] When recalled, the appellant, for the first time, offered an explanation for how H.J. would know that he had a tattoo on his penis. The appellant testified the third girl to be tattooed (K.M.) was afraid of needles and very nervous about getting a tattoo. In an attempt to calm her down, the appellant assured her that he was putting her tattoo on a part of her body that would not cause much pain. To make the point, he told her that applying tattoos to some parts of the body could be extremely painful. As an example of a painful location for a tattoo, he told K.M. he had a tattoo on his “crotch”. A.G. and H.J. were present during this conversation. III The Reasons of the Trial Judge [27] The trial judge identified two central issues: 1. Was H.J. “invited” by the appellant to touch his penis, and did she provide oral sex (Reasons, at para. 49)? 2. Did the appellant believe H.J. was 16 years or older at the relevant time and, if so, did the appellant take all reasonable steps to determine her age (Reasons, at para. 50)? [28] On the first issue, the trial judge accepted H.J.’s description of her negotiations with the appellant before going to his home and the sexual activity that occurred at his home. On the second issue, the trial judge found, based on the appellant’s own evidence, he took no reasonable steps to ascertain H.J.’s age. [29] The essential findings of the trial judge are set out below (Reasons, at paras. 81, 83): In conclusion, I am satisfied beyond a reasonable doubt that the complainant did negotiate with the defendant to give him a blowjob in return for a tattoo and that she performed the act of fellatio in his bedroom prior to his tattooing her and her two friends. I conclude that, for the reasons which I have set out, in particular the complainant’s observations of certain tattoos on the defendant’s body, which she otherwise would not have had occasion to see. Having concluded the complainant performed oral sex on the defendant in his bedroom and upon having further testified that he never took the necessary reasonable steps referred to in s. 150.1(4) to ascertain the complainant’s true age of 14 years old on the offence date, I am satisfied of the defendant’s guilt beyond a reasonable doubt. IV the grounds of appeal A: Did the trial judge err in his application of the burden of proof? [30] The outcome at trial turned largely on the trial judge’s assessment of the conflicting evidence. He reminded himself that he had to make that assessment having regard to the burden of proof placed on the Crown. The trial judge believed H.J. He did not believe the appellant. [31] The appellant submits the trial judge erred in his application of the burden of proof to the conflicting evidence. In making this submission, the appellant relies on four passages from the reasons: · the trial judge was “not convinced” by the appellant’s evidence that any financial arrangement for payment for the tattoos was ever made (Reasons, at para. 60); · the trial judge was “not persuaded” the Facebook message, which H.J. said she received shortly after she provided oral sex to the appellant, had not come from the appellant (Reasons, at para. 62); · the trial judge was “not satisfied beyond a reasonable doubt that he [the appellant] ever saw a permission slip” (Reasons, at para. 78); and · the trial judge was not “persuaded” by the evidence of the appellant’s fiancée that the appellant had not negotiated with H.J. to exchange tattoos for sexual services (Reasons, at para. 82). [32] Reasons for judgment must be read as a whole. An isolated use of an inappropriate word is not enough to demonstrate an error in law, particularly one involving a fundamental legal principle like the burden of proof. The passages relied on by the appellant must also be placed in the context of the trial judge’s correct self-instruction early in his analysis on the burden of proof and his accurate articulation of the principles set down in R. v. W.(D.) , [1991] 1 S.C.R. 742 (Reasons, at paras. 46-47). [33] The passages from the reasons highlighted by the appellant do, however, raise concerns. The repeated use of the words “convince” and “persuade” in reference to the defence evidence suggests that the trial judge looked to the defence to satisfy him that he should not accept H.J.’s version of events. [34] In considering whether he was satisfied beyond a reasonable doubt the sexual encounter described by H.J. “in fact occurred” (Reasons, at para. 51), the trial judge reviewed the evidence of H.J. and A.G. (Reasons, at paras. 52-58). He then turned to the appellant’s evidence, indicating, at para. 60: The defendant’s attempt in his video statement and his evidence in-chief and under cross-examination to explain the financial arrangement made for payment or the lack thereof does not convince me that any such arrangements were ever made. [35] The appellant was not required to “convince” the trial judge of anything. The trial judge should have assessed the appellant’s evidence about the financial arrangements from the perspective of the Crown’s obligation to establish beyond a reasonable doubt the arrangement involved sex for tattoos. A doubt may exist, based on an accused’s evidence, even if the trial judge is not convinced the evidence is true: see W.(D.) , at p. 757. [36] The trial judge’s indication that the defence was required to “convince” him the financial arrangements existed was a potentially material error. The financial arrangements described by the appellant were at the heart of the defence position advanced at trial. If the trial judge dismissed the appellant’s evidence about the financial arrangement because it did not “convince” him the arrangements existed, the path to conviction for the Crown was short and downhill. [37] The trial judge’s analysis of the evidence about the Facebook message H.J. said the appellant sent her after the alleged sexual activity reveals a similar analytical flaw. H.J. testified that the message came from the appellant and referred to the oral sex she had provided earlier that day. The appellant denied sending the message. The message itself was not produced at trial. [38] In accepting H.J.’s evidence, the trial judge indicated he was not “persuaded” that the author of the message was anyone other than the appellant. The appellant was not obliged to “persuade” the trial judge he was not the author. Rather, the trial judge had to decide whether, on the totality of the evidence, he could find as a fact the message was sent and was sent by the appellant. It was not for the appellant to persuade the trial judge that either fact had not been established. [39] The trial judge’s treatment of the evidence concerning the Facebook message was significant. If the trial judge found as a fact that the appellant authored the message, the appellant’s conviction was virtually ensured. It was crucial that the conflicting evidence be tested against the proper burden of proof. [40] The trial judge’s approach to the appellant’s evidence that he saw a permission slip also misapplies the burden of proof. The trial judge said, at para. 78: I am not satisfied beyond a reasonable doubt that he ever saw a permission slip. [41] There was no burden on the appellant, much less a burden of proof beyond a reasonable doubt, to establish he had seen a permission slip. This evidence went to the appellant’s claim that he took reasonable steps to determine the girls’ ages. The Crown had the burden to prove the absence of those reasonable steps. The trial judge improperly rejected the appellant’s evidence about the permission slip based on the appellant’s failure to meet a burden of proof wrongly imposed on him by the trial judge. [42] Were this the only problematic reference in the reasons, one might conclude the error was immaterial. The evidence the appellant saw a permission slip was weak. The relevance of the permission slip to the appellant’s belief the girls were 16 or over is also not clear. There seems little likelihood that the evidence concerning the permission slip figured prominently in the trial judge’s assessment. [43] Considered with the other incorrect references to the burden of proof, however, I cannot dismiss this reference as immaterial. The existence of a permission slip was part of the reasonable steps defence advanced by the appellant. The rejection of the existence of a permission slip, based upon an improper application of the burden of proof, not only undermined the reasonable steps defence, but was consistent with the other passages in the reasons which looked to the defence to convince or satisfy the judge of the facts relied on by the defence. [44] The reference by the trial judge to not being “persuaded” by the evidence of the appellant’s fiancée also suggests a misapplication of the burden of proof. I need not consider the impact of this passage, as the evidence of the appellant’s fiancée had very little, if anything, to do with the central issues at trial. [45] As required, I have examined the reasons as a whole. I am satisfied the trial judge did not follow his initial correct self-instruction on the burden of proof. Instead, he looked to the defence to convince or persuade him the defence evidence on certain key issues established exculpatory facts. That error is fatal. There must be a new trial. B: Did the trial judge err in finding that the appellant’s right to trial within a reasonable time was not breached? [46] The court did not call on the Crown on this ground of appeal. [47] The charge was before the court from June 6, 2014 to August 26, 2016, a total delay of 26½ months. The defence conceded that 49 days was attributable to the defence, yielding what the defence argued was a net delay of 25 months. [48] Under R. v. Jordan , 2016 SCC 27, [2016] 1 S.C.R. 631 a delay of more than 18 months in the completion of the appellant’s trial puts the onus on the Crown to demonstrate the delay is not unreasonable. If the delay is under 18 months, the onus rests on the accused to show that the delay is unreasonable. The appellant’s s. 11(b) argument depends on a finding that the relevant delay for the purposes of s. 11(b) was over 18 months. The appellant does not argue if the delay was under 18 months, he can discharge the onus to demonstrate the delay was nonetheless unreasonable. [49] The trial judge made two findings reducing the delay from 25 months to just under 18 months. The first finding involved a delay of 3 months caused by defence requests to adjourn the non-judicial pre-trial. The second related to a delay of 4½ months caused when the assigned trial judge realized, as the trial was about to commence, she had a conflict and could not preside. The trial was rescheduled to a date 4½ months later. [50] The two time periods deducted by the trial judge totalled 7½ months, leaving a remaining delay of 17½ months, just under the Jordan ceiling of 18 months. [51] The appellant challenges the trial judge’s factual findings underlying his characterization of the two time periods described above. The appellant submits  the delays in the non-judicial pre-trial were necessary because the Crown had not provided disclosure of the video statements given by H.J. and A.G. The appellant argues, without disclosure of those videos, a non-judicial pre-trial would have been pointless. Consequently, the 3 month-delay attributable to the adjournments of the non-judicial pre-trial should not have been characterized as defence delay. [52] The same argument was made at trial. The trial judge correctly noted there was nothing in the record connecting the absence of disclosure of the video statements to the defence requests for delay in the non-judicial pre-trial. I understand counsel on appeal to submit the connection is self-evident. [53] The trial judge was not prepared to make that connection. As a judge of the Ontario Court of Justice, the trial judge would be very familiar with the pre-trial process in that court. He would know whether the disclosure provided by the Crown was sufficient, absent disclosure of the video, to permit a meaningful non-judicial pre-trial. In the absence of anything in the record to suggest defence counsel at the time of the adjournments viewed the disclosure as essential, I see no error in the trial judge drawing his own conclusions about the need for the videos. Certainly, those conclusions rest on much firmer ground than would any speculative second-guessing by this court. I would not interfere with the trial judge’s finding that the delay attributable to the adjournments of the non-judicial pre-trial should count as defence delay. [54] Turning to the second time period deducted from the overall delay, the appellant accepts the adjournment necessitated when the trial judge realized she had a conflict of interest, qualifies as an exceptional circumstance under Jordan . The appellant submits, however, it should not have taken 4½ months to reschedule the trial. He argues something less than the entire 4½ months should have been deducted as attributable to the exceptional circumstance. The appellant contends, even a generous deduction of 2 or 3 months for the adjournment would have left a net delay of more than 18 months. [55] The same argument was made at trial. The trial judge concluded that the entire 4½ months should be deducted. The appellant’s arguments in this court rest primarily on the absence of evidence in the record. For example, the appellant points out there was no evidence another judge could not have been available at an earlier date. [56] I do not find those arguments helpful. No one suggested when the trial was being rescheduled an earlier trial date could or should be made available. Indeed, the Crown had asked for the earliest available date. The defence said nothing. [57] There are situations in which the length of a delay following an exceptional circumstance will speak for itself insofar as the attribution of the entire delay to the exceptional event is concerned. In those circumstances, the court may properly decide, based exclusively on the length of the delay, that the entire delay cannot, absent some explanation in the evidence, be attributed to the exceptional circumstance. Here, the delay was 4½ months. A delay of that length, to find a date when a judge, a courtroom, counsel, and the witnesses are all available is not ideal. Nor, however, is it sufficiently long to render unreasonable the trial judge’s conclusion the entire 4½ months needed to reschedule the trial should be attributed to the delay caused by the last-minute adjournment of the trial. In the absence of any evidence directed at this specific adjournment, the trial judge was entitled to look to his own experiences in the jurisdiction in deciding how to properly characterize the delay of 4½ months. [58] I see no error in the trial judge’s s. 11(b) analysis. C: Did the trial judge incorrectly identify the actus reus of the offence? [59] The appellant was charged under s. 152 of the Criminal Code : Every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of 16 years, (a) is guilty of an indictable offence … or (b) is guilty of an offence punishable on summary conviction. [60] To establish the offence in the context of this case, the Crown had to prove: · H.J. was under 16; · the appellant invited, counselled, or incited H.J. to touch him; and, · the proposed touching was for a sexual purpose. [61] The Crown did not have to prove that H.J. actually touched the appellant for a sexual purpose. An invitation to touch includes acts and/or words by which an accused requests, suggests, or otherwise incites or encourages the complainant to touch him for a sexual purpose. The invitation may be express or implied: R. v. Legare , 2008 ABCA 138, 236 C.C.C. (3d) 380, at paras. 32-38, aff’d on other grounds, 2009 SCC 56, [2009] 3 S.C.R. 551; see also Hamish Stewart, “Sexual Offences in Canadian Law”, (Aurora, Ont.: Can. Law Book, 2004) (loose-leaf updated 2018) at 4-3 to 4-5. [62] The offence of invitation to sexual touching does not require the appellant to initiate the communication or activity alleged. It is enough that the appellant did and/or said something in the course of his interaction with H.J. that amounted to an invitation to H.J. to touch the appellant for a sexual purpose: see Stewart, at 4-7 to 4-9. The invitation, incitement, or counselling may come in the form of an agreement to exchange something for sexual services to be provided by the complainant: see R. v. D. (R.C.) , [1991] O.J. No. 1995 (Ont. C.A.). [63] The appellant submits the trial judge wrongly held the Crown had to prove H.J. performed oral sex to establish the offence. I think this is a fair reading of the trial judge’s reasons: see Reasons, at paras. 49, 81. The error did not, however, prejudice the appellant. Instead, it required the Crown to prove an additional element, actual touching, not required by the offence. [64] The trial judge was satisfied the appellant and H.J. negotiated the exchange of sexual services for tattoos. On the trial judge’s findings, the appellant and H.J. agreed that H.J. would provide oral sex. The negotiations leading to this agreement constituted an invitation by the appellant to H.J. to touch him for a sexual purpose. The invitation was reinforced when the appellant took H.J. upstairs to his bedroom, confirmed the “deal” was still on, and removed his clothing. In doing so, he again invited H.J. to touch him for a sexual purpose. [65] The trial judge’s finding that H.J. immediately performed oral sex on the appellant provided strong evidence that an invitation to do so had been made in the Facebook negotiations and confirmed by the appellant when he and H.J. were together in his bedroom immediately before she performed oral sex. [66] On the trial judge’s findings, what the trial judge referred to as the “sexual encounter” between the appellant and H.J. included conduct constituting an invitation by the appellant to H.J. to touch him for a sexual purpose. D: Was the Crown required to prove the appellant believed H.J. was under 16, even if he took no reasonable steps to determine her age? (i) Introduction [67] The offence of invitation to sexual touching requires the Crown to prove the complainant was under 16. There is nothing in the language of the section that speaks expressly to the mens rea requirement as it relates to the accused’s belief concerning the complainant’s age. Section 150.1(4), however, applies to charges under s. 152. That section creates a “defence” based on a mistaken belief that the complainant was 16 or older if, and only if, an accused took “all reasonable steps” to ascertain the complainant’s age: It is not a defence to a charge under section 151 or 152, subsection 160(3) or 173(2), or section 271, 272 or 273 that the accused believed that the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant. [68] The appellant claimed he believed H.J. was 16. Her age was important to him, not because of any sexual activity, which he denied, but because the applicable health rules required him to have parental consent before he applied a tattoo to a person 16 or younger. The trial judge found the appellant did not take any, much less all, reasonable steps to ascertain H.J.’s age. He convicted the appellant on the basis the Crown had proven beyond a reasonable doubt that the appellant failed to take all reasonable steps to determine H.J.’s age. The trial judge did not consider whether, apart from his finding of a failure to take reasonable steps, the Crown had proven the appellant believed H.J. was under 16. (ii) The appellant’s submissions [69] The appellant begins with the fundamental principle that the Crown must prove all essential elements of a criminal offence beyond a reasonable doubt to obtain a conviction. The appellant argues the accused’s belief the complainant was under 16, or wilful blindness with respect to her age, is an essential component of the mens rea required for the offence created by s. 152. As with all other essential elements of that offence, the Crown must prove the mens rea beyond a reasonable doubt. [70] The appellant characterizes s. 150.1(4) as providing a limited defence to a charge under s. 152, based on the accused’s belief the complainant was 16 or older. The appellant submits the Crown can rebut the defence by proving, beyond a reasonable doubt, either the accused did not believe the complainant was 16 or older, or even if he held that belief, he had not taken all reasonable steps to determine the complainant’s age. [71] The appellant contends, however, the failure of the s. 150.1(4) defence does not lead inevitably to a conviction and does not relieve the Crown of its obligation to prove the essential elements of the offence, including the accused’s belief the complainant was under 16. The appellant submits an accused’s defence under s. 150.1(4) may fail for want of reasonable steps, but the accused must be acquitted unless the Crown can prove he knew or was wilfully blind to the fact the complainant was under 16. On the appellant’s argument, if an accused knew there was a chance the complainant was underage, or simply never turned his mind to the complainant’s age, the accused would be entitled to an acquittal because the Crown had failed to prove the accused believed the complainant was under 16 or was wilfully blind to that fact. The appellant submits the trial judge never considered the mens rea requirement after he rejected the appellant’s s. 150.1(4) defence. [72] This argument relies entirely on the analysis in R. v. Morrison , 2019 SCC 15, which reversed this Court’s decision in R. v. Morrison , 2017 ONCA 582, 136 O.R. (3d) 545. Morrison involved an internet luring charge under s. 172.1(1)(b). That section prohibits certain internet communications with persons who are either under 16 or are believed by the person making the communication to be under 16. [73] The appellant submits the analysis in Morrison is equally applicable to other offences, including s. 152, for which the age of the complainant is an element of the offence. He points out that the mistaken belief in consent defence in s. 172.1(4), which figured prominently in the Morrison analysis, is very similar to the defence created by s. 150.1(4). The appellant also relies on passages in Morrison , referencing R. v. George , 2017 SCC 38, [2017] 1 S.C.R. 1021, a case involving a charge of sexual interference under s. 151 and a defence of mistaken belief in age: Morrison , at paras. 86-88. He contends the analysis of George in Morrison compels the conclusion that the approach taken in Morrison has equal application to other sexual offences in which the age of the complainant is an element of the offence. (iii) The law before Morrison [74] By overruling this court in Morrison , the Supreme Court of Canada has changed the law in this province as it relates to the elements of the offence of child internet luring, at least in cases where the allegation is based on the accused’s belief that he is communicating with a person under the required age. Additionally, if Morrison applies to other offences involving sexual activity with underage children and adolescents, Morrison has changed the law concerning the mens rea requirement relating to the age of the complainant for those offences. [3] [75] Prior to Morrison , courts described the fault element as it related to the complainant’s age for offences like s. 152 by reference to the “reasonable steps” requirement in s. 150.1(4). The Crown could establish the requisite mens rea by proving either the accused did not believe the complainant was the required age or older or, despite any belief the accused may have had, he had not taken “all reasonable steps” to ascertain the age of the complainant. The accused’s belief with respect to the age of the complainant was irrelevant if the Crown proved beyond a reasonable doubt the accused had not made the inquiries mandated by s. 150.1(4). In essence, the mens rea , as it related to the age of the complainant, required the Crown to prove beyond a reasonable doubt the absence of a belief founded on reasonable inquiries that the complainant was the required age or older: see R. v. Duran , 2013 ONCA 343, 306 O.A.C. 301, at para. 51; R. v. Saliba , 2013 ONCA 661, 311 O.A.C. 196, at paras. 26-28. See also R. v. Tannas , 2015 SKCA 61, 324 C.C.C. (3d) 93, at paras. 21-24; R. v. Nguyen , 2017 SKCA 30, 348 C.C.C.(3d) 238, at para. 4. [76] Not only have provincial appellate courts treated an accused’s belief about the complainant’s age as irrelevant to liability for offences identified in s. 150.1(4), absent an appropriate reasonable steps inquiry, the Supreme Court of Canada seemed to adopt the same interpretation in George . In that case , the Crown had to prove the complainant was under 16. He was 14. The accused testified she assumed the complainant was 16 or older, based on his behaviour and demeanour. Her evidence put s. 150.1(4) in play. [77] The five-person unanimous court described the mens rea related to the complainant’s age as requiring either proof of the absence of an honest belief that the complainant was 16 or older or proof the accused failed to take all reasonable steps to determine the complainant’s age. Gascon J. explained the mens rea in these terms, at paras. 7-8: For  both offences, the Criminal Code barred Ms. George from relying on C.D.’s consent as a defence because C.D. was younger than 16 (s. 150.1(1)) and Ms. George was more than five years his senior (s. 150.1(2.1)). Accordingly, her only available defence – or more accurately, her only available means of negating her criminal intent ( mens rea ) to have sex with a minor was ‘mistake of age’: i.e. Ms. George believing that C.D. was at least 16. However, the Criminal Code limits the availability of the mistake of age defence by requiring that ‘all reasonable steps’ be taken to ascertain the complainant’s age . [Citation omitted.] As a result, to convict an accused person who demonstrates an ‘air of reality’ to the mistake of age defence, the Crown must prove beyond a reasonable doubt either that the accused person (1) did not honestly believe the complainant was at least 16 (the subjective element); or (2) did not take ‘all reasonable steps’ to ascertain the complainant’s age . [Emphasis added.] [78] The court returned to the essential elements of the offence when addressing the reasons of the dissenting judge in the court below. That judge had opined the offence required proof of grooming or exploitation. Gascon J. found neither were required stating, at para. 26: It is a criminal offence to sexually touch a child who is 14 years of age or more but younger than 16 when you are five or more years their senior, even if you honestly believed they are older than 16, unless you have taken “all reasonable steps” to ascertain their age; nothing more is required . [Emphasis added.] [79] Morrison was decided after the trial judge gave judgment in this case. The trial judge’s analysis of the mens rea requirement in s. 152, as it relates to the complainant’s age, was correct on the law as it stood at the time. The appellant claims that the analysis is wrong in light of Morrison . (iv) The holding in Morrison [80] Section 172.1(1), the offence in issue in Morrison , requires the Crown to prove three things: · the accused communicated by way of telecommunication with another person; · the person the accused communicated with was under 16, or the accused believed that person to be under 16; and · the communication was made for the purpose of facilitating the commission of one of the enumerated offences “with respect to” the person the accused communicated with. The enumerated offences all involve sexual activity with young persons under specified ages. Section 152 is one of the enumerated offences. See R. v. Legare , 2009 SCC 56, [2009] 3 S.C.R. 551, at para. 36; Morrison , at para. 43. [81] Mr. Morrison communicated over the internet with a police officer pretending to be a 14-year-old girl named “Mia”. The conversations became overtly sexual over many months. At some point in the conversations, Mr. Morrison invited “Mia” to touch herself sexually. He proposed they meet and engage in sexual activity. Instead, the police arrested Mr. Morrison and charged him with communicating by way of telecommunication with a person he believed to be under 16 for the purpose of facilitating the offence of invitation to touching for a sexual purpose, contrary to s. 152. [82] At trial, the verdict turned exclusively on whether Mr. Morrison believed he was speaking with a 14-year-old girl when he was communicating with the police officer. Mr. Morrison testified that despite “Mia” telling him she was 14, he believed he was communicating with an adult woman playing the role of a 14-year-old girl. [83] Sections 172.1(3) and (4) are germane to the analysis in Morrison : (3) Evidence that the person referred to in paras. 1(a),(b) or (c) was represented to the accused as being under the age of eighteen years, sixteen years or fourteen years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age. (4) It is not a defence to a charge under paras (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of that person. [84] Section 172.1(3) creates a presumption that the accused believed the complainant was underage if a representation to that effect was made to the accused. Section 172.1(4) creates a mistaken belief in age defence in terms similar, but not identical, to those found in s. 150.1(4). [85] The trial judge in Morrison struck down the presumption in s. 172.1(3) as unconstitutional. He upheld the constitutionality of s. 172.1(4). [86] On the merits of the allegation, the trial judge had a doubt about whether Mr. Morrison believed “Mia” was under 16. He described Mr. Morrison as “at least indifferent to the age of the person he was communicating with on the internet.” The trial judge went on, however, to convict as the Crown had proven Mr. Morrison had failed to take reasonable steps to ascertain “Mia’s” age. Absent those steps, Mr. Morrison’s state of mind about “Mia’s” age was irrelevant to his liability. [87] This court agreed with the trial judge that s. 172.1(3) was unconstitutional and s. 172.1(4) was constitutional. This court also accepted the Crown could prove its case either by proving Mr. Morrison did not believe “Mia” was 16 or older or by proving he did not take all reasonable steps to determine her age: see Morrison Ont. C.A., at para. 79. In so holding, this court took the same approach to mens rea as it related to the complainant’s age on a charge under s. 172.1(1) as it had taken in Duran and Saliba to charges involving sexual offences against children identified in s. 150.1(4) . [88] At the Supreme Court of Canada, the entire court found s. 172.1(3) unconstitutional. The eight-person majority upheld the constitutionality of s. 172.1(4). [4] The majority, however, rejected this court’s holding that proof beyond a reasonable doubt Mr. Morrison did not take all reasonable steps to determine “Mia’s” age provided a stand-alone basis for conviction, regardless of whether the Crown proved he believed she was under 16. Moldaver J. said, at para. 129: The reasonable steps requirement under subs. (4) does not provide an independent pathway to conviction. Therefore, the inquiry does not end if and when the Crown establishes that the accused did not take reasonable steps. Instead, the trier of fact would then be required to consider the whole of the evidence, including the evidence relating to the accused’s failure to take reasonable steps, not to reintroduce the defence of honest belief in legal age, but in determining whether the Crown had discharged its legal burden of establishing that the accused believed the other person was under age. Only if that element is proven can a conviction be entered. [89] Significantly, Moldaver J. held that the requirement the accused “believed” he was speaking to a person under 16 could only be established by proof of an actual belief the person was under 16 or its very near equivalent, wilful blindness to the age of that person. Neither recklessness, nor negligence would suffice: Morrison , at paras. 96-102. [90] In excluding recklessness from the required mens rea , Moldaver J. acknowledged recklessness would suffice to establish the required mens rea in respect of consent in sexual assault charges: see e.g., R. v. J.A. , 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 24. He distinguished those cases, at least in cases where the accused was not communicating with someone under 16, by reference to the specific language in s. 172.1(1). He said, at para. 101: In the child luring context, however, proving that the accused had a mere awareness of a risk that the other person was underage does not establish that the accused believed the person was underage, which is what s. 172.1(1) requires in the context of a police sting where there is no underage person. [5] [91] After Morrison , an accused charged with communicating with a person believed to be under 16, contrary to s. 172.1(1)(b), must be acquitted regardless of whether he took any reasonable steps to determine the age of the person he was speaking with even if he suspected the person was under 16 but decided to proceed in any event or if he simply never turned his mind to the complainant’s age. Prior to Morrison , the reckless or negligent accused would have been convicted when the Crown proved the accused did not take all reasonable steps to ascertain the complainant’s true age. [6] (v) Does Morrison have application to this case? (a) Introduction [92] The majority in Morrison is careful to focus on the specific charge before the court. Moldaver J. repeatedly indicates his reasons are restricted, not just to the crime of child internet luring, but to charges which specifically allege the accused communicated with a person he “believed” to be under 16, as opposed to with a person who was actually under 16: Morrison , at paras. 55, 81, 84, 95, 101, 102. Mr. Morrison was communicating with a police officer pretending to be a child. There was no possibility the communication could ever bring about the offence Mr. Morrison was trying to facilitate by means of the communication. [93] In light of the majority’s repeated indication its reasons were limited to charges of child internet luring involving communication with persons who were not in fact underage, it cannot be said that Morrison stands as direct and binding authority on the mens rea for offences like s. 152, involving sexual activity with underage persons . That is not to say, however, the analysis in Morrison does not inform the interpretative process required here. Clearly, it does. The appellant argues the reasoning requires this court to depart from its prior jurisprudence relating to the mens rea with respect to the complainant’s age in offences like s. 152. [94] The appellant contends that two aspects of the analysis in Morrison require this court to abandon its earlier case law. First, the statutory scheme governing the mens rea component in s. 172.1(1), as it relates to the age of the complainant, is sufficiently similar to the statutory scheme governing other offences involving sexual activity with underage persons to make the court’s analysis of the mens rea in s. 172.1(1) directly applicable to offences like s. 152. Second, the majority’s treatment of its prior decision in George signals the analysis in Morrison had direct application to other offences involving sexual activity with underage persons. For reasons I will explain, a comparison of the relevant statutory provisions does not convince me that the analysis in Morrison has application to s. 152. However, the majority’s explanation of its earlier judgment in George does require some revision of this court’s earlier description of the mens rea in s. 152. (b) The statutory provisions are different (1) Section 172.1 [95] Sections 172.1 and 152 are among a group of Criminal Code offences designed to protect young persons from sexual exploitation and abuse. Section 172.1 aims specifically at exploitation and abuse via the internet, a pernicious and notoriously difficult to detect form of that exploitation and abuse: see Legare , at para. 26; R. v. Alicandro , 2009 ONCA 133, 95 O.R. (3d) 173, at para. 36; R. v. Levigne , 2010 SCC 25, [2010] 2 S.C.R. 3, at paras. 25-26; Morrison , at para. 39. [96] The apprehension of persons who take to the internet to exploit and abuse children presents difficult and unique problems. Sexual predators have easy, anonymous, and repeated access to a very deep pool of potential victims. The abuse and exploitation of children over the internet is often a process rather than a single event. Children are groomed to be victimized over a period of time through many contacts. In the initial stages of this grooming process, the contacts intended to ultimately facilitate sexual abuse of the person being communicated with may seem benign. [97] Parliament addressed these concerns in at least two ways in structuring the offence created by s. 172.1(1). First, Parliament criminalized conduct that can occur at a very early stage in the course of conduct engaged in by predators for the purpose of facilitating one of the crimes enumerated in s. 172.1(1). As noted in Morrison , at para. 40, the conduct prohibited by s. 172.1(1) may occur very early in the continuum of an ongoing course of conduct, even before the conduct could constitute an attempt to commit one of the enumerated crimes: see also Levigne , at para. 27; Legare , at paras. 25-28. For example, an accused could engage in communications with an underage person designed to gain the trust of that person, intending to eventually exploit that trust by encouraging the underage person to engage in sexual activity prohibited by s. 152. The conduct of the accused would not amount to an offence under s. 152, or even an attempt to commit an offence under s. 152. It could, however, constitute the offence of child internet luring under s. 172.1(1). By defining the conduct component of the offence to include conduct that occurs well before the ultimate criminal object, Parliament allows law enforcement to intercede at an early stage of the grooming process, hopefully before any real damage is done to the target of the conduct. [98] Second, s. 172.1(1), unlike s. 152 and other offences mentioned in s. 150.1(4), criminalizes conduct not just based on the age of the complainant, but also based on the accused’s mistaken belief about the complainant’s age. By extending the offence of child internet luring to accused who wrongly believe they are speaking with persons under 16, Parliament permits the police to engage in pro-active sting operations to identify and remove predators from the internet before they can make contact with their young prey and do serious harm: Hamish Stewart, “‘Fault’ and ‘Reasonable Steps’: The Troubling Implications of Morrison and Barton ”, (2019) 24 C.C.L.R. 379, at p. 388; Isabel Grant & Janine Benedet, “Unreasonable Steps: Trying to Make Sense of R. v. Morrison ”, (2019) 67 Crim. L. Q. 14, at s. 1. [99] In cases in which the accused is speaking with someone who is not under 16, the justification for the criminalization of the actions lies almost entirely in the accused’s mistaken belief he is speaking with someone under 16. The actual conduct, speaking with an adult for the purpose of facilitating sexual activity, would not attract criminal sanction. Nor does the criminalized conduct pose any risk the accused could actually facilitate the commission of the crime he seeks to promote through the communication. The accused’s belief he is speaking to a person under 16 is what makes the conduct sufficiently harmful and blameworthy to warrant criminalization: see Alicandro paras. 30-31; Legare , at paras. 32-34. [100] Criminal law principles favour fault requirements based on the accused’s state of mind: see R. v. A.D.H. , 2013 SCC 28, [2013] 2 S.C.R. 269. Those same principles favour restraint in setting the reach of the criminal law sanction. Parliament will not be assumed to have imposed a criminal liability for conduct which poses no meaningful harm or risk of harm. In circumstances in which the state of mind of the accused is the central justification for criminalization, in that the act alone would not be considered harmful, the principles of fault and restraint combine to favour the application of a stringent subjective standard to the determination of the requisite mens rea . Depending on the language of the offence creating provision and the nature of the offence, that standard may require proof of intent, knowledge, belief, or some combination of the three. [101] The language used in s. 172.1(1) is consistent with the application of the criminal law principles of fault and restraint. If the person communicated with was not under 16, s. 172.1(1)(b) requires the Crown to prove the accused “believed the person to be under 16”. On a plain reading, the accused’s actual state of mind, that is his “belief the person was under 16”, is an essential element of the offence. That element stands in place of the requirement that the Crown prove the person communicated with was actually under 16 in those situations in which the Crown alleges the accused was communicating with a person under 16. Just as the Crown must prove the complainant’s age when the Crown alleges communication with a person under 16, it must prove the accused’s belief when it alleges communication with a person the accused believed was under 16: Alicandro , at para. 30. [102] The now inoperative evidentiary presumption in s. 172.1(3) was also pointed to in Morrison as providing a strong indication that the Crown must prove the accused believed the complainant was under 16 in those situations in which the accused is actually communicating with an adult. That section presumes, absent evidence to the contrary, the existence of a belief the person was under 16 if a representation to that effect was made to the accused. That presumption serves no purpose unless the Crown is required to prove the accused believed the complainant was under 16: see Morrison , at para. 89. There is no such evidentiary presumption in s. 152 or any of the other offences involving sexual activity with underage persons. [103] It was also crucial when considering the majority’s treatment of the mistaken belief in age defence in s. 172.1(4) to bear in mind the court determined, based on the language of s. 172.1(1), the Crown was required to prove the accused believed the complainant was under 16. Recklessness would not suffice. In the context of a mens rea requirement limited to a belief or wilful blindness as to the complainant’s age, the distinction between a reasonable belief the person was not underage and a belief the person was underage becomes tenable. An accused who has no defence under s. 172.1(4) may still be acquitted on the basis that, while he may have been reckless or unconcerned about the complainant’s age, he did not actually believe she was under 16. Indeed, in Morrison , the trial judge described the accused as “indifferent” to the age of the person he was speaking to. A finding of indifference dooms both the accused’s ability to advance a defence under s. 172.1(4) and the Crown’s ability to prove the accused believed the person was under 16. [104] In cases in which the Crown alleges the accused believed he was speaking with an underaged person, the language, structure, and scope of s. 172.1 warrant the interpretation which requires the Crown to prove that belief beyond a reasonable doubt. Not only is that conclusion consistent with the section, it reflects the criminal law principles of fault and restraint, intended to guide the interpretation of the mens rea component of criminal offences. (2) Sections 152 and 150.1(4) [105] 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 152, 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. [106] The criminalization of the conduct described in s. 152, while preliminary to other forms of physical sexual abuse, does not rest exclusively on the accused’s state of mind, but rather finds justification in the manifestation of the criminal object through conduct that constitutes an invitation, counselling, or incitement to sexual touching. Nor does the fact that some conduct will be captured by both s. 172.1(1) and s. 152 detract from the distinction I draw here. Many criminal offences overlap. For present purposes, the crucial question is the point at which the conduct becomes criminal. Section 172.1(1) criminalizes conduct that is preliminary to the conduct prohibited by s. 152. [107] Section 152, distinct from s. 172.1(1), criminalizes only conduct aimed at underaged persons. The accused’s mistaken belief his target is under 16 will not justify a conviction on the substantive offence created by s. 152. [108] Furthermore, again, unlike s. 172.1(1), nothing in the language of s. 152 speaks to any mens rea requirement as it relates to the complainant’s age. The only reference to the accused’s belief about the complainant’s age is found in s. 150.1(4). That provision does not criminalize conduct based on a mistaken belief as to the complainant’s age, but to the contrary exculpates based on a mistaken reasonable belief about the complainant’s age. [109] 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 152, 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. [110] Section 150.1 introduced a mistaken belief in age defence, applicable to the newly created offences involving sexual activity with underaged persons. Section 150.1(4) can only be understood by bearing in mind the legislative context in which it was enacted. Before s. 150.1(4) came into force, the offence of sexual intercourse with a female under 14 (s. 146) was punishable by life imprisonment. The section specifically made the accused’s belief about the female’s age irrelevant to culpability: Criminal Code , R.S.C. 1970, c. C-34, s. 146(1). [111] Section 150.1(4) was introduced to remove the absolute liability imposed in the former legislation. That liability was in all likelihood inconsistent with s. 7 of the Charter : see Re B.C. Motor Vehicle Act , [1985] 2 S.C.R. 486. Section 150.1(4) replaced absolute liability with liability based on a failure to take reasonable steps to inform one’s self about the complainant’s age. This same fault component was made applicable to the new offences introduced into the Criminal Code involving sexual activity with children, including s. 152. [112] Wilson J., in R. v. Hess ; R. v. Nguyen , [1990] 2 S.C.R. 906, at 925, explained the operation of s. 150.1(4): In 1987, Parliament repealed s. 146(1) and put in place a series of measures that include a provision that allows a person who has been previously charged under s. 146(1) the defence of due diligence. Sections 151 and 152 of the current Code create new substantive offences of sexual interference and invitation to sexual touching. Both of these provisions apply to sexual conduct with a person under the age of fourteen. Section 150.1(4) limits the range of defences available to an accused charged under these sections, removing the defence of consent but allowing a due diligence defence. [113] Read in its historical context, s. 150.1(4) did not overlay a discrete mistaken belief defence on top of a mens rea requirement with respect to the age of the complainant. Instead, s. 150.1(4) created a mens rea component for offences involving sexual activity with children. It did so by requiring the Crown to prove the absence of a reasonable mistaken belief with respect to the complainant’s age. Parliament made the accused’s belief about the complainant’s age relevant to culpability, but only to the extent of requiring the Crown to prove the absence of due diligence. [114] Section 172.1(4) has an entirely different history. The section was enacted with s. 172.1(1) and the two must be read together: see Criminal Law Amendment Act , S.C. 2002, c. 13, s. 8. When the person communicated with is not underage, s. 172.1(1) explicitly requires proof the accused believed the person was underage. It would seem unusual if s. 172.1(4), which purported to create a defence, in fact negated the Crown’s obligation to prove an element of the offence expressly set out in the offence creating provision in s. 172.1(1). [115] For the reasons set out above, I am satisfied the court’s interpretation in Morrison of s. 172.1(1), as it applies to charges when it is alleged the accused believed the complainant was under 16, does not mandate a departure by this court from its earlier case law dealing with the mens rea , as applied to the complainant’s age in cases involving prosecutions to which s. 150.1(4) applies. The relevant statutory language, especially when read in its historical context, supports different interpretations of the mens rea as it relates to the complainant’s age. (c) The majority’s analysis of George [116] I come to the appellant’s second, and in my view, more persuasive argument. Do the majority’s comments about the analysis in George compel the conclusion that, on charges which involve proof the complainant was under a certain age, the Crown must also prove the accused believed the complainant was underage, regardless of what steps, if any, the accused took to determine the complainant’s age? [117] In Morrison , the majority addressed George in the course of responding to part of the analysis favoured by Abella J. in dissent: Morrison , at paras. 86-91. While the majority did not expressly overrule George , it did take issue with the description of the mens rea , as it relates to the complainant’s age for offences enumerated in s. 150.1(4): see Morrison , at paras. 88, 91. [7] [118] In its reference to George , the majority in Morrison reiterated the difference between the defence of mistaken belief the complainant was over the prescribed age and a belief the complainant was under the prescribed age. The majority accepted that the Crown could negate the defence by proving either the absence of an honest belief the complainant was the required age or the failure to take “all reasonable steps” to ascertain the complainant’s age. That approach is consistent with case law from this court: see Duran at para. 51; Saliba , at paras. 26-28 . [119] The majority in Morrison went on, however, at para. 88, to state: While the Crown had to prove at least one of these propositions to negate the defence of mistaken belief, doing so would not, from a legal perspective, inevitably lead to a conviction. As a legal matter to obtain a conviction for sexual interference or sexual assault of a person under the age of 16, the Crown had to go further and prove beyond a reasonable doubt that the accused believed the complainant was under 16 . As a practical matter, once Ms. George’s sole defence was negated, her conviction was a virtual certainty . [Emphasis added.] (d) Section 150.1(4) offences post- Morrison [120] As I read the above-quoted passage, it is no longer, strictly speaking, correct to define the required mens rea with respect to the complainant’s age by reference, only to the absence of reasonable steps to determine the complainant’s age. There is a mens rea requirement that focuses exclusively on the accused’s state of mind. The Crown is required to prove the accused believed the complainant was underage. The requisite proof is not provided by the Crown’s negation of the defence created by s. 150.1(4). [121] The majority in Morrison does not go on to identify the required mens rea with respect to the complainant’s age for offences like s. 152. The language in para. 88, however, provides valuable insight. The court observes the rejection of the mistaken belief defence “would not, from a legal perspective, inevitably lead to a conviction”. The court further observes if Ms. George’s mistaken belief defence had been negated, “her conviction was a virtual certainty”. These comments tell me that, for practical purposes in the vast majority of cases, there will be little, if any, distance between the rejection of a reasonable belief defence under s. 150.1(4) and a finding of the requisite mens rea . This close association is a reflection of the nature of the mens rea required in respect of the age of the complainant for offences like s. 152. In my view, the mens rea includes recklessness. [122] Assuming the defence of mistaken belief the complainant was 16 or over has been rejected, three possible states of mind remain: · the accused may have believed or been wilfully blind to the fact that the complainant was under 16; · the accused may have appreciated the risk the complainant was under 16 and decided to proceed with the activity; and · the accused may never have adverted to the complainant’s age and chose to proceed with the activity. [123] If the accused believed the complainant was under 16, or was wilfully blind to that fact, the requisite mens rea was clearly made out. If the accused believed there was a risk the complainant was under 16 and chose to take that risk, he was reckless as to her true age. Unlike the mens rea required under s. 172.1(1), where depending on the wording of the charge, it may require proof of a belief the complainant was under 16 (or wilful blindness), nothing in s. 152, or in the nature of the conduct criminalized by s. 152, excludes recklessness as to the complainant’s age as a form of mens rea . [124] Age can be seen as a proxy for the absence of consent when the allegation involves sexual activity with underage persons. Just as recklessness is sufficient to establish mens rea with respect to the absence of consent in sexual assault charges, recklessness will suffice to establish the mens rea with respect to age in offences involving sexual activity with underage persons. Appellate authority supports this position: see R. v. Westman (1995), 65 B.C.A.C. 285, at para. 18; Nguyen , at paras. 10-14; R. v. Angel , 2019 BCCA 449, 382 C.C.C. (3d) 149, at para. 45. [125] Recklessness is subjective. It entails the appreciation of some level of risk and the decision to take that risk. In the context of sexual activity with young persons, an accused who chooses to proceed with that activity, having adverted to the possibility the complainant was underage, will inevitably be found to have been reckless with respect to the complainant’s age, even if the risk the complainant was underage is low. The potential harm associated with proceeding in the face of a risk is significant. There is no social value to offset the taking of any risk. It is therefore appropriate to characterize that risk taking, even if the risk is seen as low, as blameworthy for the purposes of imposing criminal liability. [126] An accused who never turns his mind to the complainant’s age can properly be described as reckless with respect to the complainant’s age in most circumstances. Indifference to the age of the person targeted by sexual activity is a choice by an accused to treat the complainant’s age as irrelevant to his decision to engage in the sexual activity. In most circumstances, the age of the young person will have obvious relevance, bearing in mind the clear responsibility which the law places upon adults who choose to engage in sexual activity with young persons: see George , at para. 2. [127] Reckless indifference describes a subjective state of mind. It reflects a choice to treat age as irrelevant and to assume the risk associated with that choice. While this may describe a relatively low level of recklessness, there is nothing in the nature of the conduct engaged in which would warrant any level of risk taking or preclude the imposition of criminal liability based on a reckless indifference to the complainant’s age: see Andrew Ashworth, Principles of Criminal Law , 5th ed. (Oxford: Oxford University Press, 2006) at pp. 181-86, 190-91. [128] The treatment of George by the majority in Morrison makes it clear that the Crown cannot prove the requisite mens rea for offences set out in s. 150.1(4) by disproving the defence created by that section. To convict, the Crown must prove the accused had the requisite state of mind with respect to the complainant’s underage status. For the reasons set out above, I am satisfied it includes recklessness as to the age of the complainant. [129] The reshaping of the mens rea analysis effected by Morrison makes the job of the trial judge (or the jury) somewhat more complicated. I suggest the trial judge will proceed along the following lines: Step 1: The trial judge will first determine whether there is an air of reality to the s. 150.1(4) defence, that is, is there a basis in the evidence to support the claim the accused believed the complainant was the required age and took all reasonable steps to determine the complainant’s age. Step 2: If the answer to step 1 is no, the s. 150.1(4) defence is not in play, and any claim the accused believed the complainant was the required age is removed from the evidentiary mix. If the answer at step1 is yes, the trial judge will decide whether the Crown has negated the defence by proving beyond a reasonable doubt, either that the accused did not believe the complainant was the required age, or did not take all reasonable steps to determine her age. If the Crown fails to negate the defence, the accused will be acquitted. If the Crown negates the defence, the judge will go on to step 3. Step 3: The trial judge will consider, having determined there is no basis for the claim the accused believed the complainant was the required age, whether the Crown has proved the accused believed (or was wilfully blind) the complainant was underage, or was reckless as to her underage status. If the answer is yes, the trial judge will convict. If the answer is no, the trial judge will acquit. [130] Although, the additional step in the mens rea inquiry adds some complexity, it will, as I think the court in Morrison acknowledges, have little practical effect on verdicts. If the accused fails to take reasonable steps to determine the complainant’s age, he cannot advance the claim that he believed the complainant was the required age. The removal of a positive belief that the complainant was the required age, combined with recklessness as a basis for a finding of the required mens rea , will, I think, leave few situations in which a person who engages in sexual activity with an underaged person and does not take reasonable steps to determine the age of that person, will not be found to have been at least reckless as to the true age of the complainant. [131] In summary, to convict on a charge under s. 152, the Crown must prove the accused believed (or was wilfully blind) the complainant was under 16, or was reckless as to her age. Recklessness includes a failure to advert to the age of the complainant, save in those cases in which the circumstances did not permit the inference that in proceeding without regard to the complainant’s age, the accused decided to treat her age as irrelevant to his conduct. While one can imagine circumstances in which the failure to advert to the age of the complainant should not be characterized as a decision to treat the age of the complainant as irrelevant and take the risk, those circumstances will seldom occur in the real world. For practical purposes, those rare circumstances, in which the failure to turn one’s mind to the age of the complainant does not reflect the decision to take a risk about the complainant’s age, will be the same rare circumstances in which the reasonable steps inquiry in s. 150.1(4) will be satisfied even though the accused took no active steps to determine the complainant’s age. [132] In the present case, the appellant testified he did turn his mind to the age of H.J. and believed she was 16. The trial judge rejected that evidence because the appellant had taken no reasonable steps to determine H.J.’s age. Post- Morrison , the rejection of the s. 150.1(4) defence advanced by the appellant removed his claim he believed the complainant was 16 from the evidentiary mix. [8] It remained, however, for the Crown to prove he believed H.J. was under 16. [133] On the evidence in this case, the rejection of the appellant’s s. 150.1(4) defence left only two possibilities as to his state of mind. Either, he believed (or was wilfully blind) H.J. was under 16, or he was reckless, as I have described that term, about her true age. Either state of mind establishes the requisite mens rea under s. 152. V conclusion [134] For the reasons set out above, I would allow the appeal and order a new trial. Released: “DD” “ JUNE 18 2020” “Doherty J.A.” “I agree David Watt J.A.” “I agree C.W. Hourigan J.A.” [1] The evidence of H.J. and A.G. consisted of their video statement given to the police and entered into evidence pursuant to s. 715.1 of the Criminal Code and their in-court testimony. [2] For reasons that need not be detailed here, A.G. testified during the defence evidence. Her evidence, however, largely supported the Crown’s case, and she was treated as a Crown witness. [3] Morrison has come under academic fire. Commentators suggest that Morrison has significantly changed the law as it relates to child internet luring under s. 172.1(1). They also suggest that if Morrison applies to other offences involving sexual activity with children or adolescents, it has significantly changed the law for the worse: see Isabel Grant & Janine Benedet, “Unreasonable Steps: Trying to Make Sense of R. v. Morrison ”, (2019) 67 Crim. L. Q. 14; Hamish Stewart, “‘Fault’ and ‘Reasonable Steps’: The Troubling Implications of Morrison and Barton ”, (2019) 24 C.C.L.R. 379. [4] The majority considered only the constitutional challenge based on s. 7 of the Charter and left open the question of whether the section infringed s. 11(d) of the Charter : Morrison , at para. 80. [5] Moldaver J.’s emphasis on the word “believed”, in excluding recklessness as a form of mens rea , may indicate recklessness would suffice in cases in which the accused was charged with communicating with a person who was actually under 16. [6] Professors Grant and Benedet in “Unreasonable Steps: Trying to Make Sense of R. v. Morrison ”, supra , go even further. They contend that the reasonable steps requirement becomes a dead letter after Morrison . They argue that, if the trier of fact accepts or has a doubt that the accused believed the complainant was 16 or older, no matter how unreasonable that belief, the Crown cannot possibly prove that the accused believed the complainant was under 16. [7] In R. v. Gagnon , 2018 SCC 41, [2018] 3 S.C.R. 3 the court also cautioned against reliance on George in cases in which the accused asserts a mistaken belief in consent. [8] In cases in which there is no air of reality to a s. 150.1(4) defence, as is perhaps most likely to occur when the accused does not testify, the accused will be in exactly the same position as this appellant found himself when the trial judge rejected his s. 150.1(4) defence.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Cudmore, 2020 ONCA 389 DATE: 20200617 DOCKET:C64053 Hoy, MacPherson and Tulloch JJ.A. BETWEEN Her Majesty the Queen Respondent and Brandon Cudmore Appellant Brandon Cudmore, acting in person Lindsay Daviau, appearing as duty counsel Jessica Smith Joy, for the respondent Heard: June 3, 2020 by Videoconference On appeal from the conviction entered on March 14, 2017 by Justice Michael P. O’Dea of the Ontario Court of Justice, and from the sentence imposed on June 7, 2017. REASONS FOR DECISION [1] The appellant pled guilty to five charges: robbery, possession of a firearm contrary to a prohibition order, use of a firearm while committing an offence, failure to comply with a probation order, and failure to comply with an undertaking, contrary to ss. 344(1)(a.1), 117.01(1), 85(1)(a), 733.1(1), and 145(3) of the Criminal Code , R.S.C. 1985, c. C-46. [2] On the basis of a joint submission, he was sentenced to five years’ imprisonment for the robbery, one year concurrent for possession contrary to a prohibition order, one year consecutive for use of a firearm, and six months concurrent for both breaches. He thus received a global sentence of six years’ imprisonment, less eight months’ credit for presentence custody. A victim fine surcharge was also imposed. [3] On appeal, the appellant raises two issues: 1) the s. 85(1)(a) conviction for possession of a firearm while committing an offence should be quashed; and 2) the victim fine surcharge should also be quashed per R. v. Boudreault , 2018 SCC 58, [2018] 3 S.C.R. 599. At the outset of her submissions on behalf of the appellant, duty counsel noted that the appellant is abandoning his argument, raised in his notice of appeal, that he received ineffective assistance from trial counsel. [4] On the first issue, the appellant submits that the trial judge erred in imposing a sentence of one year, to be served consecutively, for use of a firearm while committing an offence. As an essential element of the robbery for which the appellant was convicted is the use of a firearm, the s. 85(1)(a) conviction is redundant and should be vacated. The current sentence of five years’ imprisonment for robbery is fit and the sentences for the other offences should be served concurrently as determined by the trial judge. There is no indication in the sentencing submissions that, if the s. 85(1)(a) conviction is vacated, a global sentence of six years’ imprisonment would be fit. [5] We agree with the submissions of the appellant. Section 85(1) of the Criminal Code reads: Every person commits an offence who uses a firearm, whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm, (a) while committing an indictable offence, other than an offence under section … 344(robbery). [6] In reading this section, it is clear that where an accused is convicted of an offence under s. 344, s. 85(1) is not applicable, as the use of a firearm is already an essential element under s. 344. As such, this ground of appeal is allowed and the conviction for the s. 85(1)(a) offence is quashed. [7] We also agree that, with the elimination of the s. 85(1)(a) conviction, the accompanying sentence of one year consecutive must also be vacated. Accordingly, the sentence appeal with respect to the use of a firearm charge is allowed. The sentence is hereby varied for a total sentence of five years’ imprisonment, less eight months’ credit for presentence custody. [8] On consent, we would also allow the sentence appeal with respect to the victim fine surcharge. The victim fine surcharge is hereby set aside pursuant to Boudreault and R. v. Stockton , 2019 ONCA 300. [9] Finally, we take note that the appellant, Mr. Cudmore, apologized for his actions and expressed a desire to change his life. He stated that he has been involved in programming, is taking medication, and is seeing counselors. He claims that he is no longer the person who he was when he committed the relevant offences. We wish him luck on his way to rehabilitation. “Alexandra Hoy J.A.” “J.C. MacPherson J.A.” “M. Tulloch J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Ghotra, 2020 ONCA 373 DATE: 20200612 DOCKET: C64911 Hourigan, Miller and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Akash Ghotra Appellant Alan D. Gold and Laura J. Metcalfe, for the appellant Katie Doherty, for the respondent Heard: February 18, 2020 On appeal from the conviction entered on May 3, 2016 by Justice Bruce Durno of the Superior Court of Justice, sitting without a jury, with reasons reported at [2016] O.J. No. 7161, and from the dismissal of an application for a stay of conviction on September 13, 2016, with reasons reported at 2016 ONSC 5675, 342 C.C.C. (3d) 128. B.W. Miller J.A.: [1] The appellant, a 26-year-old medical student, started a conversation in an internet chat room with “mia_aqt98” in November 2012. He asked for her age, sex, and location. “Mia” answered that she was a 14-year-old girl. Within minutes, the appellant turned the conversation explicitly sexual. They chatted on and off over four days, culminating in his proposal they meet up for sex. In reality, “Mia” was an online persona created by a Peel Regional Police officer as part of an investigation by the Internet Child Exploitation Unit (ICE) into online child luring. When the appellant attended at an agreed meeting place, he was arrested. He gave a police statement shortly after speaking with duty counsel. [2] The appellant was convicted of internet child luring, contrary to s. 172.1(1)(b) of the Criminal Code . He received a six-month custodial sentence. At the close of the trial, the appellant brought an application for a stay on the basis of entrapment. The application was denied: 2016 ONSC 5675, 342 C.C.C. (3d) 128 (“Entrapment Ruling”). He appeals against conviction on the bases of entrapment and a violation of his right to counsel under s. 10(b) of the Charter of Rights and Freedoms . [3] For the reasons that follow, I would dismiss the appeal. A. Background [4] Police Constable Hutchinson worked in the ICE Unit of Peel Regional Police. Her responsibilities included investigating the exploitation of children on the internet. Her method of investigation was to adopt the persona of a child and engage in chats with unknown persons online. [5] PC Hutchinson created a Yahoo Messenger account with the username “mia_aqt98”. She testified that she chose “Mia” to indicate that she was female, that the abbreviation “aqt” meant “a cutie”, and that “98” suggested a year of birth of 1998, which at the time of the offence would have indicated an age of 14 years. The public profile she created, which was visible to other users, displayed her name as Mia Andrews, age 19, with date of birth November 10, 1993. One of Yahoo’s conditions of use was that participants attest to being 18 years of age or older. [6] On November 27, 2012, when PC Hutchinson logged into a chat room called “Toronto Global Chat 1”, the appellant was already logged in. Like any other user logged in at that time, he received an automatic notification that mia_aqt98 had logged in and was now present in the chat room. [7] The appellant initiated a private conversation, outside the chat room, with “hi” and “asl?”, meaning age, sex, and location. Mia_aqt98 answered, “14”, “f” and “brampton”, meaning 14 years old, female, and living in Brampton. [8] The appellant asked if Mia wanted to go to a movie, and Mia declined, saying “i dont even kno u” and “i nvr chilled wit an older boy b4”. The appellant volunteered that he was a medical student, with his own car, and living on his own. Mia asked the appellant if he saw that she was 14. He replied “yeah yeah. thats cool” and “we can be friends”. [9] The appellant then asked Mia why she didn’t have a boyfriend, whether she liked anyone from school. He then turned the conversation explicitly sexual, asking about her sexual experience, whether she masturbated. Over the next few days, he returned to the themes of masturbation and pornography, offered to coach her on how to masturbate, and described what he would like to do with her sexually. He sent her a link to a pornographic video of a couple engaged in intercourse, assured Mia that the woman in the video was “loving it”, and that in any event they would not start off with intercourse right away. When she expressed reticence because of her young age, he was reassuring: “u want for ur first time sex to be with someone older than u/ who knows what he is doing”. When he asked if she had told anyone about him, she said no. When she asked if the appellant had told anyone about her, he replied “not yet.. they will be all lik u r dating such a yound girl”. [10] On November 29, 2012, the appellant asked to meet Mia, and she agreed to skip school and meet him at her apartment the next day. On November 30, 2012, the two had further text communications. Mia asked the appellant to meet at her apartment. He told her he would meet her in the lobby. When he texted from the lobby, police officers arrested him. [11] After speaking with duty counsel, the appellant gave a police statement in which he discussed his chat conversations with Mia. In a pre-trial voir dire , the trial judge found the police statement to be admissible under s. 24(2) of the Charter , dismissing almost all of the appellant’s arguments that the statement was involuntary or proffered in breach of his rights under Charter ss. 10(a) and (b): [2015] O.J. No. 7328 (S.C.) (“Statement Ruling”). [12] At trial, the appellant acknowledged his participation in the chats, but claimed that he believed he was communicating with an adult engaged in role-playing. He testified that he had no intention of engaging in sexual activity with someone underage. [13] The trial judge rejected the appellant’s evidence. He was satisfied beyond a reasonable doubt that the appellant believed he was communicating with an underage person, and that the communication was for the purpose of committing sexual touching. B. The Entrapment Application [14] Upon conviction, the appellant brought an entrapment application to stay proceedings. He argued that PC Hutchinson lacked the requisite grounds to “offer an opportunity” to commit an offence by posing as a 14-year-old girl. The trial judge dismissed the application on the basis that (1) PC Hutchinson did not “offer an opportunity” for the appellant to commit the offence, and (2) if there was an opportunity offered, it was made in the course of a bona fide investigation. [15] For the reasons given below, I would dismiss the appeal on the basis that the trial judge did not err in concluding that the officer did not provide an opportunity to commit an offence. It is therefore unnecessary to address the issue of whether there was a bona fide investigation. [16] The defence of entrapment flows from the doctrine of abuse of process. It is not a substantive defence to allegations of criminal wrongdoing, but instead allows for a conviction to be stayed where the investigative conduct of the police was exploitative or corrupting. As the Supreme Court explained in R. v. Mack , [1988] 2 S.C.R. 903, “[i]n certain cases the police conduct will be offensive because it exploits human characteristics that as a society we feel should be respected”: at p. 963. The court provided the following example of police conduct that would constitute entrapment, at p. 963: [I]f the law enforcement officer or agent appeals to a person’s instincts of compassion, sympathy and friendship and uses these qualities of a person to effect the commission of a crime, we may say this is not permissible conduct because it violates individual privacy and the dignity of interpersonal relationships, and condemns behaviour that we want to encourage. [17] This court recently summarized the branches of the entrapment doctrine in R. v. Ahmad , 2018 ONCA 534, 141 O.R. (3d) 241, at para. 32, rev’d in part but not on this point, 2020 SCC 11: In Mack , at pp. 964-65, the Supreme Court set out the two principal categories of entrapment. The defence is available when either: 1) “the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry”; or 2) “although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.” [18] At para. 31 of Ahmad , this court explained the onus on the accused in an entrapment application: [G]iven the serious nature of an entrapment allegation and the substantial leeway given to the state to develop techniques to fight crime, a finding of entrapment and a stay of proceedings should be granted only in the “clearest of cases”: Mack , at pp. 975-76. The accused must establish the defence on a balance of probabilities: Mack , at p. 975. [19] In R. v. Barnes , [1991] 1 S.C.R. 449, the Supreme Court affirmed the “basic rule” articulated in Mack , that “the police may only present the opportunity to commit a particular crime to an individual who arouses a suspicion that he or she is already engaged in the particular criminal activity”: at p. 463. It also affirmed an exception to this rule where police are undertaking “a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring”: at p. 463. Where police neither have reasonable suspicion of an individual already engaged in crime, nor are investigating a location that is reasonably suspected of being a hub of criminal activity, presenting an opportunity to commit a particular crime amounts to random virtue testing, and is not permitted. The Supreme Court most recently affirmed these principles in Ahmad , in which a majority of the court held that the entrapment framework from Mack has “stood the test of time” and applies with full force to contexts such as child luring: at para. 23. [20] In this appeal, there was no allegation that the police acted in a way to induce the appellant to commit an offence. The application turned solely on the first branch: whether the police provided the appellant with an opportunity to commit an offence, and if so, whether the police were undertaking a bona fide investigation in an area where they had a reasonable suspicion that crime was occurring. It is common ground that the police had no individualized reasonable suspicion that the appellant himself was engaged in criminal activity when PC Hutchinson responded to his question “asl?”. [21] Much of the entrapment case law focuses on the distinction between presenting an individual with an opportunity to commit an offence, and merely taking a step in investigating criminal activity. The former is entrapment unless the police first have reasonable suspicion. The latter is permissible police conduct. [22] The case law has struggled to articulate the basis for the distinction, preferring to make concrete factual findings about what has constituted an opportunity and what has not. This court recognized that the distinction will “sometimes be difficult to draw”: R. v. Bayat , 2011 ONCA 778, 108 O.R. (3d) 420, at para. 19. One source of the difficulty is that, conceptually, providing an individual with an opportunity to commit an offence is, in a literal sense, a step in investigating criminal activity. If such a broad conception of “providing an opportunity” were to be adopted, the distinction would collapse. As one commentator has pointed out, “the mere presence of a plainclothes officer creates an opportunity, loosely defined, for someone to offer them illegal drugs and thereby commit an offence”: Brent Kettles, “The Entrapment Defence in Internet Child Luring Cases” (2011) 16 Can. Crim. L. Rev. 89, at p. 91. [23] The case law, however, has specified a narrow conception of “providing an opportunity,” with the analysis often focusing on whether the police or the accused took the initiative in the interaction and when: Bayat ; R. v. Imoro , 2010 ONCA 122, 251 C.C.C. (3d) 131; R. v. Swan , 2009 BCCA 142, 244 C.C.C. (3d) 198. The narrow conception of “providing an opportunity” excludes investigative techniques where the originating criminal spark comes from the accused. [24] The trial judge held that the police did not provide an opportunity to commit the offence. At paras. 51-55 of the Entrapment Ruling, he pointed to several facts in support of this conclusion, including: (1) it was the appellant who initiated the conversation with Mia; (2) it was the appellant who asked Mia’s age; and (3) it was the appellant who, being repeatedly told Mia was 14, turned the conversation to sexual inquiries. [25] The trial judge drew support from Bayat for the proposition that where it is the accused who takes the lead in conversation and turns it toward the commission of an offence, the police have not provided the accused with an opportunity to commit the offence: Entrapment Ruling, at para. 54; Bayat , at para. 21. [26] The appellant argues that the trial judge used an inappropriately narrow conception of providing an opportunity. The appellant argues that the conception of an opportunity to commit an offence from Mack is the mere chance to commit an offence, such that the moment the appellant was confronted with a 14-year-old girl in a place where he had no reason to expect to meet a 14-year-old girl, he was provided with an opportunity to commit an offence. But for the presence of a 14-year-old girl in an adult chat room, he argues, he would not have had an opportunity to commit the offence of luring a 14-year-old girl. [27] In support of the argument for this broad conception of providing an opportunity, the appellant argues that on the narrower conception, the category of taking an investigative step would expand and the category of providing an opportunity would effectively disappear. The entrapment doctrine would collapse into inducing the offence, which is always prohibited, and taking an investigative step, which is generally permitted even without reasonable suspicion. [28] The broad conception of “providing an opportunity” advanced by the appellant is a lonely one, unsupported by the case law and conflicting with binding authority. On this basis alone, the appeal must fail. [29] Providing an opportunity is not established by but-for causation – that but for the presence of the investigating officer posing as a 14-year-old girl, the appellant would not have had the opportunity to commit the offence. In Ahmad , this court cautioned against “an overly technical approach to the entrapment doctrine” that detaches the doctrine from its purpose of preventing police investigations that offend against decency and fair play: at para. 39. [30] In Ahmad , the Supreme Court held that in order to allow the police flexibility to investigate crime, an officer’s actions must be “sufficiently proximate to conduct that would satisfy the elements of the offence” in order to constitute an opportunity: at para. 64. In this case, the offence was not in talking with a 14-year-old girl. The offence was communicating with a child for the purposes of committing an offence, such as sexual touching. The appellant’s argument could only succeed, it seems to me, in a world where any 14-year-old girl who agrees to chat on-line with an adult male in a general interest chat room thereby communicates that she is potentially receptive to a sexual encounter. That is not our world. [31] Accordingly, I do not agree that the trial judge committed any error. Where, as here, the police conduct is nothing other than placing a potential victim in an accused’s line of vision, and where the accused is given no reason to believe that the victim would be a willing participant in the offence committed, the police have not provided an opportunity to commit an offence. It was the appellant who initiated contact with the undercover officer masquerading as a 14-year-old girl. It was the appellant who sought to ascertain her age. Having learned that she was underage, it was the appellant who ventured into sexual topics and suggested an in-person meeting. Throughout these interactions, the undercover officer repeatedly raised the issue of the fictional victim’s youth, but the appellant persisted. [32] I would dismiss this ground of appeal. C. Section 10(b) Right to Counsel [33] Section 10(b) of the Charter provides a detained person with the right “to retain and instruct counsel without delay and to be informed of that right”. In R. v. Bartle , [1994] 3 S.C.R. 173, the Supreme Court specified that this right imposes the following requirements: (1) informational: to advise the detainee of the right to retain and instruct a lawyer without delay, and of the existence and availability of legal aid and duty counsel; (2) implementational: where the detainee indicates a desire to exercise the right, to provide a reasonable opportunity; and (3) forbearance: to refrain from eliciting evidence from the detainee until the detainee has had a reasonable opportunity to exercise the right. [34] The purpose of the s. 10(b) right is to guard against the risk of involuntary self-incrimination and ensure that a choice to speak to police is free and informed: R. v. Taylor , 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 21. [35] The appellant argues that the trial judge erred in finding that the police did not infringe the appellant’s s. 10(b) rights. The arresting officer initially provided the appellant with an abbreviated instruction on his s. 10(b) rights because the appellant was in a highly emotional state and the officer was concerned that he would not be able to track the standard caution. The officer advised the appellant that if he did not have his own lawyer (which he did not), the police would call duty counsel for him. Minutes later, another officer read the standard caution to the appellant, which informed the appellant that he could speak with any lawyer of his choosing. The appellant then spoke with duty counsel. [36] Subsequently, in an interview with police, the appellant returned to the issue of consulting counsel. He relayed information he received from duty counsel that if he wanted to, he was entitled to look in a directory and choose his own lawyer. He asked if he was entitled to make more than one call, which set up the following exchange: Cst. Ullock: You’re, you’re entitled to speak to a lawyer okay, if there is a specific lawyer that you want to talk to Appellant: I have, I don’t have any. Cst. Ullock: Yeah like if you say here is the name of a lawyer I want to talk to him. Appellant: Okay. Cst. Ullock: … then you can you know. [37] On a voir dire , the trial judge agreed that the initial advice that the appellant received was incorrect, in that it omitted that in addition to accessing duty counsel, he also had the option to search for a lawyer of his own choosing: Statement Ruling, at para. 76. He found, however, that the advice the appellant received minutes later from another officer remedied the defect and properly conveyed to the appellant that he could contact any lawyer: at paras. 83-84. [38] The appellant argues that the trial judge erred in finding that the police had satisfied the informational component of the s. 10(b) right. He argues that he ought to have been told that he had the option of looking up a lawyer for himself, and the police ought to have facilitated the exercise of this right by providing him with a directory. He only discovered he had the right to choose his own lawyer when so advised by duty counsel, but was then rebuffed by Cst. Ullock when he tried to make this request. [39] The trial judge was satisfied that when the totality of the circumstances were considered – including the appellant’s initial emotional state, the fact that the information he received was initially incomplete, and that he was subsequently provided with a standard caution and spoke to duty counsel – the appellant had not misunderstood his rights. [40] This finding by the trial judge, that the appellant had not misunderstood his rights and chose to speak with duty counsel, was open to him. The onus was on the appellant to establish that he misunderstood his rights such that s. 10(b) was infringed. He did not testify on the voir dire . The trial judge found that he did not, in his conversations with Cst. Ullock, convey dissatisfaction with the advice he had received from duty counsel or confusion about his right to counsel: [2015] O.J. No. 7328, at paras. 82, 95. [41] The appellant did not request access to a directory or phone book in which to search for counsel. In the circumstances, as he had already spoken to duty counsel and understood that he was free to find a lawyer of his choosing, I am not persuaded that the police breached the appellant’s rights in not offering him a directory. [42] I would not give effect to this ground of appeal. D. Disposition [43] I would dismiss the appeal. “B.W. Miller J.A.” “I agree. C.W. Hourigan J.A.” Nordheimer J.A. (dissenting) [44] I have reviewed my colleague’s reasons. I agree with his analysis and conclusion regarding the s. 10(b) issue. However, I disagree with his conclusion on the entrapment issue. Consequently, I would allow the appeal, set aside the conviction, and enter a stay of proceedings. [45] My colleague has set out the background facts, so I do not need to repeat them. [46] There is agreement on which of the branches of entrapment laid out in R. v. Mack , [1988] 2 S.C.R. 903, is at issue in this case. It is the first branch, which Lamer J. stated in the following terms, at p. 964: the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry[.] Opportunity to commit an offence [47] The first question then is whether the officer provided the appellant with an opportunity to commit an offence. As this court recognized in R. v. Bayat , 2011 ONCA 778, 108 O.R. (3d) 420, at para. 19: The issue is a difficult one and the line between simple investigation and offering an opportunity to commit an offence will sometimes be difficult to draw. [48] My colleague concludes that that line was not crossed. I disagree. In my view, the officer did provide an opportunity to commit an offence. After all, that was the raison d’être for her presence in the chat room. The officer was looking for people who might approach her, knowing that she was underage. In considering this issue, my colleague does not address, nor did the trial judge, the fact of the persona that the officer created and presented to others in the chat room. In particular, the officer gave evidence that she adopted the user name “mia_aqt98” for the purpose of communicating to others in the chat room that she was female, that she was “a cutie”, and that she was 14 years old. [49] In my view, the adoption of this username, for the reasons that the officer did, was an invitation or enticement to improper conduct. It was the digital equivalent of an undercover officer standing on a street corner with a sign saying “drug user”. In that situation, the undercover officer would be advertising to any drug dealer that she was a potential customer. It would clearly be offering an opportunity for a drug dealer to approach her for the purpose of selling her drugs. Whether one characterizes it as an invitation to commit an offence or an opportunity to commit an offence, the result is the same. It is that fact that distinguishes this case from some others, such as Bayat and R. v. Imoro, 2010 ONCA 122, 251 C.C.C. (3d) 131, aff’d 2010 SCC 50, [2010] 3 S.C.R. 62. [50] The officer did not simply go into the chat room as an adult, in the normal course of her duties, with no intention to investigate or create a specific offence. In other words, the officer was not simply “walking her beat” in the chat room. If that had been the case, there would be no offering of an opportunity just as there would be no opportunity offered if a plain clothes officer was simply standing on a sidewalk and a person approached and offered to sell her drugs. [51] The officer’s own evidence reinforces my view of her actions. Her whole purpose in going into the chat room was to try and find potential offenders. She did not suggest otherwise. She was clearly trying to entice some contact of the very type that the appellant provided. To conclude that the officer was not providing an opportunity to commit an offence is inconsistent with her presence in the chat room and the adoption of the persona that she did, which she then advertised to the other participants in the chat room. Keep in mind, on this point, that this was not a chat room for teenagers, nor was it the type of chat room that teenagers would be expected to frequent. It was an adult-only chat room. It was also not a chat room devoted to sexual interests or sexual activities. [52] In my view, the officer in this case created a situation that is no different in kind than the example of offering a wallet, used by Lamer J. in Mack , at p. 957. In this case, the officer was the wallet. She acted as a lure. She wanted to see if someone would take the bait and the appellant did. She provided the opportunity. Any other conclusion does not align with the reality of the situation. Bona fide inquiry [53] Having concluded that the opportunity to commit an offence was provided, it then becomes necessary to determine if the officer had a reasonable suspicion that the appellant was already engaged in criminal activity, or that she was acting pursuant to a bona fide investigation. No one suggests that the officer had any suspicion about the appellant. It is the bona fide investigation aspect that is relied upon. [54] However, as the Supreme Court of Canada has made clear recently in R. v. Ahmad , 2020 SCC 11, the bona fide investigation aspect of the entrapment doctrine still requires the police to have a reasonable suspicion. If the police do not have a reasonable suspicion about the individual, then they must have a reasonable suspicion about the location. As Karakatsanis, Brown and Martin JJ. said, at para. 20: A bona fide investigation is not a separate and freestanding way for police to entrap an individual, but a means of expressing the threshold of reasonable suspicion in a location. [55] For the police to be engaged in a bona fide investigation that is directed towards a location, as opposed to an individual, the police must have a reasonable suspicion that the location is a source of criminal activity. Lamer C.J. stated the requirement this way in R. v. Barnes , [1991] 1 S.C.R. 449 , at p. 463: The basic rule articulated in Mack is that the police may only present the opportunity to commit a particular crime to an individual who arouses a suspicion that he or she is already engaged in the particular criminal activity. An exception to this rule arises when the police undertake a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring. [56] The trial judge’s approach to this requirement was to conclude, in essence, that any chat room on the Internet is a place where criminal activity is likely occurring. He said, specifically, that “[t]he internet chat room was a place where internet luring was likely occurring”: 2016 ONSC 5675, 342 C.C.C. (3d) 128, at para. 58. The trial judge does not refer to any evidence in support of this conclusion and none is to be found in the record. Contrary to the submissions of Crown counsel at trial, the fact is that the officer did not offer any evidence that this chat room was a location suspected of child luring. It appears that the officer essentially chose this particular chat room at random, the only criteria being that it had to be a chat room where the participants were likely to be within her geographic jurisdiction. [57] The trial judge relied on the decision in R. v. Levigne , 2010 SCC 25, [2010] 2 S.C.R. 3, to support his conclusion on this point. I am unable to see how that decision assists on this issue. As noted by the trial judge, Levigne addresses the reasons behind the enactment of the child luring provision in the Criminal Code , R.S.C., 1985, c. C-46. While the decision does say that the provision was put in place to facilitate the investigation of such offences, it does not say why the officer was in the particular chat room in that case nor does it say, or suggest, that the entire Internet is so rife with criminal activity of this type that it provides reasonable suspicion for an investigation in every contour of its existence. [58] On this point, there is a clear distinction between an Internet chat room of the type involved here, and sites such as Craigslist, which have featured in other decisions involving this issue (see, for example, R. v. Argent , 2016 ONCA 129). The sexual nature of activities on certain portions of Craigslist is well-known. The police often get complaints about them. Such information can provide the reasonable suspicion necessary for a bona fide investigation. But those situations are different in kind than what was involved in this case. [59] The police were required to have a reasonable suspicion that child luring would be occurring within this chat room, in order to establish that any investigation was a bona fide one. This requirement is confirmed in Ahmad , where Karakatsanis, Brown and Martin JJ. said, at para. 24: This standard requires the police to disclose the basis for their belief and to show that they had legitimate reasons related to criminality for targeting an individual or the people associated with a location. [Citations omitted.] [60] The fact is that the police did not offer that evidence. Indeed, the Crown on appeal does not even suggest that the police had any such evidence. [61] Rather, the Crown proposes, and the trial judge appears to have accepted, that Internet chat rooms generally are locations where a reasonable suspicion exists with respect to the prospect of child luring. That broad-based approach to reasonable suspicion was rejected in Barnes and rejected again in Ahmad . Indeed, the application of the reasonable suspicion standard to virtual spaces was directly addressed in Ahmad , where Karakatsanis, Brown and Martin JJ. said, at para. 41: We emphasize that the virtual space in question must be defined with sufficient precision in order to ground reasonable suspicion. Reviewing courts must scrutinize the evidence that prompted the inquiry to ensure the police have narrowed their scope so that the purview of their inquiry is no broader than the evidence allows. And further, at para. 43: In our view, entire websites or social media platforms will rarely, if ever, be sufficiently particularized to support reasonable suspicion. [62] It is clear, in my view, that the officer in this case was engaged in random virtue testing, as that concept is properly understood. It is akin to the situation referred to in Barnes , where Lamer C.J. said, at p. 462: I note that in many cases, the size of the area itself may indicate that the investigation is not bona fide . This will be so particularly when there are grounds for believing that the criminal activity being investigated is concentrated in part of a larger area targeted by the police. [63] While the situation in Barnes dealt with a geographic area in the City of Vancouver, it serves up the same problem if one considers the Internet as a geographic area. Just because criminal activity may occur in one part of the Internet does not justify the police entering any area to conduct an investigation, just as the fact that drug activity took place in the Granville Mall area of Vancouver would not have justified an investigation outside of that specific area. The police must have evidence specific to the area that they are going to investigate. [64] As I have already pointed out, there are parts of the Internet that are reasonably suspected of being misused for criminal purposes. Craigslist is the example to which I referred, but there are others. The police did not offer any evidence that it is problematic to separately deal with the component parts of the Internet for investigative purposes. Yet their approach in this case relies on a blanket of suspicion over the entire Internet. [65] It is not the role of the police to randomly offer members of the public the chance to commit an offence and then see who does. The problem with random virtue testing, as identified in Mack, presents itself in this very case. It was described by Lamer J., at p. 965: The absence of a reasonable suspicion or a bona fide inquiry is significant in assessing the police conduct because of the risk that the police will attract people who would not otherwise have any involvement in a crime and because it is not a proper use of the police power to simply go out and test the virtue of people on a random basis. [66] One has to wonder whether there is any reason to believe that the appellant would have become involved in this crime, but for the officer’s actions in this case. It is this reality that provides the reason why the police are prohibited from engaging in random virtue testing “because it ‘prey[s] on the weakness of human nature’ to entice individuals into offending”: Ahmad , at para. 28. [67] In that regard, one must not lose sight of the fact that the Internet now provides a place for social exchange and interaction that might previously have been provided only by bars, social clubs, or other physical events and locations. As McLachlin C.J. observed in R. v. Marakah , 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 28: The millions of us who text friends, family, and acquaintances may each be viewed as having appropriated a corner of this electronic space for our own purposes. There, we seclude ourselves and convey our private messages, just as we might use a room in a home or an office to talk behind closed doors. The phrase “chat room” to describe an Internet site through which people communicate is not merely a metaphor. [68] As this observation makes clear, the actions of the police in a chat room engage privacy concerns. People who participate in private conversations on the Internet are entitled to expect that the police will not be surveilling their conversations, including instigating or participating in them for investigative purposes not based on a reasonable suspicion of criminal activity. This point was also made in Ahmad where Karakatsanis, Brown and Martin JJ. said, at para. 38: Section 8 jurisprudence recognizes that at the “heart of liberty in a modern state” is the need to “set a premium” on the ability of its citizens to carve out spaces in their lives, sanctuaries where they may interact freely, unhindered by the possibility of encounters with the state. [Citations omitted.] [69] Finally, one must guard against allowing the nature of the offence to distort the application of the entrapment doctrine. Its application does not depend on the nature of the offence, or its seriousness, or the fact that the offence may be difficult to investigate. The fact that the appellant engaged in the conduct at issue cannot impact the conclusion regarding the application of the entrapment doctrine. As Lamer J. made clear in Mack , at p. 951, culpability is not the basis for the application of the doctrine. In considering entrapment, we look at the actions of the police, not of the accused. Conclusion [70] I would allow the appeal, set aside the conviction, and enter a stay of proceedings. Released: “CWH” JUN 12 2020 “I.V.B. Nordheimer J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, 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. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Hannora, 2020 ONCA 335 DATE: 2020601 DOCKET: C67730 Fairburn, Nordheimer and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Mahmoud Hannora Appellant Jacob Stilman, for the appellant Natalya Odorico, for the respondent Heard: in writing On appeal from the sentence imposed on September 14, 2018 by Justice Guy P. DiTomaso of the Superior Court of Justice. REASONS FOR DECISION [1] Mr. Hannora appeals the sentence imposed on him arising from his conviction on three counts after a trial with a jury. Mr. Hannora was sentenced to three years on a count of unauthorized possession of a restricted firearm, one year consecutive on a count of possession of a firearm while prohibited, and three years consecutive on a count of receive material benefit from sexual services, for a total sentence of seven years. Mr. Hannora abandoned his conviction appeal. [2] The background facts can be stated briefly. The complainant was a sex trade worker who entered into a relationship with the appellant. The complainant continued to work in the sex trade while she was in this relationship with the appellant. The appellant received monies from the complainant which he used for his own personal expenses. The complainant also moved into a condominium that the appellant owned and paid rent to the appellant. [3] On occasions during the relationship, the appellant was abusive towards the complainant. There were acts of physical violence. On one occasion, during an argument, the appellant produced a loaded handgun and threatened the complainant with it. It appears that the appellant had the handgun with him on other occasions, including when he went out in public. The complainant handled the handgun and, at one point, asked if she could shoot it. [4] The relationship ended after a few months. [5] The appellant was 27 years old at the time of sentencing. He has a criminal record that includes convictions for theft under, mischief, break and enter, possession of a weapon and a number of breaches of court orders. It is of some importance that the longest sentence that the appellant had received, prior to these convictions, was for a total of 330 days, or slightly less than a year. [6] There was a pre-sentence report before the sentencing judge that spoke positively about the appellant. As the sentencing judge observed, the appellant had accepted responsibility for his actions, and enjoyed strong family support. The sentencing judge also said, “Mr. Hannora has been described as a mature young man who had been making efforts to better himself, and who now needs to continue to learn from his mistakes.” [7] In our view, the sentencing judge erred in his approach to the sentences he imposed by failing to properly apply the totality principle. The only mention of the totality principle made by the sentencing judge was with respect to the three year sentence he imposed on the firearms conviction, when he reduced what he considered to be an otherwise fit sentence on that count from 4 to 3 years. [8] The totality principle is properly applied to the total sentence imposed on an offender. Its purpose, where consecutive sentences are imposed, is to ensure that the total sentence is proportionate to the culpability of the offender. As Lamer C.J. said in R. v. M. (C.A.) , [1996] 1 S.C.R. 500, at p. 531: The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. [9] Having determined the fit disposition for each count, and running the sentences consecutive to one another, the trial judge was required to look at the total sentence of 7 years and ask whether it exceeded the overall culpability of the appellant. The failure to do so reflects an error in principle, one that impacted the sentence imposed: Lacasse , at para. 44. Accordingly, it falls to this court to do so. [10] In the circumstances of this case, having regard to the circumstances of the offending conduct, a total 7 year sentence for a 27 year old offender who the trial judge accepted had positive prospects for rehabilitation, was genuinely remorseful, and whose previous longest sentence was less than a year, outstripped his overall culpability. On the rehabilitation aspect, we repeat the observation of Watt J.A. in R. v. Angelis , 2016 ONCA 675, 133 O.R. (3d) 575 (C.A.), where he said, at para. 51: Totality is a principle of sentence the purpose of which is to ensure that the total sentence imposed does not extinguish the rehabilitative potential of the offender. [11] While we do not diminish the seriousness of the appellant’s conduct, the total sentence was excessive given the mitigating factors that we have mentioned. The principle of totality should be applied to reduce the overall length of time the appellant must serve in custody. [12] It is recognized that one way to reconcile the overall sentence with the totality principle is to impose concurrent sentences, where otherwise the sentences would be consecutive: Clayton C. Ruby, et al., Sentencing , 9th ed. (Toronto: LexisNexis, 2017), at § 2.75. This approach has been favoured by this court in a variety of decisions, including R. v. Jewell (1995), 100 C.C.C. (3d) (Ont. C.A.), where Finlayson J.A. said, at p. 279: In performing this function, the trial judge will have to consider not only the appropriate sentence for each offence, but whether in light of totality concerns, a particular sentence should be consecutive or concurrent to the other sentences imposed. [13] Taking into account the mitigating factors that we have mentioned above, the appropriate total sentence in this case would have been one of four years. That result can be accomplished by making the sentence on the receive material benefit count concurrent to the other two counts. [14] We would grant leave to appeal sentence, allow the appeal, and make the sentence on count #3 concurrent to the sentences on counts #1 and #2. We would also set aside the victim fine surcharge. “Fairburn J.A.” “I.V.B. Nordheimer J.A.” “Harvison Young J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, 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. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Harrison, 2020 ONCA 393 DATE: 20200618 DOCKET: C67506 Watt, Trotter and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Paul Harrison Appellant Paul Calarco, for the appellant E. Nicole Rivers, for the respondent Heard: June 9, 2020 by teleconference On appeal from the conviction entered on March 13, 2019 by Justice Harvey P. Brownstone of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant was convicted of accessing, possessing, and making child pornography available. The trial judge ruled that the search of the appellant’s residence did not infringe s. 8 of the Charter . He also found that, if the appellant’s s. 8 rights had been infringed, the evidence should not be excluded under s. 24(2). The appellant challenges the correctness of both decisions. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. These are our reasons. [2] By way of brief background, a police investigation revealed that the appellant lived in the “upper unit” of a house. The police suspected that it was a rooming house. They were concerned that more than one person could be using the internet account assigned to the appellant. The issuing justice was apprised of this information and authorized a search of all units in the house. When the warrant was executed, the police discovered five separate units or dwellings at the address. The appellant occupied a loft on the top level of the rooming house. The police seized his computer equipment and a phone on which they subsequently discovered images of child pornography. The police also asked the other occupants of the rooming house if they could inspect their devices, to which they all consented. Nothing sinister was discovered on these devices. [3] The appellant attacks the search on three bases. First, he argues that the warrant was facially invalid and should not have issued because it was overbroad. The appellant looks for support in R. v. Ting , 2016 ONCA 57, 333 C.C.C. (3d) 516, in which, in their search for drugs, the police entered and searched the wrong unit in a multi-unit building. This case is different. It was reasonable for the police to be concerned that others in the rooming house could have had access to the appellant’s internet account: see R. v. Ward , 2012 ONCA 660, 112 O.R. (3d) 321, at para. 23. Unlike Ting , the warrant in this case allowed the police to search the entire premises, not just one part of it. [4] Second, the appellant contends that the warrant was executed in an unreasonable manner. He submits that, when the police entered the address and discovered that there were five separate units (i.e., more than anticipated), they should have stopped and obtained a further warrant before continuing with their search. [5] This argument was not made before the trial judge; it is raised for the first time on appeal. Nonetheless, we are of the view that the submission lacks merit. As noted above, the warrant authorized the search of the entire premises at the target address. Again, comparison with Ting is unhelpful because the warrant in that case targeted a particular unit in a multi-dwelling structure. Here, the police did what the warrant explicitly allowed them to do. [6] Third, relying on R. v. Vu , 2013 SCC 60, [2013] 3 S.C.R. 657, the appellant submits that, having seized the appellant’s computer equipment and phone, they were required to obtain a further warrant to search those items for electronic images. We disagree. [7] The trial judge concluded that a second warrant was not required because the initial warrant implicitly authorized the inspection of any electronic devices that were seized. In fact, the warrant explicitly authorized the search of these devices. The warrant complied with Vu in authorizing the search of both the residence in which the devices were located and the subsequent examination of the devices: R. v. Nero , 2016 ONCA 160, 334 C.C.C. (3d) 148, at para. 164; R. v. McNeill , 2020 ONCA 313, at paras. 53-59. [8] In conclusion, the trial judge made no errors in his s. 8 analysis. Consequently, it is not necessary to address the appellant’s submissions concerning s. 24(2) of the Charter . [9] The appeal is dismissed. “David Watt J.A.” “Gary Trotter J.A.” “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Huang, 2020 ONCA 341 DATE: 20200602 DOCKET: C67911 Rouleau, Zarnett and Jamal JJ.A. BETWEEN Her Majesty the Queen Respondent and Zi-Yue Huang Appellant Marianne Salih, for the appellant Nicolas de Montigny, for the respondent Heard: In-writing On appeal from the sentence imposed on October 3, 2019 by Justice Frank D. Crewe of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant pleaded guilty to three counts of robbery from two gas stations at night while wearing a mask and brandishing a knife. At the time of the offences, the appellant was a 28-year-old first offender with serious mental health issues. He was sentenced to 12 months’ imprisonment, followed by three years of probation. He now appeals against his sentence. [2] The appellant asserts that the sentencing judge erred by: (1) giving him no credit for his pre-sentence custody or time spent under house arrest; and (2) relying on his mental health condition as an aggravating sentencing factor. He claims that both errors impacted the sentence imposed. He submits that the appropriate sentence was 6 months, with a further reduction of 113 days for his pre-sentence custody. [3] For the reasons that follow, we agree with the first ground of appeal as it relates to the treatment of the pre-sentence custody but we do not agree with the second ground. We substitute a sentence of 12 months, less credit for 75 days’ pre-sentence custody at a rate of 1.5 to 1, or 113 days’ credit, resulting in a sentence of 252 days. Analysis (1) The sentencing judge erred by giving no credit for the appellant’s pre-sentence custody [4] The appellant’s first ground of appeal asserts that the sentencing judge erred in law by giving him no credit for his pre-sentence custody (about 75 days) or the time he spent under house arrest (about 27 months). He says this error impacted the sentence imposed. [5] The appellant says this ground is supported by an exchange between defence counsel, Mr. Motevalli, and the sentencing judge right after he imposed a sentence of 12 months’ imprisonment. Mr. Motevalli had asked whether the sentencing judge would provide the appellant credit for his pre-sentence custody. The sentencing judge repeated that the sentence was one year and stated that he would not address the issue of pre-sentence custody: MR. MOTEVALLI: Your Honour, if I may, I think the only thing left is just the credit for the custody. THE COURT: It is one year. MR. MOTEVALLI: One year. THE COURT: That is the sentence. Yes, that is the sentence. CLERK REGISTRAR: Is there any pre-trial custody time…. THE COURT: … I am not addressing the issue of pre-trial custody, Madam Registrar. [6] The appellant claims that this exchange confirms the sentencing judge erred in law by failing to give credit for either the pre-sentence custody or the strict bail conditions and that this error impacted the sentence imposed. [7] The respondent concedes that the sentencing judge erred in not providing reasons for refusing to address pre-sentence custody, but asserts that this error did not impact the sentence imposed and that the sentence remains fit. The respondent also asserts that even if the sentencing judge failed to consider the appellant’s bail conditions, the sentence remains fit and should not be disturbed. [8] We agree that the sentencing judge erred in law by failing to address credit for the appellant’s pre-sentence custody. [9] Section 719(3) of the Criminal Code , R.S.C. 1985, c. C-46, gives a court discretion to consider pre-sentence custody in determining the sentence. Section 719(3.2) requires the court to give reasons for any credit granted for pre-sentence custody, while s. 719(3.3) requires the court to state the amount of time spent in custody, the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and the sentence imposed. The Supreme Court has stated that this is “not a particularly onerous requirement, but plays an important role in explaining the nature of the sentencing process, and the reasons for giving credit, to the public”: R. v. Summers , 2014 SCC 26, [2014] 1 S.C.R. 575, at para. 74. This same obligation to give reasons applies when the sentencing judge refuses to give credit for pre-sentence custody: see R. v. Evans , 2019 ONCA 715, 147 O.R. (3d) 577, at para. 290. [10] Here, the sentencing judge refused, without giving reasons, to address the issue of pre-sentence custody. Other than repeating that the sentence imposed was “one year” and saying, “ I am not addressing the issue of pre-trial custody”, he did not comply with ss. 719(3.2) or 719(3.3) of the Criminal Code . This was an error of law. [11] This error, on its own, however, does not justify this court interfering with the sentence. An appellate court can interfere with a sentence in only two situations: (1) where the sentence imposed by the sentencing judge is “demonstrably unfit”; or (2) where the sentencing judge commits an error in principle, fails to consider a relevant factor, or erroneously considers an aggravating or mitigating factor, and such an error impacts the sentence imposed: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R 1089, at paras. 11, 44; R. v. Suter , 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 24. In both situations, the appellate court can set aside the sentence and itself determine the fit sentence in the circumstances. [12] The respondent says that the sentencing judge’s error did not impact the sentence imposed. The respondent argues in its factum that “[w]hile the sentence may have been arrived at through an error in principle, the sentence imposed was the one intended by the sentencing judge”, because “the quantum of sentence was arrived at with pre-sentence custody in mind” (emphasis in original). The respondent notes that pre-sentence custody was raised during sentencing submissions and again right after the sentencing judge imposed the sentence, when the sentencing judge confirmed the sentence of one year and stated he would not address the issue of pre-sentence custody. [13] In our view, there are three possible interpretations of how the sentencing judge treated the pre-sentence custody: 1. The sentencing judge took the pre-sentence custody into account, but did not explain the calculation. 2. The sentencing judge intended to give no credit for the pre-sentence custody. 3. The sentencing judge failed to take the pre-sentence custody into account after determining the fit sentence. [14] The respondent argues for the first interpretation; the appellant argues for the third interpretation. [15] There is no doubt force in the respondent’s interpretation. The sentencing judge knew the appellant had served some time in pre-sentence custody, but still imposed a 12-month sentence even when the issue of credit for pre-sentence custody was raised with him. [16] We have concluded, however, that this is not the correct interpretation of the sentencing judge’s comments, when viewed in the context of the record, the issues, and the submissions of counsel. As we will explain, the third interpretation – that the sentencing judge erred by not taking the pre-sentence custody into account after determining the fit sentence – is the only plausible interpretation. [17] In essence, the sentencing judge intended to adopt the respondent’s sentencing recommendation of a fit sentence of 12 months, before providing credit for pre-sentence custody. Most of the pre-sentence custody occurred after the Crown first recommended 12 months, a recommendation that the Crown later maintained even while the appellant was in custody. The submissions of counsel and the sentencing judge’s comments suggest that the credit for pre-sentence custody would be calculated later. But this never happened. The sentencing judge simply failed to consider the pre-sentence custody after determining the fit sentence. [18] The relevant context is as follows. [19] The appellant pleaded guilty on September 18, 2018 but sentencing submissions did not begin until May 15, 2019. The reason for the delay was that defence counsel wanted a psychiatric assessment of the appellant. The Crown agreed this would be useful to make a sentence recommendation, since it appeared that the appellant’s mental health issues partly informed his criminal behaviour. [20] When the parties returned on May 15, 2019, the Crown acknowledged the appellant’s mental health issues “warrant[ed] a more merciful sentence than might otherwise be mandated by his offences”. While the appellant’s diagnosis was unclear it was ultimately believed to be either marijuana-induced schizophrenia or, more likely, bipolar 1 disorder fueled by marijuana. The Crown therefore suggested a sentence range of “12 to 18 months incarceration”, but “closer to 12 than to 18”, and then finally recommended “something in the area of 12 months”. The defence sought a 90-day sentence to be served intermittently followed by probation. The sentencing judge stated that if he was going to consider imposing a sentence in line with the defence proposal, he wanted to know if the appellant was going to continue to see mental health professionals before he passed sentence. He added that “the sentencing is too early” and that he was “certainly willing to consider a sentence that is less than that which [the Crown] has recommended, provided I can see that there have been results.” The sentencing hearing was therefore adjourned. [21] In the summer of 2019, the appellant’s bail was revoked, and he was in custody for most of the summer and into the early fall. It was during this period that the appellant accumulated most of his pre-sentence custody – that is, after the Crown had recommended a 12-month sentence on May 15, 2019. [22] Sentencing submissions resumed on September 20, 2019. Defence counsel advised the court that the appellant was now in custody and submitted that his environment at home had not been supportive and had stopped him from getting the mental health help he needed. The sentencing judge asked defence counsel, “How long has he been in custody now?” Defence counsel at first ball parked “around 135 real days in custody”, but then added “an exact calculation will need to be made”. The sentencing judge responded, “We can sort that out”. Even so, before the sentence was imposed there was no further discussion of the actual number of days of pre-sentence custody. Counsel on appeal agree that the actual number was between 75 and 77 days. [23] The sentencing judge then asked defence counsel for his position on sentence. Defence counsel now proposed “less than 90 days” to be served intermittently, “so that the time that he spent in custody would be marked down in a certain manner”. The Crown’s position remained 12 months. [24] The sentencing judge concluded that he was “not in a position at this point to determine a fit sentence”. He stated: I don’t think it is advisable at this stage for me to simply say, “Okay, I’m going to choose a number between that sought by the Crown and that sought by the defence” and impose that number and minus off the dead time. [25] He therefore adjourned the sentencing again to allow for the preparation of a pre-sentence report. The appellant remained in custody. [26] On October 3, 2019, the sentencing submissions continued. Once again, the defence sought a 90-day sentence to be served intermittently, mentioning the appellant’s pre-sentence custody without specifying the number of days. The sentencing judge advised that this proposal was “[n]ot in the cards”. He explained: [Crown counsel] had considered a sentence in the area of 12 to 18 months, but in view of Mr. Huang’s circumstances in the mental health issues that were at play, that perhaps I ought to consider a sentence in the nature of about 12 months in view of his circumstances, which is a very lenient sentence, 12 months. And he hasn’t served anywhere approaching that… . [27] The sentencing judge later added: But [the appellant has] inched his way back up to the bottom of that range that [the Crown recommended] … looking at something in the nature of a year, a one-year sentence, but one that could be served in an institution where he’s going to get some help like Ontario Correctional Institute, for instance. [28] Following this, the sentencing judge briefly retired, returned, and imposed the 12-month sentence. [29] In our view, the record as a whole establishes the following: · The Crown recommended a 12-month sentence as a fit sentence before the appellant served most of his pre-sentence custody and maintained this recommendation even after the appellant was in custody. · While the sentencing judge was initially prepared to consider a sentence much lower than the Crown proposed, he concluded that the appellant had “inched his way” up to the Crown’s recommendation of 12 months as a fit sentence. He found the Crown’s recommendation was very lenient and was prepared to adopt it. · The sentencing judge’s reasons never suggested that he was imposing a sentence higher than the Crown’s recommendation of 12 months, from which he then deducted the pre-sentence custody (a number he was not provided) to arrive at a sentence of 12 months after credit. · The Crown never urged the court to give the appellant no credit for pre-sentence custody. The submissions of counsel and the sentencing judge’s comments suggest that the pre-sentence custody credit would be calculated later. But this was never done. Nothing in the record suggests the sentencing judge knew or calculated the amount of pre-sentence custody. [30] Returning to the three possible interpretations of the sentencing judge’s treatment of the pre-sentence custody in light of the record as a whole, we conclude that the only plausible interpretation is that the sentencing judge did not take the pre-sentence custody into account. [31] This first interpretation – that the sentencing judge took pre-sentence custody into account, but did not explain the calculation – is not plausible, for two reasons. First, it involves the sentencing judge imposing a sentence several months higher than either party proposed, and then deducting credit for pre-sentence custody to arrive at 12 months. There was no indication the sentencing judge intended to impose a sentence higher than what the Crown had proposed on May 15, 2019, before most of the pre-sentence custody was served. Second, there was no indication the sentencing judge even knew the correct length of the appellant’s pre-sentence custody. [32] The second interpretation – that the sentencing judge intended to give no credit for pre-sentence custody – is also not plausible, for three reasons. First, the Crown never sought no credit for pre-sentence custody. Second, the exchange between defence counsel and the sentencing judge on September 20, 2019 suggested that an exact calculation of pre-sentence custody would be made and considered later. Third, there was, in any event, no principled basis for denying credit in this case. [33] As a result, the only explanation that remains plausible is the third interpretation – that the sentencing judge simply failed to consider the pre-sentence custody when he fixed the sentence at 12 months. [34] The sentencing judge’s failure to consider the pre-sentence custody impacted the sentence imposed because the sentence otherwise would have been lower after crediting the pre-sentence custody. [35] This court can therefore set aside the sentence and determine the fit sentence in the circumstances. In sentencing afresh, this court “will defer to the sentencing judge’s findings of fact or identification of aggravating and mitigating factors, to the extent that they are not affected by an error in principle”: R. v. Friesen , 2020 SCC 9, at para. 28. [36] In determining the fit sentence for the appellant, we recognize that this court has upheld significant sentences for convenience store robberies and has underscored that “[a]rmed robbery of a neighbourhood convenience store is an extremely serious offence, and one which is of great concern to the community. The merchants who are operating these stores on a basis of long hours require protection”: R. v. Brown , [1982] O.J. No. 74 (C.A.), at paras. 8-9 (four-year sentence for two counts of robbery of convenience stores); R. v. Boyle (1985), 7 O.A.C. 342 (C.A.), [1985] O.J. No. 33, at para. 6 (four-year sentences served consecutively on each of two counts of robbery of convenience stores) (“the operators of convenience stores are vulnerable to the offence of robbery and they must be protected by the imposition of appropriate sentences”). [37] Here, however, the Crown acknowledged that the appellant has serious mental health issues, and therefore recommended a 12-month sentence. As Crown counsel stated at first instance, with which we agree, this case warrants “a more merciful sentence” than might otherwise be mandated by the appellant’s offences. We see no basis to depart from the Crown’s recommendation, a recommendation accepted by the sentencing judge. [38] As for the time the appellant spent under house arrest, we acknowledge that it can be considered a mitigating sentencing factor (see R. v. Adamson , 2018 ONCA 678, at para. 106). This said, it is apparent to us that the parties’ recommended sentences and the sentencing judge’s 12-month sentence all took into account the predisposition bail conditions. In any event, we consider the 12-month sentence to be very lenient and a further reduction on that basis is not warranted. [39] We therefore conclude that a sentence of 12 months was fit but a credit for pre-sentence custody should have been applied. (2) The sentencing judge did not view the appellant’s mental illness as an aggravating sentencing factor [40] The appellant’s second ground of appeal is that the sentencing judge erred by relying on the appellant’s mental health condition as an aggravating sentencing factor. [41] The appellant impugns these comments of the sentencing judge: [I]t is clear that Mr. Huang has mental health issues that remain undiagnosed, and to a large extent untreated. He continues to use marijuana and he expresses to me the opinion that it has no impact on his mental health issues. I understand the level of frustration that his family must feel. He expressed to me that he thinks he can get this situation under control if he is released from custody. I am deeply concerned about his mental wellbeing. I take the view that he is in desperate need of a sound diagnosis and a plan of treatment. Also I have to consider at this point the appropriate sentence for the robberies that he committed, and as a part of that I have to consider the safety of the public and whether it is safe to release him into the public. In my view, it is not. In my view, he has to serve a sentence for the robberies he committed and, in my view, the appropriate sentence is the lower end of the range suggested by [Crown counsel], that of 12 months. That is the sentence. [42] We do not read these comments as treating the appellant’s mental health condition as an aggravating sentencing factor. The sentencing judge was simply concerned for the appellant’s mental well-being and underscored that he needed treatment. There was nothing inappropriate in that. Disposition [43] For these reasons, we grant leave to appeal the sentence and allow the sentence appeal. We substitute a sentence of 12 months, with credit for 75 days of pre-sentence custody at a rate of 1.5 to 1, or 113 days’ credit, thereby reducing the sentence to 252 days. The other conditions of the sentence imposed by the sentencing judge remain unchanged. “Paul Rouleau J.A.” “B. Zarnett J.A.” “M. Jamal J.A.”

WARNING THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO: 110(1)          Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. (2) Subsection (1) does not apply (a) in a case where the information relates to a young person who has received an adult sentence; (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community. (3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication. 111(1)          Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. 138(1)          Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b)  is guilty of an offence punishable on summary conviction. WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, 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. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. J.M., 2020 ONCA 348 DATE: 20200604 DOCKET: C66062 Fairburn, Nordheimer and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and J.M. Appellant Richard Litkowski, appearing as duty counsel Hannah Freeman, for the respondent Heard: May 29, 2020 by Teleconference On appeal from the conviction entered on June 4, 2018 and the sentence imposed on October 1, 2018 by Justice Allan G. Letourneau of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant was convicted of sexual assault and failing to comply with a youth court order. The appellant was 16 years of age at the time of the incident. His brother and the complainant were 15 years of age. [2] The complainant and appellant testified at trial. There is no dispute that the complainant attended the appellant’s residence and whisky was consumed. Nor is there dispute that sexual activity took place or that the appellant had vaginal intercourse with the complainant while his brother placed his penis in her mouth. Nor is there dispute that the brothers traded positions a couple of times during the encounter in the basement of the appellant’s home. Nor is there dispute that, at some point after the sexual activity involving both brothers ended, the complainant and appellant were in the shower together and another act of sexual intercourse took place. [3] The sole issue at trial was whether the complainant consented to the sexual activity. The complainant said that none of it was consented to, that she cried through much of it and told them to stop.  The appellant maintains that it was all consented to. [4] The trial judge gave lengthy reasons for judgment, which understandably focused upon questions of credibility and reliability. He explained why he rejected the appellant’s evidence about consent and why he believed the complainant on this crucial point. [5] The appeal is predicated on three alleged errors. [6] First, the appellant argues that the trial judge misapprehended four points of evidence. With one exception, we do not agree that the points raised are properly characterized as misapprehensions of evidence. [7] For instance, the appellant argues that the trial judge misapprehended the evidence when he characterized a text message, sent by the appellant to the complainant, as an admission against interest. The text message read: “shouldn’t have tried it the second time but I stopped when you told me to.” We do not agree that the trial judge misapprehended the evidence about the text message. The trial judge simply drew an available inference from that evidence, considered in the context of all of the evidence, that when the appellant acknowledged that he “shouldn’t have tried it a second time”, he was acknowledging that he knew the complainant was not consenting. [8] The appellant also takes issue with what he calls the trial judge’s speculation, when he opined that “[the complainant] may have reasonably thought that screaming for help, or telling the boys’ mother that her sons had just raped her, might endanger her further.” This was not speculation. There was evidence that the appellant had told the complainant that his mother was a “psycho”. There is no misapprehension of evidence around this point. In any event, the impugned sentence was entirely irrelevant to the result. Whether the complainant raised a hue and cry during or immediately after the assault, was irrelevant to whether she was sexually assaulted. [9] The appellant also argues that the trial judge improperly speculated about why the appellant had sent a text message to the complainant shortly after the offence, suggesting that his brother had not been involved in the sexual activity. The appellant testified that he sent that message at a time when he could not recall his brother’s involvement in the sexual activity. According to the appellant, he only recovered that memory at a later point in time. [10] The trial judge rejected that explanation and concluded that the text message was motivated by the appellant’s desire to “see if it would cause [the complainant] to question her own recollection of the night’s events and/or to dissuade her from contacting the police.” We see no improper speculation in this comment. It was open to the trial judge to reject the appellant’s explanation as to why he had sent the message. It was also open to the trial judge to conclude that the message was sent for the exact purpose he articulated. [11] While we agree that the trial judge misapprehended one piece of evidence, regarding the timing of a message sent by the complainant to her mother, that misapprehension of evidence is immaterial to the verdict. [12] Second, the appellant argues that the trial judge applied uneven scrutiny to the Crown and defence evidence. We do not agree. In our view, the trial judge engaged in a “proper individualized assessment of the different evidence offered by the different witnesses”: R. v. R.R. , 2020 ONCA 327, at para. 20. [13] One of the factors that the appellant points to as revealing uneven scrutiny of the evidence is how the trial judge dealt with the complainant’s evidence as to whether she changed into her shorts in the washroom. The appellant argues that she was inconsistent on this point and, if the trial judge had applied even scrutiny, this inconsistency would have damaged her credibility. [14] We do not agree that this point demonstrates uneven scrutiny of the evidence. This is a repeat of the argument from trial, an argument that the trial judge specifically dealt with and disposed of. He simply concluded that there was no inconsistency in the evidence. That was a factual conclusion that the record supported and he was entitled to arrive at. [15] Finally, the appellant raises other concerns about the trial judge’s credibility assessments. Credibility assessments are owed strong deference: R. v. R.A. , 2017 ONCA 714, 421 D.L.R. (4th) 100, at para. 44. We see nothing that would cause us to interfere in those findings. [16] The appellant maintains that the trial judge erred when he concluded that the appellant was upset after the sexual encounter because he knew that he had “raped” the complainant “and was deeply troubled regarding the prospects of her going to the police and reporting the rape.” The appellant objects to the trial judge’s conclusion on this issue. He maintains that his upset was caused by the fact that his marijuana was missing and he realized that he had just cheated on his girlfriend. That may have been his position at trial, but the trial judge acknowledged and rejected it. He was entitled to do so and we would not interfere with that finding. [17] The appellant also argues that the complainant had a strong motive to fabricate the allegations, particularly given that she was confronted by the appellant’s girlfriend about the sexual encounter the morning after it occurred and before she had reported anything. Again, the trial judge was alive to this defence argument. He specifically addressed it. He stated the law on motive to fabricate correctly. He accepted the complainant’s evidence that she did not disclose the offence before her communications with the appellant’s girlfriend because she was still “processing how to deal with the matter”. This was a conclusion available on the record and one that is well explained in the reasons. [18] The appeal is dismissed. “Fairburn J.A.” “I.V.B. Nordheimer J.A.” “Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Omoragbon, 2020 ONCA 336 DATE: 20200601 DOCKET: C67562 Doherty, Watt and Miller JJ.A. BETWEEN Her Majesty the Queen Respondent and Aghayere Justin Omoragbon Appellant Christopher Rudnicki, for the appellant Tanya Kranjc, for the respondent Heard: In-writing On appeal from the sentence imposed on April 2, 2019 by Justice Faye E. McWatt of the Superior Court of Justice. REASONS FOR DECISION [1] After a trial before a judge of the Superior Court of Justice sitting without a jury, the appellant was convicted of 11 offences. He received a global sentence of seven years which the trial judge reduced to a net sentence of four years on account of the length and nature of pre-sentence custody. [2] The appellant applies for leave to appeal the sentences imposed at trial. He asks that we reduce the global sentence to one of five years so that he will be eligible to apply for parole immediately and entitled to statutory release in early August of this year. [3] In our view, the appeal fails. The Background Facts [4] We begin with a brief background of the offences, the offender, the positions of the parties at trial and the reasons of the trial judge for the sentences she imposed. The Circumstances of the Offences [5] Early one morning in June, police officers observed a white Mercedes motor vehicle that other officers had attempted to stop a few minutes earlier. The officers pursued the vehicle which travelled at speeds of 100 km/h in areas in which the posted speed limits were 50 or 60 km/h. [6] After briefly losing sight of the pursued vehicle, the officers saw it again and took up the chase. The Mercedes failed to negotiate a turn and crashed. The appellant, who was the only occupant, got out of the driver's seat and fled on foot. The officers ran after him, but the appellant outdistanced them. As he ran, the appellant dropped his wallet. The police recovered it. Inside was $940 in cash. [7] The officers called for assistance. Police searched the area. A police dog found the appellant hiding under a cube van. Officers arrested the appellant and searched him incident to arrest. They found $670 in cash in the appellant's pockets. [8] The police dog also indicated a firearm under a vehicle along the route the appellant had followed in his attempt to escape. The gun was a .38 calibre revolver, a restricted firearm. It was loaded. [9] Police searched the appellant’s Mercedes. There, they found varying amounts of five different drugs: cocaine and crack cocaine; MDEA; a fentanyl and heroin mix; and Xanax tablets, together with torn plastic bags typically used for drug sales at street level. The value of the drugs found was between $2,840 and $5,440 depending on how they were sold. The Circumstances of the Appellant [10] The appellant was 21 years old when he committed the offences and 23 at the time of sentencing. He had a secondary school education and had worked in construction. The offences of which he was convicted included five firearms offences, four drug offences (possession for the purpose of trafficking), and single convictions for flight from police and possession of the proceeds of crime. [11] The appellant is a recidivist with several convictions as a youth and an adult. He committed his first offence as the youth of 13. Among his prior convictions are several property offences, five convictions for failure to comply with release forms or sentencing dispositions and convictions for carrying a concealed weapon and flight from police. The lengthiest custodial sentence he had served was 10.5 months. [12] When he committed the offences with which we are concerned, the appellant was bound by a weapons prohibition and two probation orders. He was also serving an intermittent sentence imposed on convictions of failure to comply and flight from police. The Positions of the Parties at Trial [13] At trial, the Crown sought a penitentiary sentence of 7-8 years, less credit for pretrial custody at the rate of 1.5:1, but without any enhancement for the conditions of that custody, in particular, lockdowns. [14] Trial counsel for the appellant invited the trial judge to impose a sentence of 4-4.5 years, less credit for pretrial custody, enhanced beyond 1.5:1 because of the conditions of that custody. The Reasons of the Trial Judge [15] The trial judge considered the appellant was a commercial drug trafficker who sold drugs from his vehicle – a mobile pharmacy – and had a firearm to carry on that business. She considered the inclusion of the deadly fentanyl among his range of products as an aggravating factor. [16] In the trial judge's view, the appellant's youth, usually a mitigating factor, was counteracted by his lengthy youth record, starting at age 13, and the number and nature of his adult convictions. She considered the starting point for the drug offences as 3.5 years and the firearms offences as a serious aggravating factor. The Grounds of Appeal [17] The appellant submits that the trial judge erred: i. in holding that the appellant's youth is not a mitigating factor in determining a fit sentence; ii. in failing to account for and apply the totality principle; and iii. in blending principles concerning credit for the fact and nature of pre-sentence custody that should have been kept discrete. [18] The appellant also seeks leave to introduce fresh evidence about current custodial conditions if we find an error in the sentencing judge's decision that had an impact on the sentence imposed, thus engaging our authority to sentence afresh. Discussion [19] In our view, this appeal fails. Whether the grounds advanced are considered individually or cumulatively, we are not persuaded that the sentence imposed is demonstrably unfit or reflects an error in principle that had an impact on the sentence. [20] Taking first the alleged error in failing to consider the appellant's youth as a mitigating factor on sentence. [21] The appellant’s relative youth was the only mitigating factor put forward on his behalf on sentencing. The trial judge adverted to the submission but gave it less weight than counsel argued was its due. We see no error in the trial judge's analysis. [22] Yet again, this is a case involving that toxic combination of drugs and a handgun. Cocaine and crack cocaine. And fentanyl. A loaded .38 calibre handgun. In a motor vehicle, aptly characterized as a mobile pharmacy. Each a pernicious and persisting threat to the safety, welfare and indeed the lives of members of our community: R. v. Wong , 2012 ONCA 767, at para. 11. [23] These offences command exemplary sentences. The predominant sentencing objectives are denunciation and deterrence. Substantial jail terms are required even for youthful first offenders: R. v. Mansingh , 2017 ONCA 68, at para. 24. [24] We do not gainsay the importance of the sentencing objective of rehabilitation in respect of youthful offenders. But its influence on the ultimate determination of a fit sentence is a variable, not a constant. In the absence of any realistic rehabilitative prospects, its impact on the nature and length of a sentence may be attenuated. [25] In this case, the appellant’s convictions, both as a young person and as an adult, militate against any realistic prospect of rehabilitation. He has proceeded with depressing regularity from one series of convictions to another. He appears to have little or no regard for court orders and has not benefited from non-custodial supervision. His current offences are of escalating seriousness, including firearms, drugs and flight from police. They were committed when he was bound by probation orders, a firearms prohibition and serving an intermittent sentence for cognate offences. [26] In our view, the trial judge did not err in assigning diminished weight to rehabilitation as a sentencing objective in this case. [27] Nor are we persuaded that the trial judge erred by failing to consider the principle of totality in determining the sentence she imposed. [28] The fundamental principle of sentencing is proportionality. Every sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code , s. 718.1. Totality is an expression of that fundamental principle. A global or cumulative sentence must adhere to the fundamental principle of proportionality and not exceed the overall culpability of the offender: R. v. J.S ., 2018 ONCA 675, at paras. 64-5. [29] We do not consider the sentences imposed to be demonstrably unfit. These were very serious offences, each deserving of significant penitentiary terms. The imposition of consecutive sentences for breach of the weapons prohibition and possession of cocaine and crack cocaine for the purpose of trafficking represented punishment for different delicts and were properly made consecutive to the sentences for the various firearms offences. [30] The appellant’s final complaint is that the trial judge failed to keep conceptually discrete the statutory credit for presentence custody, on the one hand, and the enhanced credit awarded for the conditions of confinement – lockdown days – on the other. [31] The appellant received credit of 1.5:1 for each of 643 days of presentence custody. The trial judge added another .36 years credit for 113 days of lockdown. [32] Enhanced credit for lockdown days is neither an entitlement nor routinely granted upon the filing of institutional records. In the absence of evidence of any adverse effect of the lockdown conditions on the appellant, enhanced credit is not warranted: R. v. Duncan , 2016 ONCA 754, at paras. 6-7. Disposition [33] For these reasons, leave to appeal sentence is granted, but the appeal from sentence is dismissed. Since we have found no basis upon which to interfere, we do not reach the motion for leave to introduce fresh evidence. “Doherty J.A.” “David Watt J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Onwubolu, 2020 ONCA 342 DATE: 20200602 DOCKET: M50546 Doherty, Watt and Miller JJ.A. BETWEEN Her Majesty the Queen Respondent and Chinedu Onwubolu Applicant (Appellant) David Shulman, for the appellant Craig Harper, for the respondent Heard: In writing REASONS FOR DECISION [1] The applicant seeks leave to appeal from the refusal of the Summary Conviction Appeal Court (“SCAC”) to extend the time to permit him to appeal a sentence imposed in 2014. [2] In August 2014, the appellant pled guilty to, and was convicted of, various offences arising out of four distinct incidents that occurred between February and September 2013. In October 2013, the trial judge accepted a joint submission and sentenced the appellant to a one-year conditional sentence. The appellant breached the terms of that sentence within a few months and was ordered incarcerated to serve the remaining eight months of that sentence. [3] Immigration proceedings, in which the authorities sought the removal of the appellant, commenced in December 2015. They were premised on the convictions and sentences entered earlier. The appellant has been challenging those proceedings and attempting to avoid removal since 2015. [4] In April 2019, about 4½ years after he had been sentenced, the appellant commenced an application in the SCAC, seeking an extension of time to appeal the sentence he had received at trial. The extension was refused in May 2019 (see R. v. Onwubolu , 2019 ONSC 3060. [5] The applicant raised several issues on the application for the extension of time in the SCAC. The SCAC judge dealt with those issues in his reasons. Unfortunately, no one raised the question of the legality of the sentence. Nor had that issue been raised at trial. Indeed, it is raised for the first time on this application. [6] The failure to raise the question of the legality of the sentence sooner in these proceedings is perhaps some indication the illegality is more a matter of form than substance. Whatever the case, there appears to be a strong argument the sentence is illegal. An illegal sentence, if challenged, cannot stand. [7] We are confident, had the legality of the sentence been raised, the SCAC would have granted leave on that question. Consequently, we would grant leave on this application, set aside the refusal to grant the extension of time, and remit the matter to the SCAC with the following direction: · the SCAC will decide whether time should be extended to permit the applicant to appeal the sentence on the ground that the sentence imposed was illegal; and · if leave is granted on the question of the legality of the sentence, and if the SCAC concludes the sentence is illegal, it will be for that court to determine the appropriate sentence, having regard to the trial record, and any additional information it sees fit to receive on the appeal. [8] We remit the matter, as in our view it is the function of the SCAC to review the fitness of sentences imposed in summary conviction matters. This court has a more limited role. This court considers, if leave is granted, questions of law arising out of the SCAC’s exercise of its appellate role in sentencing in summary conviction matters. [9] Order to go in accordance with this endorsement. “Doherty J.A.” “David Watt J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Pinard, 2020 ONCA 346 DATE: 20200603 DOCKET: C65720 Fairburn, Nordheimer and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Emmanuel Pinard Appellant Emmanuel Pinard, in person Jessica Smith Joy, for the respondent Heard: May 29, 2020 by Teleconference On appeal from the convictions entered on April 5, 2018 by Justice Charles D. Anderson of the Ontario Court of Justice. REASONS FOR DECISION [1] This is an appeal from two counts of break and enter, one of assault, one of fail to comply, and one of uttering a threat to an animal. The appellant was sentenced to a total of 90 days intermittent on all counts and two years’ probation. [2] The appellant says that the trial judge erred by relying on the evidence of a witness, notwithstanding that that witness failed to notice the tattoos and stab wounds on the appellant’s body. He also says that the trial judge erred by relying upon another witness’ evidence, even though that witness was “caught lying” twice. Finally, although he did not raise the issue in oral argument, the appellant’s notice of appeal takes issue with the admission of a prior sworn, recorded statement of the complainant (the “KGB statement”). [3] We do not agree that the trial judge made any such errors. The trial judge explained his credibility findings and those findings are entitled to deference from this court. Further, we note that the evidence of the first witness, that the appellant challenges, was not relied upon for identification purposes. [4] On the KGB statement issue, it was received on consent. We see no basis to interfere on appeal. [5] The appeal is dismissed, save for setting aside the victim fine surcharges. “Fairburn J.A.” “I.V.B. Nordheimer J.A.” “Harvison Young J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, 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. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. R.L.S., 2020 ONCA 338 DATE: 20200601 DOCKET: C67461 MacPherson, Pardu and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and R.L.S. Appellant R.L.S., acting in person Erin Dann, appearing as duty counsel Hannah Freeman , for the respondent Heard: May 20, 2020, by teleconference On appeal from the sentence imposed on August 12, 2019 by Justice Richard T. Knott of the Ontario Court of Justice. REASONS FOR DECISION [1] Mr. S. appeals from a 9-month sentence imposed on August 12, 2019 for counseling a child to touch him for a sexual purpose, and for touching a child for a sexual purpose. He asks that this court reduce the sentence to less than six months so that the opportunity to appeal from a deportation order will not be lost. [2] The appellant’s moral blameworthiness was elevated. The victim was his daughter. When she was between the ages of four and six years, he had her watch pornography with him that depicted daughters performing sexual acts on their fathers. During this time, he had her touch his erect penis with her hand. On another occasion he would sit with her and play an internet game depicting genitals. On yet another occasion he sat her on his lap, when his clothes were off and his penis was exposed. [3] The accused pleaded guilty and was very remorseful. When the allegations came to light, he attempted suicide. [4] He was a 51-year-old first offender who had otherwise led a pro-social life. He was a permanent resident originally from Tennessee. He himself had been sexually abused by other teenagers during his adolescence. [5] At trial, the Crown sought a 12-month sentence; the defence suggested that six months less a day would be appropriate. [6] The sentencing judge noted that the victim impact statement demonstrated that the effect on the victim was obvious and telling and that she would be dealing with the aftereffects of the appellant’s actions long after he was released from custody. [7] The sentencing judge noted the seriousness of the offence, the obvious breach of trust, the young age of the victim, the element of grooming and the repetition of the sexual contact. [8] The sentencing judge was aware of the immigration consequences of his decision, but he did not think that deportation to the United States amounted to the severe hardship that might result from deportation to other countries. He concluded that the immigration issue was of “lesser consideration” than in other cases. Analysis [9] The appellant’s moral culpability was high. If anything, the sentence was lenient in light of the principles explained in R. v. Friesen , 2020 SCC 9. [10] While a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, the sentence ultimately imposed must be proportionate to the gravity of the offences and the degree of responsibility of the offender. Inappropriate and artificial sentences cannot be imposed in order to avoid collateral immigration consequences: see R. v. Pham , 2013 SCC 15, [2013] 1 S.C.R. 739, at paras. 14, 15. [11] The sentencing judge was aware that the appellant had lived in Canada for approximately 20 years, had supportive friends here and was gainfully employed. Despite the serious consequences of a deportation order he concluded that a nine-month sentence was required. [12] Here the sentence of imprisonment is not demonstrably unfit. Nor did the sentencing judge make an error in principle in arriving at the nine-month sentence. There is nothing which displaces the deference owed to the decision of the sentencing judge. In these circumstances there is no basis for this court to intervene and the appeal from the nine-month sentence of imprisonment is dismissed. [13] The appellant also asks this court to set aside the order prohibiting him from “attending a public park or public swimming area where persons under the age of sixteen years are present or can reasonably be expected to be present, or a daycare centre , school ground, playground or community centre .” In particular, he submits that the definition of “park” is so broad that he is left unable to safely assess where he can and cannot go. [14] The appellant’s past conduct does not suggest that he constitutes a risk to persons present in parks and this condition can be tailored to target the remaining risks more narrowly. Paragraph (a) of the prohibition order will be varied to read as follows: (a)   Attending at a public swimming area or community centre where persons under the age of sixteen years are present or can reasonably be expected to be present, or a daycare centre , school ground, playground. The parties agree that paragraphs (a.1) and (b) will remain as in the prohibition order. [15] The parties also agree that paragraphs (c) and (d) should be varied to more narrowly define the prohibited conduct. Those paragraphs of the prohibition order are deleted and the following prohibitions substituted: (c)   Using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of 14 years. (d)   1. Not to access the internet or use any device capable of accessing the internet or any similar communication device while in the presence of a person under the age of sixteen; 2. Under any circumstances, not to use any telecommunication device to access the Internet or other digital network in order to: · Access or possess child pornography or pornography depicting acts that are illegal under the Criminal Code of Canada; · Possess or access any images of children who are, depicted to be or appear to be under the age of 18 years who are naked or who are portrayed in a sexual manner; or · Access or participate in chat rooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material. 3. Not to use or permit to be installed on any device in your possession any program or service designed to allow anonymous use of the internet. [16] Accordingly, the appeal is allowed only to the extent of varying the prohibition order imposed by the sentencing judge. “J.C. MacPherson J.A.” “G. Pardu J.A.” “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Ray, 2020 ONCA 351 DATE: 20200604 DOCKET: C65747 Rouleau, Zarnett and Jamal JJ.A. BETWEEN Her Majesty the Queen Respondent and Marina Ray Appellant Marina Ray, acting in person Michael Fawcett, for the respondent Heard: In writing On appeal from the conviction entered by Justice A.M. Mullins of the Superior Court of Justice on January 30, 2017, with reasons reported at 2017 ONSC 696, and from the dismissal of an application for a stay of conviction on April 16, 2018, with reasons reported at 2018 ONSC 2426, and from the sentence imposed on July 12, 2018. REASONS FOR DECISION [1] The appellant was convicted, on January 30, 2017, after trial by judge alone, of counselling the commission of an indictable offence which was not committed, contrary to s. 464(a) of the Criminal Code . The intended offence was murder. The intended victim was the appellant’s former spouse, with whom she was embroiled in family law litigation. No murder occurred; the “hitman” the appellant counselled to commit the murder was an undercover police officer. [2] The appellant applied to stay her conviction on the basis that she was entrapped by police conduct. The trial judge dismissed that application on April 16, 2018. [3] On July 12, 2018, the trial judge sentenced the appellant to 5 years in prison less a combined credit of 8 months for both pre-trial custody and the period during which she was subject to strict bail conditions. [4] The appellant appeals her conviction, the dismissal of her stay application, and her sentence. [5] In light of the Covid-19 emergency, the parties agreed that the appeal be heard in writing. [6] For the reasons that follow, we dismiss the appeal. BACKGROUND AND CIRCUMSTANCES OF THE OFFENCE [7] The appellant was 60 years of age at the time of trial. She was born in the former Soviet Union. She came to Canada in 1990 with her then-husband and a daughter from a prior marriage. She applied for refugee status, and ultimately became a Canadian citizen in 1996. The appellant remarried in 2001, but the individual she married became ill and died in October 2003. After his death, the appellant was involved in civil litigation with his children. [8] The appellant met Michael Ray in November 2008. They married in December 2009. The relationship soured; she eventually locked him out of her home after learning of his criminal history and other improper dealings. [9] In October 2012, the appellant and Mr. Ray divorced. In November 2013, she listed her home for sale. Shortly after that, Mr. Ray brought proceedings against the appellant seeking support and an equalization of family property. [10] On November 26, 2013, the appellant went to see Victor Sokolovski, the owner of a martial arts studio who was acquainted with the appellant and Mr. Ray. On Mr. Sokolovski’s evidence, the appellant told him of her desire to kill Mr. Ray and asked that he (Mr. Sokolovski) help her find someone to do so. She told Mr. Sokolovski that she did not want to share the equity in her house with Mr. Ray. She also asked if he knew someone who would lend her $500,000 under a back-dated note. [11] On the appellant’s evidence she went to see Mr. Sokolovski to borrow money and enquire about a back-dated note. She claimed that any reference to wanting Mr. Ray killed was made as a joke. [12] A few days after he met with the appellant, Mr. Sokolovski went to the police. A few days after that he was asked to cooperate with them. At the request of the police he contacted the appellant, asked if she had changed her mind, and said that he had found someone who could help her. He arranged for the three of them to meet on December 7, 2013. [13] On December 7, Mr. Sokolovski, the appellant, and an undercover police officer posing as a hitman, met. Mr. Sokolovski left. A discussion ensued between the appellant and the officer inside a vehicle. It was recorded by video. A subsequent meeting took place on December 9 between the appellant and the officer, also in a vehicle and also recorded by video. [14] The trial judge summarized the two meetings based on the video recordings as follows: The video recordings of Marina Ray and a police officer posing as a hit man reveal that Mrs. Ray agreed with the officer that she wanted her husband to be liquidated. She suggested specific occasions and places where he might be located. She had a photograph of her former husband with her on the first meeting, which she gave to the officer. She provided his address and phone number and she described her ex-husband’s height and hair. They discussed how much she would pay. They agreed that she would give him $2,000 up front. On December 7 th she gave him $300 and on the 9 th , $1700. She expected Mr. Ray to be shot, then suggested he be drugged. She insisted he be left for dead. She gave the undercover officer a history of her troubled relationship with Mr. Ray, described his criminal conduct and her legal dispute regarding her home. She expressed a view that her ex-husband deserved the outcome she was discussing with the officer. She provided documents and drew maps. At the second of their two meetings, Mrs. Ray arrived with a written agenda. She instructed the officer that he was to tell Mr. Ray that his death was vengeance for all the women he used, abused and stole from. She questioned the officer as to his planning. She requested assurance that Mr. Ray’s body would be found, and his death confirmed. They discussed the arrangements for payment of the balance of the funds. They made security arrangements so that their communications would not be traceable. As he had during the first meeting, the officer warned Mrs. Ray, repeatedly, that she would not have an opportunity to change her mind. THE DEFENCE AT TRIAL [15] The appellant’s defence at trial was that she did not intend to kill her husband or hire a hitman to do so. She was fearful and distrustful of authorities. She had had a disastrous experience with the civil justice system when litigating with her late husband’s children, and unsatisfactory experiences with the police when she tried to involve them in helping her with problems created by Mr. Ray. When Mr. Sokolovski called her to say he had made arrangements for her to meet with someone who could kill Mr. Ray, she was terrified that Mr. Sokolovski was able to make such an arrangement so quickly. She was also fearful of the hitman she thought she was meeting with, and of what would happen to her and her family if she appeared not to want to follow through. Calling the authorities was not an option for her. She was in a poor mental state, afflicted with insomnia, and overmedicating. So, she simply played along. She explained her agreement to meet with the “hitman”, and her conversations with him, as nonsensical behaviour that was a product of her poor mental state and these circumstances. THE CONVICTION [16] The trial judge found that the appellant had gone to see Mr. Sokolovski to try to create a debt to resist Mr. Ray’s financial claims “and, better still, to have her former husband killed”. She found, based on the appellant’s words and conduct when she met the undercover officer on two occasions, that she counselled him to kill Mr. Ray. [17] The trial judge rejected the appellant’s evidence that she played along out of fear, or that she had no intention that Mr. Ray be killed, or that she was “caught up in a nightmare of [Mr. Sokolovski’s] contrivance, whilst overwhelmed by insomnia, sleeping pills and stress.” [18] The trial judge found that the appellant’s evidence did not give rise to a reasonable doubt, and the balance of the evidence established the actus reus of the offence beyond a reasonable doubt. [19] Although the trial judge rejected the appellant’s evidence, she observed that even if the appellant’s evidence were believed, the required mens rea for the offence was still established because the appellant was aware of the unjustified risk that the murder she counselled was likely to be committed as a result of her conduct. The appellant’s evidence did not give rise to a reasonable doubt, and the balance of the evidence established her mens rea beyond a reasonable doubt. THE STAY APPLICATION [20] Subsequent to her conviction, the appellant sought a stay of the conviction on the grounds that she had been entrapped by police conduct. She relied on the evidence at trial, a further affidavit by her, as well as the evidence of two police officers who, at her request, testified at the hearing of the stay application. [21] The theory of the stay application was that the police had not adequately recognized and accounted for the appellant’s vulnerabilities before forming the plan that led to her being charged. Instead they exploited her vulnerabilities, inducing her to commit the offence. The police conduct was therefore an abuse of process. [22] The trial judge rejected the suggestion that the appellant was induced to commit a crime. On the contrary, the appellant had initiated all discussions about having her husband killed: [S]he asked, respectively, two men to kill her husband; brought a photograph of her husband with her to ensure his identification; told the undercover police officer where her husband lived, what car he drove and where he might visit his parents; prepared a list of concerns to review with the officer; entertained different methods to cause his death; asked for a specific speech to be made as he was killed; concerned herself with avoiding detection; and gave repeated explanations of her motives; all in circumstances in which she was repeatedly asked if she was certain she wanted to have him killed, and declined offers to inflict lesser harm. [23] The trial judge found that, even accepting that the appellant was in challenging circumstances with limited means, that she viewed the police as having been hostile to her, and that she was disappointed in the justice system, there was no evidence that the police instigated any criminal activity. Moreover, even though there was some evidence of the appellant having poor mental health, based on all the evidence, the trial judge concluded that she did not present “any frank manifestation of mental illness. Her words and conduct are purposeful and organized relative to her repeated desire to have her husband killed.” [24] The trial judge concluded: I find that there is nothing in the evidence, particularly the video recordings, to suggest that the police exploited Ms. Ray in any way. She was resolute in expressing her desire to have her husband killed. Her mental and emotional functions seem remarkably composed, especially given the subject matter. In my view, when all of the evidence is considered, it is wholly inconsistent with her being in a state of vulnerability that was open to exploitation, or was exploited, by police. THE SENTENCE [25] The appellant was sentenced in July 2018. By that time, the appellant had spent 143 days in pre-trial custody and roughly 1,528 days on bail under strict conditions. The Crown sought a sentence of six to eight years. The appellant asked for a sentence of time served, based in part on the credit she argued she should receive for pre-trial custody and for her time on bail, time which she characterized as “house arrest”. The trial judge imposed a sentence of five years incarceration, less a combined credit of eight months for time in pre-trial custody and on bail. THE CONVICTION APPEAL [26] In her appeal against conviction, the appellant’s primary argument is that her conduct should attract the defence of duress. She submits that what she engaged in was morally involuntary conduct that should not be the subject of criminal sanction or punishment. It was the product of her vulnerable mental state, and her fear of those she was involved with and what they might do to her and her family. [27] In support of that argument, the appellant points to various areas in the evidence which she says could have allowed the trial judge to view certain of the evidence differently, and thus doubt elements of Mr. Sokolovski’s evidence, or draw different conclusions about her vulnerability and fear of Mr. Sokolovski and the “hitman”. She also says at times that the trial judge’s reasons did not adequately explain or account for certain matters, such as why the appellant would disclose her troubled personal history to a “hitman”, or the evidence about her distressed mental state prior to the offence.  The appellant also points to the portion of the trial judge’s reasons in which she held that the mens rea of the offence was established even if the appellant’s evidence were believed. She submits that if her evidence were believed, it was clear that she acted out of fear for her life and that of her grandchildren. [28] We do not accept these arguments. [29] Nothing that the appellant has pointed to supports a conclusion that the trial judge made a palpable and overriding error in her factual findings or the inferences she drew. Such an error is necessary before this court can treat the matter on a factual basis different than that found by the trial judge: Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 21-23. [30] Nor are the reasons of the trial judge inadequate. They explain why she decided as she did, and permit meaningful appellate review: R. v. Vuradin , 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 10 and 15. [31] It does not appear that duress was directly raised as a defence at trial. In any event, on the trial judge’s findings, it is unavailable to the appellant. The trial judge found that the appellant intended to have Mr. Ray killed, and that she initiated all discussions that took place about it. The trial judge expressly rejected the suggestions that the words and conduct of the appellant, which clearly amounted to counselling murder, were the result of the appellant playing along out of fear, or that she was caught up in something of Mr. Sokolovski’s design. [32] These pivotal findings are what matters, notwithstanding that the trial judge expressed an additional reason for her conclusion on mens rea , noting that it existed even if the appellant were believed that she did not intend that Mr. Ray be killed because she was clearly aware of the unjustified risk that the murder she counselled was likely to occur due to her conduct. However, it must be remembered that the appellant’s evidence was not believed; it was expressly rejected. [33] Duress is available when an offence is committed by a person while under compulsion of a threat made for the purpose of bringing about the commission of the offence. An act so compelled lacks moral voluntariness. Two elements of both the common law and statutory defences of duress are that the accused was the subject of a threat of death or serious bodily harm, and that she reasonably believed the threat would be carried out : R. v. Ryan , 2013 SCC 3, [2013] 1 S.C.R. 14, at paras. 2, 17, 43 and 55. [34] The trial judge expressly rejected the suggestion that the appellant had acted out of fear. That rejection, when coupled with the findings that the appellant intended that Mr. Ray be killed, that she initiated the discussions about Mr. Ray being killed, and that she counselled, in a detailed manner on two occasions, how the killing should occur, preclude the application of the defence of duress in its statutory or common law form. [35] Accordingly, the appeal from conviction must be dismissed. THE APPEAL OF THE REFUSAL TO GRANT A STAY [36] A proceeding or entry of a conviction may be stayed where the accused shows police conduct amounting to entrapment. A stay should be granted only in the clearest of cases: R. v. Mack , [1988] 2 S.C.R. 903, at p. 977. Entrapment occurs when (a) police provide a person with an “opportunity” to commit an offence without having a reasonable suspicion that the person is already engaged in criminal activity or pursuant to a bona fide inquiry; or (b) police go beyond providing an opportunity and actually “induce” the commission of an offence : Mack , at pp. 964-965 ; R v. Ahmad , 2020 SCC 11, at paras. 15 and 23. [37] The appellant argues, as she did on the application before the trial judge, that the second branch of entrapment applies, namely that the police exploited her vulnerability, thus inducing her to commit an offence. Before this court, she appears to add an argument not made below, that the first branch of entrapment also applies, that is, that the police provided an opportunity to commit an offence without having a reasonable suspicion. She maintains that the trial judge should have entered a stay. [38] We see no error in the trial judge’s careful consideration and rejection of the appellant’s application for a stay on the basis of entrapment. [39] The first branch of entrapment cannot be relied upon by the appellant. In addition to it not having been put forward on the stay application, on which the appellant was represented by counsel, the findings that the trial judge did make are inconsistent with an absence of reasonable suspicion. [40] In the entrapment context, the “reasonable suspicion” standard requires “something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds”: R. v. Chehil , 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 26, citing R. v. Kang ‑ Brown , 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 75. It focuses on what the police knew at the time the opportunity was provided: Chehil , at paras. 26-29. In addition to information originally provided, investigative steps taken by the police as a consequence of that information can be relevant: R. v. Clarke , 2018 ONCJ 263, at paras. 40 and 56-57; Ahmad , at paras. 51-52. Interactions with the accused before the opportunity to commit the offence was offered may also be considered, as the police may form a reasonable suspicion in the course of a conversation with the target, but prior to presenting the opportunity to commit a crime: R. v. Townsend , [1997] O.J. No. 6516 (C.J. Gen. Div.); Ahmad , at para. 54. [41] In this case, the police acted on a report from Mr. Sokolovski, after which they opened an investigation and made inquiries about Mr. Ray and the appellant in several databases. They also conducted telephone surveillance, reviewed police occurrence reports about domestic disputes between Mr. Ray and the appellant and conducted a threat assessment. It was only after “[h]aving this information in hand” that the police developed a plan to have the appellant introduced to an undercover police officer. When she met the undercover officer, it was the appellant, not the officer, who initiated the discussions about having Mr. Ray killed in response to being asked what she wanted. The police did not engage in random virtue testing: Mack , at pp. 941 and 956; Ahmad , at paras. 17 and 27-28. [42] With respect to the “inducement” branch of entrapment, the findings of fact of the trial judge are also fatal to the appellant’s success. The trial judge found that it was the appellant who initiated the discussions when she met with the undercover officer about having Mr. Ray killed; they were not instigated by the police. The trial judge expressly found that there was no inducement. After carefully reviewing the evidence, she concluded that there was no manifestation of vulnerability by the appellant that could be, or was, exploited by the police. [43] This ground of appeal fails. THE SENTENCE APPEAL [44] The appellant argues that she received insufficient credit for her time on bail, which she characterizes as “house arrest”. [45] The trial judge gave a total credit of eight months against the five-year sentence she imposed. She did not precisely explain how the credit was calculated. In the context of describing the appellant’s submission on sentence, the trial judge noted that 143 days in pre-trial custody would be credited at 1.5. She also noted the appellant’s submission that she should be entitled to a credit for strict bail conditions. Without repeating that the appellant’s pre-trial custody would be credited at 1.5 or expressing any conclusion about what precise credit should be given for time on bail, the trial judge concluded that the appellant would “be credited for the time [she has] served in pre-trial incarceration and the period of [her] bail of eight months.” [46] The time spent by the appellant in pre-trial custody, 143 days, would equate to a 7-month credit (approximately) based on the 1.5 times calculation the trial judge referred to in relation to the appellant’s submission, and which is contemplated by the Criminal Code . On the assumption that this credit is what the trial judge used for pre-trial custody, the eight-month total credit would have included a little less than one month for her time on bail. [47] We would not interfere with the sentence in this case. It cannot be suggested that the trial judge overlooked the issue of credit for pre-trial custody and time on bail. Her reasons for sentence recite, in some detail, the request of the appellant for these credits. [48] The credit given adequately accounts for the time spent in pre-trial custody. The decision whether to provide a credit for time on bail is discretionary: R. v. Ijam , 2007 ONCA 597, 87 O.R. (3d) 81, at para. 37. The record does not disclose terms of bail that were so strict as to necessarily entail the conclusion that an error in principle occurred in the amount of the credit given for time on bail. The terms of bail allowed the appellant to leave her residence in the presence of her surety and were varied to also permit her to leave her residence without her surety to walk her dogs on a twice daily basis. She was allowed to live with a friend with whom she developed a close personal relationship. There was no evidence of any special prejudice suffered by the appellant as a result of the terms of her bail: R. v. Pomanti , 2017 ONCA 48, at para. 34. [49] Overall, we cannot conclude that the sentence was unfit or that it was materially affected by an error in principle: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 41-42. CONCLUSION [50] For these reasons, we dismiss the conviction appeal and the appeal from the denial of a stay.  We grant leave to appeal sentence but dismiss the sentence appeal. “Paul Rouleau J.A.” “B. Zarnett J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Reeve, 2020 ONCA 381 DATE: 20200610 DOCKET: C67010 Fairburn, Nordheimer and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Daniel Reeve Appellant Erin Dann and Angela Ruffo, for the appellant Catherine Weiler, for the respondent Heard: May 26, 2020 by Videoconference On appeal from the sentence imposed on June 22, 2018 by Justice Antonio Skarica of the Superior Court of Justice, sitting without a jury. Fairburn J.A.: I. OVERVIEW [1] The appellant ran a financial investment company and had a good reputation in the financial industry. He got into financial difficulty in 2007. Over the next two and a half years, he perpetrated a large-scale fraud on 41 unsuspecting clients. As found by the sentencing judge, he used the victims’ money for a number of purposes, including business and personal expenses, as well as payments to his ex-wife to fulfill a large outstanding support order. As is often the case in classic Ponzi schemes, the appellant also used some of the victims’ money to pay back other victims, ones who were becoming suspicious about what had happened to their money. By taking the money of some to pay others, the appellant successfully avoided coming to the attention of the police for a significant period of time.  At the end of the day, the victims were out over $10 million and even larger sums had been put at risk. [2] The appellant was convicted of fraud over $5,000 and theft over $5,000. He was sentenced to the maximum term of 14 years’ imprisonment. Given that he had already spent 71 months in pre-sentence custody, counsel agreed that he should receive credit in the amount of 8.9 years. He was provided with an additional 1.1 year of credit due to what the trial judge deemed “harsh conditions” during the 71 months he had spent in remand in accordance with the principle laid down in R. v. Duncan , 2016 ONCA 754, at para. 6. [3] A restitution order pursuant to s. 738(1)(a) of the Criminal Code , R.S.C. 1985, c. C-46, issued in the amount of $10,887,885. In addition, a fine in lieu of forfeiture was ordered in the same amount as the restitution order. The appellant was given ten years following the completion of his term of imprisonment to pay the fine. In default of payment of the fine, pursuant to s. 462.37(4)(a)(vii), the appellant was ordered to serve the maximum term of ten years’ imprisonment. The fine in lieu of forfeiture is to be reduced by any amount paid pursuant to the restitution order: R. v. Waxman , 2014 ONCA 256, at para. 31. [4] The appellant pursues both a conviction and sentence appeal. Given the time sensitivity attaching to the sentence appeal, the court agreed to hear it first.  On May 29, 2020, leave to appeal the sentence was granted, the appeal was granted, and the sentence was varied to ten years’ incarceration. No other aspect of the sentence was appealed. Accordingly, the sentence was affirmed in all other respects. [5] Written reasons were to follow. These are those reasons. II. THE REASONS FOR SENTENCE [6] The sentencing judge spent a good portion of his reasons reviewing the devastating impact that the fraud had on the victims. About this there is no dispute. The sentencing judge described the victims as “disabled, the elderly, the grieving spouse, the emotionally vulnerable, the close long-time friends, the loyal client, and complete strangers”. Many of them lost their life savings to the appellant. [7] The sentencing judge concluded that there were no mitigating circumstances operative in this case. In contrast, he concluded that “virtually every aggravating circumstance recognized by the Criminal Code and the case law” was present, pointing to: · the amount of the fraud and large number of victims; · the potential to adversely affect investor confidence in the financial market; · the fact that the appellant took advantage of the high regard in which he was held in the investment community, breaching the trust of his clients and the industry licencing requirements; · the appellant’s lack of remorse and empathy for his victims (as further discussed below); · the serious victim impact; · the length of time over which the fraud had been perpetrated; · the appellant’s motivation being rooted in his inflated ego and extravagant lifestyle; and · the fact that the appellant “exploited the fear and panic created by the 2008-2009 worldwide financial crisis … by convincing clients/victims, who trusted him, to cash in their losing portfolios and convert the monies into ‘safer’ investments”. [8] The sentencing judge considered prior authorities where sentences had been imposed in like situations, but ultimately concluded that they were of little assistance because of what he perceived to be the unique circumstances of this case and this offender. Ultimately, he concluded that the appropriate disposition was the maximum 14-year sentence. III. USING A LACK OF REMORSE AS AN AGGRAVATING FACTOR [9] The appellant raises numerous grounds of appeal. It is only necessary to deal with one. It relates to the use of the lack of remorse as an aggravating factor on sentence. [10] The appellant apologized at the sentencing hearing for the fact that the victims had “suffered at [his] hands”. The sentencing judge rejected that apology as “hollow”. He found that the appellant had a complete lack of remorse. It was open to the trial judge to make that finding. The difficulty is with how that finding was put to use. [11] A genuine expression of remorse can constitute an important mitigating consideration at the time of sentencing. When an offender demonstrates, through actions and/or words, that he or she is genuinely remorseful for his or her conduct, it can show that the offender has some insight into his or her past actions and takes responsibility for them. Taking responsibility for past conduct is an important step toward rehabilitation and gives cause for hope that the offender may be set on a path of change. The greater the genuine insight into past offending behaviour, the greater the cause for hope. [12] While a genuine expression of remorse can serve to mitigate a sentence, the opposite is not true. An offender cannot be punished for a lack of remorse. The reason is clear. Punishing an accused for failing to express remorse comes “perilously close” to punishing him or her for exercising the right to make full answer and defence: R. v. Valentini (1999), 43 O.R. (3d) 178 (C.A.), at para. 83. Even after a guilty verdict, an accused is entitled to maintain his or her innocence and cannot be punished for maintaining that stance. [13] Crown counsel emphasizes that, while remorse cannot typically be used as an aggravating factor on sentence, there are limited exceptions to the rule. This case is said to fall within those exceptions. Specifically, Crown counsel points to the fact that a lack of remorse may shine a light on the “likelihood of future dangerousness”, as well as inform the applicability of sentencing principles involving specific deterrence and rehabilitation: Valentini , at para. 82; R. v. P.(B.) (2004), 190 O.A.C. 354,  at para. 2. See also: R. v. F.(J.) , 2011 ONCA 220, 105 O.R. (3d) 161, aff’d on other grounds in 2013 SCC 12, [2013] 1 S.C.R. 565, at para. 85; R. v. Shah , 2017 ONCA 872, at para. 8. Crown counsel maintains that the trial judge’s references to the absence of remorse should be understood as references to the appellant’s “attitude toward the crime”, an attitude that underscored his “likelihood of future dangerousness”. [14] As supported by the authorities just cited, the absence of remorse will sometimes be relevant in the sentencing process. That does not mean, though, that someone can be punished for failing to show remorse. While a lack of remorse may, in rare circumstances, inform potential future dangerousness, which can in turn inform the application of some sentencing principles, such as the suitability of emphasizing rehabilitation, it must never be used as an aggravating factor that is deserving of punishment. [15] Despite Crown counsel’s capable argument on this point, I cannot read the sentencing judge as having used the absence of remorse in the limited way that she suggests. In my view, the reasons for sentence make clear that the appellant was actually punished for his lack of remorse in the face of what the trial judge perceived to be a strong prosecution case. [16] The second paragraph of the sentencing judge’s reasons following the heading “Aggravating Circumstances” reads as follows: Mr. Reeve has absolutely no remorse or empathy for the victims. … During his trial evidence, Mr. Reeve insisted he had done nothing wrong despite the absolutely overwhelming evidence of fraudulent intent and fraudulent conduct deliberately perpetrated by Mr. Reeve over the indictment period from 2007-2009. [Emphasis added.] The evidence at this trial and subsequent sentencing confirm the following comments found at page 9 of the presentence report: The subject does not take responsibility for his offences, and shows no remorse for any of his offences. Of concern the subject appears to have little to no empathy for the victims’ losses. He denies any intent to defraud investors in any of his companies . [Emphasis added.] [17] Later in the reasons, the absence of remorse was directly linked to the decision to impose the maximum custodial term: When the fraud was done and the money was gone, many, if not most, of the victims, were left with lives of complete devastation, absolute destitution and utter despair, which in many cases continues to this day. Mr. Reeve, like a true predator, walked away, until his arrest, with absolutely no empathy or remorse for the suffering and scarring left behind. If that scenario does not cry out for a maximum sentence, what does ? [Emphasis added.] [18] These passages stand in direct opposition to the rule that an accused cannot be punished for an absence of remorse. [19] Not only was the appellant’s lack of remorse specifically identified as an aggravating factor, but its strength as an aggravating factor was directly linked to his having chosen to make full answer and defence in the face of what the sentencing judge saw as “absolutely overwhelming evidence” of his guilt. [20] Punishing a person for maintaining their innocence, based on an after-the-fact determination that the prosecution had a strong case, could do serious harm to the criminal justice system. Accused persons are entitled to put the Crown to its proof and cannot be punished or seen to be punished after-the-fact, simply because the Crown met that burden. Accused must be able to assert the right to full answer and defence, unencumbered by fear of future implications. To proceed otherwise would seriously undermine that fundamental right. [21] The fact that the accused was punished for his lack of remorse in the face of a strong Crown case, and the sheer strength of that factor in the sentencing decision, is evidenced in the rhetorical question put just prior to the maximum custodial sentence being announced. The trial judge asked, “If that scenario does not cry out for a maximum sentence, what does?” The “scenario” he was referring to had just been stated in the previous paragraph: walking away from the devastated victims with “absolutely no empathy or remorse for the suffering and scarring left behind.” [22] In my view, the reasons lead to the inescapable conclusion that, among other things, the appellant was punished for his failure to show remorse, including by exercising his right to a trial. IV. DID THE ERROR IN PRINCIPLE HAVE AN IMPACT ON THE SENTENCE? [23] It is an error in principle to use the absence of remorse as an aggravating factor for which the accused should be punished. Where an error in principle is found to have had an impact on the sentence, the appellate court must perform its own sentencing analysis to determine a fit sentence: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 43; R. v. Friesen , 2020 SCC 9, at para. 27. [24] The question here is whether the trial judge’s error in using the absence of remorse as an aggravating factor had an impact on the sentence imposed. Crown counsel argues that it did not, emphasizing that virtually every statutory and common law aggravating factor was present in this case, justifying the maximum sentence imposed. Therefore, even if remorse was wrongfully described as an aggravating factor, the 14-year sentence was still called for and this court should not interfere. I disagree. [25] On the sentencing judge’s own words, it was the victims’ suffering and the appellant’s lack of remorse for that suffering that called for the maximum term of imprisonment. Accordingly, I conclude that the error in principle is inextricably linked to the imposition of the maximum custodial term imposed in this case. [26] The question now becomes: what factors should the court take into account in sentencing the appellant afresh? V. SENTENCING THE APPELLANT AFRESH [27] In the event that this court sentences the appellant afresh, consistent with the Crown’s position at trial, Crown counsel maintains that the maximum term of imprisonment should be imposed. Consistent with his position at trial, the appellant maintains that a custodial term of between eight to ten years’ imprisonment is appropriate. (a) Proportionality and Parity Work in Tandem [28] Proportionality and parity are key sentencing principles. [29] Sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code , s. 718.1. The principle of parity must also be taken into account, involving the idea that “similar offenders who commit similar offences in similar circumstances should receive similar sentences”: Friesen , at para. 31; Criminal Code , s. 718.2(b). [30] While the trial judge referred to some authorities that had been provided to him by counsel during the sentencing hearing, he found that they were not “helpful due to the individual circumstances of each particular case.” In the end, he disregarded those authorities altogether and imposed a sentence well above any sentence that has previously been imposed for like offenders in like circumstances. [31] The fact that each crime has its own unique circumstances, and is committed by its own unique offender, does not mean that parity has no role to play in the sentencing process. While sentencing ranges cannot be seen as “straitjackets”, and under or overshooting a range will not on its own give rise to a demonstrably unfit sentence, parity remains a strong principle of sentencing, one that exists as an expression of the principle of proportionality: Friesen, at paras. 32, 37, 108; Lacasse , at paras. 58, 60-61. Consequently, the principle of proportionality is respected, in part, by referring to sentences imposed in other cases, sentences that reflect the “collective experience and wisdom of the judiciary”: Friesen , at para. 33. (b) Guidance From Prior Authorities [32] The parties point to R. v. Lacroix , 2009 QCCS 4519, [2009] R.J.Q. 2569, as the high-water mark for sentences in large-scale frauds. In Lacroix , Wagner J. (as he then was) imposed a 13-year sentence. Mr. Lacroix pled guilty, but only on the eve of trial. He defrauded 9,200 victims over a four-year period. The victims lost almost $100 million and the impact on them was devastating. The ill-gotten gains funded the accused’s lavish lifestyle. There was a breach of trust, and the sentencing judge found beyond a reasonable doubt that the accused’s actions “adversely affected the Canadian economy and shook investors”: Lacroix , at para. 37. Wagner J. referred to the case as “unprecedented in the annals of Canadian legal history”: at para. 4. [33] In R. v. Erez , 2019 ONCA 204, the appellant was convicted of a large-scale Ponzi-like scheme involving numerous victims over several years, resulting in over $6 million in losses. He had a prior criminal record for “fraud-related offences” and committed the “bulk of the present fraudulent transactions” while serving a conditional sentence or on probation for previous forgeries. While he pled guilty, the mitigating effect of that plea was attenuated as he worked to have the guilty plea struck. He failed in that endeavour and then unsuccessfully appealed on the basis that the plea judge erred in refusing to strike the plea. Like this case, the victim impact was devastating, and the appellant used the money for his own personal gain. He received an eight-year sentence, described by this court as the “top of the sentencing range”. [34] In R. v. Eizenga , 2011 ONCA 113, 273 O.A.C. 98, the appellant engaged in a very serious breach of trust, committing a large-scale fraud involving several hundred victims and about $37 million. Much of the money had been moved off-shore. Although he pled guilty, he later challenged that plea. This court found that the plea was valid. While he appealed from the restitution order, he did not appeal from the eight-year custodial term that had been imposed after trial. This court commented on the fact that the prospects for his rehabilitation appeared good. [35] Crown counsel also points to the recent sentencing decision in R. v. Holden , 2020 ONSC 132, where Dambrot J. imposed a 12-year sentence for a large-scale fraud involving a Ponzi scheme. The total amount of the fraud in that case was $54,159,737 with 65 victims, many of whom were vulnerable and unsophisticated. The victim impact was devastating; many of the victims lost their life savings. The accused used the money for his own self-enrichment and to advance the Ponzi scheme. [36] Importantly, unlike this case, the accused in Holden had both a criminal and a Securities Act record when he committed the crimes for which he was sentenced: Securities Act , R.S.O. 1990, c. S.5. In 1995 he was convicted of 46 Securities Act offences.  In 2000, he pled guilty to three counts of fraud over $5,000 and was sentenced to six years in custody for what this court described as a “massive complex fraud perpetrated on hundreds of victims”: R. v. Holden , [2000] O.J. No. 3481 (C.A.). [37] Counsel also points to sentences imposed by trial courts, including in other provinces, for large-scale Ponzi-related frauds: R. v. Johnson , 2010 ABQB 546, rev’d 2010 ABCA 392, 265 C.C.C. (3d) 443 (13 years decreased to 10 years on appeal); R. v. Jones , 2010 QCCQ 851 (joint submission for 11 years involving over $50 million in losses and over 150 victims); R. v. Lewis , 2014 ONSC 4188 (seven years) [1] .  The accused stood in significant positions of trust in each of those cases and the victim impact was equally devastating to the victim impact in this case. [38] The appellant also points to R. v. Drabinsky , 2011 ONCA 582, 107 O.R. (3d) 595, where this court referred to the trial judge’s determination of a 5- to 8-year range for premeditated frauds involving public companies. While this court referred to the fact that the range may fluctuate somewhat at both ends of that spectrum, crimes of this nature were said to normally attract “significant penitentiary terms”: at para. 164. [39] Crown counsel says that Drabinksy must be approached with caution, particularly given that the offences for which the appellants were sentenced were committed at a time prior to the increase in the maximum sentence for fraud over $5,000 from 10 to 14 years: s. 380(1)(a), Criminal Code , R.S.C. 1985 c. C-46, as amended by S.C. 2004, c. 3, s. 2. Crown counsel relies upon the recent comments in Friesen , at para. 97, where the majority points to increases in maximum sentences as reflecting Parliament’s desire for “such offences to be punished more harshly". An increase in maximum sentence should be understood, therefore, as “shifting the distribution of proportionate sentences for an offence”: Friesen, at para. 97. Therefore, Crown counsel correctly points out that those authorities that were decided at a point in time prior to the increase in the maximum sentence must be considered in that light. [40] One thing becomes clear through a review of the previous authorities. While there is a fairly broad range of sentence for large-scale frauds of this nature involving significant breaches of trust, in the 8- to 12-year range, a 14-year sentence has not been imposed, even in cases where the facts were more egregious than the ones here. [41] Of course, there are all manner of aggravating and mitigating factors that can apply in a case that will land the sentence lower or higher within that range, or that may drive the sentence below or above that range. Even so, the historical portrait painted by the range provides good guidance when sentencing for offences of this nature. (c) The Appropriate Disposition [42] Friesen is clear in its guidance to appellate courts. Despite the need to sentence afresh where an error in principle that had an impact on the sentence is found, a large degree of deference still applies. As stated by the court in Friesen , at para. 28: [I]n sentencing afresh, the appellate court will defer to the sentencing judge’s findings of fact or identification of aggravating and mitigating factors, to the extent that they are not affected by an error in principle. This deference limits the number, length, and cost of appeals; promotes the autonomy and integrity of sentencing proceedings; and recognizes the sentencing judge’s expertise and advantageous position. [Citations omitted.] [43] Taking this deferential approach, I accept the sentencing judge’s findings of fact, including, as previously reviewed, about the amount of the fraud, the number of victims, the appellant’s abuse of a position of trust as well as his professional obligations, the length of time over which the fraud was perpetrated, the appellant’s honing in on many particularly vulnerable people, the fact that he personally benefited from the crime, and the trail of human suffering left in the appellant’s wake. [44] There is a reason that denunciation and general deterrence are the primary sentencing principles when it comes to large-scale Ponzi-related frauds of this nature. While serious frauds may not involve physical violence, it is a mistake of serious proportion to think that they do not leave just as many seriously wounded behind, often with financial and mental scars that will never heal. The futures they worked so hard to build are stolen from them because they trusted a professional who they justifiably believed had their best interests in mind. [45] The devastating impact of frauds of this nature stretch beyond the direct victims who unwittingly find themselves in harm’s way. They have the potential to adversely affect the stability of the Canadian economy, financial systems and markets, as well as investor confidence in such markets. That is why s. 380.1(1)(b) of the Criminal Code requires that sentencing judges take this factor into account as an aggravating factor on sentence. While there was no direct evidence that this fraud impacted the Canadian economy, some of the victims addressed the fact that their confidence in investing had been shaken to the core. [46] Crown counsel places fresh evidence before the court, arguing that it assists with demonstrating the danger that the appellant continues to pose for the future. The fresh evidence consists of a two-page police affidavit and a Parole Board decision, revoking the appellant’s day parole. Section 687(1) of the Criminal Code allows the court on a sentence appeal to receive evidence it thinks “fit to require or receive”. The well-known criteria for admitting fresh evidence on a conviction appeal also apply on sentencing: Lacasse , at paras. 115-16; R. v. Palmer , [1980] 1 S.C.R. 759. [47] The evidence suggests that the appellant originally received accelerated day parole. In violation of his parole officer’s direction, he pursued the publication and sale of a book that is described as containing strategies on becoming financially secure. [48] The appellant also met with a person who is described as being “financially vulnerable” and suggested an arrangement to lend her money to buy into a series of informational courses. She would then assist him in soliciting others to buy the book and take the courses at a cost of $5,000 per person. She reported that discussion to the police. The police then reported the matter to the appellant’s parole officer. No criminal charges were laid. [49] In its decision revoking parole, the Parole Board refers to positive aspects of the appellant’s release into the community, his lack of any criminal charges, compliance with specific conditions of release and positive behaviour in the Community Residential Facility where he was staying. The decision also makes reference to the willingness of the appellant’s employer to continue to work with him and, if needed, provide more structure in the working environment. [50] Despite that positive behaviour, the Board concluded that having pursued the book matter, contrary to his parole officer’s specific direction, the appellant showed a lack of insight into his offending cycle and prior behaviours. In the end, the Board revoked the appellant’s parole because of his deemed risk to the community. [51] Crown counsel argues that the fresh evidence should be admitted because it has a direct bearing on the question of what constitutes a fit sentence. The evidence is said to underscore that the appellant’s attitude toward the offences remains unchanged, that he has no respect for authority, continues with deceptive behaviour and has little hope for rehabilitation. [52] The appellant cautions this court about using the fresh evidence. He opposes the characterization of some of the evidence, particularly the reference to the person the appellant met as being “financially vulnerable”. The appellant argues that the allegations constitute aggravating factors and, given how the Crown is endeavouring to use them, they must be proven beyond a reasonable doubt: Criminal Code , s. 724(3)(e); R. v. Gardiner , [1982] 2 S.C.R. 368. The appellant argues that the Crown has failed to do so. [53] It is important to start with the observation that the appellant can only be punished for the conduct that he was convicted of. He cannot be punished, or be seen to be punished, for conduct that is alleged to have occurred a year after his sentence was imposed. [54] As well, I would observe that when a person breaches their parole, the Parole Board has the authority to deliver a decisive response, one that will often have a direct impact on the offender’s liberty interest. That is what happened in this case. The appellant’s breach of parole was acted upon and he was reincarcerated. Indeed, his last almost ten months of incarceration have been the direct result of the revocation of his parole as a result of the activity that is now said to be relevant fresh evidence informing the fitness of sentence to be imposed on appeal. [55] As noted in R. v. Sipos , 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 30, “[f]resh evidence addressing events that have occurred between the time of sentencing and the time of appeal may raise difficult issues which bring competing values into sharp relief.” There are clear institutional limitations placed upon appellate courts, such that deciding sentencing appeals based upon “after-the-fact developments could both jeopardize the integrity of the criminal process by undermining its finality and surpass the appropriate bounds of appellate review”: Sipos , at para. 30. [56] In my view, the fresh evidence in this case could, at its highest, do no more than demonstrate a continued lack of insight by the appellant into his offences which, even this many years later, could signal a potential risk of reoffending: R. v. Boone , 2020 ONCA 154, at para. 28. We do not need fresh evidence to satisfy us of this point. The trial and sentencing record are clear in this regard. [57] Crown counsel also argues that virtually every aggravating factor was present in this case, justifying the maximum sentence. Those factors have been previously reviewed. They are rightly described as aggravating factors on sentence. The fact is, though, that these aggravating factors are present in almost all frauds of this nature. [58] The task is not to simply check off the aggravating factors with a view to imposing the maximum sentence if each box is ticked. The key is to consider the circumstances underlying each factor and position it on the scale of seriousness. If proportionality and parity are to have meaning, calibrating the seriousness of the aggravating factors is critical to the sentencing exercise. [59] Accepting the trial judge’s view of the aggravating factors in this case, removing the factor that was infected by error, looking at the facts as he found them, and considering them against prior authorities, specifically this court’s prior authorities, I find that a fit sentence is one of ten years. VI. CONCLUSION [60] Leave to appeal sentence is granted, the appeal is allowed, the sentence is varied to ten years. The credit for pre-sentence custody remains the same. The restitution order remains the same. The fine in lieu of forfeiture order remains the same, including the ten-year custodial term that the appellant must serve if he fails to make good on that order in accordance with its terms. [61] All other aspects of the sentence remain the same. Released: “M.F.” June 10, 2020 “Fairburn J.A.” “I agree. I.V.B. Nordheimer J.A.” “I agree. Harvison Young J.A.” [1] The sentencing in Lewis was done in accordance with s. 380(1)(a) of the Criminal Code as it stood prior to the increase in maximum penalty from 10 to 14 years: Lewis, at para. 14.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Robertson, 2020 ONCA 367 DATE: 20200611 DOCKET: C66917 Hoy, MacPherson and Tulloch JJ.A. BETWEEN Her Majesty the Queen Respondent and Shaine Robertson Appellant Shaine Robertson, acting in person Dan Stein, appearing as duty counsel Hannah Freeman, for the respondent Heard: June 3, 2020 by video conference On appeal from the sentence imposed by Justice Johanne Lafrance-Cardinal of the Superior Court of Justice, dated April 18, 2019. REASONS FOR DECISION [1] Between September 30 and November 6, 2018, the appellant went on a drug-fuelled rampage in Cornwall, Ontario, which included breaking and entering and robbery of ten establishments, ranging from chip stands and food trucks to a convenience store to Pet Valu, a larger commercial establishment. [2] He pled guilty to two counts of robbery, eight counts of breaking and entering, attempt break and enter, dangerous operation of a motor vehicle, failure to comply with a probation order, two counts of failure to comply with a recognizance, possession of a break-in instrument, and disguise with intent. [3] Consistent with the joint submissions of the Crown and counsel for the appellant at the sentencing hearing as to the length of imprisonment, the sentencing judge imposed a global sentence of four and one-half years’ imprisonment. She also made orders under s. 738(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46, which require the appellant to pay restitution in the total amount of $15,698.34 to some of the persons whose property he damaged. [4] The appellant argues that the sentencing judge erred by failing to consider whether the appellant had the ability to make restitution before imposing orders under s. 738(1)(a) and that the orders under s. 738(1)(a) will likely impair his chances of rehabilitation. He submits that the restitution orders should be set aside. [5] We agree. [6] A restitution order forms part of a sentence. It is entitled to deference and an appellate court will interfere with the sentencing judge’s exercise of discretion only if there is an error in principle, or if the order is excessive or inadequate: R. v. Devgan (1999), 136 C.C.C. (3d) 238 (Ont. C.A.), at para. 28, leave to appeal refused, [1999] S.C.C.A. No. 518; R. v. Castro , 2010 ONCA 718, 102 O.R. (3d) 609, at para. 22. [7] An order for compensation should be made with restraint and caution: Devgan , at para. 26, citing The Queen v. Zelensky , [1978] 2 S.C.R. 940. [8] While the offender’s ability to make restitution is not a precondition to the making of a restitution order, it is an important factor that must be considered before a restitution order is imposed. A restitution order made by a sentencing judge survives any bankruptcy of the offender: Bankruptcy and Insolvency Act , R.S.C., 1985, c. B-3, s. 178(1)(a). This means it is there for life. A restitution order is not intended to undermine the offender’s prospects for rehabilitation. This is why courts must consider ability to pay before imposing such an order: Castro , at paras. 26-27; R. v. Popert , 2010 ONCA 89, 251 C.C.C. (3d) 30, at para. 40, citing R. v. Biegus (1999), 141 C.C.C. (3d) 245 (Ont. C.A.), at para. 15. It is not enough for the sentencing judge to merely refer to or be aware of an offender’s inability to pay. The sentencing judge must weigh and consider this: Biegus , at para. 22. [9] The restitution orders were not part of the parties’ joint submission on sentence. The Crown handed up a table of the damages suffered by the various establishments, and in a single sentence asked for “stand-alone orders”. [10] In response, counsel for the appellant at the sentencing hearing submitted: Just with respect to the restitution I’ll ask – if the court is going to impose restitution, it would be 738 orders, given that he’s not going to be in any position to pay…any restitution for the next few years. [11] While the sentencing judge’s reasons explain how she calculated the amount of the restitution orders (and she did so carefully), they do not contain any analysis of the appellant’s ability to make restitution or of the impact of the orders on his prospects for rehabilitation. During the appellant’s counsel’s sentencing submissions, the sentencing judge inquired whether the appellant had “ever worked”. Respectfully, however, she did not conduct a meaningful inquiry into the appellant’s ability to pay and the impact of the restitution orders on the appellant’s prospects for rehabilitation. In failing to do so, she erred in principle. [12] The sentencing judge was faced with an offender who, at the time of sentencing, was 32 years of age. He has a grade 12 education. The appellant reported that he had held a job in the restaurant industry for a decade “steady” in his twenties. The appellant had also worked out west in the pipelines. Whatever his employment history, at the time of the offences, the appellant was unemployed and seriously addicted to cocaine and opiates. [13] The aggregate amount of the restitution orders is significant to someone in the appellant’s circumstances. On release, the appellant will continue to have to battle his addictions as he seeks to become a productive member of society and provide support to his young daughter, and he will do so without the benefit of higher education and hampered by a criminal record. [14] As the sentencing judge noted, the appellant had a lengthy criminal record for a person of his age. However, before these offences, the longest period the appellant had served was 119 days of pre-trial custody. The period in custody for these offences will hopefully have provided the appellant with the ability to obtain treatment for his addictions and put him on the road to rehabilitation. [15] In our view, the restitution orders made undermine the prospects for that rehabilitation. [16] Accordingly, the appeal is allowed and the restitution orders are set aside. “Alexandra Hoy J.A.” “J.C. MacPherson J.A.” “M. Tulloch J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, 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. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. S.M., 2020 ONCA 427 DATE: 20200626 DOCKET: M51598 (C67806) Paciocco J.A. (Motions Judge) BETWEEN Her Majesty the Queen Respondent and S.M. Applicant/Appellant Anthony Moustacalis and Christen Cole, for the applicant Molly Flanagan, for the respondent Heard: June 25, 2020 by video conference REASONS FOR DECISION OVERVIEW [1] October 11, 2019, S.M. was convicted of seven human trafficking related offences, including assault causing bodily harm, alleged to have been committed against a single complainant. He was also convicted of an eighth offence, obstruction of justice, for attempting to discourage the complainant from co-operating with the police by yelling at her when he was being arrested for assaulting her and she was in the process of giving a police statement. [2] On November 28, 2019, S.M. was sentenced for these offences to a global sentence of 66 months imprisonment, minus 27 months of credit for pre-sentence custody. He is now applying before me pursuant to s. 679(3) of the Criminal Code , R.S.C. 1985, c. C-46 for judicial interim release pending appeal. [3] The Crown contests S.M.’s judicial interim release application only on the tertiary ground. It contends that, given the seriousness of the crimes including the length of the sentence imposed; the low plausibility of S.M.’s proposed grounds of appeal; the inadequacy of his release plan; and the absence of any case specific COVID-19 concerns, S.M. has not met his onus of establishing that his detention is not necessary in the public interest. More specifically, he has not demonstrated on the balance of probabilities that his release would not harm public confidence in the administration of justice. [4] I agree with the Crown. S.M. has not met the burden he bears. His application for interim judicial release is denied. ANALSIS [5] The Crown accepts that S.M.’s grounds of appeal clear the very low “not frivolous” hurdle found in s. 679(3)(a) of the Criminal Code . [6] The Crown also concedes that S.M. has established that he would surrender himself into custody in accordance with the terms of a release order. This concession is well-taken. S.M. has important ties to the community, as well as gainful self-employment in the entertainment industry in his community, and he has surrendered himself for bail release hearings on two occasions in connection with the current matters. [7] The Crown contends that S.M. has not satisfied this third precondition to judicial interim release pending appeal, provided for in s. 679(3)(c) of the Criminal Code . It takes issue with S.M.’s submission that he has established on a balance of probabilities that his detention is not necessary in the public interest. [8] I do not understand the Crown to be submitting that SM.’s detention pending appeal is in the public interest because he has not disproved that he poses a substantial likelihood of reoffending, thereby warranting his detention on the secondary ground: see R. v. Stojanovski , 2020 ONCA 285, at para. 18. That submission could not be accepted on this record. Instead, the Crown relies on the tertiary ground. The Crown’s position is that in the circumstances, including the residual risk S.M. poses to public safety, S.M. has failed to show that his release would not diminish public confidence in the administration of justice in the eyes of reasonable members of the public: Oland , 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 47. [9] The public confidence determination requires a balancing to be undertaken between the public interest (including his own interest) in having a meaningful review of his convictions before he is made to begin serving his sentence pending appeal, and the public enforceability interest: R. v. Oland , [2017] 1 S.C.R. 250 at paras. 23-26. [10] Of significance, S.M. no longer benefits from the presumption of innocence. To reflect the absence of the presumption of innocence, the “general rule” in judicial interim release applications pending appeal is that there should be “immediate enforceability of judgments”: Oland , at para. 25. The burden is therefore on the applicant, in this case S.M., to demonstrate on a balance of probabilities that the reviewability interest outweighs the enforceability interest. Several factors inform this determination, including the seriousness of the crimes S.M. was convicted of; the strength of his proposed grounds of appeal, and the residual risk he presents, bearing in mind the proposed plan of release. A. THE SERIOUSNESS OF THE CRIMES [11] The seriousness of the crimes S.M. was convicted of may be determined by the gravity of the offences he was charged with, the circumstances surrounding their commission, and the potential length of imprisonment. This ultimate determination will be informed by the trial judge’s reasons for sentence: Oland , at para. 38. [12] S.M. acknowledges that, by their nature, the offences he was convicted of are serious or grave. That concession is appropriate. The seven human trafficking charges S.M. was found to have committed criminalize the exploitation and domination of a victim so that the victim will provide sexual services for the financial benefit of the offender. [13] Even bearing in mind S.M.’s observation that the offences he was convicted of involved only a single complainant, the circumstances surrounding the commission of these offences underscore the seriousness of the crimes S.M. has been convicted of committing. The trial judge found that S.M. persuaded the complainant, who he had been in a personal relationship with and who was attempting to overcome substance abuse issues, to re-enter the sex trade. She found that S.M. directed this vulnerable woman’s activity in the sex trade during an ongoing period, used violence against her that broke her ribs, and controlled the proceeds of her sex work. The mid-range penitentiary sentence S.M. received – 66 months, or five and one-half years – underscores the seriousness of the offences. [1] [14] In my view, the seriousness of the crimes S.M. was convicted of committing pulls in favour of the enforcement interest. The more serious an offence is, the more urgent the enforcement interest becomes. The seriousness of the crimes may also enhance concern about the residual public safety risks an applicant poses, and it does so here. A person who would commit the offences S.M. has been convicted of will have demonstrated their readiness to exploit, diminish and harm a vulnerable human being in their own self-interest on an ongoing basis, and then attempt to interfere in the administration of justice to frustrate their own prosecution. B. The STRENGTH OF THE GROUNDS OF APPEAL [15] Grounds of appeal may be strong enough to mitigate the residual risk to public safety suggested by the seriousness of the offences the applicant is appealing. Grounds of appeal that clearly surpass the “not frivolous” threshold set in s. 679(3)(a) of the Criminal Code can also play a central role in enhancing that public interest in reviewability: Oland at paras. 40, 44. However, based on the record before me, I am not persuaded that the general legal plausibility of S.M.’s grounds of appeal promotes his application for release. [16] I can give no weight to the suggestion that there could be a supplemental ground of appeal relating to the prior sexual history evidence. S.M.’s judicial interim release application lacks entirely the details necessary to evaluate whether such a ground of appeal would have any merit. [17] The one legal error that is alleged relates to a paraphrase by the trial judge of the first two legs of the R. v. W.D. , [1991] 1 S.C.R. 742, self-direction. In describing the first branch of the W.D. test the trial judge replaced the familiar reference to “believing” exculpatory evidence with “accept[ing] as accurate evidence that is inconsistent with a finding that the accused is guilty”. In the second branch, she substituted the familiar reference to not believing the exculpatory evidence but being left in reasonable doubt by it, with being “unsure whether the evidence that is inconsistent with guilt is accurate”. Although I remain open minded and will refrain from engaging the issue more extensively in an interim judicial release application, it is not immediately evident to me that this ground of appeal clearly surpasses the “not frivolous” standard. Put otherwise, I cannot conclude on the record before me the apparent strength of this ground of appeal leans in favour of reviewability before enforcement. [18] The remaining proposed grounds of appeal relate to the trial judge’s credibility evaluation, with claims made of an unreasonable verdict, misapprehension of evidence including the failure to give effect to evidence, and uneven scrutiny. Although the objections made by S.M. to the trial judge’s reasoning could, with the benefit of a full record, prove to be of great substance, these grounds of appeal venture into areas where significant deference is afforded to trial judges. This is so in a case where the trial judge found confirming evidence for the complainant’s account, and where the trial judge gave reasons for finding the accused’s version of events to be implausible and incredible. The strength of these remaining grounds of appeal do not support reviewability before enforcement, either. C. PUBLIC Risk and the release plan [19] S.M. had no prior criminal record when charged with the offences now under appeal. This is an important indication when taken in isolation that S.M. would probably keep the peace and comply with conditions of release, were I to grant his current application. [20] However, the impact of S.M.’s prior clean record is diminished by the ongoing, exploitive and violent crimes he is now appealing. More significantly, the impact of his clean record is materially weakened by the fact that S.M. breached bail release conditions put in place relating to the charges he is now appealing, despite having a surety in place who had pledged $2,000 in support of his application. In doing so he has undermined the confidence that can be had that the risk of his behaviour to a surety would inspire his compliance. [21] Specifically, on April 1, 2019, S.M. pleaded guilty to two counts of failing to comply with conditions of his release that were put in place to reduce the risk of reoffence, a curfew condition and a condition that he not attend hotels. He was charged with these offences within six months of having been placed on judicial interim release. As the result of this event, S.M. was detained pending his trial. Consequently, he is not able to demonstrate through his prior experience that he would comply with his conditions of release. Moreover, one of the offences now under appeal – obstruction of justice – is an offence against the administration of justice found to have been committed in effort to impede the prosecution of one of the offences now under appeal. [22] In these circumstances a member of the public would reasonably apprehend that there is a material residual risk that if S.M. were to be released, he may well reoffend or commit offences against the administration of justice, notwithstanding his once clean record. Given this reasonable apprehension, his release could harm public confidence in the administration of justice. [23] Can this reasonable apprehension be sufficiently ameliorated by the proposed judicial interim release plan? I am not satisfied that it can be. [24] S.M. proposes a judicial interim release plan that would involve 24-hour house arrest when not in the presence of one of two identified, suitable sureties who are prepared to pledge a combined total of $20,000. Electronic-monitoring is also proposed, if required. [25] Notwithstanding the generosity and good standing of S.M.’s proposed sureties, I share the Crown’s concerns about the residency part of this plan. It is proposed that S.M. be released immediately to live with one of his sureties, in the surety’s mother’s home, until the surety finds and leases his own residence. Notably, there is no indication in the supporting materials that the surety’s mother has consented to have S.M. move into her home pending the anticipated move. Moreover, the proposed residential surety works 11-hour days away from the home, 6 days a week. He will not be present to supervise S.M. for long tracts of time. Although this concern can be partially addressed with electronic monitoring, it is notable that the crimes S.M. has been convicted of were committed, in part, using electronic communication. D. COVID-19 [26] The risk that institutional incarceration can increase exposure to COVID- 19 infection is a relevant and important consideration. However, S.M. has presented no case-specific foundation raising concern based on his health or demographic profile. Moreover, the Crown has provided evidence that at Joyceville Institution, where S.M. is currently residing, there have been no positive tests for COVID-19 among inmates. Without case-specific evidence of particular risk, COVID-19 considerations are of reduced weight: R. v. Kazman , 2020 ONCA 251, at para. 20 (Harvison Young J.A., in Chambers); R. v. Jesso , 2020 ONCA 280, at paras. 36-38 (Brown J.A., in Chambers). Appropriately, S.M. has not stressed his personal safety as a central consideration in his judicial interim release application. E. CONCLUSION [27] S.M. has failed to discharge his burden of satisfying me that his detention is not necessary in the public interest.  I am fully aware that it should not be common to deny judicial interim release based on the tertiary ground: Oland , at para. 29. However, S.M., who was detained while he was presumed to be innocent of these serious charges, now seeks to be released pending appeal after having been convicted of the bulk of the charges against him. Moreover, he does so in reliance on grounds of appeal that do not appear on the record to be strong, after having breached interim judicial release conditions imposed on the same charges, and when one of the convictions being appealed is for obstruction of justice. In these unique circumstances I am not persuaded that he has met his burden. His compliance with non-communication orders relating to the complainant since being detained does not overcome these concerns. [28] The application for judicial interim release is denied. “David M. Paciocco J.A.” [1] As an aside, the length of S.M.’s sentence also reduces the urgency in releasing him pending appeal. Confidence in the administration of justice may be harmed where release is denied, and the sentence would be substantially served by the time his appeal is heard. That is not this case.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Santana, 2020 ONCA 365 DATE: 20200611 DOCKET: C65685 Doherty, Watt and Miller JJ.A. BETWEEN Her Majesty the Queen Respondent and Abel Solano Santana Appellant Michael A. Moon and Nadia Klein, for the appellant Jeannine Plamondon, for the respondent Heard: In writing On appeal from the conviction entered by Justice W.D. Newton of the Superior Court of Justice, dated January 10, 2018 and an appeal from the sentence imposed on May 31, 2018. Doherty J.A.: I Overview [1] The appellant was convicted, after a trial in Superior Court by a judge alone, of possession of Fentanyl for the purposes of trafficking. The trial judge imposed a sentence of eight years, which upon reduction of a credit for presentence custody, resulted in a net sentence of 4 years, 320 days. [2] The appellant appeals conviction and sentence. [3] At trial, the appellant alleged various Charter violations and argued virtually all of the evidence produced by the Crown should be excluded under s. 24(2) of the Charter . The trial judge found there were no Charter violations and, in any event, he would not have excluded the evidence. The defence offered no evidence and no argument on the merits. The trial judge convicted the appellant on one charge of trafficking in Fentanyl. The other charges against the appellant and all of the charges against his co-accused were stayed at the request of the Crown. [4] On appeal, the appellant focuses on a single alleged Charter violation. He submits the warrantless search of the vehicle in which the appellant was a passenger when arrested, the seizure of his jacket found in the vehicle, and the search of the jacket, constituted an unreasonable search and seizure under s. 8 of the Charter .  He further submits, if this argument is accepted, the court should not make its own s. 24(2) analysis, but should direct a new trial. [5] The Crown makes two submissions in response. First, the Crown argues there was no s. 8 violation. Second, the Crown submits, if there was a s. 8 violation, this court should perform its own s. 24(2) analysis. The Crown contends all of the factors relevant to that analysis favour admission of all of the evidence. The Crown submits the appeal should be dismissed. [6] For the reasons that follow, I would allow the appeal and direct a new trial. II the evidence [7] The appellant was under investigation by a police task force headed by the OPP. The task force was investigating large scale drug trafficking in northeast Ontario. Officers assigned to the task force learned the appellant was in Thunder Bay. He was required to remain in Ottawa under the terms of his bail. The officers commenced surveillance. They saw the appellant with a woman in a Jeep Cherokee. The vehicle made several brief stops. [8] The officers conducting the surveillance contacted the local Thunder Bay police and provided a description of the appellant and the vehicle. They asked the Thunder Bay police to stop the vehicle. The officers indicated the appellant was wanted on two outstanding warrants, one a province-wide warrant, and was in breach of the terms of his bail order. The officers also advised the Thunder Bay police the taillights of the appellant’s vehicle were not operating. [9] Thunder Bay police officers, Milionis and Bliss, were on patrol. They saw the Jeep Cherokee. A woman was driving and a person they believed to be the appellant was sitting in the front passenger seat. The officers confirmed through CPIC, the existence of the outstanding warrants. They also noted the rear lights were not functioning. They decided to stop the vehicle for the taillight infraction and arrest the appellant on the province-wide warrant. [10] The officers stopped the vehicle. Officer Milionis spoke with the driver. He told her the rear lights were off and asked her to produce the relevant Highway Traffic Act documents. [11] Officer Bliss stood by the passenger door. After the appellant falsely identified himself as “Dave”, Officer Milionis told Officer Bliss to arrest the appellant on the province-wide warrant. [12] Officer Bliss removed the appellant from the vehicle and handcuffed him. He told the appellant he was under arrest on the outstanding warrant and advised him of his right to counsel. Officer Bliss conducted a pat down search and located the appellant’s wallet. The wallet contained the appellant’s identification. Officer Bliss took the appellant to a second Thunder Bay police cruiser that had arrived on the scene and placed him in the back seat. [13] Officer Bliss testified his arrest of the appellant had nothing to do with any suspected drug activity by the appellant. He agreed he had no reason connected to suspected drug trafficking to either stop the Jeep Cherokee, or arrest the appellant. [14] While Officer Bliss was occupied with the arrest of the appellant, Officer Milionis continued to speak with the driver. She was becoming quite upset. Apart from addressing the potential Highway Traffic Act violation, Officer Milionis had no reason to detain the driver or the vehicle. At this stage of the interaction between the Thunder Bay police and the occupants of the vehicle, there was no suggestion the driver would not be free to go with the vehicle once the Highway Traffic Act matter had been adequately addressed by Officer Milionis. [15] After Officer Bliss had placed the appellant in the back of the police cruiser, he returned to the Jeep Cherokee “to get the rest of his [appellant’s] belongings from the vehicle”. According to Officer Bliss, he took it upon himself to look for and gather the appellant’s belongings from the Jeep Cherokee because he anticipated the appellant would be held in custody overnight. It is implicit in Officer Bliss’s testimony he chose to gather the appellant’s belongings from the Jeep Cherokee, anticipating the woman would drive the vehicle away after the Highway and Traffic Act matter was adequately addressed. The police had no grounds to hold the driver or the vehicle. Officer Bliss did not ask the appellant if he wanted the police to gather his belongings from the Jeep Cherokee and take them back to the station. [16] In cross-examination, Officer Bliss gave an additional reason for the search of the vehicle which led to the discovery of the jacket. He testified that he understood he was entitled to search the immediate area around where the appellant had been sitting in the Jeep Cherokee at the time of his arrest “for officer safety”. He understood his right to search that part of the vehicle continued, even though by the time he conducted the search, the appellant had been removed from the vehicle, handcuffed and placed in the back of the cruiser with the intention of driving the appellant to the police station. [17] Officer Bliss testified when he looked into the passenger side of the Jeep Cherokee, he saw a jacket lying on the back floor between the two front seats. He assumed the jacket belonged to the appellant because it was a cold night, and the driver had her jacket on. [18] Officer Bliss removed the jacket from the Jeep Cherokee, intending to put the jacket into the police cruiser to take it back to the station with the appellant. Before putting the jacket in the cruiser, he searched the pockets, checking for weapons or other objects relevant to police safety. [19] The officer found a Ziplock bag containing 495 pills, which appeared to be Percocet. They were later identified as Fentanyl. The appellant and the driver were arrested on a charge of trafficking in narcotics and advised of their right to counsel. [20] Officers Bliss and Milionis conducted a further search of the vehicle as an incident to the arrest on the charge of trafficking in narcotics. They also searched the driver. The police found two cellphones, one in the vehicle, and one in the driver’s purse. A subsequent review of the text messages visible on one of the cellphones revealed communications consistent with language used in drug trafficking. [21] Officers with the task force later obtained a warrant to search the hotel room where the appellant and the driver had been staying. The affidavit sworn in support of the search warrant summarized the evidence accumulated in the course of the drug investigation. The discovery of the pills in the jacket seized from the Jeep Cherokee played a central role in the grounds relied on to obtain the warrant. The warrant issued and the subsequent search of the hotel room produced thousands of Fentanyl pills. III Was the seizure and search of the jacket lawful? [22] Officer Bliss’s decision to look inside of the vehicle for things belonging to the appellant and his decision to take possession of the jacket, both decisions made without the consent of the appellant or the driver, constituted a search and seizure for the purposes of s. 8 of the Charter : see R. v. Reeves , 2018 SCC 56. I do not understand the Crown to suggest otherwise. The subsequent search of the pockets of the jacket was also a search for s. 8 purposes. [23] The search of the vehicle, the seizure of the jacket, and the subsequent search of the jacket were not authorized by a warrant. The onus fell on the Crown to demonstrate the searches and seizure were nonetheless reasonable within the meaning of s. 8 of the Charter : see R. v. Caslake , [1998] 1 S.C.R. 51, at para. 11; R. v. Valentine , 2014 ONCA 147, at para. 43; R. v. Aviles , 2017 ONCA 629, at paras. 13-15. In this case, the Crown argues the warrantless search and seizure were lawful as incidental to the appellant’s lawful arrest on the outstanding warrant. A warrantless search and seizure will be lawful if truly incidental to the arrest, and conducted in a reasonable manner: R. v. Fearon , [2014] 3 S.C.R. 621, at para. 20. [24] The trial judge accepted that the visual examination of the interior of the Jeep, the seizure of the jacket from the vehicle, and the search of the jacket before it was placed in the police cruiser were all justified as a search and seizure incident to the appellant’s arrest on the outstanding warrant: see R. v. Solano-Santana , 2018 ONSC 2609, at paras. 52-56. He focused primarily on the search of the pockets of the jacket. He said, at para. 56: As the applicant was taken into custody on an April night in Thunder Bay, it is understandable that the police did not opt to leave his jacket behind. I find that Constable Bliss subjectively had valid purposes in mind when he searched the jacket. Furthermore, those purposes were objectively reasonable. A jacket could contain a weapon, or potential evidence related to the charges, and thus it was objectively reasonable to search the jacket for the purposes of officer safety and the discovery of evidence. [25] A search is properly characterized as an incident to arrest only if the search is conducted for a valid purpose connected to the arrest: R. v. Nolet , [2010] 1 S.C.R. 851, at paras. 51-52; R. v. Balendra , 2019 ONCA 68, at paras. 44-47. In R. v. Caslake , at para. 25, Lamer C.J.C. said: If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier , supra , (protecting the police, protecting the evidence, discovering evidence) or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. [26] As Caslake , and the many cases that have applied Caslake instruct, a court, in deciding whether a particular search was a lawful incident to an arrest, must determine: · the purpose for which the officer conducted the search; · whether that purpose was a valid law enforcement purpose connected to the arrest; and · whether the purpose identified for the search was objectively reasonable in the circumstances. [27] In applying those criteria to this case, I distinguish between Officer Bliss’s examination of the inside of the vehicle in search of the appellant’s belongings, and his removal of the appellant’s jacket from the vehicle on one hand, and his subsequent search of the pockets of the seized jacket on the other hand. I think the appellant’s constitutional argument stands or falls on the lawfulness of Officer Bliss’s examination of the contents of the vehicle and his seizure of the jacket. If those acts were lawfully incidental to the appellant’s arrest, I would have no difficulty in holding a search of the pockets of the jacket before it was placed in the police cruiser was justified for police safety purposes as a lawful incident of the appellant’s arrest. If, however, the visual inspection of the inside of the Jeep and the seizure of the jacket were not incidental to the arrest, and were therefore unreasonable within the meaning of s. 8, it cannot assist the Crown that the police had legitimate safety concerns associated with the possession and control of the unlawfully seized jacket. If the visual search of the interior of the vehicle and the seizure of the jacket from the vehicle were not incidental to the appellant’s arrest, the subsequent search of the pockets of the jacket could not be incidental to that arrest. [28] The scope of the power to search as an incident to an arrest is fact-specific: R. v. Fearon , at para. 13. Valid police purposes associated with searches incidental to arrest include police safety, public safety, securing evidence, and discovering evidence. Two points should be stressed. First, the purpose relied on to justify the search at trial must have been the actual reason the police conducted the search. After-the-fact justifications that did not actually cause the police to conduct the search or seizure will not do. Second, the police purpose must be related to the specific reason for the arrest. Here, the appellant was arrested because there was a province-wide warrant for his arrest for driving while under suspension. Any search said to be justified as a search for evidence had to be evidence in respect of his arrest on the outstanding warrant, and not evidence connecting him to other possible offences such as drug trafficking: see Caslake , at paras. 22-25. [29] Although the trial judge made some reference to the discovery of evidence as a justification for Officer Bliss’s actions, Officer Bliss never suggested he was searching for evidence that would confirm either the existence of the outstanding warrant, or the identification of the appellant as the person named in the warrant. In the circumstances of this case, evidence gathering provided no justification for the visual search of the vehicle, the seizure of the jacket, or the search of the jacket. [30] The reasonableness, and hence the lawfulness, of Officer Bliss’s actions turns on whether he had any authority to visually inspect the inside of the vehicle for property belonging to the appellant and, if he located any property, to seize that property and take it to the police station. Counsel did not refer to any statutory authority for Officer Bliss’s actions. I am not aware of any. [31] I see no connection between legitimate law enforcement interests engaged upon the appellant’s arrest and Officer Bliss’s search for, and seizure of, property from the Jeep, which Officer Bliss believed belonged to the appellant. Officer Bliss was not looking for evidence relating to the reason for the arrest. He had no reason to believe any officer or member of the public was in danger from anything in the vehicle. Clearly, the appellant posed no danger as he was in handcuffs in the back of the police cruiser. Officer Bliss wrongly believed he was entitled to seize the appellant’s property because the appellant was under arrest and was being taken back to the police station. By unlawfully searching the vehicle and taking possession of the jacket, Officer Bliss created a justification for the search of the pockets of the jacket before it was placed in the police cruiser. [32] There are circumstances when the police arrest a person in a vehicle in which the police are authorized, indeed required, to take control of, and responsibility for the vehicle and its contents. In those circumstances, the police are also sometimes authorized to itemize and secure the contents of the vehicle: e.g. see R. v. Russell , 2018 BCCA 330; R. v. Cuff , 2018 ONCA 276. Those circumstances did not exist here. [33] The Thunder Bay police had no intention of taking control of the vehicle when Officer Bliss went looking for the appellant’s belongings and seized the jacket. To the knowledge of Officer Bliss and Officer Milionis, the woman driving the vehicle would be on her way, wherever she was going, once the Highway Traffic Act matter had been addressed. The police had no authority to prevent the driver from leaving with the vehicle after the Highway Traffic Act matter was completed. Equally, the police had no power to itemize the contents of the Jeep or, more specifically, to look for, and take possession of, the appellant’s personal property in the Jeep. If Officer Bliss was concerned about the appellant losing track of his property, or being cold while in custody, Officer Bliss could have offered to collect the appellant’s belongings from the Jeep for him. [34] At trial, and again on appeal, the Crown relies on two cases from this court, R. v. Aviles , [2017] O.J. No. 3968 and R. v. Valentine , 2014 ONCA 147. Both cases are factually different from the present case, and make the point that the scope of the power to search incidental to arrest is necessarily fact-specific. [35] In Aviles , the accused was arrested for an assault which had occurred shortly before the arrest. As he was being arrested, a shoulder bag fell from the accused’s shoulder on to the ground. After the police had secured the accused, a police officer picked the bag up and searched it quickly for a weapon before taking the bag into custody. The bag was searched more thoroughly, subsequently. Narcotics and a knife were found in the bag. [36] On appeal, the court focused on the lawfulness of the initial search. The accused argued there was no objectively reasonable basis to search the bag for officer safety purposes. The trial judge found, in all the circumstances, there were legitimate officer safety concerns. [37] Aviles involved the application of well-settled legal principles to a specific set of facts. The argument in this court focused on the reasonableness of the trial judge’s finding the police had grounds to search the bag for officer safety reasons. The authority of the police, as an incident of an arrest, to take possession of a bag dropped on the ground by an accused during his arrest is beyond question. The authority to look into the bag for officer safety purposes, or some other legitimate arrest-related purpose, depends on the facts. In Aviles , the trial judge found there was a basis for officer safety concerns. This court held the trial judge’s finding was not unreasonable. [38] R. v. Valentine is relied on by the Crown to support the contention that a police officer may search an area of a vehicle in which an arrested person was sitting, for officer safety reasons, even after the person has been arrested, handcuffed and placed in police custody. Before considering Valentine , I observe the trial judge, to the extent he considered police safety concerns, focused on those concerns as a justification for the search of the pockets of the jacket before it was placed into the police cruiser. I do not read the trial judge as finding the visual search of the interior of the vehicle and the seizure of the jacket from the vehicle were justified on police safety grounds: R. v. Solano-Santana , at paras. 55-56. It is unclear from Officer Bliss’s evidence whether he relied on officer safety concerns when examining the interior of the vehicle and seizing the jacket. If he did, those concerns were not objectively justifiable in the circumstances and could not provide a legitimate purpose for either the visual search of the inside of the vehicle, or the seizure of the jacket. [39] Returning to Valentine , a  police officer stopped a vehicle for a traffic infraction. A CPIC search indicated a potential breach of an outstanding bail order. The officer took the accused from his vehicle to the police cruiser and arrested him on that charge. [40] The arresting officer testified he was trying to decide whether to release the driver at the scene on some form of promise to appear, or take him back to the police station. If the officer chose to release the arrested person, he would be free to return to his automobile. The officer had concerns, for reasons which need not be detailed here, about his safety if the appellant was allowed to return to his vehicle. The officer decided to perform a brief safety search of the vicinity around the driver’s seat in the vehicle. He discovered drugs. [41] In upholding the trial judge’s ruling the officer’s search was a lawful incident of arrest, this court said, at para. 47: The route leading to the trial judge’s conclusion that the search was for a valid objective of officer safety was as follows. The trial judge accepted Constable Dowling’s testimony that he was concerned about releasing the appellant … The trial judge then held that the prospect of allowing the appellant back into his car gave rise to a concern over officer safety based on the possibility there may be weapons in the car proximate to the driver’s seat. The concern was valid in the light of the appellant’s criminal antecedents and the disturbing behaviour he had exhibited in the course of the stop. On this record, I see no reason to interfere with the trial judge’s finding that the search of the front of the car was reasonable based on a valid objective – officer safety. [42] In this case, unlike Valentine , there was no possibility the appellant would be released and allowed to return to his vehicle. He was in the police cruiser and was going to be taken to the police station and held in custody. Valentine does not assist the Crown. [43] For the reasons set out above, Officer Bliss did not act lawfully when he visually examined the interior of the Jeep, seized the jacket, and searched the jacket. His actions constituted an unreasonable search and seizure in violation of s. 8 of the Charter . IV section 24(2) of the charter [44] When this court finds a Charter violation not found at trial, this court will, if the trial record permits a full and fair assessment, engage in its own s. 24(2) analysis: e.g. see R. v. Balendra , at para. 62. The appellant submits the assessment cannot be done on this record. The Crown says it can be. [45] The trial judge addressed s. 24(2), even though he found no Charter breach. His consideration of s. 24(2) is, however, brief, no doubt because it was hypothetical. The trial judge does not make findings of fact that would assist this court in a s. 24(2) analysis. His description of the Charter - infringing conduct as “not very serious” and the impact of any Charter violations on the appellant’s rights as “minimal” are not helpful. The trial judge does not identify the breaches he is assuming for the purpose of his characterization of those breaches: R. v. Solano-Santana , at paras. 75-76. The trial judge’s reasons do not assist this court in considering the application of s. 24(2). [46] The Crown, in submitting this court can do the necessary s. 24(2) analysis, focuses exclusively on the s. 8 breach, which occurred in respect of the visual search of the car, the seizure of the jacket, and the search of the jacket. Were the s. 24(2) focus that narrow, the Crown would have a good argument for this court making the s. 24(2) analysis. However, the impact of a Charter breach on the administration of justice, for the purposes of s. 24(2), must look to the overall conduct of the police investigation and the impact of any Charter breach on the investigation as a whole: see R. v. Gonzales , 2017 ONCA 543, at paras. 163-66. [47] In this case, the breach of the appellant’s s. 8 rights led directly to the discovery of the pills in the jacket pocket. That discovery led immediately to the arrest of the appellant and the driver on drug trafficking charges. Without the pills, that arrest would not have occurred. The arrest, in turn, led to further searches which yielded cellphones that ultimately led to evidence consistent with drug trafficking. Without the illegal seizure of the pills, there would have been no arrest on drug trafficking charges, and no search of the cellphones. Lastly, the discovery of the pills in the jacket played a prominent role in the police obtaining a search warrant for the appellant’s hotel room. That search yielded thousands of pills. [48] It is arguable all of the evidence seized from the Jeep Cherokee was tainted by the s. 8 violation and “obtained in a manner” that infringed the appellant’s s. 8 rights. On this view, the privacy infringement went well beyond the seizure of a jacket from the back of the vehicle: see R. v. Whittwer , [2008] 1 S.C.R. 235, at para. 21; R. v. Kokesch , [1990] 3 S.C.R. 3. [49] It is also arguable, if the information that the police discovered pills in the appellant’s jacket were to be removed from the affidavit relied on to obtain the search warrant, the remaining information would not justify the issuance of the warrant. The warrant would fall, rendering the search of the hotel room warrantless and unconstitutional: e.g. see R. v. Evans , [1996] 1 S.C.R. 8, at para. 19. An unlawful search of the appellant’s hotel room raises significantly different privacy concerns than does the visual search of the vehicle and the seizure of a jacket from the vehicle. [50] There was some argument at trial about the effect of the unconstitutional seizure of the appellant’s jacket and the pills in that jacket on the constitutionality of subsequent police conduct. The trial judge did not address those submissions in his reasons. The arguments advanced on appeal also did not address the impact of the s. 8 breach on the constitutionality of other aspects of the police investigation. [51] The determination of whether the evidence seized from the Jeep, the jacket, and the hotel room, should be excluded under s. 24(2) cannot be done on appeal. On this record, the court cannot, with any confidence, make the findings necessary to put sufficient meat on the evidentiary bones so as to properly perform a s. 24(2) analysis. I cannot say what part, if any, of the evidence should be excluded under s. 24(2) as a consequence of the s. 8 breach I have identified. There must be a new trial. Released: “DD” “JUN 11 2020” “Doherty J.A.” “I agree David Watt J.A.” “I agree B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Sullivan, 2020 ONCA 333 DATE: 20200603 DOCKET: C64566 & C66588 Watt, Lauwers and Paciocco JJ.A. DOCKET: C64566 BETWEEN Her Majesty the Queen Respondent and David Sullivan Appellant DOCKET: C66588 AND BETWEEN Her Majesty the Queen Respondent and Thomas Chan Appellant Stephanie DiGiuseppe, for the appellant David Sullivan Danielle Robitaille, Matthew Gourlay, and Lauren Binhammer, for the appellant Thomas Chan Joan Barrett, Michael Perlin, and Jeffrey Wyngaarden for the respondent Roy Lee and Rebecca Sewell, for the intervener Attorney General of Canada Lindsay Daviau and Deepa Negandhi, for the intervener Criminal Lawyers Association (Ontario) Jill R. Presser, Cara Zwibel, and Eric S. Neubauer, for the intervener Canadian Civil Liberties Association Megan Stephens and Lara Kinkartz, for the intervener Legal Education and Action Fund (LEAF) Heard: October 8 and 9, 2019 On appeal from the conviction entered on December 7, 2016 by Justice David Salmers of the Superior Court of Justice (C64566). On appeal from the conviction entered on December 6, 2018 by Justice R. Cary Boswell of the Superior Court of Justice, with reasons reported at 2018 ONSC 7158 (C66588). Paciocco J.A.: OVERVIEW [1] Mr. Thomas Chan and Mr. David Sullivan share similar, tragic experiences. In separate incidents, while in the throes of drug-induced psychoses and without any discernible motive, both men attacked and stabbed loved ones. Mr. Chan, who became intoxicated after consuming “magic mushrooms”, killed his father and grievously injured his father’s partner. Mr. Sullivan, who had become intoxicated after consuming a heavy dose of a prescription drug in a suicide attempt, repeatedly stabbed his elderly mother. Both men allege that they were in a state of automatism at the time of the attacks. [2] Automatism is defined as “a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action”: R. v. Stone , [1999] 2 S.C.R. 290, at para. 156, per Bastarache J. Involuntariness is therefore the essence of automatism. The “mind does not go with what is being done”: Rabey v. The Queen , [1980] 2 S.C.R. 513, at p. 518, citing R. v. K. , [1971] 2 O.R. 401 (S.C.), at p. 401. [3] Persons in a state of automatism may have the benefit of a “defence” when they engage in otherwise criminal conduct, even though automatism is not a justification or excuse: R. v. Luedecke , 2008 ONCA 716, 93 O.R. (3d) 89, at para. 56. Instead, automatism is treated as negating the crime. It is referred to as a defence because the accused bears the burden of establishing automatism. In Luedecke , at para. 56, Doherty J.A. explained the underlying principles: A person who is unable to decide whether to perform an act and unable to control the performance of the act cannot be said, in any meaningful sense, to have committed the act. Nor can it be appropriate in a criminal justice system in which liability is predicated on personal responsibility to convict persons based on conduct which those persons have no ability to control. [4] There are two branches to the defence of automatism. The mental disorder defence, codified in s. 16 of the Criminal Code , R.S.C., 1985, c. C-46, applies where involuntariness is caused by a disease of the mind, since those who are in a state of automatism are incapable of appreciating the nature and quality of their acts or of knowing at the time of their conduct that it is morally wrong [“mental disorder automatism”]. If successful, a mental disorder automatism defence will result in a not criminally responsible verdict, with the likelihood of detention or extensive community supervision. [5] The alternative branch, the common law automatism defence, applies where the involuntariness is not caused by a disease of the mind [“non-mental disorder automatism”]. Where a non-mental disorder automatism defence succeeds, the accused is acquitted. [6] Mr. Chan and Mr. Sullivan each relied on non-mental disorder automatism as their primary defence. The hurdle they each faced is that their non-mental disorder automatism claims arose from their intoxication, and each man was charged with violent offences. Yet, s. 33.1 of the Criminal Code [“s. 33.1”] removes non-mental disorder automatism as a defence where the state of automatism is self-induced by voluntary intoxication and the offence charged includes “as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person” [a “violence-based offence”]. [7] Mr. Chan tried to overcome the impediment s. 33.1 presented to his non-mental disorder automatism defence by applying to have the section declared to be of no force or effect under s. 52(1) of the Constitution Act, 1982 , as contrary to the Charter . The trial judge agreed with Mr. Chan that s. 33.1 is in prima facie violation of ss. 7 and 11(d) of the Charter but upheld the constitutionality of s. 33.1 under s. 1 of the Charter , as a demonstrably justifiable limit on the Charter rights Mr. Chan invoked. [8] Mr. Sullivan argued that s. 33.1 did not prevent him from relying on the non-mental disorder automatism defence because his intoxication was not voluntary, having resulted from a suicide attempt. The trial judge rejected this contention and found s. 33.1 to apply. [9] Both Mr. Chan and Mr. Sullivan defended themselves, in the alternative, by claiming that if they were not experiencing non-mental disorder automatism at the time of their respective attacks, they were experiencing mental disorder automatism. Neither Mr. Chan nor Mr. Sullivan’s mental disorder defences succeeded, and both men were convicted of the violence-based charges they faced. [10] They now appeal. They both raise additional grounds of appeal, but their appeals have in common that they both challenge convictions claiming that s. 33.1 unconstitutionally deprived them of access to the non-mental disorder automatism defence. Mr. Chan does so by challenging the trial judge’s rulings. Mr. Sullivan raises the constitutional validity of s. 33.1 for the first time on appeal, as his case is still in the system. The Crown concedes that if Mr. Chan’s s. 33.1 challenge succeeds, Mr. Sullivan would also be entitled to the benefit of that ruling. We therefore heard their appeals together and I address them together in this joint decision. [11] For the reasons below, I would find that s. 33.1 is indeed unconstitutional and I would declare it to be of no force or effect. [12] Since Mr. Chan was convicted only of offences that include an element of assault, and those convictions depended upon s. 33.1, I would allow his appeal in its entirety and order a new trial. [13] Mr. Sullivan’s violence-based convictions must also be set aside, for the same reason. The Crown agrees that, in these circumstances, verdicts of acquittal should be substituted for Mr. Sullivan’s violence-based convictions, and I would do so. Mr. Sullivan also appeals four breach of recognizance convictions for contacting his sister while in custody, contrary to a non-communication order. As I will explain, I would reject his appeal of these convictions. [14] I will begin with Mr. Chan’s appeal, since this is where the bulk of the arguments relating to the constitutional validity of s. 33.1 were made. THE CHAN APPEAL: MATERIAL FACTS [15] The consumption of “magic mushrooms”, containing the active ingredient psilocybin, triggered Mr. Chan’s extreme intoxication. After an evening watching a hockey game at a pub, Mr. Chan, a high school student, and three friends ingested magic mushrooms in the basement of Mr. Chan’s mother’s home, where he lived. Mr. Chan had used magic mushrooms before, and the experience had always been pleasant and uneventful. Within a half-hour of consuming the magic mushrooms, his friends were high, but Mr. Chan was not. He took an additional quantity of mushrooms. [16] Forensic toxicologist, Dr. Daryl Mayers, testified that psilocybin is a “pretty safe” drug in terms of toxicity. On this occasion, it was anything but. A few hours after ingesting the drugs, Mr. Chan’s behaviour changed. He expressed that he was scared, began speaking in gibberish, and at some point, ran upstairs to his mother’s room where she and her boyfriend, Mr. Jeff Phillips, were sleeping. Mr. Chan turned on the lights and refused to turn them off. He began calling his mother and sister “Satan” and “the Devil” and claimed to “see the light”. Mr. Chan ran outside, where it was below freezing and snowing, wearing only a pair of pants. [17] Mr. Chan then ran to his father’s [Dr. Chan’s] house, which was just around the corner. Outside of his father’s house, he tried to fight with one of his friends who had followed him, and he smashed a car window. Several neighbours reported that they heard a male voice yelling phrases such as, “This is God’s will” and “I am God”. [18] Mr. Chan broke into his father’s house through a window even though he customarily gained entry by using finger-print recognition on the home security system. He confronted Dr. Chan in the kitchen. Dr. Chan said, “Thomas, it’s Daddy. It’s Daddy”, but Mr. Chan did not appear to recognize him and stabbed him repeatedly. Dr. Chan died of his injuries. [19] Mr. Chan then began attacking Dr. Chan’s partner, Ms. Lynn Witteveen. Ms. Witteveen said, “Thomas, it’s Lynnie, it’s Lynnie. I love you”, but she did not think he recognized her. Mr. Chan stabbed her in the abdomen, arm, back, and chest. At some point after Ms. Witteveen called 9-1-1, Mr. Chan also stabbed her right eye and slashed her neck. [20] When the police arrived, Mr. Chan immediately complied with their demands to raise his hands and drop to the ground. After the police handcuffed him, he began to struggle. Police Constable Heenan described him as having “super-strength”. [21] Mr. Chan offered alternative arguments to support his claim that s. 33.1 is unconstitutional. First, he urged that since s. 33.1 was declared to be unconstitutional in R. v. Dunn (1999), 28 C.R. (5th) 295 (Ont. S.C.), it no longer had force or effect in Ontario, and that the trial judge was bound to disregard it. In the alternative, he asked the trial judge to find that the provision violates ss. 7 and 11(d) of the Charter and cannot be demonstrably justified under s. 1. [22] As described, the trial judge denied Mr. Chan’s Charter challenge. Since s. 33.1 applied, Mr. Chan’s non-mental disorder automatism defence was unavailable. [23] Mr. Chan’s mental disorder defence was also denied. The trial judge found that although Mr. Chan’s rugby career had left him with cognitive deficits linked to a mild traumatic brain injury, and although Mr. Chan was incapable at the time of the attack of knowing that his actions were morally wrong, his psychosis was the direct result of self-induced intoxication through the ingestion of psilocybin. Since the psychosis was not caused by a disease of the mind, the mental disorder defence would not apply. [24] In his reasons for judgment in finding Mr. Chan guilty of the grave charges he faced, the trial judge remarked, “Mr. Chan is not a danger to the public. He is a good kid who got super high and did horrific things while experiencing a drug-induced psychosis.” THE CHAN APPEAL: THE ISSUES [25] Mr. Chan appeals his convictions. He argues that the trial judge erred in denying his Charter challenge to s. 33.1, both because the trial judge was bound by the declaration of unconstitutionality in Dunn , and that, in any event, s. 33.1 cannot be demonstrably justified under s. 1 of the Charter . He asks that acquittals be entered if either of these grounds of appeal succeed. [26] Alternatively, Mr. Chan argues that the trial judge erred in rejecting the mental disorder defence and asks us to set aside his convictions and to either substitute findings of not criminally responsible by reason of mental disorder or order a new trial. [27] The Crown contends that the trial judge was correct in the ultimate conclusions he reached but erred in finding s. 33.1 to be in prima facie violation of the Charter . [28] Mr. Chan’s appeal therefore raises the following issues: A. Was the trial judge bound by precedent to accept the unconstitutionality of s. 33.1? B. Was the trial judge correct in finding s. 33.1 to be in prima facie violation of the Charter ? C. If s. 33.1 is in prima facie violation of the Charter , can it be saved by s. 1 of the Charter ? D. If s. 33.1 cannot be saved by s. 1 of the Charter and is of no force or effect, should Mr. Chan’s acquittal be ordered? E. Did the trial judge err in rejecting Mr. Chan’s mental disorder defence? [29] I agree with the trial judge that he was not bound by prior authority to treat s. 33.1 as having no force or effect. I also agree with the trial judge that s. 33.1 violates ss. 7 and 11(d) of the Charter . However, the trial judge erred in finding that these violations are demonstrably justifiable under s. 1. Mr. Chan’s appeal must be allowed. [30] Mr. Chan asks us to substitute verdicts of acquittal. I would not do so and would order a new trial. Given this, I need not determine whether the trial judge erred in rejecting the mental disorder defence. This ground of appeal is largely fact driven, and if it arises again, that issue should be decided by the trial judge at the re-trial. A. Was the trial judge bound by precedent to accept the unconstitutionality of s. 33.1? [31] Mr. Chan argues that once a superior court judge declares a law to be unconstitutional, that declaration is binding on other superior court judges, unless the Crown has successfully appealed that decision. He recognises that this position is inconsistent with the ordinary principles of stare decisis , which hold that lower courts are required to follow only binding precedent of higher courts but are not strictly bound to follow earlier decisions in the same court: Robert J. Sharpe, Good Judgment: Making Judicial Decisions , (Toronto: University of Toronto Press, 2018), at pp. 153-155. [32] Mr. Chan points out that it in Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur , 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 28, the Supreme Court of Canada recognized that “the invalidity of a legislative provision inconsistent with the Charter does not arise from the fact of its being declared unconstitutional by a court, but from the operation of s. 52(1)”. The result, he says, is that s. 52(1) governs the binding effect of superior court declarations of unconstitutionality, and the principles of stare decisis do not. Section 52(1) provides that “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”. Therefore, once a superior court judge makes a s. 52(1) declaration, all other superior court judges within the province are bound to treat it as such. On that basis, he contends that since s. 33.1 was found to be unconstitutional in Dunn prior to Mr. Chan’s prosecution, and that decision was not appealed and set aside, the trial judge erred in relying on s. 33.1, as it was of no force or effect. [33] As the decision in R. v. McCaw , 2018 ONSC 3464, 48 C.R. (7th) 359 reveals, superior court case law in Ontario is split on whether this is correct. There does not appear to be appellate authority directly on point, although in an obiter comment made in another context, in R. v. Boutilier , 2016 BCCA 24, 332 C.C.C. (3d) 315, at para. 45, Neilson J.A. commented that a declaration is “a final order in the proceeding directed at the constitutionality of [the impugned provision], binding on the Crown and on other trial courts of [the] province ” (emphasis added). [34] With respect, I cannot agree. I am persuaded that the ordinary principles of stare decisis apply, and that the trial judge was not bound by the Dunn decision. The authorities relied upon by Mr. Chan do not purport to oust these principles. In Nova Scotia (Workers’ Compensation Board) , at para. 28, Gonthier J. was simply explaining that a provision that is inconsistent with the Constitution “is invalid from the moment it is enacted, and a judicial declaration to this effect is but one remedy amongst others to protect those whom it adversely affects.” He was not attempting to alter the principles of stare decisis where s. 52(1) declarations have been made. [35] Similarly, in none of the other passages relied upon by Mr. Chan was the Supreme Court of Canada purporting to oust the principles of stare decisis where s. 52(1) declarations have been made. The passages he refers to proclaim that after a s. 52(1) declaration is made, the law: is invalid “for all future cases”; “cannot be enforced”; and is “null and void, and is effectively removed from the statute books”, such that “[t]he ball is thrown back into Parliament’s court”: see respectively Nova Scotia (Workers’ Compensation Board) , at para. 31; Canada (Attorney-General) v. Hislop , 2007 SCC 10, [2007] 1 S.C.R. 429, at para. 82; and R. v. Ferguson , 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 65. These passages describe the effects of a s. 52(1) declaration that has been affirmed or made by the Supreme Court of Canada, the apex court. Those passages cannot be taken as describing the effect of declarations made by lower courts. After all, declarations made by trial courts are subject to appeal, and if overturned on appeal, will have no effect. Even on Mr. Chan’s theory, superior court declarations are not binding outside of the province in which they are made. In these circumstances, it cannot be said that a superior court declaration determines the validity or enforcement of the statute “for all future cases”, effectively removes the impugned provision from the statute books, or throws the ball back into Parliament’s court. These things happen only if the Supreme Court of Canada affirms or makes a s. 52(1) declaration. [36] Nor can Mr. Chan find assistance in McLachlin C.J.’s observation in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 2 S.C.R. 1101, at paras. 43-44, that “the common law principle of stare decisis is subordinate to the Constitution”. Bedford recognized that the principles of stare decisis cannot be relied upon to perpetuate a statute, where that statute is unconstitutional when viewed again through a new lens. Specifically, a trial judge can depart from binding precedent when “a new legal issue is raised, or if there is a significant change in the circumstances or evidence”: Bedford , at para. 44. However, Bedford does not hold that the principles of stare decisis are ousted whenever constitutional issues are at stake. [37] There is good reason why not. Whereas Bedford compromises stare decisis to promote accurate constitutional outcomes, the compromise on stare decisis proposed by Mr. Chan has the potential to discourage accuracy. For example, three superior court judges in succession could find a provision to be constitutional, but the fourth judge’s ruling to the contrary would be the only one to have full force or effect in the province. Unless that fourth decision is appealed, it becomes the law in the province. The Crown can no longer rely on the provision; therefore, decreasing the prospect that the issue of constitutional validity would make it before the provincial appellate court. The development of the law would be driven by coincidence in the sequence of trial level decisions and the fortuity of discretionary decisions about whether to appeal, when it should be determined by the quality of the judicial ruling. [38] The application of the principles of stare decisis to s. 52(1) declarations made by superior court judges does not mean that a superior court declaration will have no effect in other cases. Other superior court judges should respect an earlier declaration of unconstitutionality, absent cogent reason to conclude that the earlier declaration is plainly the result of a wrong decision: R. v. Scarlett , 2013 ONSC 562, at para. 43; Re Hansard Spruce Mils Ltd. , [1954] 4 D.L.R. 590 (B.C.S.C.), at p. 592. It is obvious that a superior court judge cannot determine that there is cogent reason to conclude that the earlier decision is plainly wrong without the benefit of argument, facilitated by fair notice to the parties. Therefore, where a party seeks to rely on a statutory provision that has been declared to be unconstitutional by a superior court judge, a subsequent trial judge should apply that earlier declaration of invalidity and treat the statutory provision as having no force or effect, unless the underlying constitutional issue has been raised by the Crown before them through submissions that the earlier decision is plainly wrong. In this way, the principles of stare decisis can operate, while recognizing that the effect of a s. 52(1) declaration is not confined to the litigation in which the declaration is made. [39] The application of the ordinary principles of stare decisis to s. 52(1) declarations in no way collapses the structural distinction between s. 52(1) and s. 24(1) of the Charter , or amounts to a constitutional exemption, as Mr. Chan argues. The fact that cases at the superior court trial level may produce different outcomes for respective accused persons does not mean that the remedies are personal. The disparity in outcome simply reflects the developing state of the authority on the constitutional validity of a provision, as advanced by judges of competent jurisdiction. [40] The trial judge was correct in finding that he was not bound by Dunn . He was also correct in considering the issue anew, as the issue of the constitutionality of s. 33.1 was put before him, and the authority he encountered was inconsistent. He had no choice, in the circumstances, but to consider whether to deviate from Dunn . [41] I would therefore reject this ground of appeal. B. Was the Chan trial judge correct in finding s. 33.1 to be in prima facie violation of the Charter ? [42] The trial judge was correct in finding s. 33.1 to be in prima facie violation of both ss. 7 and 11(d) of the Charter . Section 33.1 violates each of the constitutional principles that were identified by Cory J. for the majority in R. v. Daviault , [1994] 3 S.C.R. 63. In Daviault , the Supreme Court of Canada modified the common law rule that eliminated the defence of extreme intoxication because the common law rule was in breach of the Charter in three ways. I will describe these breaches as “the voluntariness breach”, “the improper substitution breach”, and “the mens rea breach.” Although there has been some variation in articulation and emphasis, virtually all the judges who have considered this issue have found that the legislation breaches the Charter in one or more of these respects. [43] I will begin by introducing the relevant constitutional principles in the context of the Daviault decision. I will then address and reject general arguments made before us that the constitutional principles recognized in Daviault do not govern whether s. 33.1 is in prima facie violation of the Charter . I will then analyse these principles in detail and explain why s. 33.1 contravenes ss. 7 and 11(d) of the Charter in these respects. (1) THE ROAD TO s. 33.1 – DAVIAULT [44] Mr. Daviault was charged with sexual assault. The sexual act he was charged with committing occurred after Mr. Daviault had been drinking heavily. He claimed he was so extremely intoxicated that, at the time of the act, he was in a state of automatism. The decision in Leary v. The Queen , [1978] 1 S.C.R. 29 imposed an impediment to Mr. Daviault’s attempt to rely on his extreme intoxication as a defence. Under the “ Leary rules” voluntary intoxication can be presented as a defence only to a “specific intent offence”, but not a “general intent offence”, and sexual assault is a general intent offence. [45] There are policy reasons that support criminal consequences when general intent offences are committed by those who choose to become intoxicated. However, the primary distinction between general intent and specific intent offences lies in the complexity of the thought and reasoning process required to commit the relevant offence: R. v. Tatton , 2015 SCC 33, [2015] 2 S.C.R. 574, at para. 21. The mental states required to commit general intent offences simply relate to the performance of the illegal act with no further ulterior purpose; therefore, they involve “minimal mental acuity”: Tatton , at paras. 35, 41; Daviault , at p. 89, per Cory J.; and R. v. Bernard , [1988] 2 S.C.R. 833, at p. 863, per McIntyre J. These mental states tend to be so basic or rudimentary that, ordinarily, it is not realistic to believe that intoxication could prevent an accused who has committed the prohibited act from having the mental state the offence requires. Proof of intoxication is typically irrelevant in general intent offences, as the requisite mental state can usually be inferred from the mere commission of the act: Bernard , at p. 878, per McIntyre J.; Daviault , at p. 123, per Sopinka J. (dissenting on other grounds). [46] In contrast, specific intent offences tend to require more complex mental elements over and above the minimal intent required for general intent offences: Daviault , at pp. 123-124, per Sopinka J. (dissenting on other grounds). The actus reus must be coupled with an intent or purpose going beyond the mere performance of the prohibited act; for example, striking a blow with the intent to kill: Bernard , at p. 863, per McIntyre J. For specific intent offences, the fact of intoxication may well be relevant in deciding whether the accused had the more complex specific intent and so, proof of self-induced intoxication is permitted. [47] The majority in Daviault qualified this sharp general intent offence/specific intent offence divide by accepting the view expressed by Wilson J. in Bernard , at p. 887, that evidence of extreme intoxication involving an absence of awareness akin to a state of automatism is not irrelevant on issues of general intention. Such evidence can raise a reasonable doubt as to the existence of even the minimal intent required for a general intent offence such as sexual assault. Given that this is so, the Daviault majority concluded that the Charter requires both the admissibility of evidence of extreme self-induced intoxication, as well as access to the defence of automatism, even when the automatism is the result of self-induced intoxication. To do otherwise, would contravene the right to life, liberty, and security of person in a manner that does not accord with the principles of fundamental justice ( Charter , s. 7) and the presumption of innocence ( Charter , s. 11(d)). More specifically: 1. The Voluntariness Breach – It would be contrary to the principles of fundamental justice ( Charter , s. 7) and the presumption of innocence ( Charter , s. 11(d)) to permit accused persons to be convicted for their involuntary acts, as those acts are not willed and therefore not truly the acts of the accused: Daviault , at pp. 74, 91; 2. The Improper Substitution Breach – It would be contrary to the presumption of innocence ( Charter , s. 11(d)) to convict accused persons in the absence of proof of a requisite element of the charged offence, unless a substituted element is proved that inexorably or inevitably includes that requisite element. A prior decision to become intoxicated cannot serve as a substituted element because it will not include the requisite mental state for the offences charged: Daviault , at pp. 89-91; and 3. The Mens Rea Breach – It would be contrary to the principles of fundamental justice ( Charter , s. 7) to convict accused persons where the accused does not have the minimum mens rea that reflects the nature of the crime: Daviault , at pp. 90-92. [48] The Daviault majority went on to find that the identified Charter violations could not be justified under s. 1 of the Charter . It held that there is no pressing and substantial purpose in preventing access to the “rare and limited defence” of automatism arising from self-induced intoxication, and the deleterious effects of doing so are not overcome by proportionate benefits: Daviault , at p. 103. [49] The Daviault majority did hold, at p. 101, however, that it is a reasonable limitation on the Charter rights identified to require accused persons to establish automatism with the assistance of expert evidence, on the balance of probabilities. (2) SECTION 33.1 OF THE CRIMINAL CODE [50] The Daviault decision, with its notion that extreme intoxication could provide a pathway to exoneration for sexual assault, created significant public outcry. Parliament responded by passing Bill C-72 , An Act to amend the Criminal Code (self-induced intoxication) , 1st Sess, 35th Parl, 1995 (assented to 13 July 1995), which added s. 33.1 to the Criminal Code . Bill C-72 included an extensive preamble [the “Preamble”]: WHEREAS the Parliament of Canada is gravely concerned about the incidence of violence in Canadian society; WHEREAS the Parliament of Canada recognizes that violence has a particularly disadvantaging impact on the equal participation of women and children in society and on the rights of women and children to security of the person and to the equal protection and benefit of the law as guaranteed by sections 7, 15 and 28 of the Canadian Charter of Rights and Freedoms; WHEREAS the Parliament of Canada recognizes that there is a close association between violence and intoxication and is concerned that self-induced intoxication may be used socially and legally to excuse violence, particularly violence against women and children; WHEREAS the Parliament of Canada recognizes that the potential effects of alcohol and certain drugs on human behaviour are well known to Canadians and is aware of scientific evidence that most intoxicants, including alcohol, by themselves, will not cause a person to act involuntarily; WHEREAS the Parliament of Canada shares with Canadians the moral view that people who, while in a state of self-induced intoxication, violate the physical integrity of others are blameworthy in relation to their harmful conduct and should be held criminally accountable for it; WHEREAS the Parliament of Canada desires to promote and help to ensure the full protection of the rights guaranteed under sections 7, 11, 15 and 28 of the Canadian Charter of Rights and Freedoms for all Canadians, including those who are or may be victims of violence; WHEREAS the Parliament of Canada considers it necessary to legislate a basis of criminal fault in relation to self-induced intoxication and general intent offences involving violence; WHEREAS the Parliament of Canada recognizes the continuing existence of a common law principle that intoxication to an extent that is less than that which would cause a person to lack the ability to form the basic intent or to have the voluntariness required to commit a criminal offence of general intent is never a defence at law; AND WHEREAS the Parliament of Canada considers it necessary and desirable to legislate a standard of care, in order to make it clear that a person who, while in a state of incapacity by reason of self-induced intoxication, commits an offence involving violence against another person, departs markedly from the standard of reasonable care that Canadians owe to each other and is thereby criminally at fault; [51] Section 33.1 of the Criminal Code provides: 33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2). (2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person. (3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person. (3) ANALYSIS: THE DAVIAULT PRINCIPLES APPLY [52] Arguments were presented before us that the principles identified in Daviault do not govern the constitutional validity of s. 33.1. I do not agree. [53] First, I do not accept the Crown’s contention that the Charter principles identified in Daviault apply only to common law rules, not statutory ones such as s. 33.1, or that Daviault “provides only that courts cannot water down the requirements of statutory offences by omitting the need for statutorily defined essential elements” (emphasis in original). The Daviault decision is not about the division of powers between Parliament and the courts. The sole reason that the Supreme Court of Canada reconfigured the common law Leary rules in Daviault was that, without reconfiguration, the Leary rules infringed principles of fundamental justice assured by s. 7 of the Charter , as well as the presumption of innocence under s. 11(d). Those principles of fundamental justice were not created in Daviault . They had already been recognized by other Supreme Court of Canada authority. Nor does the reach or definition of those Charter principles vary depending upon whether the law being tested is a common law or statutory rule. As s. 52(1) of the Constitution Act, 1982 makes clear, subject to s. 1 of the Charter , these constitutionally-protected principles must be respected by “any law”, common law or statutory. If the law does not do so, it will be of no force or effect to the extent of the inconsistency. [54] In Daviault , the Supreme Court of Canada occasionally referenced the limits on “judicially developed policy” or the ability of courts to eliminate elements of a crime. These are contextual allusions to the fact that the rules under challenge in that case were common law rules. In making these comments, the Daviault majority was not attempting to confine the reach of the constitutional principles relied upon. When Cory J. recognized that it was open to Parliament to legislate in this area, he was accepting that there are ways for Parliament to address extreme intoxication, but he was not suggesting that Parliament could do so in disregard of the constitutional principles described. [55] To be clear, no one questions that Parliament has the authority to amend criminal offences, and that courts do not. The instant point is that when Parliament purports to make statutory changes, it must do so consistently with the Charter , and in determining whether this is so, the Charter principles identified in Daviault apply. [56] Nor do I accept the argument advanced by the intervener, the Women’s Legal Education Action Fund [“LEAF”], that s. 7 of the Charter requires “internal balancing” in identifying the relevant principles of fundamental justice for consideration. Specifically, LEAF argued that in determining whether there is a prima facie breach, we must balance the accused’s interests and public interests, such as equality and the human dignity of women and children, who are disproportionally victimized by intoxicated offenders. [57] Generally, there is no place for internal balancing in defining the principles of fundamental justice. As Lamer C.J. explained in R v. Swain , [1991] 1 S.C.R. 933, at p. 937, it is not appropriate to thwart the exercise of the accused’s s. 7 rights by trying to bring societal interests into the principles of fundamental justice to limit those rights. If societal interests should limit those rights, it is for the Crown to show this under s. 1. This was the law when Daviault was decided and it remains the law, having recently been reaffirmed in Bedford , at paras. 124-127, and Carter v. Canada (Attorney General) , 2015 SCC 5, [2015] 1 S.C.R. 331, at paras. 78-80. [58] I recognize that in R. v. Mills , [1999] 3 S.C.R. 668, the Supreme Court of Canada did conduct internal balancing of competing Charter -protected interests. This exercise was required because the issue in Mills was whether the legislative accommodation between the privacy and equality rights of sexual offence complainants, on the one hand, and the right of the accused to access information, on the other, infringed Mr. Mill’s s. 7 right to full answer and defence. No such internal balancing is required in this case. It is not about the constitutionality of a legislated compromise between protected interests. Moreover, as about to be explained, the reach of the principles of fundamental justice at issue have already been authoritatively determined, and this has occurred in a body of law that has not engaged in internal balancing. I propose to rely on these principles and to consider the important interest identified by LEAF under s. 1. [59] Finally, at trial, the Crown argued that “the court must follow the analysis in Bedford , meaning that the court must measure s. 33.1 against the principles of “arbitrariness, overbreadth and gross disproportionality”: see R. v. Chan, 2018 ONSC 3849, 365 C.C.C. (3d) 376, at para. 92. None of the parties before us argued, as the trial Crown had, that Bedford has changed the way that s. 7 analysis is to be conducted, but the impact of Bedford and Carter was raised during oral argument and by my colleague in his concurring decision. I will therefore address the issue briefly. [60] I do not share my colleague’s view that we are bound by Bedford or Carter to apply the principles of “arbitrariness, overbreadth and gross disproportionality” to the issue of whether s. 33.1 limits s. 7 Charter rights. Arbitrariness, overbreadth and gross disproportionality are engaged if the s. 7 challenge is that the effect of the law is not connected to its objective (“arbitrariness”), that the law catches situations that have no connection to its objective (“overbreadth”), or that the law imposes consequences that are grossly disproportionate to its objective (“gross disproportionality”): Bedford , at paras. 97-105. These principles all stem from what Professor Hamish Stewart calls “failures of instrumental rationality”: Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (Toronto: Irwin Law, 2012), at p. 151, cited in Bedford , at para. 107. Many principles of fundamental justice have little or nothing to do with “instrumental rationality”, in any of these senses. [61] The principles of fundamental justice identified in Daviault , which the appellants now rely upon, do not address the link between the objective and effects of s. 33.1. Instead, these principles identify what is constitutionally required before a criminal conviction is permitted. In other words, they impose constitutional limits on criminal accountability. The principles affirmed in Daviault have not been modified in any way by subsequent authority, as the trial Crown suggested, nor do I read the Bedford and Carter cases as requiring consideration of arbitrariness, overbreadth and gross disproportionality in all s. 7 cases, as my colleague maintains. Those principles were considered in Bedford and Carter because, in substance, the challenges before those courts alleged failures of instrumental rationality: see Bedford , at para. 96; Carter , at para. 46. They were not considered in R. v. Morrison , 2019 SCC 15, 432 D.L.R. (4th) 637, at paras. 74-91, where, as in this case, the challenge was to the compliance of a Criminal Code provision with the minimum level of constitutionally required fault. In my view, the trial judge was correct in rejecting the trial Crown’s invitation to consider these principles, and in addressing only the principles identified in Daviault . I will proceed in the same manner. (4) ANALYSIS: SECTION 33.1 IS IN PRIMA FACIE VIOLATION OF THE CHARTER [62] I do not accept that the Supreme Court of Canada implicitly suggested that s. 33.1 is constitutionally valid because it did not cast doubt on the constitutionality of s. 33.1 when deciding R. v. Bouchard-Lebrun , 2011 SCC 58, [2011] 3 S.C.R. 575. Lebel J. noted expressly that the constitutional validity of s. 33.1 was not before the court in that case: at para. 28. The issue was whether the trial judge erred by treating s. 33.1 as limiting the scope of the mental disorder defence in s. 16 of the Criminal Code , an entirely different question. [1] The trial judge was correct in rejecting the suggestion that Bouchard-Lebrun supports the constitutional validity of s. 33.1. [63] With that said, I will now describe with specificity the ways I would find s. 33.1 to be in prima facie infringement of the Charter . (a) The Voluntariness Breach: Section 33.1 infringes ss. 7 and s. 11(d) of the Charter , as it is contrary to the voluntariness principle of fundamental justice and permits conviction without proof of voluntariness [64] Section 33.1 provides expressly that “[i]t is not a defence to [a violence-based offence] that the accused, by reason of self-induced intoxication, lacked general intent or the voluntariness required to commit the offence ” (emphasis added). The principles of fundamental justice require that voluntariness is an element of every criminal offence. It is therefore contrary to the principle of fundamental justice affirmed in Daviault , at p. 91, to remove the voluntariness element from an offence. It is also contrary to s. 11(d) to convict someone where there is a reasonable doubt about voluntariness. [65] The Crown does not dispute the importance of voluntariness. It argues instead that the voluntariness inherent in voluntary intoxication supplies the required voluntariness element for the violence-based charges. With respect, the Crown’s reliance on the voluntariness of intoxication is misplaced. The purpose of the principle of voluntariness is to ensure that individuals are convicted only of conduct they choose. What must be voluntary is the conduct that constitutes the criminal offence charged, in this case, the assaultive acts by Mr. Chan. Without those assaultive acts, his voluntary intoxication would be benign. The converse is not so. It is an offence to engage in assaultive acts, even without voluntary intoxication. Clearly, the prohibited conduct that constitutes the offences Mr. Chan is charged with are the assaults, not the self-induced intoxication, and it is the assaults to which voluntariness must attach to satisfy the Charter . [66] Case law is clear on this point. The Supreme Court of Canada has consistently affirmed that voluntariness must be linked to the prohibited conduct. As Lebel J. put it in Bouchard-Lebrun , at para. 45, it is unfair to convict “an accused who did not voluntarily commit an act that constitutes a criminal offence ” (emphasis added). In R. v. Théroux , [1993] 2 S.C.R. 5, at p. 17, McLachlin J. (as she then was), in speaking of the elements of the crime, said “the act must be the voluntary act of the accused for the actus reus to exist.” In his dissenting reasons from Rabey , at p. 522, Dickson J. (as he then was) spoke of the “basic principle that the absence of volition in respect of the act involved is always a defence to a crime” (emphasis added). This passage was subsequently quoted by LaForest J., writing for the majority, in R. v. Parks , [1992] 2 S.C.R. 871, at p. 896. The act involved in a violence-based offence is the act of violence. The principle of voluntariness is not satisfied by relying on the voluntariness of conduct other than the act that constitutes the criminal offence charged. [67] The decision in R. v. Penno , [1990] 2 S.C.R. 865, relied upon by the Crown, does not establish otherwise. Penno dealt with a constitutional challenge to the offence of care or control of a motor vehicle while impaired. The constitutional challenge in that case was untenable because the accused argued that significant impairment should be a defence to the charge, even though impairment is an element of the offence. The court divided in explaining why that constitutional challenge had to fail. However, most of the judges found that since impairment is not only an element of the offence, but also the gravamen of the offence, the voluntariness principle is satisfied by requiring voluntary impairment. The current constitutional challenge differs. The gravamen of the offences Mr. Chan is charged with is not impairment, but his assaultive behaviour, and he is not attempting to convert an element of the offences charged into a defence. The inapplicability of Penno is underscored by the fact that in Daviault , at p. 102, Cory J. cited Penno but nonetheless decided that the Leary rules would contravene the principle of voluntariness. [68] Moreover, Wilson J., the only judge to address the point in Penno , said that the reasoning in Penno does not apply for offences where intoxication is not made part of the actus reus but is relevant only to assess the presence of mens rea : at pp. 891-892. When speaking of offences where intoxication is not an element of the offence, she reaffirmed her position in Bernard that the defence of non-mental disorder automatism will be a defence: Penno , at pp. 889-890. [69] I do not accept the Crown’s attempt to overcome the problem that the principle of voluntariness presents by arguing that s. 33.1 creates a new and different mode of committing all Criminal Code offences that “include as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person’”. In effect, the Crown’s position is that s. 33.1 adds new, alternative elements to those offences, which permit conviction based on voluntary intoxication, even in the absence of the mens rea specified in the affected sections. On this basis, the voluntariness of the intoxication satisfies the voluntariness requirement. [70] In support of this interpretation, the Crown relies on the language of s. 33.1(3), which provides: This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person. [Emphasis added.] [71] I cannot agree. Read in context and in its entirety, s. 33.1 does not create a new mode of committing violent offences. The opening words of s. 33.1(3), “This section”, are a reference to s. 33.1 as a whole, which begins by stating its function in s. 33.1(1): “It is not a defence to an offence referred to in subsection (3)” (emphasis added). The wording of s. 33.1 removes a defence. This is as expected, since Parliament enacted s. 33.1 as a direct response to a common law rule that recognized involuntariness as a defence. [72] Moreover, if the function of s. 33.1 was to amend the elements of those offences, one would expect it to be in Part VIII of the Criminal Code , “Offences Against the Person and Reputation”, where those offences are found. Instead, the section is placed alongside the defences addressed in the Criminal Code . [73] Quite plainly, Parliament did not pass s. 33.1 as a “one fell swoop” amendment to a raft of offences. It was passed to eliminate the defence of non-mental disorder automatism for the offences referenced. [74] Even if s. 33.1 could somehow be interpreted as creating a parallel cast of offences, this would not solve the voluntariness problem. The act prosecuted would remain the commission of the prohibited act specified in the offence charged. As explained, in this case, the prohibited act is Mr. Chan’s assaultive behaviour, as the act of voluntary intoxication is benign without such behaviour. [75] The trial judge was correct to find that s. 33.1 contravenes ss. 7 and 11(d) of the Charter because it bypasses the requirement of voluntariness, which is a principle of fundamental justice. (b) The Improper Substitution Breach: Section 33.1 infringes the presumption of innocence guaranteed by s. 11(d) of the Charter by permitting conviction without proof of the requisite elements of the offence [76] In Morrison , at para. 51, Moldaver J., for the majority of the Supreme Court of Canada, recently reaffirmed the s. 11(d) principle relied upon in Daviault : Section 11( d ) of the Charter protects the accused’s right to be presumed innocent until proven guilty. Before an accused can be convicted of an offence, the trier of fact must be satisfied beyond a reasonable doubt that all of the essential elements of the offence have been proved. This is one of the principal safeguards for ensuring, so far as possible, that innocent persons are not convicted. The right to be presumed innocent is violated by any provision whose effect is to allow for a conviction despite the existence of a reasonable doubt. [Citations omitted.] [77] As Daviault recognizes, at p. 91, substituting voluntary intoxication for the required elements of a charged offence violates s. 11(d) because doing so permits conviction where a reasonable doubt remains about the substituted elements of the charged offence. As the trial judge pointed out in this case, that is the unconstitutional effect of s. 33.1 on Mr. Chan. It purports to permit Mr. Chan to be convicted of manslaughter and aggravated assault without proof of the mental state required by those offences, namely, the intention to commit the assaults. [78] Of course, if everyone who becomes voluntarily intoxicated necessarily has the intention to commit the charged offences, this constitutional problem would not arise. By proving Mr. Chan’s voluntary intoxication, the Crown would inexorably or inevitably also be proving his intention to commit the assaults that supported his manslaughter and aggravated assault convictions. Permitting the Crown to rely on voluntary intoxication in these circumstances would not leave a reasonable doubt about the required elements of the charged offences: R. v. Vaillancourt , [1987] 2 S.C.R. 636, at p. 656; R. v. Whyte, [1988] 2 S.C.R. 3, at pp. 18-19; Daviault , at pp. 90-91; and Morrison , at paras. 52-53. This argument is not available to the Crown, since proving voluntary intoxication does not necessarily or even ordinarily prove the intention to commit assaults, let alone the assaults charged. The materials before us from the Standing Committee that was considering Bill C-72 emphasize the correlation between intoxication (particularly alcohol intoxication) and violence, and that link cannot be questioned. However, that link falls far short of showing that those who become intoxicated intend to commit assaults. By enabling the Crown to prove voluntary intoxication instead of intention to assault, s. 33.1 relieves the Crown of its burden of establishing all the elements of the crimes for which Mr. Chan was prosecuted, contrary to s. 11(d) of the Charter . (c) The Mens Rea Breach: Section 33.1 infringes s. 7 of the Charter by permitting convictions where the minimum level of constitutional fault is not met [79] Section 33.1 also infringes s. 7 of the Charter by enabling the conviction of accused persons who do not have the constitutionally required level of fault for the commission of a criminal offence. The Crown argues that the fault inherent in voluntary intoxication suffices where a person commits an act “that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person”. I do not agree. [80] In R. v. Creighton , [1993] 3 S.C.R. 3, at pp. 61-62, the Supreme Court of Canada held that where an offence provides no other mens rea or “fault” requirement, the Crown must at least establish “penal negligence” to satisfy the principles of fundamental justice. Put otherwise, penal negligence is the minimum, constitutionally-compliant level of fault for criminal offences. The general intent offences Mr. Chan was charged with have never been found to require more than the minimum level of fault. Nor is there any reason to conclude that they fall within the “small group of offences” that require a purely subjective standard of fault: Morrison , at para. 75. The standard of penal negligence is therefore the appropriate measure for testing the constitutional validity of s. 33.1, which modifies the fault standard for violence-based offences committed while voluntarily intoxicated. [81] Indeed, s. 33.1 is built on a theory of negligence. As the Preamble confirms, and the Crown arguments before us suggest, the underlying theory of fault supporting s. 33.1 rests in the irresponsibility of self-induced intoxication and the “close association between violence and intoxication”: see Preamble to Bill C-72. Section 33.1 also draws on the language of negligence, referring to a marked departure from reasonable standards of care. [82] The instant question, then, is whether the fault imposed by s. 33.1 satisfies the penal negligence standard? It does not. [83] In Creighton , at p. 59, the Supreme Court of Canada defines penal negligence as negligence that constitutes a marked departure from the standard of a reasonable person. The concept of negligence that girds this standard, which is common to the tort of negligence, operates as an objective measure that involves an assessment of the relationship between an act or omission and a damaging consequence: Mustapha v. Culligan Canada Ltd. , 2008 SCC 27, [2008] 2 S.C.R. 114, at paras. 6-15. “Negligence” is not based on whether the person intended or foresaw the damaging consequence, but on whether a reasonable person would have foreseen and avoided the risk that the damaging consequence could occur by not engaging in the allegedly negligent act or omission. If this is so, civil negligence is established. For penal negligence to exist so that criminal liability can be imposed, the relevant risk must be reasonably foreseeable such that it not only falls below standards of ordinary prudence to engage in the risky behaviour but doing so amounts to a marked departure from standards of ordinary prudence: Creighton , at p. 59. Section 33.1 fails to meet this standard in several ways. [84] First, s. 33.1 does not require a foreseeability link between voluntary intoxication and the relevant consequence, the act of violence charged. In Bouchard-Lebrun , at para. 89, Lebel J. set out the elements of s. 33.1: This provision applies where three conditions are met: (1) the accused was intoxicated at the material time; (2) the intoxication was self-induced; and (3) the accused departed from the standard of reasonable care generally recognized in Canadian society by interfering or threatening to interfere with the bodily integrity of another person. [Citations omitted.] [85] Note that on this authoritative description of the elements of s. 33.1, there is no prescribed link between the voluntary intoxication and the violent act. It does not matter how unintentional, non-wilful, unknowing, or unforeseeable the interference with bodily integrity or threatening is. So long as these components each occur, s. 33.1 operates. This is problematic because without a foreseeable risk arising from the allegedly negligent act, negligence cannot be established, and without negligence, the minimum constitutional standard of penal negligence cannot be met. [86] Second, even if s. 33.1 had required such a link, the charged violent behaviour is not invariably going to be a foreseeable risk of voluntary intoxication, yet s. 33.1 will nonetheless enable conviction. Cory J. made this point in the context of the sexual assault charge before him, in Daviault , at p. 91: It simply cannot be automatically inferred that there would be an objective foresight that the consequences of voluntary intoxication would lead to the commission of the offence. It follows that it cannot be said that a reasonable person, let alone an accused who might be a young person inexperienced with alcohol, would expect that such intoxication would lead to either a state akin to automatism, or to the commission of a sexual assault. [87] Mr. Chan’s case illustrates the point. A reasonable person in Mr. Chan’s position could not have foreseen that his self-induced intoxication might lead to assaultive behaviour, let alone a knife attack on his father and his step-mother, people he loved. [88] Third, the normative element of penal negligence – that the allegedly negligent conduct be a marked departure from the standards of a reasonable person – is absent. It is important to appreciate that the voluntary intoxication required by s. 33.1 does not require an accused person to intend to become intoxicated to the point of automatism, or even to become extremely intoxicated. It is enough to meet the elements of s. 33.1 that a person takes a substance intending to become intoxicated: R. v. Vickberg (1998), 16 C.R. (5th) 164 (B.C.S.C.), at para. 68. This is made clear in Bouchard-Lebrun where Lebel J., recognized, at para. 91, that the self-induced intoxication requirement of s. 33.1 is met even where a voluntary choice to become intoxicated produces abnormal effects. The implication is that a decision to become intoxicated to any degree is enough to trigger s. 33.1, even where the accused person cannot reasonably expect that, as a result of that intoxication, they may become unaware of their behaviour or incapable of consciously controlling their behaviour. [89] Indeed, the Crown before us goes further. It contends that a person who takes a prescription drug for health-related reasons, and who knows or should know that the drug carries the risk of intoxicating side effects, is under self-induced intoxication if intoxication happens to occur. Relying on non-s. 33.1 cases, the Crown also contends that a person will be voluntarily intoxicated, as in Mr. Sullivan’s case, if they take an intoxicating substance not to become intoxicated, but in an attempted suicide: R. v. Turcotte , 2013 QCCA 1916, [2013] R.J.Q. 1743, leave to appeal refused, [2014] S.C.C.A. No. 7; R. v. Honish , 1991 ABCA 304, 120 A.R. 223, at para. 9, aff’d [1993] 1 S.C.R. 458. [90] I will leave aside whether the reach of s. 33.1 goes as far as the Crown suggests and focus exclusively on those who intend to become intoxicated, including those who intend for their intoxication to be no more than mild. The notion that it is a marked departure from the standards of the norm to become intoxicated, let alone mildly intoxicated, is untethered from social reality, particularly in a nation where the personal use of cannabis has just been legalized. Voluntary mild intoxication is not uncommon. Whatever one may think of voluntary mild intoxication, it is difficult to accept that it is a marked departure from the norm. [91] Finally, even if moral fault can be drawn from voluntary intoxication, it is far from self-evident as a normative proposition that such intoxication is irresponsible enough to substitute for the manifestly more culpable mental states provided for in the general intent offences, such as intention or recklessness relating to sexual assault. [92] It appears from s. 33.1(2) that Parliament attempted to overcome these challenges by using the language of marked departure and by referencing the standards of reasonable persons. Subsection 33.1(2) provides: For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person. [Emphasis added.] [93] I do not accept the submission made by the intervener, LEAF, that s. 33.1 satisfies minimum standards of constitutional fault because it describes an adequate standard of fault. Whether minimum standards of constitutional fault are met depends on the reach of the section, not the language Parliament uses to describe the level of fault it seeks to impose. For the reasons described, the reach of s. 33.1 does not comply with minimum standards of constitutional fault. [94] This problem is not overcome by conceiving of the violent act itself as the marked departure, as expressed in the elements of s. 33.1, which were laid out by Lebel J. in Bouchard-Lebrun , at para. 89. This is because moral fault cannot come from a consequence alone. Instead, in the case of negligence, “the mental fault lies in failure to direct the mind to a risk which the reasonable person would have appreciated”: Creighton , at p. 58. If a consequence that society judges to be a marked departure from the norm could ground criminal liability, the law would countenance criminal fault based on absolute liability, which would itself violate the Charter : see Reference re Section 94(2) of the B.C. Motor Vehicle Act , [1985] 2 S.C.R. 486. C. If s. 33.1 is in prima facie violation of the Charter , can it be saved by s. 1 of the Charter ? [95] The trial judge was therefore correct in finding that s. 33.1 violates the Charter in three distinct ways: (a) a voluntariness breach of ss. 7 and 11(d); (b) an improper substitution breach of s. 11(d); and (c) a mens rea breach of s. 7. Since s. 33.1 is in prima facie violation of ss. 7 and 11(d) of the Charter in these ways, it is of no force or effect unless the Crown can demonstrate, pursuant to s. 1 of the Charter that s. 33.1 is a “reasonable limit” “prescribed by law as can be demonstrably justified in a free and democratic society”. The trial judge found that the Crown met this burden, and therefore, dismissed Mr. Chan’s Charter challenge to s. 33.1. [96] With respect, I would find that the trial judge committed several errors in coming to this conclusion. Most significantly, the trial judge misstated the object of s. 33.1. The purposes he ascribed to s. 33.1 were too broad. These errors are critical because, as I will explain, the trial judge’s mistaken determination of purpose tainted each stage of his s. 1 analysis, contributing to errors in his rational connection, minimal impairment, and overall proportionality analysis. [97] I would also find that s. 33.1 cannot be justified under s. 1. Section 1 analysis is grounded in a contextual application of the framework set out in R. v. Oakes , [1986] 1 S.C.R. 103. In R.J.R.-MacDonald Inc. v. Canada (Attorney General) , [1995] 3 S.C.R. 199, at paras. 126-130, the Supreme Court of Canada refined without altering the framework for establishing a reasonable limitation finding under s. 1. The Crown must demonstrate: (1) Pressing and Substantial Purpose – the “objective of the law limiting the Charter right [is] of sufficient importance to warrant overriding it”; and (2) Proportionality – the “means chosen to achieve the objective must be proportional”, in the sense that, (a) Rational Connection – the “measures chosen [are] rationally connected to the objective”; (b) Minimal Impairment – the measures chosen “must impair the guaranteed right or freedom as little as reasonably possible”, and (c) Overall Proportionality – “there must be overall proportionality between the deleterious effects of the measures and the salutary effects of the law.” [98] Section 33.1 would be of no force or effect if the Crown has failed to demonstrate any of these components on a balance of probabilities. I would find that the Crown has not demonstrated the rational connection, minimal impairment, or the proportionality required to save the provision. [99] In coming to this conclusion, I recognize that courts are to approach constitutional challenges, including s. 1 evaluations, with a “posture of respect” to Parliament: Mills , at para. 56. I also recognize Parliament’s core competency in creating criminal offences. However, courts have core competency in identifying constitutional principles that determine the proper reach of criminal liability in our free and democratic society, and the responsibility to protect those principles from unconstitutional laws: Reference re Section 94(2) of the B.C. Motor Vehicle Act , at para. 15. As Vertes J. observed in R. v. Brenton , “deference is not the same thing as merely taking Parliament’s choice at face value. That would be an abdication of [judicial] responsibility”: (1999), 180 D.L.R. (4th) 314 (N.W.T.S.C.), at para. 78, rev’d for other reasons, 2001 NWTCA 1, 199 D.L.R. (4th) 119. Even after due deference is accounted for, Parliament’s choice in enacting s. 33.1 cannot be demonstrably justified in a free and democratic society. (1) Pressing and Substantial Purpose [100] The Crown argued before the trial judge, and on appeal, that s. 33.1 has two pressing and substantial purposes: (1) “holding individuals accountable for intoxicated violence”; and (2) “protecting the security of the person and equality rights of others, particularly women and children, from violent crimes at the hands of intoxicated offenders.” The trial judge accepted that these stated purposes accurately reflect the object of s. 33.1 and that both are pressing and substantial purposes, satisfying the first Oakes requirement. [101] I agree that Parliament did have an “accountability purpose” and a “protective purpose” in mind. However, the Crown expresses these purposes too generally, and the trial judge erred in following the Crown’s lead. The accountability purpose and the protective purpose are more specific than the Crown and the trial judge conceive. Stated properly, the accountability purpose is to hold individuals who are in a state of automatism due to self-induced intoxication accountable for their violent acts. The protective purpose is to protect potential victims, including women and children, from violent acts committed by those who are in a state of automatism. (a) The Crown’s stated purposes do not accurately reflect the object of s. 33.1 [102] I accept that the purposes as stated by the Crown find support in the Preamble to s. 33.1. I also recognize that Parliament is entitled to identify its legislative objectives in a statutory preamble, and that those stated objectives must be considered by courts undertaking s. 1 analysis. However, there are constitutional principles that courts must respect in identifying the object of legislation under a s. 1 analysis. Parliamentary declarations of purpose must be measured against those principles so that the task of identifying whether the object of legislation is constitutionally sound is not delegated to Parliament. As Wagner C.J. stated in Frank v. Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3, at para. 46, “the integrity of the justification analysis requires that the legislative objective be properly stated”: see also Bedford , at para. 78; Carter , at para. 77. When those principles are applied here, it is apparent that the Crown’s stated purposes cannot be accepted, and the purposes stated in the Preamble must be refined. [103] First, the Supreme Court of Canada has repeatedly stressed “[t]he critical importance of articulating the measure’s purpose at an appropriate level of generality”: Frank , at para. 46. This is because “[t]he relevant objective is that of the infringing measure”: Frank , at para. 46. As McLachlin C.J. explained in R.J.R.-MacDonald Inc. , at para. 144, this must be so “since it is the infringing measure and nothing else which is sought to be justified”. [104] Put otherwise, since the Crown is obliged to demonstrate the need for the infringement under s. 1, the purpose it relies upon should relate to that infringement. Here, the infringing measure, s. 33.1, does not address the prosecution of intoxicated offenders generally. It applies only to those who commit violence-based offences while in a state of automatism due to self-induced intoxication. Properly stated, the object of s. 33.1 must be related to these offenders, and not to intoxicated violent offenders generally. [105] In Sauvé v. Canada (Chief Electoral Officer) , 2002 SCC 68, [2002] 3 S.C.R. 519, McLachlin C.J. expanded on this point. She said that “[t]o establish justification, one needs to know what problem the government is targeting, and why it is so pressing and important that it warrants limiting a Charter right”: Sauvé , at para. 24. In Frank , at paras. 129-130, Côté and Brown JJ., dissenting but not on this point, counseled courts to look at the state of the law prior to the impugned legislation, and the scope that the legislature sought to regulate with the impugned law. It cannot be said that the government was targeting the general problem of intoxicated violence when it passed s. 33.1. When s. 33.1 was passed, the general problem of intoxicated violence had already been targeted by the Leary rules, as modified in Daviault , which s. 33.1 leaves untouched. Instead, the scope of s. 33.1 makes clear that it targets the one exception to the Leary rules created in Daviault, namely, violent offences committed by those who are in a state of automatism due to self-induced intoxication. It is an overstatement to claim that the mission of s. 33.1 is directed at intoxicated violence generally. [106] It is important to avoid overstating legislative objectives, as the Crown and trial judge have done. McLachlin C.J. cautioned in R.J.R.-MacDonald Inc. , at para. 144, that if the objective is stated too broadly, its importance may be exaggerated, and the entire s. 1 analysis compromised. As she pointed out in Alberta v. Hutterian Brethren of Wilson Colony , 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 76, “the first three stages of Oakes are anchored in an assessment of the law’s purpose.” [107] The issue now under consideration demonstrates the importance of stating the purpose accurately. As Spies J. noted in McCaw , at para. 31, in all four of the cases to save s. 33.1 under s. 1, the courts accepted that the objective of s. 33.1 is consistent with the Preamble. [2] None of the six cases that struck down s. 33.1 did so. [3] They each recognized that s. 33.1 is not targeted at alcohol-induced violence in general, but at the uncommon circumstance of violence committed by offenders while in a state of automatism as the result of self-induced intoxication. [108] Just as it is perilous to overstate the objective of challenged legislation, it is perilous to understate that objective when approaching s. 1. It understates the objective of s. 33.1 to accept, as some courts have, that the real purpose of s. 33.1 is to remove the narrow defence in Daviault : see Dunn , at para. 34; Brenton , at paras. 102-103; and McCaw , at para. 129. Casting the object of s. 33.1 in this way masks the underlying reason why Parliament wanted to remove that narrow defence, and it improperly confuses the means of the legislation with its purpose, which the Supreme Court of Canada has held to be erroneous in R. v. K.R.J. , 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 63. [109] When McLachlin C.J. and Major J., said, in Harper v. Canada (Attorney General) , 2004 SCC 33, [2004] 1 S.C.R. 827, at para. 25 (dissenting on other grounds) that, “the proper question at this stage of the analysis is whether the Attorney General has asserted a pressing and substantial objective” (emphasis in original), they were not saying that the principles I have just identified should be forgotten and the s. 1 analysis is to be based solely on the government’s articulation of the objective. They were making the point that in judging whether a purpose is pressing and substantial, evidence is not required, and courts may consider the identified objective using common sense alone to determine if it is pressing and substantial. [110] Accordingly, as the principles I have identified verify, in conducting a s. 1 analysis, courts must look at the substance of what is being done to determine the purpose of the legislation. On this basis, this court refined the Attorney General’s asserted purpose in Longley v. Canada (Attorney General) , 2007 ONCA 852, 88 O.R. (3d) 408, at para. 49, and the Supreme Court of Canada recently did so in Frank , at paras. 49 and 54. This enterprise is not about passing judgment on whether the Crown acted in good faith in describing the purpose as it did. It is about ensuring that the constitutional issues raised are addressed in context. [111] Properly stated, the underlying purposes or objectives of s. 33.1 are: (1) to hold individuals who are in a state of automatism due to self-induced intoxication accountable for their violent acts [the “accountability purpose”]; and (2) to protect potential victims, including women and children, from violence-based offences committed by those who are in a state of automatism due to self-induced intoxication [the “protective purpose”]. (b) Only the protective purpose is pressing and substantial (i) The accountability purpose cannot serve as a purpose under s. 1 [112] The accountability purpose is an improper “purpose” for s. 1 evaluation. Therefore, it cannot serve as a pressing and substantial purpose. [113] The reason can be stated simply. The constitutional principles at issue define when criminal accountability is constitutionally permissible, given entrenched, core values. To override principles that deny accountability, for the purpose of imposing accountability, is not a competing reason for infringing core constitutional values. It is instead a rejection of those values. It cannot be that a preference for other values over constitutionally entrenched values is a pressing and substantial reason for denying constitutional rights. The point can be put more technically by examining two principles that govern s. 1 evaluation. [114] First, legislation is unconstitutional if its purpose is unconstitutional: R. v. Big M. Drug Mart Ltd. , [1985] 1 S.C.R. 295, at p. 333. Since the Charter principles at stake here describe when it is unconstitutional to hold someone criminally accountable (i.e. in the absence of voluntariness or penal negligence), passing legislation to impose criminal accountability despite those principles is an unconstitutional purpose. A purpose cannot at once be unconstitutional and a pressing and substantial reason for overriding constitutional rights. [115] Second, all criminal legislation exists to hold offenders accountable. If accountability could serve as a pressing and substantial objective in criminal cases, the pressing and substantial purpose standard would be met whenever Parliament chooses to criminalize conduct. The Supreme Court of Canada has cautioned against accepting “purposes” that would inoculate any criminal legislation : R. v. Zundel , [1992] 2 S.C.R. 731, at p. 761; Sauvé , at para. 24. [116] For these reasons, the trial judge erred in relying on accountability as a pressing and substantial purpose and in using that purpose to frame the balance of his analysis. (ii) The protective purpose is pressing and substantial [117] In Daviault , Cory J. concluded that the protective purpose is not a pressing and substantial basis for infringing Charter principles. Given the infrequency of non-mental disorder automatism, there is no pressing need to remove the defence. At pp. 92-93, he explained: The experience of other jurisdictions which have completely abandoned the Leary rule, coupled with the fact that under the proposed approach, the defence would be available only in the rarest of cases, demonstrate that there is no urgent policy or pressing objective which need to be addressed. [118] However, this analysis from Daviault is not binding because it addressed the state of the common law, not the constitutionality of s. 33.1. [4] The “pressing and substantial purpose” holding is, therefore, open for reconsideration, and I am persuaded by my colleague that the existence of a pressing and substantial purpose should not turn solely on the infrequency of the problem addressed. As the tragic outcome in the cases now before this court demonstrate, even though acts of violence may only rarely be committed by individuals in a state of intoxicated automatism, the consequences can be devastating. This is enough to satisfy me that seeking to protect potential victims, including women and children, from violence-based offences committed by those who are in a state of automatism due to self-induced intoxication is a pressing and substantial purpose. (2) Proportionality (a) The rational connection test is not met [119] The rational connection requirement describes the link between the legislative objective and the legislative means chosen to achieve that objective. This rational connection need not be proven on a rigorous scientific basis. A causal connection based on reason or logic may suffice: R.J.R.-MacDonald Inc. , at paras. 137, 156. The Crown must establish a reasoned basis for concluding that “the legitimate and important goals of the legislature are logically furthered by the means the government has chosen to adopt”: Lavigne v. Ontario Public Service Employees Union , [1991] 2 S.C.R. 211, at p. 291. [120] The trial judge in Chan held that only the accountability purpose identified by the Crown satisfied this standard. He concluded that the protective purpose, even when expressed as broadly as it was by the Crown, did not. [121] I agree with the trial judge on the latter point. As the Crown recognized, deterrence is the means s. 33.1 relies upon to achieve its protective purpose. The trial judge was unpersuaded, “as a matter of common sense, that many individuals are deterred from drinking, in the off chance that they render themselves automatons and hurt someone.” I share that position. Effective deterrence requires foresight of the risk of the penal consequence. I am not persuaded that a reasonable person would anticipate the risk that, by becoming voluntarily intoxicated, they could lapse into a state of automatism and unwilfully commit a violent act. Even if this remote risk could be foreseen, the law already provides that reduced inhibitions and clouded judgment, common companions of intoxication, are no excuse if a violent act is committed. It is unlikely that if this message does not deter, removing the non-insane automatism defence will do so. Even bearing in mind the admonition in R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571, at para. 177, to exercise caution in accepting arguments about the ineffectiveness of legislative measures, I am not persuaded that s. 33.1 furthers the public protection purpose. [122] Nor can a rational connection be built upon the accountability purpose. I accept that the legislation is effective at achieving accountability, however, for the reasons already explained, accountability cannot be relied upon as a proper objective for s. 33.1. To use the language from Lavigne , a rational connection must be built upon “legitimate and important goals”: at p. 291, per Wilson J. Accountability is not a legitimate goal to employ to override Charter rights, which are designed to limit accountability. The trial judge erred in building a rational connection on the accountability objective. (b) The minimal impairment test is not met [123] In Morrison , at para. 68, Moldaver J. reaffirmed that “[t]o show minimal impairment, the party seeking to justify the infringement must demonstrate that the impugned measure impairs the right in question ‘as little as reasonably possible in order to achieve the legislative objective’”. This does not require Parliament to adopt the least restrictive means possible. The issue is whether Parliament could reasonably have chosen an alternative means which would have achieved the identified objective as effectively: R. v. Chaulk, [1990] 3 S.C.R. 1303, at p. 1341. [124] The trial judge found s. 33.1 to be minimally impairing. He accepted the Crown’s submissions that: (1) s. 33.1 is narrowly tailored because s. 33.1 is confined to violence-based, general intent offences involving self-induced intoxication; (2) Parliament had valid reasons for rejecting the only alternative that would directly achieve the objective of the legislation in a less impairing way; and (3) he should defer to the choice of Parliament. [125] I have concluded that the trial judge erred in making each of these decisions. (i) Section 33.1 is not narrowly tailored [126] The purported narrow tailoring of s. 33.1 does not provide a basis for a minimal impairment finding, as the identified limitations are not substantial. [127] By its terms, s. 33.1 is not confined to general intent offences. Section 33.1 prevents self-induced intoxication from being relied upon to establish that the accused “lacked the general intent or the voluntariness required to commit the [violence-based] offence” (emphasis added). On the face of s. 33.1, self-induced intoxicated automatism cannot be used to rebut voluntariness for any violence-based offence, regardless of whether it involves general or specific intent. [128] Moreover, s. 33.1 was confined to violence-based offences not to confine its reach but because, as the Preamble and the history of the provision confirms, this is the problem that Parliament was addressing. The mischief Parliament set out to address is covered completely. There is therefore no realistic foundation for the suggestion that the reach of s. 33.1 has been curtailed to achieve restraint. [129] Finally, and as already explained, the conception of the kind of self-induced intoxication that will undermine an automatism defence is aggressive in its scope. It is not confined to those who choose to become extremely intoxicated and to thereby court the remote risk of automatism. The Crown’s position is that anyone consuming an intoxicant, including prescription medication that they know can have an intoxicating effect, is caught, as are those who become intoxicated in the course of suicide attempts. [130] I would also note that, for those who are caught by s. 33.1, the relevant Charter rights are not merely infringed or compromised. They are denied entirely. I do not agree that s. 33.1 is narrowly tailored. (ii) Parliament did not have valid reasons for rejecting alternatives [131] However, narrow tailoring is not the central concern. Ultimately, minimal impairment is tested not by whether efforts were made to confine its reach, but by whether, given the context, Parliament could reasonably have chosen less intrusive alternative means, which would have achieved the identified objective as effectively. In my view, the Crown has failed to demonstrate that there are not less intrusive reasonable alternatives. [132] First, I agree with the trial judge that the option of a stand-alone offence of criminal intoxication would achieve the objective of s. 33.1. Making it a crime to commit a prohibited act while drunk is the response Cory J. invited in Daviault, at p. 100, and that was recommended by the Law Reform Commission of Canada: see Recodifying Criminal Law , Report 30, vol. 1 (1986), at pp. 27-28. It is difficult to reject this option as a reasonable alternative given the impressive endorsements it has received. [133] But would this new offence be equally effective as s. 33.1? Creating such an offence would arguably be more effective in achieving the Preamble objective of protecting against acts of intoxicated violence, as it would serve to deter voluntary intoxication directly and more broadly than s. 33.1 does. It would do so by making the act of intoxication itself the gravamen of the offence, and its reach would not be confined to those who are in a state of automatism because of self-induced intoxication. Instead, its reach would depend on whether the intoxication was dangerous, as demonstrated by the commission of a violence-based offence. [134] Certainly, this option would also be less impairing than s. 33.1 since it does not infringe, let alone deny, the Charter rights that s. 33.1 disregards. It would criminalize the very act from which the Crown purports to derive the relevant moral fault, namely, the decision to become intoxicated in those cases where that intoxication proves, by the subsequent conduct of the accused, to have been dangerous. [135] I do not agree with the trial judge, or the Crown, that Parliament had valid reasons for choosing s. 33.1 instead of this option. Two of the reasons relied upon for doing so are legally invalid and it was an error for the trial judge to accept them. More specifically, the objections that such an offence would: (1) appear to create a sentencing discount for intoxicated offenders; or (2) undermine the object of accountability by suggesting that the accused is not guilty of the violence-based act, are accountability concerns. As indicated, the desire to impose accountability cannot support a reasonable limit on Charter rights that exist to restrict the reach of accountability, such as the Charter rights denied by s. 33.1. In any event, it would not be the offence of intoxicated violence that suggests that the accused is not guilty of the violence-based act. It is the presumption of innocence and the principles of fundamental justice that produce this result. [136] Nor can the rejection of the criminal intoxication option be justified on the basis that such an offence may have other constitutional problems of its own. I understand that the unconstitutionality of an option would make that option unreasonable, but I cannot accept that a constitutional infringement can be justified as a stratagem for avoiding another possible constitutional infringement. [137] The alternative option that the Crown has not disproved is to simply permit the Daviault decision to operate. By design, the non-mental disorder automatism defence is difficult to access. As with other defences, if there is no air of reality to the defence based on the evidence, it should not be considered: Stone , at paras. 166-168. It is also a reverse onus defence, and it requires expert evidence: Daviault , at p. 101. If the defence is not established on the balance of probabilities, it fails: Stone , at para. 179. Indeed, it may well have failed for Mr. Daviault had the complainant not died before his retrial. According to evidence that Parliament has accepted, alcohol intoxication is not capable, on its own, of inducing a state of automatism: see Preamble of Bill C-72. Had similar evidence been presented and accepted at Mr. Daviault’s retrial, he would have been convicted. [138] Moreover, even in those few cases where the accused might succeed in demonstrating automatism as the result of the voluntary consumption of intoxicants, the accused may not be acquitted. If the accused is unable to establish that the cause of the automatism was not a disease of the mind, which it will be if the automatism is internally caused or there is a continuing danger of further episodes of automatism, the accused will not be acquitted, but found not criminally responsible on account of mental disorder: Stone , at paras. 197-217. The accused would then be subject to a disposition hearing driven by public safety considerations. [139] I do not accept the Crown’s submission that accepting this “do nothing” option cannot operate as a more minimally impairing strategy because “it directly subverts Parliament’s goal by allowing extremely intoxicated violent offenders to escape liability.” Again, this is an accountability argument and, as I have indicated, given that the principles of fundamental justice at stake exist to define the constitutional preconditions to criminal accountability, the desire to impose accountability is itself an unconstitutional purpose. [140] This submission also materially understates the effect of the common law after Daviault . As demonstrated, in the few cases where there will be an air of reality to the concern that extreme intoxication has led to automatism and then to violence, the prospects of escaping liability are slim. I have already expressed my view that it is unrealistic to think that s. 33.1 adds any meaningful deterrence augmentation to the Leary rules, as modified in Daviault . Realistically, who would choose to consume intoxicants because they have reasoned that, if all goes wrong, they will have the non-mental disorder automatism defence? However, assuming for the sake of the exercise that s. 33.1 could have some additional deterrent effect, one would think that the unlikelihood of the common law defence succeeding would have a comparable deterrent effect. [141] In the circumstances, I am satisfied that the Crown has not disproved that the Daviault regime is not a reasonable and equally effective but less impairing alternative to s. 33.1, in protecting potential victims from violence committed by those who are in a state of automatism as the result of self-induced intoxication. (iii) Deferring to Parliament was not appropriate in this case [142] Third, I disagree with the trial judge’s reliance on deference to support his finding that minimal impairment had been demonstrated. The trial judge was correct to turn his mind to this. The context-driven inquiries that s. 1 entails generally call for deference, particularly in examining minimal impairment. However, this is not a case where there is room for the kind of reasonable disagreement that could trigger deference. The minimal impairment test is simply not met. [143] I would therefore hold that the trial judge erred in finding that the Crown demonstrated minimal impairment, and find that s. 33.1 is not, in fact, minimally impairing. (c) Overall proportionality is not achieved [144] Overall proportionality entails the proper identification of the salutary or positive effects of the legislation, and its deleterious or negative effects on the Charter- protected interests at stake. To save legislation that is in prima facie violation of the Charter , the Crown must demonstrate on the balance of probabilities, that there is proportionality between those salutary and deleterious effects. [145] The trial judge found, in this case, that the Crown had demonstrated overall proportionality. I accept the trial judge’s conclusion that “no right is sacrosanct. Each must be considered in context and each may at times bend to other pressing rights or concerns.” However, with respect, I would find that he erred in his reasoning, and in the result he achieved. [146] First, the trial judge’s analysis rests heavily on the salutary effects of imposing accountability. As explained, I am persuaded that the accountability purpose cannot be relied upon in the s. 1 evaluation, given that infringing constitutional limits on accountability in order to impose accountability is itself an unconstitutional purpose. [147] Second, the trial judge predicated his balancing on the generic proposition that “[t]hose who self-intoxicate and cause injury to others are not blameless.” He did so without apparent recognition of the expansive grasp of the concept of self-induced intoxication, catching as it does, even those who would fall into a state of automatism after choosing to become mildly intoxicated, and perhaps even those who are complying with a prescribed, medically-indicated drug that they know may cause intoxicating effects. The theory of moral fault that he relied upon cannot be sustained. [148] Third, the trial judge gave undue weight to the extent to which s. 33.1 provides for the safety of the potential victims, including women and children. As I have indicated, I am persuaded that the protection thesis cannot be supported on a reasoned basis. Viewing the matter realistically, the deterrence that the law achieves must come from the Leary rules, as modified in Daviault, not from the added and remote prospect that if a rare and unforeseen case of automatism should happen to occur and lead to violence, non-mental disorder automatism is off the table. [149] Fourth, despite recognizing that the identified Charter infringements are serious, the trial judge minimized their impact by observing that they arise in very few cases. The proper measure is the impact of s. 33.1 on those it affects, not its lack of impact on those it does not affect. [150] For these reasons, I would conclude that the trial judge erred in applying the overall proportionality test, and I would find that the Crown has failed to demonstrate that overall proportionality is attained. [151] The deleterious effects of s. 33.1 are profound. Specifically, s. 33.1 enables the conviction of individuals of alleged violence-based offences, even though the Crown cannot prove the requisite elements of those offences, which is contrary to the principles of fundamental justice and the presumption of innocence. It enables the conviction of individuals for acts they do not will. It enables the conviction of individuals of charged offences, even though those individuals do not possess the mens rea required by those offences, or even the minimum level of mens rea required for criminal fault. And it does so, predicated on a theory of moral fault linked to self-induced intoxication, expressed by the Crown before us in language captured in R. v. Decaire , [1998] O.J. No. 6339 (Ct. J. (Gen. Div.)), at para. 20: “People who consume alcohol should recognize that continuing to drink after they sense a loss of control of inhibitions, poses a danger to themselves and others.” Yet, s. 33.1 is not confined to those who set out to become extremely intoxicated. It employs a definition of self-induced intoxication that catches anyone who has consumed an intoxicant, including with restraint or perhaps even for medically-indicated purposes. [152] Moreover, as Cory J. recognized in Daviault , at p. 87, even leaving aside the other objections I have identified, it is not appropriate to transplant the mental element from the act of consuming intoxicants for the mental element required by the offence charged, particularly where the act of self-inducing intoxication is over before the actus reus of the offence charged occurs. This is what s. 33.1 seeks to do. This transplantation of fault is contrary to the criminal law principle of contemporaneity, which requires the actus reus and mens rea to coincide at some point: see R. v. Williams , 2003 SCC 41, [2003] 2 S.C.R. 134, at para. 35. [153] Put simply, the deleterious effects of s. 33.1 include the contravention of virtually all the criminal law principles that the law relies upon to protect the morally innocent, including the venerable presumption of innocence. [154] Only the most compelling salutary effects could possibly be proportional to these deleterious effects. Yet, s. 33.1 achieves little. If not entirely illusory, its contribution to deterrence is negligible. I have already explained that the protective purpose relied upon carries little weight. [155] The Crown and supporting interveners argue that s. 33.1 has collateral salutary effects, such as: “(i) encouraging victims to report intoxicated violence, (ii) recognizing and promoting the equality, security, and dignity of crime victims, particularly women and children who are disproportionately affected by intoxicated violence, and (iii) avoiding normalizing and/or incentivizing intoxicated violence.” [156] I see no reasoned basis for concluding that victims who would have reported intoxicated violence would be unlikely to do so because of the remote possibility that a non-mental disorder automatism defence could be successfully raised, or that s. 33.1 plays a material role in preventing the normalization and incentivization of intoxicated violence. Section 33.1 addresses a miniscule percentage of intoxicated violence cases. [157] As for recognizing and promoting the equality, security, and dignity of crime victims, it is obvious that those few victims who may see their offenders acquitted without s. 33.1 will be poorly served. They are victims, whether their attacker willed or intended the attack. However, to convict an attacker of offences for which they do not bear the moral fault required by the Charter to avoid this outcome, is to replace one injustice for another, and at an intolerable cost to the core principles that animate criminal liability. [158] What, then, of the benefits of imposing accountability on those who are in a state of non-mental disorder automatism when they commit violent acts? If I am mistaken, and this is a proper s. 1 consideration, would the benefit of doing so alter the balance? Not in my view. [159] My colleague describes the accountability benefit as ensuring that those who are in a state of self-induced intoxicated automatism are subject to the same penal consequences for violent acts as those whose state of intoxication fall just below a state of automatism. With respect, the move to accountability should not be seen as an exercise in eliminating a distinction based on degree. The material distinctions are between: those who act wilfully and those who do not; those who are proved to have the mens rea for the charged offence and those who do not; and those who have the constitutionally minimum level of fault and those who do not. When balancing the competing interests, it must be remembered that the decision to impose accountability is in direct contravention of the relevant Charter principles. Even if accountability is a proper s. 1 consideration, the benefits it brings must be seen in that light, and its value diminished accordingly. The benefit of accountability is not, alone or when combined with other salutary effects, proportional to its deleterious effects [160] Recently, in Morrison , at para. 72, the Supreme Court of Canada held that the promise of additional convictions for the serious offence of child luring could not outweigh the deleterious effect of “sweeping in accused persons” whose mens rea “may be the subject of reasonable doubt”. The circumstances are distinguishable, but the outcome is the same. With very little true gain, Parliament has attempted to cast aside the bedrock of moral fault. I would find that the Crown has not shown that s. 33.1 achieves overall proportionality. (3) Conclusion on s. 1 [161] I would conclude that the Crown has not demonstrated that s. 33.1 is a demonstrably justifiable limit on the Charter rights at stake, in a free and democratic society. Accordingly, I would declare s. 33.1 to be of no force or effect, pursuant to s. 52(1) of the Constitution Act , 1982 . D. If s. 33.1 cannot be saved by s. 1 of the Charter and is of no force OR effect, should Mr. Chan’s acquittal be ordered? [162] Since Mr. Chan should have been provided with the opportunity to invoke the non-mental disorder automatism defence, I would set aside his convictions and order a new trial. [163] Mr. Chan urges that the proper outcome is an acquittal. He contends that since the trial judge found Mr. Chan to be incapacitated, other than by reason of mental disorder, the automatism defence is satisfied. I do not agree. [164] The trial judge made no finding that Mr. Chan was not acting voluntarily. Instead, he found that as a result of psychosis induced by intoxication, Mr. Chan was incapable of knowing that his actions would be considered wrong according to moral standards of reasonable members of society. This is not a finding of non-mental disorder automatism. A person can lack the capacity to know their acts are wrong, yet still voluntarily choose to engage in those acts. [165] Mr. Chan sought to overcome the distinction I have identified by relying on Cory J.’s references in Daviault to “extreme intoxication akin to automatism or insanity”. Mr. Chan argues that non-mental disorder automatism, as described in Daviault , encompasses his situation because his mental state was akin to “insanity” or mental disorder, even if caused by extreme intoxication. I do not accept this submission. That language was not intended to extend the non-mental disorder automatism defence beyond cases of automatism. In Daviault , at p. 100, Cory J. emphasized that: “drunkenness akin to insanity or automatism” describes a person so severely intoxicated that he is incapable of forming even the minimal intent required of a general intent offence. The phrase refers to a person so drunk that he is an automaton. [166] Since the trial judge did not consider whether Mr. Chan had reached the stage of automatism, he is entitled to a new trial, not an acquittal. THE CHAN APPEAL: CONCLUSION [167] I would therefore allow Mr. Chan’s appeal, set aside his convictions, and order a new trial. [168] As a result of the COVID-19 emergency, the panel relieved Mr. Chan from the term of his bail that requires him to surrender into custody prior to this decision being released. THE SULLIVAN APPEAL: MATERIAL FACTS [169] Mr. Sullivan’s extreme intoxication resulted from his ingestion of the drug, Wellbutrin. The Wellbutrin was prescribed to help him stop smoking. Psychosis is one of its known side effects. From the time Mr. Sullivan began taking and occasionally abusing Wellbutrin, he experienced episodes where he believed aliens he called “Archons” were living in the condominium he shared with his mother. [170] On December 1, 2013, after ingesting between 30 to 80 of the Wellbutrin tablets in a suicide attempt, he had a profound break with reality. He believed he had captured an Archon in the condominium living room. He brought his mother into the living room to show her. As she tried to assure him that there was nothing in the room, believing her to be an alien, he attacked her, stabbing her several times with two kitchen knives. [171] During the attack, his mother screamed, “David, I’m your mother”. Mr. Sullivan dropped the knives and ran to a bedroom. Emergency services were called. When the police arrived, Mr. Sullivan was outside of the apartment complex screaming incoherently and running erratically. His mother survived the attack but died of unrelated causes before trial. [172] At his trial, it was not disputed that Mr. Sullivan was acting involuntarily when he stabbed his mother. Mr. Sullivan attempted to rely on the defence of non-mental disorder automatism but did not challenge the constitutional validity of s. 33.1. He argued, instead, that s. 33.1 did not apply in his case since his intoxication was not voluntary. In the alternative, he invoked the mental disorder defence. [173] The trial judge agreed that Mr. Sullivan’s attack against his mother was involuntary. In considering the implications of that finding, he began with the mental disorder defence, which is presumed to apply where automatism has been established: Stone , at para. 199. Taking a “holistic approach” to determine the nature of the automatism, the trial judge concluded that the cause of Mr. Sullivan’s automatism was external, and that he did not pose a continuing danger. The trial judge found that “this is one of the rare cases where automatism was not caused by mental disorder”, but by intoxication. He therefore rejected the mental disorder defence under s. 16 of the Criminal Code . [174] The trial judge then considered the non-mental disorder automatism defence. He found that this defence was prevented by s. 33.1 because Mr. Sullivan’s intoxication had been voluntary. The trial judge applied the following test in making that determination: “Voluntary intoxication means that Mr. Sullivan consumed Wellbutrin when he knew or had reasonable grounds to believe that it might cause him to be impaired.” [175] Accordingly, Mr. Sullivan was convicted of aggravated assault, contrary to Criminal Code , s. 268(1), and using a weapon, a knife, in committing an assault, contrary to Criminal Code , s. 267(a). [176] At his trial, Mr. Sullivan was also convicted of four counts of failing to comply with recognizance orders, relating to post-attack communications he had with his sister, in breach of a December 4, 2013 non-communication order prohibiting him from contacting her. Those calls occurred between December 29, 2013 and January 5, 2014. [177] Mr. Sullivan attempted to defend these charges by maintaining that he was unaware of the communication order. He testified to that effect. [178] The trial judge did not believe that testimony because of his low credibility and reliability. He then said: Mr. Sullivan had multiple court appearances before December 24, 2013. The non-communication order would have been discussed at some, if not all, of those appearances. Mr. Sullivan’s psychosis had resolved and he is a very intelligent person. I’m satisfied beyond a reasonable doubt that prior to December 24, 2013, Mr. Sullivan was aware that there was a court order prohibiting him from communicating with both his mother and his sister. THE SULLIVAN APPEAL: ISSUES [179] In Mr. Sullivan’s conviction appeal, [5] he submits that he should be permitted to raise a Charter challenge to s. 33.1 of the Criminal Code on appeal for the first time, and that s. 33.1 should be found to be unconstitutional. He also argues that in the course of his judgment, the trial judge erred in defining “voluntary intoxication”. Finally, Mr. Sullivan contends that the trial judge erred in finding him guilty of breach of recognizance charges without proof that he knew the terms of his recognizance. He requests verdicts of acquittal on all charges. [180] The appeal issues can therefore be stated as follows: A. Should Mr. Sullivan be permitted to challenge the constitutional invalidity of s. 33.1 for the first time on appeal? B. Did the trial judge err in relying on s. 33.1? C. Did the trial judge err in law in applying an incorrect test for “voluntary intoxication”? D. Did the trial judge err in finding Mr. Sullivan guilty of breach of recognizance charges without proof that he knew of the terms of his recognizance? [181] Since I would resolve the first two grounds of appeal in the affirmative and they resolve the s. 33.1 issues, the third ground of appeal need not be addressed. A. Should Mr. Sullivan be permitted to CHallenge the constitutional invalidity of s. 33.1 for the first time on appeal? [182] The Crown agrees that the trial judge’s reasons disclose that s. 33.1 was the sole basis for Mr. Sullivan’s convictions of the violence-based offences. The Crown conceded that if this court declares s. 33.1 unconstitutional in the Chan appeal, Mr. Sullivan’s violence-based convictions should be set aside, even though he did not raise the constitutional validity of s. 33.1 at his trial. This concession is obviously correct since Mr. Sullivan’s case is still in the system and convictions that depend upon a law that is of no force or effect cannot be upheld on appeal. B. Did the trial judge err in relying on s. 33.1? [183] Given the conclusion in Chan that s. 33.1 is of no force or effect, I would conclude that the trial judge erred in relying on s. 33.1 and allow this ground of appeal. As conceded by the Crown, the trial judge found Mr. Sullivan to have been in a state of non-mental disorder automatism at the time of the attacks that led to his convictions of aggravated assault and assault using a weapon. C. Did the trial judge err in finding Mr. Sullivan guilty of breach of recognizance charges without proof that he knew of the terms of his recognizance? [184] There is controversy nationally about whether a breach of a term of recognizance contrary to s. 145(3) of the Criminal Code requires a subjective or objective mens rea. [6] Binding authority of this court in R. v. Legere (1995), 22 O.R. (3d) 89 (C.A.) has applied a subjective mens rea standard. Therefore, the Crown must establish that the accused had actual knowledge of the condition. Mr. Sullivan’s appeal proceeded on this basis. [185] Mr. Sullivan does not take issue with the trial judge’s finding that he had the ability to understand what transpired in court. His issue is with the trial judge’s finding that he had the requisite subjective knowledge of the conditions to support his convictions. Specifically, Mr. Sullivan challenges the trial judge’s “assumption” that the conditions of the non-communication order would have been discussed at some, if not all, of his court appearances. [186] I need not decide whether the trial judge erred in making this finding because Mr. Sullivan joined in an agreed statement of facts that contained two relevant passages that confirm his subjective knowledge: On December 4, 2013, during an appearance in bail court, the accused was ordered not to communicate, directly or indirectly, with a number of individuals (principally witnesses, as well as his mother and other members of his family) while he was remanded to custody pending a bail hearing The accused acknowledges that the non-communication order was in place and was valid at the relevant times, that it was imposed by a competent court in his presence, and that he made the phone calls contrary to the order …while he was remanded in custody at the Central East Correctional Centre. However, he disputes that he knew he was not allowed to contact his mother and sister. [Emphasis added.] [187] During his testimony, Mr. Sullivan did not resile from the position that the order was imposed by a competent court in his presence. Even if the trial judge should not have found on the evidence that the terms would have been discussed during Mr. Sullivan’s multiple court appearances, no miscarriage of justice has occurred. The trial judge’s conclusion that the terms of the recognizance had been communicated to Mr. Sullivan is supported by the uncontested facts. I would therefore reject this ground of appeal. THE SULLIVAN APPEAL: CONCLUSION [188] I would therefore allow Mr. Sullivan’s appeal from his convictions of aggravated assault, contrary to Criminal Code , s. 268(1), and using a weapon, a knife, in committing an assault, contrary to Criminal Code , s. 267(a). I would set aside those convictions and substitute verdicts of acquittal. I would reject Mr. Sullivan’s appeal of his breach of recognizance convictions and affirm those convictions. Since Mr. Sullivan has already served his sentence on the breach of recognizance offences, there is no need to adjust his sentence to reflect the mixed success of his appeal. “David M. Paciocco J.A.” “I agree. David Watt J.A.” Lauwers J.A. (Concurring): [189] I concur in the result reached by my colleague. I agree that: s. 33.1 of the Criminal Code , R.S.C. 1985, c. C-46 limits the Charter rights of the appellants under ss. 7 and 11(d); the Crown has not met its burden under s. 1 of the Charter of demonstrating that the limits s. 33.1 imposes are “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society;” and, consequently, s. 52(1) of the Constitution Act, 1982 deems s. 33.1 to be “of no force or effect,” to the extent of any inconsistency with the Charter . [190] I concur without reservation with my colleague’s reasons as expressed in the overview, his analysis concluding that the Chan trial judge was not bound by precedent to accept the unconstitutionality of s. 33.1, and the disposition. [191] I have reservations in two areas. First, I agree generally with my colleague’s analysis of the limits imposed by s. 33.1 on the ss. 7 and 11(d) rights of the appellants but make additional observations that are especially pertinent to the subsequent s. 1 analysis. [192] Second, I believe that this court is bound by the Supreme Court’s decisions in Bedford and Carter to apply the Bedford/Carter framework to the issue of whether s. 33.1 limits s. 7 Charter rights, in addition to the more traditional analysis my colleague undertakes: Canada (Attorney General) v. Bedford , 2013 SCC 72, [2013] 3 S.C.R. 1101; Carter v. Canada (Attorney General) , 2015 SCC 5, [2015] 1 S.C.R. 331. [193] Finally, I disagree with the substance and tone of my colleague’s analysis of s. 1 of the Charter and its application to s. 33.1 of the Criminal Code , while I concur in the result. [194] I address each reservation in turn. (1) Does s. 33.1 limit the appellants’ ss. 7 and 11(d) Charter rights? [195] R. v. Daviault modified the Leary rule: [1994] 3 S.C.R. 63, [1994] S.C.J. No. 77; Leary v. The Queen , [1978] 1 S.C.R. 29. The Daviault majority held that to be Charter -compliant, evidence of extreme self-induced intoxication must be admissible in defence, whether the offence is one of general intent or specific intent. An accused person who can establish that the offence was committed in a state of automatism resulting from self-induced intoxication, on the balance of probabilities and with the assistance of expert evidence, is entitled to be acquitted. [196] With respect to these appeals, I note that, but for s. 33.1, the defence of intoxication would have been available to Mr. Chan and Mr. Sullivan on the basis of Daviault . The charges at issue in these appeals are almost all general intent offences. Mr. Chan was convicted of manslaughter, contrary to s. 234 of the Criminal Code , and aggravated assault, contrary to s. 268. Mr. Sullivan was charged with aggravated assault, contrary to s. 268; assault with a weapon, contrary to s. 276(a); possession of weapon for dangerous purpose, contrary to s. 88; and failure to comply with recognizance, contrary to s. 145(3) of the Criminal Code . He was convicted of aggravated assault, assault with a weapon, and breach of recognizance. Only possession of weapon for dangerous purpose is a specific intent offence. The rest are general intent offences. [197] The trial judge in Chan correctly held that s. 33.1 limits the ss. 7 and 11(d) Charter rights at issue in these appeals by substituting the mental element and thereby bypassing the voluntariness and mental element requirements for criminal convictions and the presumption of innocence on the predicate violent offences. Section 33.1 replicates the same defects in the Leary rule that the Supreme Court corrected in Daviault . The trial judge rightly recognized that s. 33.1 “does the very thing that was … held unconstitutional in Daviault ,” albeit in a narrower compass: at para. 72. His analysis in paras. 46, 48, 72, and 79-80 is particularly trenchant, and I would agree with it. [198] Section 33.1 tries to sidestep Daviault by substituting the mental element associated with penal negligence for the mental element ordinarily required for the predicate violent acts. But, in Daviault , the Supreme Court found that this type of substitution – replacing the mental element for sexual assault with the mental element required for intoxication, for example – was a fatal flaw in the Leary rule. Did the design of s. 33.1 overcome the court’s concern? I agree with my colleague that it did not. [199] The outcome of these appeals turns on whether the limits s. 33.1 imposes on the appellants’ ss. 7 and 11(d) Charter rights can be justified under s. 1. (2) The Application of the Bedford/Carter s. 7 Framework to s. 33.1 [200] The trial judge in Chan referred to the Crown’s suggestion that, following Bedford and Carter , “the court must measure s. 33.1 against the principles of arbitrariness, overbreadth and gross disproportionality”: at para. 92. The trial judge declined to do so because the point had not been fully argued before him, and because Mr. Chan chose to rely on the other fundamental principles discussed above. [201] Bedford and Carter were raised in these appeals, along with this court’s decision in R. v. Michaud in which this court was the first in Canada to uphold a limit on a s. 7 right under s. 1 of the Charter : 2015 ONCA 585, 127 O.R. (3d) 81, leave to appeal refused, [2015] S.C.C.A. No. 450. Bedford and Carter reframed the relationship between ss. 7 and 1 of the Charter , as was explained in Michaud , at para. 62. Consequently, the trial judge was, and this court is, obliged to consider the Bedford/Carter reframing. [202] Before addressing the s. 7 analysis under the Bedford/Carter framework, I consider the restated relationship between ss. 7 and 1 of the Charter . a. The Relationship Between ss. 7 and 1 of the Charter Post- Bedford/Carter [203] Section 7 of the Charter is meant to assess “the negative effect on the individual against the purpose of the law, not against societal benefit that might flow from the law” (emphasis in original): Bedford , at para. 121. Section 7 focuses on the relationship between the individual claimant and the law, while s. 1 of the Charter focuses on the relationship between the private impact and the public benefit of the law: Bedford , at paras. 124-129. The balancing function – “whether the negative impact of the law on the rights of individuals is proportional to the pressing and substantial goal of the law in furthering the public interest” – is addressed only in the s. 1 Charter analysis, after the claimant has established the s. 7 limit: Bedford , at para. 125. [204] I would therefore not give effect to the submission of the intervener LEAF that s. 7 of the Charter requires “internal balancing” in identifying the relevant principles of fundamental justice for consideration. It is the court’s task under s. 1 of the Charter , not under s. 7, to carry out any balancing between the accused’s interests and the public interest that LEAF asserts – equality and the human dignity of women and children who are disproportionally victimized by intoxicated offenders. [205] I next carry out the s. 7 analysis under the Bedford/Carter framework before conducting the s. 1 analysis. b. The Governing Principles under the Bedford/Carter Framework [206] The analytical framework established in the s. 7 jurisprudence requires an assessment of three negative “principles of fundamental justice”: arbitrariness, overbreadth, and gross disproportionality: Bedford , at paras. 94, 96. In Bedford , the Supreme Court described these principles as "failures of instrumental rationality": at para. 107; see Professor Hamish Stewart, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (Toronto: Irwin Law Inc., 2019), at pp. 150, 187. [207] Professor Stewart points out that each of these principles is not a silo operating entirely independently; they are connected: Fundamental Justice , at p. 189; Bedford , at para. 109; Canada (Attorney General) v. PHS Community Services Society , 2011 SCC 44, [2011] 3 S.C.R. 134, at para. 127. Each case usually responds more aptly to one principle, while the other principles offer different perspectives. Moreover, “ it is possible for a law to offend one of these norms without offending the other two”: Fundamental Justice , at p. 189. [208] The Supreme Court identified two “evils” at which these principles are directed. The "first evil" is the “absence of connection between the law's purpose and the s. 7 deprivation”, which engages the principles of arbitrariness and overbreadth: Bedford , at para. 108. The “second evil” arises where the law’s effects on an individual’s life, liberty, or security of person operate “in a manner that is grossly disproportionate to the law’s objective”, and therefore engages the third principle of gross disproportionality: Bedford , at para. 109. [209] Overbreadth is engaged when a law is so broad it captures some conduct that bears no rational connection to its purpose: Bedford , at para. 112. This principle recognizes that the law may be “rational in some cases, but that it overreaches in its effect in others”: Bedford , at para. 113. Professor Stewart describes overbreadth as the “dominant” principle of the three: Fundamental Justice , at p. 152. [210] The principle of “arbitrariness” exists where there is no “direct” or “rational” connection “between the purpose of the law and the impugned effect on the individual,” or if it can be shown that the impugned effect undermines the law’s objective: Bedford , at para. 111. In the area of any overreach, the law is to be understood as arbitrary. That is why the principles of arbitrariness and overbreadth are related but distinct principles: Bedford , at para. 117. [211] Gross disproportionality considers whether “the law's effects on life, liberty or security of the person” are so disproportionate that “the deprivation is totally out of sync with the objective of the measure”: Bedford , at para. 120. [212] If a law violates one of these principles, “there is a mismatch between the legislature’s objective and the means chosen to achieve it”: Fundamental Justice , at p. 150. c. The Principles under the Bedford/Carter Framework Applied [213] Methodologically, it is necessary to first identify the objective of s. 33.1 in order to execute the s. 7 analysis. The trial judge identified the law’s objectives in his s. 1 analysis, which will serve the purpose here. He found that the objectives of s. 33.1 are those stated in the Preamble to Bill C-72 and are: “the protection of women and children from intoxicated violence and ensuring the accountability of those who commit offences of violence while intoxicated”: at paras. 115, 121. [214] I agree that Parliament was seeking to discourage “self-induced intoxication,” which it described as “blameworthy,” in order to prevent violence, “particularly violence against women and children,” for which persons “should be held accountable”: see Preamble to Bill C-72. As noted, there is a high correlation between self-induced alcohol intoxication and violence, particularly violence by intoxicated men against women and children. This is the “protective objective” of s. 33.1. [215] The trial judge referred to “accountability” as another objective of s. 33.1. I interpret his use of “accountability” as intending to capture the penal objective of s. 33.1. In submissions to Parliament prior to the enactment of Bill C-72, there was a pervasive sense of outrage at the prospect that a person who sexually assaulted an elderly disabled woman might be permitted to escape punishment on the ground of excessive intoxication, as was the case in Daviault . This reflects a deep intuition of justice that those who commit such terrible acts should be equally subject to penal consequences and should pay the same price, excessively intoxicated or not. Such acts should never be consequence free. More precisely, those who could have sheltered under the defence of non-mental disorder automatism are now, under s. 33.1, subjected to the same penal consequences for their violent acts as those whose state of intoxication was slightly less so as not to be in a state of automatism when committing those same acts. This is the “penal objective” of s. 33.1. The protective and the penal objectives are related but also separate and distinct. [216] Although it is plausible that the legislation could discourage people from extreme alcohol intoxication, that dynamic would not apply to people like Mr. Chan and Mr. Sullivan. Neither was drinking. Neither had any reason to believe that their voluntary self-intoxication would culminate in violent psychosis. Common sense suggests that s. 33.1 would not discourage people who lack any basis for believing that self-intoxication would cause them to become psychotic from self-intoxicating. Because their conduct was captured under s. 33.1, the provision is overbroad in the Bedford sense because there is no connection between the law’s objectives and its effects on the appellants: Bedford , at para. 112. The law is also arbitrary in the area of overbreadth because its effects on Mr. Chan and Mr. Sullivan bear no connection to its stated objectives: it punishes those who did not foresee that self-intoxication would lead to acts of violence. [217] An overbroad law adversely impacting an individual’s s. 7 rights is sufficient to establish a limit. The Supreme Court stated in Bedford : “ The question under s. 7 is whether anyone’s life, liberty or security of the person has been denied by a law that is inherently bad; a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach of s. 7” (emphasis in original): at para. 123. It is plain that the s. 7 rights of both Mr. Chan and Mr. Sullivan have been limited by s. 33.1 of the Criminal Code , along with other similarly situated persons. d. Conclusion on the Application of the Bedford/Carter Framework [218] The s. 7 analysis in these appeals proceeds at two levels. The first is the assessment undertaken by the trial judge in the more traditional pattern of Daviault . It identified several limits resulting from bypassing the voluntariness and mental element requirements and the presumption of innocence for criminal convictions on the predicate violence-based charges. These limits apply generally to all those to whom s. 33.1 applies and are about as fundamental as rights get in the criminal context. [219] The application of the Bedford/Carter framework adds an element. It shows that s. 33.1 is overbroad and arbitrary in its application specifically to Mr. Chan and Mr. Sullivan. Their s. 7 rights were limited by the operation of s. 33.1 in the sense that there is no connection between the law’s two objectives, protective and penal, and the law’s effects on the appellants. [220] The next question is whether the identified limits can be demonstrably justified under s. 1 of the Charter . (3) Are the rights limits imposed by s. 33.1 of the Criminal Code demonstrably justified under s. 1 of the Charter ? [221] Section 33.1 of the Criminal Code limits the Charter rights of the appellants under ss. 7 and 11(d). If the Crown fails to discharge its burden under s. 1 of demonstrating that s. 33.1 imposes “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” then s. 52(1) of the Constitution Act, 1982 will deem s. 33.1 to be “of no force or effect,” to the extent of any inconsistency with the Charter . a. Overview [222] I need not restate the Oakes framework: R. v. Oakes , [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7. [223] I begin by addressing whether the s. 1 analysis in Daviault is dispositive of these appeals. From there, I continue with observations about the contextual approach to the s. 1 analysis; the role of judicial deference to Parliament; and the current approach to the Oakes analysis. The interplay of ss. 7 and 1 in the proportionality analysis makes these appeals somewhat unusual. i. Is the Supreme Court’s Analysis in Daviault Dispositive of these Appeals? [224] While Daviault provides guidance, it is not dispositive of the s. 1 analysis. As with any legal doctrine, earlier holdings are subject to modification by later doctrinal developments. [225] The Daviault majority found that similar rights limitations established by the common law in Leary could not be justified under s. 1 of the Charter . Cory J. explained, “this rare and limited defence in general intent offences is required so that the common law principles of intoxication can comply with the Charter ”: at para. 67. This conclusion flowed from his earlier statement that: “the Leary rule applies to all crimes of general intent, it cannot be said to be well tailored to address a particular objective and it would not meet either the proportionality or the minimum impairment requirements”: at para. 47. Cory J. added that, because there was an insufficient link between intoxication and criminal acts and, “under the proposed approach, the defence would be available only in the rarest of cases … there is no urgent policy or pressing objective which needs to be addressed”: at para. 47. [226] However, the Daviault majority held that the reverse onus created by placing the burden on the accused to establish automatism on the balance of probabilities, with the assistance of expert evidence, was a reasonable limit of the accused’s Charter rights: at para. 63. The reverse onus has not been raised as an issue in these appeals. [227] Since 1994, when Daviault was decided, the doctrine has evolved with experience and is considerably more nuanced, particularly as the result of Alberta v. Hutterian Brethren of Wilson Colony , 2009 SCC 37, [2009] 2 S.C.R. 567, Bedford , and Carter . Further, Parliament’s legislative response to Daviault must be assessed with fresh judicial eyes: R. v. Mills , [1999] 3 S.C.R. 668. ii. A Contextual Approach to s. 1 of the Charter is Required [228] It is now trite law that the s. 1 analysis is contextual and fact-specific. McLachlin J. (as she then was) observed that “the Oakes test must be applied flexibly, having regard to the factual and social context of each case”: RJR-MacDonald Inc. v. Canada (Attorney General) , [1995] 3 S.C.R. 199, at para. 132. The court's proper role “will vary according to the right at issue and the context of each case” and “cannot be reduced to a simple test or formula”: Doucet-Boudreau v. Nova Scotia (Minister of Education) , 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 36. iii. Judicial Deference to Parliament is Due in the Criminal Law [229] There are several considerations that bear on the legitimacy of judicial review of legislation and on how that power should be exercised by courts. [230] The first is the separation of powers and the development of “certain core competencies in the various institutions”: Ontario v. Criminal Lawyers' Association of Ontario , 2013 SCC 43, [2013] 3 S.C.R. 3 (“ CLAO ”), at para. 28, per Karakatsanis J. [231] The branches of government, with their different institutional capacities, “play critical and complementary roles in our constitutional democracy .… [which] each branch will be unable to fulfill … if it is unduly interfered with by the others”: CLAO , at para. 29. This requires the judiciary to be deferential not only to policy objectives, but also to the specific means Parliament chooses to achieve those objectives: Doucet-Boudreau , at para. 57. [232] The court must respect the core competencies to which Karakatsanis J. referred in CLAO . Criminalizing socially harmful conduct is a core competency conferred on Parliament: Constitution Act, 1867 , s. 91. This is where the democratic principle has its greatest force. The Criminal Code embodies Parliament’s primacy in creating criminal offences; the court is prohibited from creating both common law criminal offences and new common law defences that would be inconsistent with the Code’s provisions: ss. 8(3), 9. [233] The core competency of Parliament over the criminal law is implicated deeply in these appeals. In assessing the constitutionality of legislation, the court must be mindful that “in certain types of decisions there may be no obviously correct or obviously wrong solution, but a range of options each with its advantages and disadvantages”: Newfoundland (Treasury Board) v. Newfoundland and Labrador Association of Public and Private Employees , 2004 SCC 66, [2004] 3 S.C.R. 381, at para. 83, per Binnie J. While judicial deference is due, it never amounts to submission because that would abrogate the court's constitutional responsibility: Gordon v. Canada (Attorney General) , 2016 ONCA 625, at para. 236, leave to appeal refused, [2016 S.C.C.A. No. 444], [2016 S.C.C.A. No. 445]; see also PSAC v. Canada , [1987] 1 S.C.R. 424, [1987] S.C.J. No. 9, at para. 36; RJR-MacDonald , at para. 136. iv. The Approach to the Oakes Analysis [234] The Oakes framework is intended to structure the legal analysis and thereby to constrain and discipline courts, in order to render the final balancing step as intelligible and as transparent as possible. [235] The Oakes test was not mandated by s. 1. It was developed by the Supreme Court as a means of structuring the inquiry into whether a limit on the exercise of a Charter right is demonstrably justified in a free and democratic society. A flexible, contextual approach has won out over a rigid application of Oakes , especially in the wake of Hutterian Brethren, Bedford , and Carter ; see also Gérard La Forest, “The Balancing of Interests under the Charter ” (1992) 2 N.J.C.L 133 at 145-148. In La Forest J.’s view, the Oakes test is not a set of rigid rules, but “a checklist, guidelines for the performance” of judicial duties: at 148. v. What Does the Bedford/Carter Framework Bring to the s. 1 Analysis? [236] The Bedford/Carter framework for assessing s. 7 limits introduces a new dynamic into the s. 1 proportionality analysis. The Supreme Court prescribed a division of labour between ss. 7 and 1. As noted earlier, the s. 7 analysis addresses the impact on the individual in isolation from society. It is only in the s. 1 analysis that the common good is considered: Bedford , at paras. 121, 124-129. [237] Given this analytical division, it is important to stress that a finding that a s. 7 right has been limited is not determinative of the s. 1 analysis. [238] In Bedford , the Supreme Court did not discount the prospect that a s. 7 limit could be justified under s. 1, despite statements in earlier cases that considered this to be unlikely given the “significance of the fundamental rights protected by s. 7”: at para. 129. The court did not undertake the s. 1 analysis in Bedford , but did so in Carter , and agreed with the trial judge that the absolute prohibition on physician-assisted dying was overbroad in s. 7 terms and was not minimally impairing in s. 1 terms: Carter , at paras. 86, 88 and 121. [239] The individualized application of the Bedford/Carter framework to Mr. Chan and Mr. Sullivan found s. 33.1 to be overbroad. Where does a finding of overbreadth under s. 7 fit into the s. 1 analysis? The question has not yet been answered definitively. In Heywood , Cory J. said that it fits best into the minimal impairment step: R. v. Heywood , [1994] 3 S.C.R. 761, [1994] S.C.J. No. 101, at para. 69. The Supreme Court took the same approach in Carter : at paras. 102-121. [240] In my view, although it provides additional conceptual tools, the Bedford/Carter framework does not displace, but rather supplements, the traditional approach taken in Daviault and by the trial judge in Chan . b. The First Oakes Stage: Are the Objectives of s. 33.1 Pressing and Substantial? i. The Governing Principles [241] In the s. 1 analysis, the Crown must first establish that the legislation is “in pursuit of a sufficiently important objective that is consistent with the values of a free and democratic society” and is of “sufficient importance to warrant overriding a constitutionally protected right or freedom”: R. v. K.R.J. , 2016 SCC 31, [2016] 1 S.C.R. 906 , at para. 61; Oakes , at para. 69. [242] Determining whether an objective is pressing and substantial is usually not an evidentiary contest. As the Supreme Court has explained: “The proper question at this stage of the analysis is whether the Attorney General has asserted a pressing and substantial objective”; even a "theoretical objective asserted as pressing and substantial is sufficient for purposes of the s. 1 justification analysis": Harper v. Canada (Attorney General) , 2004 SCC 33, [2004] 1 S.C.R. 827, at paras. 25-26. ii. The Trial Judge's Assessment [243] As noted earlier, the trial judge identified the objectives of s. 33.1 as those stated in the Preamble to Bill C-72: “the protection of women and children from intoxicated violence” and “the accountability of those who commit offences of violence while intoxicated”: at para. 121. iii. The Principles Applied on Pressing and Substantial Objectives [244] In my view, this is not a case in which there is a live issue about how the legislative objectives are to be identified, as in Bedford , Carter , and Frank v. Canada (Attorney General) , 2019 SCC 1, [2019] 1 S.C.R. 3. Nor do the appellants argue that Parliament proceeded in bad faith or had an unexpressed ulterior motive, as was alleged in PSAC . [245] There is a debate on whether the objectives stated in the Preamble can be taken at face value, or whether the real objectives of s. 33.1 lie elsewhere. On the one hand, the appellants argue that the trial judge in Chan overstated the objective – s. 33.1 was designed to abolish the Daviault defence in the wake of public pressure. On the other hand, the Crown argues that such a narrow interpretation of the objective implies bad faith and undermines the presumption that Parliament intends to enact constitutional legislation: see Mills , at paras. 48, 56-60. [246] I find arguments that the objectives are either too broadly or too narrowly framed in the Preamble not to be compelling. [247] What was Parliament trying to do by enacting s. 33.1? In its own words, Parliament was seeking to discourage “self-induced intoxication,” which it described as “blameworthy,” in order to prevent violence, “particularly violence against women and children,” for which persons “should be held accountable”: Preamble to Bill C-72. [248] It is noteworthy that Canada is not alone in enacting such legislation. The United Kingdom, Australia, and the United States have enacted similar laws that go further in their application. For instance, in the United Kingdom, voluntary intoxication is never a defence for general intent offences. Compared to those jurisdictions, Canada’s approach is narrower: the application of s. 33.1 is limited to violent general intent offences. [249] Some interveners argued that whether an objective is pressing and substantial depends in part on the incidence of the application of the limiting measures. If something is rarely applied, goes the argument, the objective cannot be pressing and substantial. This seems to have been Cory J.’s thinking in Daviault , when he said that because: “the defence would be available only in the rarest of cases … there is no urgent policy or pressing objective which need[s] to be addressed”: at para. 47. [250] I would reject this argument. The determination of whether a matter is of sufficient importance to the public good does not turn on statistical frequency. There are several criminal offences whose commission is quite rare, like treason or espionage, but no one would argue that Parliament’s objectives in criminalizing such conduct are not pressing and substantial. Rarity of occurrence, in itself, does not impugn the pressing and substantial nature of Parliament’s objectives. iv. Conclusion on Pressing and Substantial Objectives [251] It bears repeating that the focus at this step of the analysis is whether the Crown has “asserted” a pressing and substantial objective, even a theoretical one: Harper , at paras. 25-26. From a democratic viewpoint, the court should presume that Parliament “intended to enact constitutional legislation and strive, where possible, to give effect to this intention”: Mills , at para. 56. [252] In my view, Parliament has answered the question at this stage of the analysis – its protective and penal objectives in enacting s. 33.1 are self-evidently pressing and substantial objectives. [253] The next stage of the analysis asks if the methods Parliament chose to achieve these objectives are proportional. c. The Second Oakes Stage: Are the Measures in s. 33.1 Proportional? [254] The task in the second stage of Oakes is to make the proportionality determination. As noted, the court must assess whether the means chosen by Parliament to accomplish its ends are: first, rationally connected with the ends; second, minimally impairing; and third, proportional as between the deleterious and salutary effects of the law: Oakes , at para. 70; Carter , at para. 94; K.R.J. , at para. 58; Frank , at paras. 38-39. The measures identified in these reasons as limiting the appellants’ Charter rights are the means to be assessed against Parliament’s ends in determining whether it is just for Parliament to require some individuals to bear the negative effects of the measures in order to secure the positive effects of the ends for the common good. [255] To recapitulate, s. 33.1 removes the common law defence of non-mental disorder automatism created by the Supreme Court in Daviault . Now, those who could have sheltered under the defence of non-mental disorder automatism are subjected to the same penal consequences for their violent acts as those who commit the same acts while in a less intoxicated, non-automatistic state. i. Are the Measures in s. 33.1 Rationally Connected? 1. The Governing Principles on Rational Connection [256] The evidentiary burden at this stage of the proportionality analysis “is not particularly onerous” and, as Professor Peter Hogg commented, “the requirement of a rational connection has very little work to do”: Little Sisters Book and Art Emporium v. Canada (Minister of Justice) , 2000 SCC 69, [2000] 2 S.C.R. 1120, at para. 228; Peter Hogg, Constitutional Law of Canada , 5th ed., vol. 2 (Toronto: Carswell, 2019) (loose-leaf updated 2019), at s. 38.12. [257] A rational connection need not be proven on a rigorous scientific basis. A causal connection based on reason or logic may suffice : RJR-MacDonald , at paras. 137, 153 and 156; Carter , at para. 99. Provided that the impugned measure shows care in design and a lack of arbitrariness, and provided that it furthers an important government aim in a general way, it will pass the rational connection branch of the analysis: Canada (Human Rights Commission) v. Taylor , [1990] 3 S.C.R. 892, [1990] S.C.J. No. 129, at para. 56. [258] The Crown need only demonstrate a reasonable prospect that the limiting measure will further the objective to some extent, not that it will certainly do so: Hutterian Brethren , at para. 48. In the absence of dispositive social science evidence, Parliament need only establish a “reasoned apprehension” of the harm it aims to prevent: R. v. Butler , [1992] 1 S.C.R. 452, [1992] S.C.J. No. 15, at para. 107. For example, in McKinney v. University of Guelph , some evidence showed a correlation between mandatory retirement and generating new jobs for younger faculty, while other evidence suggested that there was none: [1990] 3 S.C.R. 229, [1990] S.C.J. No. 122, at para. 65. The court found that this conflicting evidence provided a sufficient basis to meet the rational connection test: at para. 66. [259] Where the legislation at issue has more than one objective, any of them can be relied upon to meet the s. 1 test: Hutterian Brethren , at paras. 44-45. 2. The Trial Judge's Decision [260] The trial judge in Chan expressed the view that s. 33.1 does not do much to protect women and children from violence. He said: “I have a hard time believing, as a matter of common sense, that many individuals are deterred from drinking, in the off chance that they render themselves automatons and hurt someone”: at para. 123. While he accepted the evidence that: “there is a strong linkage between intoxication and violence,” he stated that because: “the self-induced automatism defence arises very rarely and is successful even more rarely … I am unable to conclude what the actual connection is between the objective and what the law will actually achieve in terms of reducing violence against women and children”: at paras. 125-126. While he found that the limiting measures in s. 33.1 were not rationally connected to the protective objective, he concluded that they were rationally connected to the penal objective: at paras. 126-127. 3. The Rational Connection Principles Applied a. Both the federal and Ontario Crowns, joined by LEAF, argue that Parliament acted rationally in its enactment of s. 33.1. Parliament had before it two issues on which the social science evidence was inconclusive but highly suggestive. The expert evidence before the Standing Committee emphasized the high correlation between intoxication (particularly alcohol-induced intoxication) and violence, particularly violence against women and children. The Ontario Crown’s summary of the evidence is fair: While scientific research does not show that intoxication causes violence, there is a correlation between them. Statistics confirm that intoxication creates an environment conducive to violence and, in the domestic violence context, alcohol is linked to an increase in the severity of violence. [Emphasis in original.] [261] The Preamble to Bill C-72 (the legislation enacting s. 33.1) expressly points to the “close association between violence and intoxication.” That correlation is well-established in the evidence considered by Parliament in its deliberations on s. 33.1, but it falls short of showing that those who become intoxicated intend to commit assaults. Correlation – a statistical concept – and causation, which is essential to criminal liability, are quite different. It is not obvious that substantial correlation cannot form the basis of a legislative response. [262] The second issue was whether excessive alcohol intoxication can physiologically lead to non-mental disorder automatism. The Ontario Crown’s factum again fairly summarizes the expert evidence: The expert testimony before the Standing Committee on Justice and Legal Affairs on Bill C-72 explained that the legal defence of “alcohol induced intoxication akin to automatism … is indefensible in scientific terms”. This is because alcohol is not a dissociative drug: on its own, alcohol is incapable of creating an automatistic state. [Emphasis in original.] [263] In my view, the social science evidence on these two points, even though not dispositive, does establish a “reasoned apprehension” capable of grounding s. 33.1 as a rational social policy response by Parliament to a real problem. The Preamble reflects both these issues and expressly refers to the social science evidence. [264] Does this evidence support both the protective objective and the penal objective of s. 33.1? 4. Conclusion on Rational Connection [265] I would agree with the trial judge that the introduction of the non-mental disorder automatism Daviault defence is unlikely, as a matter of logic and common sense, to have encouraged any excessive drinkers, in the moment, to cross the brink into automatism in order to get access to the new defence. Nor is it likely that the removal of the defence, conversely, will encourage excessive drinkers, in the moment, to drink less. Furthermore, there is no evidence before this court to support the Crown’s argument that the measure will discourage excessive drinking. On this basis, the trial judge correctly found that s. 33.1’s measures are not rationally connected to the protective objective. [266] However, the penal objective is not merely ancillary to the protective objective. It has independent status, in view of the public outrage that greeted the Daviault decision, the social science evidence, and the submissions to Parliament that demanded full criminal liability for those who, having committed a violent assault, would be able to shelter under the new non-insane automatism defence. The measures in s. 33.1 are rationally connected to the penal objective. ii. Were the Measures Minimally Impairing? 1. The Governing Principles on Minimal Impairment [267] More recently, the Supreme Court outlined this step of the Oakes test in Carter and explained that “the analysis at this stage is meant to ensure that the deprivation of Charter rights is confined to what is reasonably necessary to achieve the state's object”: at para. 102. The question at this stage, therefore, is whether “the limit on the right is reasonable tailored to the objective … [in particular] ‘whether there are less harmful means of achieving the legislative goal’” (internal citations omitted): at para. 102. As such, the government bears the burden of demonstrating that “less drastic means” were unavailable to “[achieve] the objective ‘in a real and substantial manner’”: at para. 102. [268] Judicial deference to Parliament at the minimal impairment stage is sensitive to the context of the law in issue. The Supreme Court has affirmed that Parliament is not held to a standard of perfection: “If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement”: Libman v. Quebec (Attorney General) , [1997] 3 S.C.R. 569, at para. 58, citing McLachlin J.'s formulation of the test in RJR-MacDonald , at para. 160; see also Montreal (City) v. 2952-1366 Quebec Inc. , 2005 SCC 62, [2005] 3 S.C.R. 141, at para. 94. Rather, the court will consider whether the government has established that “it has tailored the limit to the exigencies of the problem in a reasonable way”: Montreal (City) , at para. 94; see also Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur , 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 112, per Gonthier J.; Lavigne v. Ontario Public Service Employees Union , [1991] 2 S.C.R. 211, [1991] S.C.J. No. 52, at para. 170, per Wilson J. [269] It is not always the case that an overbroad law will automatically fail at the minimal impairment stage: Fundamental Justice , at pp. 364-365; see also Bedford , at para. 144; Carter , at paras. 102-121; Michaud , at paras. 73-74. As Professor Stewart explains, “under section 1, the issue is whether the limit on the right impairs the section 7 right no more than reasonably necessary to achieve the purpose of that limit” (emphasis added): Fundamental Justice , at p. 364. 2. The Trial Judge's Assessment of Minimal Impairment [270] The trial judge found that s. 33.1 was minimally impairing because its limits were tailored to its objectives and the provision fell “within a range of reasonable alternatives”: at paras. 140-141, citing RJR-MacDonald , at para. 160, per McLachlin J. [271] While he recognized that the law impaired Mr. Chan’s rights in a “certainly not minimal” manner, the trial judge noted that s. 33.1 has three mitigating features: the section only applies to general intent offences, not the more serious specific intent offences; it only applies to offences relating to bodily integrity and not to property-based offences; and it only applies to voluntary self-induced intoxication: at paras. 131-133, 141. In his view: “There is a moral blameworthiness attached to getting oneself so intoxicated as to lose control of one's faculties”: at para. 134. [272] The trial judge did not accept that creating a stand-alone offence of criminal intoxication was a reasonable alternative to the measures in s. 33.1. He noted that Parliament had rejected this option on the reasoned basis that: there might be seen to be a “discount” available for some intoxicated offenders in the form of a reduced sentence; it would undermine the objective of accountability, or, as I have framed the point, it would not advance Parliament’s penal objective; and it would require prosecutors to argue somewhat inconsistently that an accused was not so intoxicated to avoid responsibility for the predicate offence, but was sufficiently intoxicated to be guilty of criminal intoxication: at para. 139. 3. The Minimal Impairment Principles Applied [273] There is no doubt, on the evidence presented, that Parliament wanted to achieve the penal objective: to subject those who could have sheltered under the defence of non-mental disorder automatism to the same penal consequences for their violent acts as those who commit the same acts in less intoxicated, non-automatistic states. This is what must run the gauntlet at the balancing step of the proportionality assessment, giving due weight to Parliament’s authority to criminalize socially harmful conduct. [274] The s. 7 finding of overbreadth must now be considered. The application of the Bedford/Carter framework shows s. 33.1 does not limit s. 7 rights in a minimally impairing manner. It is overbroad as applied to Mr. Chan and Mr. Sullivan. Their s. 7 rights are limited by the application of s. 33.1 because there is no connection between the law’s two objectives, protective and penal, and the law’s effects on them. Neither Mr. Chan nor Mr. Sullivan was drinking. Neither had any reason to believe that his voluntary self-intoxication would culminate in violent psychosis. [275] These observations apply to similarly situated individuals who have no reason to believe that their voluntary self-intoxication would culminate in violent psychosis. For instance, similarly situated individuals who take prescription drugs and experience unanticipated side effects, or people who voluntarily consume intoxicants other than alcohol and could not foresee that doing so would lead to violent psychosis, are captured by the law, according to the Crown. By attaching criminal liability to involuntary conduct or situations where an individual consumes a drug in circumstances where violent psychosis is not reasonably foreseeable, s. 33.1 creates a standard of absolute liability. Moreover, common sense suggests that s. 33.1 would not discourage people who lack any reasonable basis for believing that self-intoxication would cause them to become psychotic from becoming intoxicated. While it is open to Parliament to craft an offence for committing “a prohibited act while drunk,” the means employed would not be minimally impairing if they bear no connection to the law’s objectives: Daviault , at para. 61. 4. Conclusion on Minimal Impairment [276] Parliament took pains to tailor s. 33.1 to its stated objectives, as noted by the trial judge. In my view, the result of those efforts falls within the range of reasonable alternatives, since: “The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator”: Libman , at para. 58; RJR-MacDonald , at para. 160. [277] However, because s. 33.1 does not contain an exception for people like Mr. Chan and Mr. Sullivan and those similarly situated, it is not minimally impairing. But s. 33.1 still must be evaluated for proportionality under s. 1, to which I now turn. iii. The Balancing Step: Do the Salutary Effects Outweigh the Deleterious Effects? 1. The Governing Principles [278] In Hutterian Brethren , McLachlin C.J. set out the basic question at the third step of the proportionality analysis: “Is the limit on the right proportionate in effect to the public benefit conferred by the limit?”: at para. 73. Or, as she put it in Bedford , “whether the negative impact of a law on the rights of individuals is proportionate to the pressing and substantial goal of the law in furthering the public interest”: at para. 125; see also Carter , at para. 95. This analysis “takes full account of the 'severity of the deleterious effects of a measure on individuals or groups’”: Hutterian Brethren , at para. 76. It entails a broad assessment of whether the “benefits of the impugned law are worth the cost of the rights limitation”, or whether “the deleterious effects are out of proportion to the public good achieved by the infringing measure”: at paras. 77-78. 2. The Trial Judge's Decision [279] The trial judge noted, adverting to Bedford , that the broader social goals of s. 33.1 were to be taken into account in the balancing of rights: at para. 150. He noted: “The entire history of the defence of intoxication has been about finding the appropriate balance between the fundamental rights of accused persons and the rights of others – particularly women and children – to be protected from intoxication-fueled violence”: at para. 153. He deferred to Parliament’s “view of the morally appropriate balance between intoxicated offenders and the rest of society and to hold intoxicated offenders to account”: at para. 154. The trial judge concluded that he was “satisfied that there is proportionality between the salutary and deleterious effects of the provision”: at para. 157. 3. The Balancing Principles Applied [280] In the balancing step, the court is required to consider proportionality as between the deleterious and salutary effects of the law, in order to determine whether it is just for the legislation to require some individuals to bear the burden of the negative effects in order to secure the benefits of the positive effects for the common good – a good that benefits the offender as well: Oakes , at para. 70; Carter , at para. 94; K.R.J. , at para. 58; Frank , at paras. 38-39. i. The Benefits [281] The parties supporting the constitutionality of s. 33.1 identified several benefits that inure to the common good. First, the section satisfies the deep-seated conviction that it would be wrong and unjust to allow a person like Mr. Daviault, who committed a violent sexual assault on a disabled elderly woman while voluntarily self-intoxicated, to escape penal consequences. This conviction drove the submissions to Parliament, and Parliament itself in enacting the legislation. It is not a conviction to be taken lightly in a free and democratic society. [282] Second, s. 33.1 subjects all those who voluntarily self-intoxicate and then commit violent assaults to the same penalties, which sends a strong message of deterrence to the public that this conduct will not be tolerated. [283] Third, LEAF asserts that protecting the security of the person and equality rights of others, particularly women and children, from violent crimes at the hands of intoxicated offenders depends on the reporting of violent abuse by victims and witnesses. As the Minister of Justice explained in Parliamentary debate, the uncertainty left by Daviault would discourage victims and witnesses from reporting such drunken assault. Removing the defence would, it is argued, remove a disincentive to report. [284] Fourth, these benefits all inure to the special benefit of women and children who are the primary victims of intoxicated violence, and who have been recognized in many legislative enactments as being vulnerable and requiring legal protection. [285] Fifth, s. 33.1 places the fault where it belongs – with those who would voluntarily self-intoxicate to excess, which is not a morally blameless act. [286] All of these benefits are not ex post facto rationalizations but appear in some form in the Preamble to Bill C-72. ii. The Burdens [287] The countervailing burdens are weighty. The fundamental rights of persons caught by s. 33.1 under ss. 7 and 11(d) of the Charter are severely limited: these are, to repeat, the presumption of innocence and the strong criminal law requirement that the Crown prove beyond a reasonable doubt that the violent acts of the accused were voluntary and met the mental element requirements for criminal convictions on the predicate violence-based charges. [288] While it is true that the incidence of the application of s. 33.1 is rare, that does not justify depriving even such a small number of persons of their fundamental rights. The dramatic effect on these rights is disproportionate to the small number of individuals affected. Further, Parliament’s core target under s. 33.1 was the person whose extreme alcohol intoxication would cause non-mental disorder automatism. But it is not clear that extreme alcohol intoxication causes non-mental disorder automatism as a matter of basic science. In short, the defence might not even be viable as a matter of fact. (Mr. Daviault was not tried again because his victim died before the second trial of unrelated causes.) 4. Conclusion on Balancing [289] The final step of the proportionality analysis turns on a conviction sedimented deeply into the rule of law. The principle that “the innocent [should] not be punished” has been recognized “from time immemorial [as] part of our system of laws”, a system “founded upon a belief in the dignity and worth of the human person and the rule of law”: Re B.C. Motor Vehicle Act , [1985] 2 S.C.R. 486, at p. 513, per Lamer J. The Supreme Court reiterated a variant of this conviction in Carter , explaining that “a law that runs afoul of the principles of fundamental justice” is not easily justified or “overridden by competing societal interests” (internal citations omitted): at para. 95. [290] I share the conviction stated in these authorities. Section 33.1 cannot be justified under s. 1 of the Charter , as a matter of simple justice and what our law requires the Crown to prove in order to secure a criminal conviction for the predicate violent offences. The required mental and voluntariness elements and the presumption of innocence cannot be bypassed. [291] Finally, focusing specifically on Mr. Chan and Mr. Sullivan, there is no good reason for them to have been swept into the net of s. 33.1. Section 33.1 is overbroad in its application to them because there is no connection between the law’s two objectives – protective and penal – and the law’s effects on them. The justification of “enforcement practicality” does not apply to them, nor does the phenomenon of line-drawing apply, as in Michaud , which can give rise to incidental overbreadth and arbitrariness: Bedford , at para. 113; Michaud , at paras. 144-145. Section 33.1 imposes an even more intense limit on their rights than the general operation of s. 33.1 and attracts the same evaluation of unconstitutionality. [292] For these reasons, in my view, s. 33.1 of the Criminal Code limits the Charter rights of the appellants under ss. 7 and 11(d) and the Crown has not demonstrated that those limits are justified. Consequently, s. 52(1) of the Constitution Act, 1982 deems s. 33.1 to be “of no force or effect,” to the extent of any inconsistency with the Charter . I therefore concur with my colleague in the result. Released: JUN 03, 2020 “DW” “P. Lauwers J.A.” [1] In Bouchard-Lebrun , at paras. 36 and 42, Lebel J., for the court, ultimately held that s. 33.1 should not be interpreted as limiting the scope of s. 16 of the Criminal Code , but the trial judge had not done so. [2] R. v. Vickberg (1998), 16 C.R. (5th) 164 (B.C.S.C.), R. v. Decaire , [1998] O.J. No. 6339 (C.J.), R. v. Dow , 2010 QCCS 4276, 261 C.C.C. (3d) 399; and R. v. S.N ., 2012 NUCJ 2. [3] R. v. Brenton (1999), 180 D.L.R. (4th) 314 (N.W.T.S.C.), reversed for other reasons, 2001 NWTCA 1, 199 D.L.R. (4th) 119; R. v. Dunn (1999), 28 C.R. (5th) 295 (Ont. S.C.), R. v. Jensen , [2000] O.J. No. 4870 (S.C.), R. v. Cedeno , 2005 ONCJ 91, 195 C.C.C. (3d) 468, R. v. Fleming , 2010 ONSC 8022; and R. v. McCaw , 2018 ONSC 3464, 48 C.R. (7th) 359. [4] Various arguments have been made to justify reconsidering the pressing and substantial nature of the protective purpose, as decided in Daviault . The Crown argued that, in passing s. 33.1, Parliament was responding to a material change in circumstances. I disagree. If anything, scientific evidence rehearsed in the Preamble, “that most intoxicants, including alcohol, by themselves, will not cause a person to act involuntarily” supports Cory J.’s conclusion that this defence will rarely be available. Nor do I share my colleague’s view that the applicable legal doctrine has evolved since Daviault, permitting Cory J.’s conclusion to be re-opened. I need not engage that issue because I accept that the s. 1 analysis from Daviault is not binding because it addressed the state of the common law, not the constitutionality of s. 33.1. [5] This court has already heard Mr. Sullivan’s sentence appeal, with reasons reported at 2019 ONCA 412. [6] At the time of the relevant offences, s. 145(3) of the Criminal Code applied. On December 13, 2019, amendments came into force, resulting in changes to s. 145: see An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act , S.C. 2018, c. 29.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Talbi, 2020 ONCA 388 DATE: 20200617 DOCKET: C67119 Hoy, MacPherson and Tulloch JJ.A. BETWEEN Her Majesty the Queen Respondent and Adam Talbi Appellant Adam Talbi, acting in person Lindsay Daviau, appearing as duty counsel Jessica Smith Joy, for the respondent Heard: June 3, 2020 by Videoconference On appeal from the sentence imposed on June 11, 2019 by Justice Sally A. Gomery of the Superior Court of Justice . REASONS FOR DECISION [1] On April 10, 2017, during the course of an investigation into the death of Jacob Thompson, the police intercepted a telephone call between the appellant, Adam Talbi, and a woman who was a subject of the investigation. On the call, the appellant stated that he had grabbed a “thing” from her house. At the time, the appellant was bound by a condition to not possess any weapons. [2] In the days following the call, the police came to learn that the “thing” was a handgun and that the appellant was holding it for the woman’s brother, who was also a subject of the investigation and who had been charged with second-degree murder in connection with the death of Mr. Thompson. The police also learned that, while the appellant was holding the gun, the woman was helping to broker a sale between the gun’s owner, Christopher Morris, and a third party. [3] On April 20, 2017, the police observed the appellant and Mr. Morris enter the woman’s home, bringing with them the loaded restricted firearm. The sale was completed at some point the next day by Mr. Morris and the third party. [4] On April 26, 2017, the police executed a search warrant at the purchaser’s residence where they found a loaded .22 calibre revolver. The appellant was subsequently arrested and later released on bail with strict conditions, including to remain at his residence except with written permission of his surety, and to not associate with any individuals known to have a criminal record. [5] While on bail, the appellant was arrested and charged on two occasions for breaching his bail conditions. On the second occasion, which occurred on December 21, 2018, the appellant was found to be outside his residence without permission and in the company of a person with a criminal record. During the encounter, the appellant also obstructed the police by providing two false names. [6] On May 27, 2019, the appellant pled guilty to four offences: possession of a loaded restricted firearm, possession of a handgun contrary to a prohibition order, obstruction of a police officer, and failure to comply with a recognizance, contrary to ss. 95(2), 117.01(3), 129(a), and 145(3) of the Criminal Code , R.S.C. 1985, c. C-46. [7] On sentencing, the Crown requested 30 months’ imprisonment for possession of the restricted firearm, four months consecutive for possession contrary to the prohibition order, and two months consecutive for the obstruction and breach of recognizance (for a global sentence of 36 months’ imprisonment). [8] In her reasons for sentence, the trial judge incorrectly stated that the Crown sought a sentence of 36 months’ imprisonment for the possession charge and a global sentence of 42 months. She went on to sentence the appellant to 36 months’ imprisonment for possession, two months consecutive for possession contrary to the prohibition order, and one month consecutive for both the obstruction and breach. The appellant thus received a global sentence of 39 months, less nine months’ credit for presentence custody. [9] On appeal, the appellant argues that the sentence for possession is unduly harsh and that a fit sentence would be 30 months’ imprisonment, resulting in a global sentence of 33 months, less presentence custody. [10] We agree. The trial judge committed an error in principle when she misapprehended the sentencing submissions of Crown counsel and imposed a sentence higher than what both the Crown and defence were asking for, without giving any reasons or explanations as to why. The Crown acknowledged on appeal that the trial judge did not correctly reiterate Crown counsel’s sentencing submissions and that the sentence imposed is above the sentence requested. [11] Mindful of our authority to intervene on appeals from sentence under R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, we are persuaded that this is an appropriate case to intervene and allow the sentence appeal. We agree with the appellant that a sentence of 30 months’ imprisonment for the possession offence is fit. This sentence accords with the trial judge’s decision to impose a global sentence three months less than what she believed was requested by the Crown. [12] Accordingly, the current sentence for possession will be vacated, and a sentence of 30 months’ imprisonment will be imposed. The breakdown of the resulting global sentence is as follows: 30 months’ imprisonment to be imposed on the s. 95(2) offence (possession of a loaded restricted firearm); two months consecutive to be imposed on the s. 117.01(3) offence (possession of a firearm contrary to a prohibition order); and one month consecutive for the obstruction of justice and breach of recognizance offences. The global sentence is thus 33 months’ imprisonment, less nine months’ credit for presentence custody. “Alexandra Hoy J.A.” “J.C. MacPherson J.A.” “M. Tulloch J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Thompson, 2020 ONCA 361 DATE: 20200610 DOCKET: C66298 Hoy A.C.J.O., MacPherson and Tulloch JJ.A. BETWEEN Her Majesty the Queen Respondent and Adrian Thompson Appellant Breana Vandebeek, for the appellant Andrew Hotke, for the respondent Heard: In-writing On appeal from the conviction entered by Justice Sandra Martins of the Ontario Court of Justice on August 16, 2018, and the sentence imposed on December 5, 2018. REASONS FOR DECISION [1] On November 24, 2017, the appellant was arrested following the execution of a search warrant on his vehicle. A loaded firearm, ammunition and drugs were located in a black bag (‘man purse’) on the floor of the rear passenger seat. [2] Following a trial in the Ontario Court of Justice, Justice Martins convicted the appellant of several firearm and drug offences. She imposed a sentence of seven and a half years less time for pre-trial custody (just over a year and a half). She also imposed a victim fine surcharge of $1,600. [3] The appellant appeals the conviction and the sentence. [4] The central issue at trial was whether the appellant had knowledge of the firearm, ammunition and drugs in the black bag in the rear seat area of his car. The appellant testified that he did not know that these items were inside the black bag that he admitted belonged to him. He believed that his ex-brother-in-law, Jawara, had placed them in the vehicle. [5] The trial judge disbelieved the appellant on this crucial point. In the course of extensive reasons for this disbelief, the trial judge said: Further and even more telling, while Mr. Thompson is legally entitled to remain silent and have the Crown prove the charges beyond a reasonable doubt, when he chooses to testify, I am entitled to draw inferences from his evidence that are illogical and contrary to common sense. In this case, the inference that Mr. Thompson is making in his testimony is that Jawara, the person who had access to the Honda while Mr. Thompson and his children were inside, must have put the loaded gun, the heroin and the MDMA in his man purse. If this were true, you would expect that Mr. Thompson would have been outraged that his daughter’s uncle and someone he trusted, placed a loaded firearm within reach of his six year old daughter in the backseat of the car. The fact that he made no comment about any outrage in this regard is another area of his evidence that causes me to disbelieve completely his story that Jawara put the drugs in the car in an area that he was completely unaware of. This portion of his evidence, again, was contrary to logic and I find it completely contrived to try and paint a period of time when someone may have planted a loaded firearm and drugs into his man purse; extremely valuable items for no apparent reason. [Emphasis added.] [6] The appellant contends that the emphasized portion of this passage amounts to a judicial ‘ambush’ of the appellant because it criticizes him for something (i.e., his non-reaction to Jawara’s conduct) that was not put to him when he was testifying. [7] We do not accept this submission. It is completely belied by the fact that the appellant testified that he trusted Jawara and that he specifically asked him to put cocaine in his car and did not feel any need to ask him where inside the car he had put it. Accordingly, the trial judge’s inference flowed logically from the appellant’s own testimony; he clearly had no concern about what was in a car in which his daughters were about to be passengers. [8] The appellant’s second ground of appeal is that the trial judge erred in rejecting the appellant’s evidence because of the value of the drugs and firearm in the car. [9] In her reasons, the trial judge said: In this case, there is a large quantity of valuable drugs and a loaded firearm. I find it is a reasonable inference that nobody would leave these valuable items in Mr. Thompson’s man purse without him being fully aware of their presence. One would not just place these valuable items in Mr. Thompson’s man purse for no reason. Therefore, having rejected the inference that someone other than Mr. Thompson put those items in his man purse, I find that the Crown has proven beyond a reasonable doubt that Mr. Thompson had both the knowledge and control over these items in his man purse and as such, he was in possession of the loaded handgun and all of the drugs located during the search of his car. [10] The appellant submits that there was no evidentiary basis for the trial judge’s conclusion that the drugs and firearm in the man purse were “valuable items” that a third party (Jawara) would not leave in the car without the appellant’s knowledge. The appellant asserts that there needed to be expert evidence about the value of the drugs and firearm if this inference were to be drawn. [11] We disagree. In a case in which a loaded firearm was found in the back of a car after a traffic stop, this court held that it was open to the trial judge to rely on the common sense inference that “parties generally do not hide their valuables in someone else’s car, unless they know and trust the owner of the car to look after the valuables for them”: R. v. Bonilla-Perez , 2016 ONCA 535, at para. 16. Implicit in this holding is the Court’s acceptance that it is a matter of common sense that guns are valuable items. The same is true of drugs: R. v. Pannu , 2015 ONCA 677, at para. 157. [12] The appellant’s third ground of appeal is that the trial judge erred in her assessment of the testimony of Constable Rondinelli who was one of the two police officers who searched the appellant’s car. The trial judge did not accept Rondinelli’s testimony that he found the appellant’s wallet in the man purse; rather she accepted the appellant’s evidence that he always put his wallet in the front seat console area. The appellant says that the trial judge should have gone farther and concluded that Rondinelli had in fact engaged in deliberate misconduct by planting the wallet in the purse with the firearm and drugs. [13] We do not accept this submission. The trial judge heard Constable Rondinelli’s testimony. She accepted some of it (much of which was confirmed by physical and video evidence) and did not accept it with respect to the location of the appellant’s wallet. This is precisely the domain in which a trial judge is best positioned to evaluate the evidence. [14] Finally, the appellant challenges the trial judge’s pre-trial Charter s. 8 ruling in which she held that although there were not reasonable and probable grounds for the warrant authorizing the search and seizure of the firearm, ammunition and drugs, this evidence was admissible under s. 24(2) on the basis of the Grant analysis: R. v. Grant , 2009 SCC 32. [15] This final argument rests largely on the appellant’s argument that the trial judge erred in not finding that Rondinelli engaged in deliberate misconduct in the course of searching the appellant’s car by planting the wallet in the purse with the firearm and drugs The appellant submits that the trial judge should have found at trial that Rondinelli engaged in deliberate misconduct, and that finding should have caused him to revisit his pre-trial Charter ruling. We have rejected the appellant’s argument that the trial judge erred by not finding that Rondinelli engaged in deliberate misconduct. We can see no basis for interfering with the trial judge’s analysis and balancing of the Grant factors. [16] The appellant appeals his sentence on two bases. First, he argues that the trial judge failed to regard the police infringement of his Charter s. 8 right as a mitigating factor warranting a reduction in the sentence she imposed. [17] We do not accept this submission. The trial judge’s decision not to reduce the sentence in light of her findings on the Charter motion does not amount to an error in principle. She was entitled to find that they did not warrant mitigation. Her finding was reasonable given the lack of any clear connection between the Charter s. 8 breach and the circumstances of the offence and the offender: see R. v. Foster , 2018 ONCA 53, at para. 135. [18] Second, based on fresh evidence filed on appeal, we understand the appellant to argue that his sentence should be reduced because of the COVID-19 pandemic. Based on the information about the appellant personally (he says only that he has asthma) and about the institution, Beaver Creek Medium Institution (where there are no indications about COVID-19 cases), we are not persuaded by the appellants evidence that the we should intervene and disturb an otherwise fit sentence. Moreover, this is an issue that can be considered effectively at the appellants parole hearing, for which he is eligible later this month. [19] The appeal is dismissed on all issues but one. The victim surcharge of $1,600 is set aside: see R. v. Boudreault , 2018 SCC 58 and R. v. Stockton , 2019 ONCA 300. “Alexandra Hoy A.C.J.O.” “J.C. MacPherson J.A.” “M. Tulloch J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Velegjanin, 2020 ONCA 419 DATE: 20200629 DOCKET: M51313 (C60034) Tulloch, Roberts and Thorburn JJ.A. BETWEEN Her Majesty the Queen Responding Party and Nikolai Velegjanin Moving Party Megan M. Schwartzentruber and Ben ElzingaCheng, for the moving party Kevin Rawluk, for the responding party Heard: in writing On appeal from the order of Justice Todd Ducharme of the Superior Court of Justice, dated February 9, 2015, dismissing an appeal from the conviction entered on September 12, 2013, by Justice Lauren E. Marshall of the Ontario Court of Justice. REASONS FOR DECISION [1] The moving party was charged with a number of offences arising out of an incident in his apartment building. While in a state of confusion and suffering from a broken jaw, the moving party attempted to gain entry to the wrong apartment. The complainant testified that, when he was denied entry, the moving party said “I’m going to kill you” in broken English. The police later found the moving party in his apartment with a rifle on the floor. [2] The trial judge convicted the moving party of threatening death or bodily harm, careless use of a firearm, careless storage of a firearm, and careless storage of ammunition, contrary to ss. 264.1(1)(a), 86(1), 86(1), and 86(2) of the Criminal Code , R.S.C. 1985, c. C-46. The summary conviction appeal judge dismissed the appeal against the conviction for threatening death, but allowed it on the careless use and storage convictions, entering acquittals for those counts. [3] Leave to appeal is sought on both grounds articulated in R. v. R.R. , 2008 ONCA 497, 90 O.R. (3d) 641, namely, that the appeal raises issues of significance to the general administration of justice, and that the merits are strong and leave should be granted because of the serious consequences of a conviction. Specifically, the moving party argues that, while the law governing the offence of uttering a threat is well established, the case raises important issues regarding the adequacy of reasons for determinations as to an accused’s mental state. On the second ground, the moving party argues that the appeal judge: 1) erred in finding that he had the requisite mens rea for uttering a threat; 2) erred in failing to consider whether the reliability of the complainant’s evidence was undermined by his broken English; and 3) provided deficient reasons in that he failed to explain how it was decided that the moving party had the requisite mens rea . [4] We would refuse leave to appeal. The appeal does not raise any issues of importance and there is no merit to the appellant’s arguments alleging an error by the summary conviction appeal judge. In our view, the appeal judge properly considered the record before him in upholding the conviction. He applied the correct legal test and gave clear and concise reasons as to how he arrived at his ultimate conclusion. The trial judge’s determinations that a threat was made, and that the moving party intended to make it, were open to her on the evidence. These were factual findings and subject to deference. There was no basis for the appeal judge to interfere. [5] In all the circumstances, the motion for leave to appeal is dismissed. “M. Tulloch J.A.” “L.B. Roberts J.A.” “Thorburn J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, 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. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. W.O., 2020 ONCA 392 DATE: 20200617 DOCKET: C64887 Hoy A.C.J.O., Paciocco and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and W.O. Appellant R. Craig Bottomley, for the appellant Tanya Kranjc, for the respondent Heard: March 12, 2020 On appeal from the convictions entered by Justice Stephen T. Bale of the Superior Court of Justice on September 29, 2017. Hoy A.C.J.O.: [1] The appellant was found guilty of sexual assault, incest, and sexual interference. The conviction for sexual assault was conditionally stayed, presumably based on the principle in Kienapple v. R. , [1975] 1 S.C.R. 729. The appellant was sentenced to seven years’ imprisonment. [2] The complainant is his daughter. She testified that the appellant sexually assaulted her multiple times – beginning with touching and progressing to intercourse – during her access visits with him every other weekend over approximately a 10-month period beginning in February 2012. In this period, she was twelve and thirteen years of age. She also testified that the sexual assaults occurred in the basement of her paternal grandmother’s house, at her father’s trailer, and on a trip to Niagara Falls. [3] The appellant did not testify at trial. The principal issue at trial was the credibility of the complainant, who was seventeen years of age at the time of trial. [4] In his closing submissions at trial, the appellant’s trial counsel indicated he would confine his submissions to “three major areas”: the disclosure first made at trial that sexual assault also occurred during the trip to Niagara Falls; the evidence of the complainant about scars on her chest arising from an assault; and an email that the complainant sent to the appellant dated May 4, 2013, which he argued raises a reasonable doubt about the complainant’s motivation. He also addressed what he characterized as a “minor point”, arising out of the evidence of the complainant and her mother that the appellant sent the complainant inappropriate text messages. [5] In his reasons, the trial judge addressed the “three major areas” raised by the appellant’s trial counsel. Despite the inconsistencies in the complainant’s evidence, he found her to be credible and reliable and was satisfied beyond a reasonable doubt of the appellant’s guilt. [6] The appellant argues that in addressing the “three major areas”, the trial judge over-extended or improperly relied on the principles from R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, and R. v. D.P. , 2017 ONCA 263, leave to appeal refused, [2017] S.C.C.A. No. 261 , and in light of this error, “side-stepped” the inconsistencies in that evidence and failed to provide sufficient reasons for how he resolved them. [7] The appellant also argues that the trial judge failed to address both the fourth, “minor point” raised by the appellant’s trial counsel in his closing submissions and the defence argument that the complainant had a motive to fabricate to thwart the appellant’s custody proceeding. The appellant argues that the trial judge’s failure to do so renders his reasons insufficient. [8] I reject these arguments. [9] I begin by briefly setting out the law relevant to these two arguments. Guided by those legal principles, I then address each area of evidence raised by the appellant in turn. A. LEGAL PRINCIPLES (1) D.D. and D.P. [10] In D.D. , at para. 63, the Supreme Court made clear that the significance of a complainant’s failure to make a timely complaint must not be the subject of any presumptive inference based upon stereotypical assumptions about how persons, particularly children, react to sexual abuse. [11] In D.P. , the complainant failed to disclose all the assaults in his first interview with the police. The trial judge in D.P. referred to D.D. and concluded that the complainant’s explanation for his failure to disclose all the assaults in his first interview was “perfectly plausible”. This court, at para. 30, quoted his observation that: The decision to disclose is a difficult one that can be very painful for victims. It cannot be surprising that it would take [the complainant] more than one occasion to shed a burden that had been weighing on him for years. [12] This court found no error in the trial judge’s assessment of the complainant’s credibility. It rejected the argument that there is a fundamental difference between delayed disclosure and piecemeal disclosure of prior sexual abuse. It concluded, at para. 31, that “[t]he comments in R. v. D.D. are potentially applicable to both, depending of course on the circumstances revealed by the evidence in any particular case ” (emphasis added). (2) Insufficient reasons [13] Inadequacy of reasons does not provide a free-standing right of appeal. Rather, an appellant who argues insufficiency of reasons must show not only a deficiency in the reasons, but that the deficiency caused prejudice to the exercise of his or her right of appeal in a criminal case. [14] The question is whether the reasons provide the basis for meaningful appellate review of the correctness of the trial judge’s decision. Trial judges are not held to an abstract standard of perfection. In evaluating a trial judge’s reasons, appellate courts must consider the time constraints and general press of business in the criminal courts: R. v. Sheppard , 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 33, 53 and 55. [15] An appellate court must ask itself if the reasons, in their entire context, considered with the evidentiary record, the submissions of counsel and live issues at trial, explain the basis for the verdict. If so, the reasons are not deficient, regardless of any lack of detail or other shortcomings. A trial judge need not describe every consideration in assessing credibility or reconcile every frailty in the evidence: R. v. R.E.M. , 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 55-56. [16] In particular, where a case turns on credibility, the Supreme Court has emphasized that deference is in order and that intervention will be rare. There is no need to prove that the trial judge considered every piece of evidence, or every argument raised by counsel: R. v. Dinardo , 2008 SCC 24, [2008] 1 S.C.R. 788: at paras. 26, 30. However, a failure to articulate how issues of credibility were resolved can constitute a reversible error. An accused is entitled to know “why the trial judge is left with no reasonable doubt”, and appellate courts have a responsibility to review the record to ensure that the findings of fact are reasonably available: R. v. Braich , 2002 SCC 27, [2002] 1 S.C.R. 903, at para. 23; R. v. Gagnon , 2006 SCC 17, [2006] 1 S.C.R. 621, at paras. 20-21. See also R. v. Vuradin , 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 9-15. B. ANALYSIS (1) Where the assaults occurred [17] The complainant gave a statement to the police on September 16, 2013, after she first told her mother that she had been assaulted. In this statement, made to Detective Constable Dekoker, the following exchange occurred: D/C Dekoker: …And these times, the sexual intercourse part, that was at the trailer? [Complainant]: ( nods head yes ) D/C Dekoker: Did it happen - [Complainant]: Yes. D/C Dekoker: Any other place besides the trailer? [Complainant]: Most of it was at the trailer. I think it was the odd weekend when we ended up going to his mom’s house, that it happened there. D/C Dekoker: Okay, so – [Complainant]: But I’m pretty sure it was all at the trailer. [18] This statement was video-recorded and was adopted as evidence by the complainant during her examination-in-chief at trial, pursuant to s. 715.1 of the Criminal Code , R.S.C., 1985, c. C-46. [19] During the complainant’s cross-examination, the appellant’s trial counsel asked her about a trip to Niagara Falls with her father in 2012 during the 10-month period when the complainant said the assaults occurred. To this point, there had been no mention of a trip to Niagara Falls. In response, the complainant testified that sexual intercourse with her father had also occurred on the trip to Niagara Falls. [20] The appellant’s trial counsel confronted her with why she did not tell Detective Dekoker about this in 2013: Q. …you told the officer everything that happened. Right? A.  Yeah. I guess I left Niagara out. I didn’t think it was relevant. […] Q.  So, you just forgot about the trip to Marineland – or pardon me – the trip to Niagara Falls when you gave the statement to the police? A.   I guess so. I – I don’t – I don’t know. [21] In his closing submissions, the appellant’s trial counsel argued that the timing of the complainant’s disclosure of the Niagara Falls sexual assault suggested that she invented it in cross-examination: if the appellant were continuing to sexually assault her, as she alleged, it would have made no sense that he did not also do so in Niagara Falls, when just the two of them were in a hotel room. Accordingly, she made up that he also sexually assaulted her in Niagara Falls so that her story would be consistent. Further, her lack of detail about the sexual assault in Niagara Falls showed that the “precision and quality of her memory [was not] sufficient to prove this case beyond a reasonable doubt”. Finally, the appellant’s trial counsel argued that her testimony about the assaults in Niagara Falls contradicted her 2013 police statement in which she indicated that all the assaults occurred at her grandmother’s house or in her father’s trailer, reproduced above. [22] In his reasons, the trial judge reviewed defence counsel’s arguments, specifically noting the complainant’s comment in her 2013 police statement that she was “pretty sure it was all at the trailer”. The trial judge explained why he concluded that this did not affect the complainant’s credibility: Considering the reasons why victims of sexual assault often delay the disclosure of the assaults, or disclose them in a piecemeal way, and the disclosure narrative referred to by Crown counsel , I am unable to draw an adverse inference from the fact that the complainant did not mention the Niagara Falls allegations during the police interview”: at p. 9. [Emphasis added.] [23] I am not persuaded that the trial judge erroneously over-extended the principles articulated in D.D. and D.P., or that he provided insufficient reasons with respect to the complainant’s evidence about where the assaults occurred. [24] In this case, it is clear from the exchanges between Crown counsel and the trial judge and the trial judge’s review of defence counsel’s argument in his reasons that the trial judge grappled with the inconsistency between the complainant’s statement to Detective Dekoker and her evidence at trial. He did not rely on D.D. and D.P. to avoid engaging with the inconsistency. In rejecting the appellant’s trial counsel’s submission that the complainant’s evidence was not sufficiently credible or reliable to prove the offences beyond a reasonable doubt, the trial judge considered the circumstances revealed by the evidence – in particular, the circumstances about the disclosure narrative, which was referred to by Crown counsel at trial. [25] The evidence about the disclosure narrative included the following. The alleged sexual assaults commenced in February 2012, when the complainant was twelve years of age. The complainant’s evidence was that the appellant told her that she would be in big trouble if she told anyone and that she told no one about what had happened until ten months after the last incident. [26] In September of 2013, at the start of ninth grade, the complainant’s boyfriend of almost three months kept pushing her, prying “because he – he knew something was really bothering me. So, I told him.” That was on a Monday. He pushed her all week to see Guidance at school, but she didn’t want to talk to a stranger about it. The boyfriend told his mother and, on the Friday, when the boyfriend’s mother came to the school to watch the boyfriend’s football practice, the boyfriend’s mother told the complainant that if the complainant did not tell her mother, she would do something about it. On Sunday, September 15, 2013, the complainant finally told her mother, who immediately took her to the police station. [27] The complainant’s evidence about this sequence of disclosure was corroborated by the complainant’s boyfriend and mother. [28] The complainant provided her statement to Detective Dekoker the following day, on September 16, 2013. A review of the video recording of that statement reveals how difficult it was for the complainant to discuss what had happened. [29] In the victim impact statement dated March 10, 2015, which the complainant wrote when she was fifteen, and which she adopted as true during her cross-examination at trial, she described how she felt in giving her statement: I couldn’t sleep that night, I was so scared. I had kept this hidden for two years now and had no idea how to explain to the cop what had happened. I was never good talking about personal things to anyone I was so worried that I wouldn’t be able to get anything out. Luckily the detective was very nice and despite my fears I managed to open up. [30] In her closing submissions, the Crown highlighted what she described as the “reluctant and slow” disclosure by the complainant pointing to her incremental disclosure, first to her boyfriend, then her mother, not giving details, and her use of ambiguous language when speaking to the police. The Crown characterized the complainant’s addition of details and occurrences as “a continuation of the progression of increasing level of comfort in talking about it as she matured and as she talked about it.” Crown counsel at trial argued that this narrative of reluctant disclosure was consistent with an honest account and at odds with a motive to fabricate. [31] The trial judge’s conclusion that the comments in D.D. applied in this case was based on the circumstances revealed by the evidence, as D.P. permits. I see no error in the trial judge’s assessment of the impact of the complainant’s incremental disclosure on the complainant’s credibility. Read as a whole, the trial judge’s reasons show that he did not “side-step” the inconsistency regarding the Niagara Falls trip. Rather, he grappled with it and resolved it in a way that was not favourable to the appellant. Further, his reasons demonstrate that he engaged with shortcomings in the complainant’s evidence, and adequately explain why he found her credible nonetheless. It is clear that his reasons for finding the complainant credible, considered in the context of the evidentiary record and the submissions at trial, permit appellate review (2) The scars [32] The second inconsistency that the appellant argues the trial judge failed to engage with as a result of an over-extension of the principles from D.D. and D.P. arises out of the complainant’s evidence about scars on her chest from an assault. In her victim impact statement dated March 10, 2015, written when she was fifteen years of age, the complainant reflected on the effect of the abuse on her. She wrote that “every time I changed my clothes, I saw the scars – the physical ones, the ones that always reminded me of what happened.” Later in the statement she says “I still have physical scars that upset me, but have learned to overlook them.” She explained during cross-examination at trial that the scars referred to in her victim impact statement were from “cuts on [her] boobs” from the appellant dragging his teeth across them. She testified during cross-examination that she wrote the victim impact statement herself and that everything in it was true. She also testified that, “you know, every time I looked in the mirror I remembered what had happened”. [33] After receiving this statement, the police interviewed her a second time, on March 23, 2015. The complainant did not adopt her March 23, 2015 police statement during trial and it was not in evidence. The Crown objected to the appellant’s trial counsel’s cross-examination of the complainant about her March 23, 2015 statement, without having first played or recited the relevant portions, arguing that he was inaccurately paraphrasing her statement and risked unfairly confusing her. This led to the video of this statement being played for the trial judge, in the absence of the complainant , and defence counsel subsequently providing an unofficial transcription of “sound bites” from that interview to the trial judge. According to the transcript, the “sound bites” provided included that the complainant said during this police interview that she could probably see the scars because she knew where they were, but she didn’t know if anybody else would be able to tell. During her cross-examination at trial, some excerpts of this March 23, 2015 police statement were put to her, but this was not one of them. [34] During her cross-examination, the complainant’s testimony on the issue of when the scars had faded was confused. She testified that: · at the time of her March 10, 2015 victim impact statement, the scars were fading but were not completely gone and might have still been visible; · when she wrote her March 10, 2015 victim impact statement, she was sure she still had scars; · she told a police officer in her March 23, 2015 police statement that the scars were there for a year to a year and a half, and that she was telling the truth in that statement; · at the time of her March 23, 2015 police statement, the scars were starting to fade; and · the scars were not visible at the time of her March 23, 2015 police statement. [35] When pressed on these points throughout her cross-examination, she repeated that she could not remember when the scars faded. [36] The appellant’s trial counsel argued that the complainant lied in her victim impact statement: it was “ridiculous” that the appellant’s teeth could have caused scars and it did not make sense that any scars would still be visible up to a year and a half after the last assault occurred. Whether there was physical evidence of the assaults was an important issue and the lie detracted from her credibility on the issue of whether the assaults occurred. [37] In his reasons, the trial judge wrote that “the reasons why many victims of sexual abuse delay in reporting the abuse apply also to the details of the abuse.” He found that there was nothing surprising about the way the disclosure of the marks unfolded in this case. What was important for the complainant was “how the marks made her feel when she saw herself in the mirror”. He rejected the assertion that it was ridiculous that the appellant’s teeth could have caused the marks. As to the length of time that the marks were present, the trial judge held that “her evidence was that she really was not sure, and she noted that she would be able to see the marks, even if they were not visible to others, because she had known where they were.” [38] The trial judge’s reasons make clear that, despite the delayed disclosure, he accepted that the appellant’s teeth had left marks on the complainant’s chest. Essentially, relying on her victim impact statement, he accepted that when the complainant looked at herself in the mirror, she remembered the marks – and how she acquired them – and still saw them. For him, what was important in the complainant’s evidence was how she felt when she looked at herself in the mirror. The trial judge did not “side-step” the alleged inconsistency about how long the marks lasted by improperly relying on D.D. and D.P. Rather, he resolved any alleged inconsistency because he found that the complainant’s evidence at trial was that she did not know how long the scars remained visible. While the trial judge’s explanation might have been clearer, this is not a reason for a new trial. His reasons are sufficient to permit appellate review. [39] In his factum, the appellant also argues that in his reasons the trial judge improperly referred to what the complainant said in the March 23, 2015 police statement – namely that she would be able to see the marks, even if they were not visible to others, because she had known where they were – and the March 23, 2015 police statement was not in evidence. I note that counsel for the appellant at trial treated this statement as if it were evidence: he put this particular passage in the statement to the trial judge in his closing submissions. This may be why the appellant chose not to pursue this point in his oral submissions. [40] When a judge refers to material not properly before him or her, this can be characterized as a misapprehension of evidence: R. v. Morrissey (1995) , 97 C.C.C. (3d) 193, at p. 221; R. v. Smith , 2011 ONCA 564, 274 C.C.C. (3d) 34, at para. 61. However, the mere fact that a trial judge references material not in evidence does not mean that such material influenced the trial judge’s reasoning such that the appellant did not receive a fair trial, warranting appellate intervention: Morrissey , at p. 221; R. v. Lohrer , 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2; and R. v. Cloutier , 2011 ONCA 484, 272 C.C.C. (3d) 291, at paras. 99-104. [41] From a review of the entire transcript, the trial judge found the complainant’s evidence to be that she was not sure when the scars faded, and for this reason gave what the appellant has characterized as inconsistencies little weight. The point about the complainant being able to see the scars because she knew where they were was not central to the trial judge’s reasoning. I am satisfied that no miscarriage of justice occurred and would rely on the curative proviso in s. 686(1)(b)(iii) of the Criminal Code if necessary. (3) The May 4, 2013 email [42] What the appellant characterizes as the third inconsistency the trial judge failed to engage with as a result of an over-reliance on D.D. and D.P. arises out of the email which the complainant sent to the appellant dated May 4, 2013 – about six months after she says the abuse ended and about four months before her initial disclosure. The email begins, “I wrote this letter to you to try and explain to you why I’m upset and why I won’t talk to you.” The complainant sets out several complaints about the appellant’s behaviour since he acquired a girlfriend. For example, he did not attend her school events and took no interest in her graduation from the eighth grade. But she makes no mention of the sexual assaults. [43] The complainant testified that while frustrated and upset with her father’s behaviour and while she wanted to visit and spend time with him, together with her sisters, as reflected in the May 4, 2013 email, at the same time she was also afraid of being assaulted again. [44] Among other things, the appellant’s trial counsel argued that the email is inconsistent, and cannot be reconciled, with the sexual abuse the complainant alleges occurred. Why would she complain about the appellant not spending time with her, if he had been sexually abusing her, and she was afraid of him? [45] The trial judge sufficiently articulated why he rejected this argument: this argument ignores the dynamics of the complainant’s relationship with her father. She wanted to spend time with him because he was her dad. She needed him to be a part of her life. The things she complained about were important to her. The abuse had stopped six months previously when the accused began a relationship with his girlfriend. And the same reasons why she delayed in disclosing the abuse would apply to her failure to mention it in the letter – she was not ready to deal with it. [46] The trial judge did not over-extend the principles from D.D. and D.P. Rather, he properly applied those principles and, in conjunction with other evidence, he grappled with and resolved what the appellant’s counsel at trial argued were the major inconsistencies in the complainant’s evidence. (4) The text messages [47] The remaining purported inconsistency related to the complainant’s and her mother’s evidence that the appellant sent the complainant inappropriate text messages. The complainant said that the appellant sent her inappropriate text messages referring to her as “sexy” or “babe” or “just names that you would usually call a wife or a girlfriend, not your daughter”. The messages were not available at trial. While maybe not always right away, the complainant says she deleted the messages. However, her mother saw some texts and was angry about them. The mother testified that the texts were inappropriate and the appellant addressed the complainant as “babe” and “sweetheart”. [48] The appellant argues that in his reasons the trial judge failed to address the inconsistency between the complainant’s and the mother’s evidence. The complainant said he used the term “sexy”; the mother said “sweetheart.” [49] A trial judge need not “review and resolve every inconsistency in a witness’ evidence, nor respond to every argument advanced by counsel”: R. v. A.M. , 2014 ONCA 769, 123 O.R. 536, at para. 14. [50] I am not persuaded that this was a major inconsistency that the trial judge was required to address in his reasons. Neither the mother nor the complainant testified that the mother saw all the text messages. Moreover, the mother did not say that there were no text messages that used the word “sexy”; it simply was not one of the examples she gave. Finally, the complainant’s evidence was consistent with her mother’s evidence that the appellant sent the complainant texts which were inappropriate. In the mother’s case, the texts she saw, among other things, caused the mother to contact The Children’s Aid Society with her concerns in September of 2012. (5) The custody proceeding as a motive to fabricate [51] The appellant’s final argument is that the trial judge failed to address the defence theory that the complainant fabricated the assaults because she did not want to live with her father. In his closing submissions, the appellant’s trial counsel did not identify this as one of his “three major areas” he would address. [52] The complainant testified that she might have called the appellant after a fight with her mother and told him she wanted to come and live with him – “but I don’t know how much I actually meant that.” She was shocked when the appellant followed up on the conversation by attempting to enroll her in a different school and obtain custody. She was living “fulltime” with her mother and did not want to leave her school or live with the appellant. She disclosed the assaults shortly before the September 2013 custody hearing. [53] While the appellant’s trial counsel questioned the complainant about her understanding of the custody proceedings between her parents, he never directly put to the complainant that she had fabricated the assaults because she did not want the appellant to have custody over her. His questioning of the complainant probed his theory that she did so because she was unhappy and angry about the appellant replacing her and her sisters with his girlfriend’s children and his lack of interest in her life since his relationship with his girlfriend. He argues that this was shown by the May 4, 2013 email. The appellant’s trial counsel put to the complainant that she fabricated the allegations against the appellant because she felt she had been replaced by his girlfriend’s sons. The complainant denied this. [54] The mother’s evidence was that she was not concerned about the custody proceeding: I was fully aware that I would probably win. I had no doubt in my mind that he’d be able to take them, after walking out and being gone for a few years, that he would be able to take them away from me. [55] Moreover, at the time of trial, the custody dispute had been resolved in favour of the mother. [56] In her closing submissions, the Crown submitted that the argument that she anticipated that the defence counsel would make that the complainant “made this up” to avoid having to live with the appellant was not persuasive or credible: the mother had testified that the chance of the children going to live with the appellant was minor. And if the complainant were trying to thwart his custody efforts, why was she so reluctant to come forward? Moreover, the supposed custody motivation to fabricate was moot. It had been resolved. [57] In his closing submissions, after addressing the May 4, 2013 email, which, as indicated above, he argued at some length supported his theory that the complainant made the allegations because she was unhappy and angry about the appellant replacing her and her sisters with his girlfriend’s children and his lack of interest in her life, the appellant’s trial counsel more briefly referred the trial judge to the complainant’s testimony about not wanting to change schools and noted that the custody hearing was scheduled approximately two weeks after the complainant disclosed the abuse. He continued, “[w]ith all of this going on in the background, there has to be a reasonable doubt about her motivation”. [58] In the context of his submissions, the “all of this” was what the appellant’s trial counsel described as the complainant’s unhappiness and anger about the appellant replacing her and her sisters with his girlfriend’s children and his lack of interest in her life, which he argued was shown by the May 4, 2013 email – one of “the three major areas” addressed in his submissions – plus the appellant trying to enroll the complainant in a different school and obtain custody to which he made briefer reference. The motivation to fabricate was not presented as a fourth, separate point; it was framed as part of the argument about the May 4, 2013 email. [59] The trial judge engaged the appellant’s trial counsel on these submissions. In response to trial counsel’s submission that if it were believable that the complainant invented the allegations, “that’s an acquittal”, the trial judge responded: “[n]o question of that.” [60] The appellant’s counsel correctly states that, in his reasons, the trial judge did not refer to trial counsel’s reference to the complainant not wanting to change schools or live with the appellant. It was not the appellant’s main argument on the motive to fabricate, but, ideally, the trial judge would have done so. However, the trial judge specifically engaged Crown counsel on the supposed motive to fabricate to avoid having to live with the appellant and engaged the appellant’s trial counsel generally on the motive to fabricate during closing submissions. One of these exchanges is summarized in the trial judge’s reasons in the section on the May 4, 2013 email, which mirrors the way counsel for the appellant at trial organized his closing submissions. Trial judges are not held to a standard of perfection. Considering the trial judge’s reasons in the context of the record, including the submissions of counsel, as Dinardo , at para. 25, directs, it is clear that the trial judge seized the substance of the defence theory of motive to fabricate and was satisfied beyond a reasonable doubt that the complainant had not fabricated her allegations. In context, the trial judge’s reasons on this issue are sufficient. C. Disposition [61] For the reasons above, I would dismiss the appeal. “Alexandra Hoy A.C.J.O.” “I agree David M. Paciocco J.A.” Nordheimer J.A. (dissenting): [62] I have reviewed my colleague’s reasons. I do not agree with her conclusion. The crux of my disagreement is a narrow one. It concerns the adequacy of the trial judge’s reasons and whether they justify and explain the verdict he reached. [63] The requirement that judges give reasons for their decisions is well-established. It is a fundamental part of the judicial function. The purpose behind trial judges providing reasons for their decisions was explained in R. v. Sheppard , 2002 SCC 26, [2002] 1 S.C.R. 869, where Binnie J. said, at para. 24: At the trial level, the reasons justify and explain the result. The losing party knows why he or she has lost. Informed consideration can be given to grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be. [64] This purpose was elaborated on in R. v. R.E.M. , 2008 SCC 51, [2008] 3 S.C.R. 3, where McLachlin C.J. said, at para. 25: The functional approach advocated in Sheppard suggests that what is required are reasons sufficient to perform the functions reasons serve — to inform the parties of the basis of the verdict, to provide public accountability and to permit meaningful appeal. [65] My colleague appears to take the position that so long as an appellate court can engage in a meaningful review of the correctness of the trial judge’s decision, then the reasons have met their purpose. I disagree. As these authorities make clear, meaningful appellate review is only one of the purposes that reasons serve. [66] Central to this case is whether the complainant’s evidence could satisfy the court of the appellant’s guilt beyond a reasonable doubt. Critical to that conclusion is an explanation of why issues raised by the complainant’s evidence did not raise that reasonable doubt. The appellant had the right to know why the trial judge accepted his daughter’s allegations in light of inconsistencies in her version of the events and also of conduct that might be seen to be inconsistent with her allegations. At the very least, the appellant had the right to an explanation as to why these inconsistencies did not raise a reasonable doubt. As stated in R. v. Gagnon , 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 21, “an accused is entitled to know why the trial judge is left with no reasonable doubt.” Further, “[i]nadequate reasons with respect to credibility may justify appellate intervention”: R. v. Braich , 2002 SCC 27, [2002] 1 S.C.R. 903, at para. 23. [67] There were two distinct events that should have caused the trial judge some pause in terms of his acceptance of the complainant’s evidence: the alleged assaults in Niagara Falls and the allegations of scars on the complainant’s breasts. In addition, there was the overarching context in which the complainant’s allegations were made that had to be considered, that is, her parents’ custody battle. (1)     The Niagara Falls assaults [68] In terms of the Niagara Falls assaults, it is important to remember that the complainant failed to mention these assaults at any point in time until she was cross-examined at trial. This is despite the fact that many months had passed since the complainant’s original reporting of the other assaults and the fact that she was directly asked, in her police interview, where the assaults had taken place and she replied, “pretty sure it was all at the trailer”. The trial judge’s response to this issue was to rely on the decision in R. v. D.D. , 2000 SCC 43, [2000] 2 S.C.R. 275. He concluded that he was “unable” to draw an adverse inference from the fact that the complainant did not mention the Niagara Falls assaults earlier. [69] The trial judge’s reference to D.D. is an inadequate explanation for his disposal of this issue as it relates to his credibility findings. As important as D.D. is for the purpose of dispelling stereotypical thinking about how victims of abuse would be expected to reveal abuse, it is not a panacea for every issue that arises in the credibility analysis of a complainant’s evidence. Yet I fear that is how the trial judge used it in this case. [70] I first note that D.D. , and the expert evidence that was at the centre of that decision, related to delayed disclosure, not piecemeal disclosure of the type that is present here. That said, I am aware that this court, in R. v. D.P. , 2017 ONCA 263, leave to appeal refused, [2017] S.C.C.A. No. 261, said that the principles in D.D. were “potentially applicable” to both delayed disclosure and piecemeal disclosure. This court added to that observation, however, the proviso that its application would depend “on the circumstances revealed by the evidence in any particular case”: at para. 31. That proviso suggests that the application of the principles in D.D. to piecemeal disclosure requires a separate analysis in each case. No such analysis appears in the trial judge’s reasons. [71] In addition, the context in which that observation was made in D.P. must be kept in mind. The situation in D.P. was one where the complainant first told the police about two assaults and then, a few months later, revealed a third assault. In other words, the complainant in that case revealed all of the assaults to the police in a relatively narrow time frame. In this case, the complainant made no mention of the Niagara Falls assaults when she spoke to the police in September 2013, despite the questioning I referenced above. The assaults were said to have occurred between February and November of 2012. The Niagara Falls trip occurred in the summer of 2012. [72] In addition, the complainant was interviewed by the police again in 2015 about the scars on her breasts, a separate subject I will address shortly. Once again, the complainant did not say anything about being assaulted by her father when they were on the trip to Niagara Falls, even though the police were asking her about scars that the complainant said had been left on her breasts by her father’s teeth arising from his assaultive behaviour. About three years have now passed since the assaults were alleged to have occurred and one and a half years have passed since the complainant’s disclosure of the other assaults to the police. [73] Second, the reference that the trial judge quoted from D.D. (which is found at para. 63, not para. 49 as cited by the trial judge) says that the failure to make a timely complaint must not be the subject “of any presumptive adverse inference”. The decision does not say that the issue of delay has no relevance to the credibility analysis. It simply says that a presumption is not to be invoked arising from any delay in reporting. Delay in reporting may still be relevant depending on the factual circumstances of the case. Piecemeal reporting may also be relevant. It requires some consideration of the reasons, if any, that are offered for the delayed or piecemeal disclosure and the surrounding circumstances. [74] In this case, by way of example, the complainant had come forward to the police to reveal the assaults that she says her father committed. Having come to the decision to reveal such intimate events, a question would naturally be raised why she would not have mentioned the Niagara Falls assaults in the course of reciting these troubling events. In that regard, it is of some moment to remember that the complainant was on a special trip to Niagara Falls alone with her father. It would presumably be an event of some significance in her life, a special moment in her relationship with her father. If that special moment was violated through abusive conduct, one would think that the complainant would have revealed it to the police, at some point, given that she had then decided that she was able to reveal details of all of the other assaults. [75] None of this is meant to suggest that the failure to mention the Niagara Falls assaults was fatal to the complainant’s credibility. What I do say is that the trial judge had to directly address the issue. He could not dismiss its relevance to the credibility analysis simply by relying on D.D. , nor by seeking to demonstrate that he was not applying stereotypical thinking. (2)     The scars [76] The other issue that arises is with respect to the scars on the complainant’s breasts. This issue arose in a somewhat unusual way. The complainant filled out a victim impact statement in March 2015. The victim impact statement was the first time that the complainant revealed the existence of the scars. [77] After receiving the victim impact statement, and seeing this reference, the police interviewed the complainant about the scars. She told the police that the scars had been present for a long time – a year to a year and a half. The assaults, where the scars were said to have been occasioned, had occurred at least two years earlier. The complainant was inconsistent in whether the scars were still visible at the time she completed the victim impact statement. At different points, she said that she did not know whether the scars were visible; that the scars were not completely gone but were fading; that while the scars were fading, they might still be visible; and that when she wrote her victim impact statement, she was sure that the scars were visible. At trial, the complainant first said that the scars were “starting to fade” just before she completed her victim impact statement, and later said that they were not visible at that time. [78] In his reasons, the trial judge referred to the complainant’s evidence on this point and quoted her as saying that the scars “had recently faded and that only she could see them”. That reference actually appears to be from the complainant’s statement to the police, that was referred to by counsel when issues arose between counsel on the use of the police statement. I cannot find where the complainant ever adopted that statement, or made an equivalent statement, in her evidence. The fact that the trial judge relied on a statement that was not properly in evidence before him is, itself, problematic: R. v. Morrissey (1995) , 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221. [79] In any event, the trial judge rejected the defence submission that the issue over the scars went to the complainant’s credibility. He did so, once again, on the basis that the understanding regarding delayed disclosure also applies to “the details of the abuse”. The trial judge said that there “was nothing surprising about the way disclosure of the marks unfolded in this case”. He then said: What was important for the complainant was not so much the incident that caused the marks; but rather, how the marks made her feel when she saw herself in the mirror. The trial judge also said that there “is nothing ridiculous” about the complainant’s evidence regarding how the marks were caused. [80] In my view, the trial judge failed to address this issue in any meaningful way in terms of the complainant’s credibility. First, there is no evidence that the incident that caused the marks was not important to the complainant. To the contrary, her father’s assaultive behaviour was front and centre in terms of her concerns. Second, the idea that her father dragged his teeth across her breasts, in the course of a sexual assault, that caused scarring that lasted for a year to a year and a half is, on its surface, extremely troubling. While there was no medical evidence on this point, common knowledge would raise questions about whether such injuries could have occurred as described by the complainant. The evidence raised an obvious problem regarding the complainant’s credibility that simply could not be dismissed in the fashion that the trial judge did. It certainly could not be dismissed on the basis of delayed disclosure and the principles enunciated in D.D. [81] On that point, my colleague says that the trial judge did not “side-step” this issue by improperly relying on D.D. and D.P. , although she does allow that the trial judge’s reasons “ might have been clearer”. That is more than a generous characterization of the trial judge’s reasons. The fact is that the trial judge did side-step this issue – something that he was not entitled to do. (3)     The custody battle [82] Finally, overshadowing this entire case, is the fact that all of these events occurred in the context of an ongoing custody battle between the appellant and the mother. Indeed, the evidence is that the complainant made her statement to the police approximately two weeks before a hearing was to be held on her father’s application for custody. The trial judge makes no mention of this fact. Experience reveals that some parents will attempt to improve their chances of obtaining custody of their children by encouraging the children to make allegations of abuse, either physical or sexual. No matter how abhorrent that conduct may be, it does not change the fact that it occurs. It can provide a motive for fabrication. As observed by Doherty J.A. in R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.), at para. 120: It is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness' credibility than the existence of a motive to fabricate evidence. [83] The trial judge was required to consider this issue in the course of his analysis and conclusion, but there is nothing in his reasons to suggest that he did. That failure cannot be excused. It certainly cannot be excused by referring to the exchange between counsel and the trial judge during closing submissions. Appellate review of a trial judge’s decision is based on the reasons, not on exchanges with counsel. In any event, the exchange with counsel does not assist this court in deciding whether the trial judge actually took this factor into consideration and, if he did, how he did so. The fact that the trial judge acknowledged the consequences during submissions, does not mean that he applied those consequences in reaching his decision. This was a factor that directly related to the complainant’s credibility. It had to be both acknowledged and addressed. Neither occurred in this case. [84] I understand that a trial judge’s credibility findings are entitled to deference. But that does not mean that they are immune from review. As was noted in D.P. , at para. 6: When an appellant alleges that a verdict based on a credibility assessment is unreasonable, this court must, to a limited extent, make its own assessment of the complainant's credibility. [85] The function that reasons perform takes on special importance in a credibility case. It has been said that a trial judge’s findings on credibility “acquire particular importance” where the trial judge must “resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge's conclusion is apparent from the record”: Sheppard , at para. 55. [86] The need for reasons in support of credibility findings was front and centre in R. v. Dinardo , 2008 SCC 24, [2008] 1 S.C.R. 788. In finding the trial judge’s reasons inadequate in that case, Charron J. said, at para. 27: As I will now explain, it is my view that the trial judge fell into error by failing to explain how he reconciled the inconsistencies in the complainant's testimony on the issue of whether she invented the allegations. I also conclude that the trial judge's failure to provide such an explanation prejudiced the accused's legal right to an appeal. In my view, the same can be said for the trial judge’s reasons in this case. [87] A further observation that Charron J. made in Dinardo also has application to the case here. She said, at para. 31: In this case, the complainant's truthfulness was very much a live issue … While it was open to the trial judge to conclude that he was convinced beyond a reasonable doubt of the guilt of the accused, it was not open to him to do so without explaining how he reconciled the complainant's inconsistent testimony , particularly in light of the accused’s own evidence denying her allegations. [Emphasis added.] [88] I repeat that I am not saying that the trial judge could not have accepted the complainant’s evidence in the final analysis. What I am saying is that the trial judge had to directly address the inconsistencies in the complainant’s evidence, and explain why they did not leave him with a reasonable doubt regarding the appellant’s guilt. This he failed to do. Simply repeating that he is not engaging in stereotypical thinking about how complainants may react in sexual assault cases does not, by itself, satisfy this necessary requirement. Understanding and avoiding stereotypical attitudes merely eliminates improper presumptions being applied. It does not relieve a trial judge from having to address serious inconsistencies in the evidence, or from having to explain why they do not raise a reasonable doubt. [89] In the end result, I return to the purpose of reasons as enunciated in Sheppard . They are to explain the result to the parties so that “[t]he losing party knows why he or she has lost”: at para. 24. It is not sufficient that an appellate court may be able to dig through the record and figure out a route to explain the result that the trial judge did not express, as my colleague has so capably done. An accused person is entitled to a proper explanation in the first instance. [90] I appreciate the point that Binnie J. made in Sheppard , when he said, at para. 24, “the requirement of reasons is tied to their purpose and the purpose varies with the context.” He also, at para. 29, repeated the point made by Laskin C.J. in Macdonald v. The Queen , [1977] 2 S.C.R. 665 that “imposing a general duty on judges to give reasons, especially in the busy criminal courts, would risk ending up with ‘a ritual formula’ (p. 672) that would be of no real assistance to the parties or to a reviewing court”. [91] In referring to those observations, I note that their origin is now more than forty years past. Times have changed, as has the manner in which trials are conducted. Pre-trials and trial management serve to streamline and focus the evidence in serious cases. Technology now greatly assists in the process of providing reasons. Consequently, the historic excuse of workload pressures in trial courts provides only limited justification, in the current climate, for deficiencies in reasons. Even accepting that the nature and volume of the trial work in the Ontario Court of Justice could rationalize a less rigorous standard being applied for reasons in that court, no such rationalization presents itself in the Superior Court of Justice. Trial judges in the Superior Court of Justice have sufficient time to craft proper reasons that fully address the issues raised in any given case. Time constraints do not provide any acceptable explanation for deficient reasons emanating from that court. Indeed, I suggest that time constraints do not provide justification in any case where serious criminal charges are involved. [92] I repeat Binnie J.’s point that the purpose of reasons varies with the context. In that regard, it is to be remembered that the accused in Sheppard was charged with possession of stolen property, being two casement windows with a value of $429, not the most serious charge known to our criminal law. Nevertheless, the Supreme Court of Canada concluded that the perfunctory reasons given by the trial judge constituted an error of law. [93] Contrast that situation, and result, with the case here. There can be few situations more serious for a parent than to be accused of abusing one of their children, much less be found guilty of that conduct. If a parent is to be found guilty of such an offence, then they are entitled to know, with clarity, why that result was reached. A convicted person should not have to guess at the reasons for their fate, nor should they have to await an appellate court explaining that which the trial judge failed to explain. To hold otherwise is simply not an acceptable approach for our justice system to take. [94] The trial judge failed to properly address the inconsistencies in the complainant’s evidence and did not consider the context in which the allegations were made. The trial judge did not adequately explain why he concluded that the offence was proven beyond a reasonable doubt. The reasons fail to accomplish that goal for the appellant, and they fail to do so for the public at large. Consequently, the reasons fail to fulfill one of the fundamental purposes underlying the requirement for reasons. [95] I would allow the appeal, set aside the conviction, and order a new trial. Released: “AH” “JUNE 17 2020” “I.V.B. Nordheimer J.A.”

WARNING Prohibitions under the Child, Youth and Family Services Act , 2017, S.O. 2017, c.14, Sched. 1 apply to this decision: Prohibition re identifying child 87(8) 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. Prohibition re identifying person charged 87(9) The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. Transcript 87(10) No person except a party or a party’s lawyer shall be given a copy of a transcript of the hearing, unless the court orders otherwise. Offences re publication 142 (3) A person who contravenes subsection 87 (8) 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. COURT OF APPEAL FOR ONTARIO CITATION: R.G. v. The Hospital for Sick Children, 2020 ONCA 414 DATE: 20200625 DOCKET: C67619 and C67659 Juriansz, Lauwers and Huscroft JJ.A. BETWEEN R.G. Plaintiff (Respondent) and The Hospital for Sick Children, Gideon Koren and Joey Gareri Defendants (Appellants) Naveen Hassan, Logan Crowell, Kate Crawford and Barry Glaspell, for the appellants The Hospital for Sick Children and Joey Gareri Jessica Laham, Darryl Cruz, Gabrielle Schachter, Erica Baron and Jessica Firestone, for appellant Gideon Koren Kirk M. Baert, Adam Tanel and Celeste Poltak, for the respondent R.G. Heard: May 21, 2020 by video conference On appeal from the order of Justice Paul M. Perell of the Superior Court of Justice, dated October 2, 2019, with reasons reported at 2019 ONSC 5696. By the Court: OVERVIEW [1] Following denial of certification of the respondent’s proposed class action, the respondent brought a motion for an order continuing her proceeding for approximately 200 individual plaintiffs, including unnamed individuals; tolling the limitation periods for those plaintiffs; and granting leave to file an amended statement of claim. The motion judge declared that the limitation period of all former putative class members remained suspended pursuant to s. 28(1) of the Class Proceedings Act 1992 , S.O. 1992, c. 6 ( CPA ), but granted only the respondent representative plaintiff’s motion to continue her individual action under s. 7 of the CPA . Her motion in respect of the co-plaintiffs was dismissed without prejudice to her right to reapply to join co-plaintiffs on proper material. [2] The appellants do not contest the continuation of the respondent’s individual action under s. 7. They argue that the motion judge erred in interpreting s. 28(1) and erred, further, in answering a hypothetical question concerning the operation of the limitation period for the proposed co-plaintiffs. [3] We dismiss the appeal, for the reasons that follow. [4] We are mindful of the consequence of this decision. It means, as a practical matter, that following the denial of certification of a class proceeding, the limitation period remains suspended for an indefinite time period. In our view, suspension for an indefinite time period is not necessary to promote the purpose of the CPA and undermines the purpose of the Limitations Act, 2002 , S.O. 2002, c. 24 . Be that as it may, it is not a problem that this court can address. It is a matter for the Legislature to address, should it choose to do so. BACKGROUND [5] The facts in this matter are not in dispute and may be set out briefly. [6] The respondent was the representative plaintiff in a proposed class action alleging that the appellants were negligent in operating the Motherisk Drug Testing Laboratory, which screened hair samples for the presence of drugs and alcohol and delivered false positive results. Test results were used for various purposes, including the treatment of patients, criminal proceedings, and family law disputes. The respondent’s motion for certification of the class action was dismissed: R.G. v. The Hospital for Sick Children , 2017 ONSC 6545. Her appeal to the Divisional Court was dismissed: R.G. v. The Hospital for Sick Children , 2018 ONSC 7058, and this court denied leave to appeal. Leave to appeal to the Supreme Court was not sought and the time for seeking leave has now elapsed. The motion [7] The respondent brought a motion for an order: 1) declaring that the putative class members’ limitation periods continued to be suspended; 2) permitting her to continue the proceeding as a multi-plaintiff action pursuant to s. 7 of the CPA ; and 3) granting leave to file an amended statement of claim to join approximately 200 individual claimants to her claim. Numerous proposed co-plaintiffs on the motion were already included in other actions that were ongoing, and counsel for the respondent refused to confirm that he represented the proposed co-plaintiffs, despite the request that he do so. The legislation [8] Section 7 of the CPA governs the continuation of proceedings following a refusal to certify a proceeding as a class proceeding: 7 Where the court refuses to certify a proceeding as a class proceeding, the court may permit the proceeding to continue as one or more proceedings between different parties and, for the purpose, the court may, (a) order the addition, deletion or substitution of parties; (b) order the amendment of the pleadings or notice of application; and (c) make any further order that it considers appropriate. [9] Section 28 of the CPA governs the suspension and resumption of limitation periods concerning causes of action asserted in class proceedings. It provides as follows: 28 (1) Subject to subsection (2), any limitation period applicable to a cause of action asserted in a class proceeding is suspended in favour of a class member on the commencement of the class proceeding and resumes running against the class member when, (a) the member opts out of the class proceeding; (b) an amendment that has the effect of excluding the member from the class is made to the certification order; (c) a decertification order is made under section 10; (d) the class proceeding is dismissed without an adjudication on the merits; (e) the class proceeding is abandoned or discontinued with the approval of the court; or (f) the class proceeding is settled with the approval of the court, unless the settlement provides otherwise. (2) Where there is a right of appeal in respect of an event described in clauses (1) (a) to (f), the limitation period resumes running as soon as the time for appeal has expired without an appeal being commenced or as soon as any appeal has been finally disposed of. The motion judge’s decision [10] The only question concerning the operation of s. 28(1) was: When does the limitation period resume running once a certification motion is dismissed? The motion judge noted the purpose of s. 28 – the protection of class members from the operation of limitation periods until the availability of class action proceedings was determined, citing his decision in Coulson v. Citigroup Global Markets Canada Inc. , 2010 ONSC 1596, aff’d 2012 ONCA 108, 288 O.A.C. 355, which was referred to with approval by the Supreme Court of Canada in Canadian Imperial Bank of Commerce v. Green , 2015 SCC 60, [2015] 3 S.C.R. 801, at para. 60. [11] The motion judge accepted the respondent’s argument that the limitation period remained suspended until one of the circumstances enumerated in s. 28(1) occurs. In other words, s. 28(1) sets out an exhaustive list of the circumstances that restart a limitation period. Denial of certification is not one of the enumerated circumstances; therefore, the limitation period remains suspended following a denial of certification. [12] The motion judge cited this court’s decision in Logan v. Canada (2004) , 71 O.R. (3d) 451, in which Feldman J.A., speaking for the court, stated at para. 22: [T]he fact that the limitation period does not recommence automatically on denial of certification fits within the scheme of the CPA and should operate fairly and efficiently as each situation arises; it is not a reason to give the language of s. 28(1) a strained meaning. [13] The motion judge cited Ragoonanan v. Imperial Tobacco Canada Ltd. , 2011 ONSC 6187, 107 O.R. (3d) 587, in support of the argument that denial of certification is not a triggering event under s. 28 and that a motion under s. 29 is required, though he disagreed that a defendant’s motion under s. 29 was a motion for discontinuance, describing it instead as a motion for dismissal without a determination on the merits. [14] The motion judge said, at para. 57, that if a motion to certify a class proceeding is dismissed and none of the circumstances enumerated in s. 28(1) apply, in order to deactivate the suspension of the running of limitation periods the defendant must bring a motion. He explained: Until such a motion is brought, not having been formally dismissed, the proposed class action is still active albeit that it has not been certified. This conclusion is a consequence of the plain meaning of section 28 of the Class Proceedings Act , 1992 read in the context of the whole Act and most particularly in the context of s. 29 of the Act . [15] The motion judge considered that dismissal of a certification motion is akin to a discontinuance of a proceeding under the CPA . Thus, the defendant could bring a motion to have the class proceeding dismissed without an adjudication on the merits, a motion that would be akin to discontinuance of the action. Suspension of the limitation period would continue until the court rules on the terms of the discontinuance or dismissal. [16] The motion judge found that following the dismissal of a motion to certify, a motion under s. 7 of the CPA transitions a proposed class action into a proceeding governed by the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, and the court may order the joinder of parties to a continuing action pursuant to those rules: Joanisse v. Barker , [2006] O.J. No. 5902 (S.C.) . Applying this approach, the motion judge found that, apart from the respondent’s action, her motion under s. 7 should be dismissed because there were insufficient facts pleaded to determine whether the test for joinder was satisfied. He dismissed the motion without prejudice to the respondent’s right to reapply to join co-plaintiffs on proper material. DISCUSSION [17] The amended statement of claim contains no material facts relating to the proposed co-plaintiffs, and counsel for the respondent refused to confirm that he was retained by any such plaintiffs. This meant there was no proposed plaintiff before the court who had an interest in the s. 28 question being decided. [18] The appellants submit the motion judge was wrong to decide a hypothetical question. Even so, they now urge that it is appropriate for this court to determine the question on appeal. We agree. [19] The appellants argue that the motion judge’s interpretation of s. 28 results in the indefinite suspension of the limitation period following the denial of certification, a result they describe as absurd. They urge a purposive interpretation of the CPA , rather than a focus on the grammatical and ordinary sense of s. 28, and proffer alternative interpretations. They argue that, following the refusal to certify, either all of the provisions in the CPA , or s. 28 in particular, no longer apply because no cause of action is being asserted in a class proceeding. As a result, the circumstances under s. 28(1) that reactivate the limitation period are irrelevant. In the alternative, they argue that the denial of certification could be interpreted as a dismissal of the class proceeding without adjudication on the merits, as contemplated by s. 28(1)(d) , and that the limitation period would resume as a result. [20] The respondent counters that s. 28 of the CPA constitutes a complete code governing the resumption of limitation periods for class members and the denial of certification is not one of the listed circumstances. The plain meaning of the provision supports the motion judge’s interpretation: the proceeding or action must be dismissed in order for the suspension to end. The court should not use a purposive interpretation to rewrite the section to include language that the Legislature could have included, but did not. Moreover, the respondent notes that there is a significant body of case law that supports its interpretation, emphasizing this court’s decision in Logan , which was followed in Joanisse and Ragoonanan . [21] It is well established that the purpose of s. 28 is to protect putative class members from limitation periods that would otherwise interfere with their ability to pursue a class action. As the Supreme Court of Canada explained in Green , at para. 60: The purpose of s. 28 CPA is to protect potential class members from the winding down of a limitation period until the feasibility of the class action is determined, thereby negating the need for each class member to commence an individual action in order to preserve his or her rights: Coulson v. Citigroup Global Markets Canada Inc. , 2010 ONSC 1596, 92 C.P.C. (6th) 301, at para. 49, quoted with approval by the Court of Appeal, 2012 ONCA 108, 288 O.A.C. 355, at para. 11. Once the umbrella of the right exists and is established by a potential class representative in asserting a cause of action, class members are entitled to take shelter under it as long as the right remains actively engaged. The provision is squarely aimed at judicial economy and access to the courts, encouraging the former while preserving the latter. [22] In our view, s. 28(1) establishes an exhaustive list of circumstances that govern the commencement and suspension of limitation periods in the context of class action proceedings. The provision means what it says: limitation periods are suspended when the respondent asserts a cause of action in a class proceeding and resume only when one of the specific circumstances in paragraphs (a)-(f) of s. 28(1) occurs. The denial of certification is not one of those circumstances. As a result, the suspension of the limitation period remains in place following the denial of certification. This understanding of s. 28(1) was confirmed by this court in Logan and has been applied in the trial division. There is no basis to change it now. [23] Accordingly, the appeal must be dismissed. [24] We accept that this result is not ideal. It means that the Limitations Act has been suspended indefinitely in respect of individual claimants even though the rationale for continuing to toll limitation periods no longer applies once certification has been denied. In particular, the limitation periods remain tolled for strangers to the action, whom counsel for the respondent now seeks to join to the respondent’s action. [25] But this problem is by no means new and it does not result from our decision in this case. Instead, it is the consequence of the clear wording of s. 28(1), which cannot be overcome by the purposive interpretation urged by the appellants. It is a consequence that has been clear at least since this court’s decision in Logan in 2004. [26] As the motion judge observed, individual actions have rarely been pursued if a certification motion was dismissed; as a practical matter, the failure to achieve certification usually brings actions to an end, rendering questions about whether individual actions are statute barred irrelevant. This is that rare case in which the question is not irrelevant. [27] The motion judge asserted that the appellants can bring the suspension of the limitation period to an end by bringing a motion to have the class proceeding dismissed without an adjudication on the merits. He considered that such a motion would provide fair notice to putative class members that the certification motion had failed. [28] We agree that notice to potential plaintiffs is important, but without more, a motion by the appellants to have the class proceeding dismissed would not be sufficient to provide that notice. The motion judge would have to make an order that notice be given to potential plaintiffs. We note that the motion judge could have made an order requiring notice to potential plaintiffs at the same time that he refused certification. [29] Be that as it may, we see no basis for the motion proposed by the motion judge. [30] A motion to dismiss the proceedings contemplates that a class action has begun, but the denial of certification means that no class action ever came into being. Thus, no action could be dismissed, nor could an action be discontinued, and in any event discontinuance contemplates a motion brought by the plaintiffs in an action, not the defendant. Nor is it clear what the appellants would be required to establish on such a motion. A denial of certification is, in our view, akin to the decertification of a class action, but while the latter causes the limitation period to resume running, the former does not. That is a feature of s. 28(1). [31] We note that the Legislature is considering a bill that would amend s. 28(1) to add the refusal to certify a class proceeding as a circumstance that causes the limitation period to resume running. That bill is irrelevant to our decision in this case. Speculation as to what may or may not happen in the legislative process does not factor into the statutory interpretation process. CONCLUSION [32] The appeal is dismissed. [33] Subsequent to the hearing of this matter, the parties informed the court that they have agreed on costs and that no order is required. Released: June 25, 2020 (“R.G.J.”) “R.G. Juriansz J.A.” “P. Lauwers J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: CITATION: Rudan v. Nightwatch Security and Surveillance Inc. (Night Watch Security), 2020 ONCA 409 DATE: 20200624 DOCKET: C67024 MacPherson, Pardu and Huscroft JJ.A. BETWEEN Simo Rudan Plaintiff (Appellant) and Nightwatch Security and Surveillance Inc. o.a. Night Watch Security and Anthony Armenti a.k.a. Tony Armenti Defendants (Respondents) J. Leigh Daboll , for the appellant Michael J. Valente and Kaushik Parameswaran, for the respondents Heard: In writing On appeal from the judgment of Justice Dale Parayeski of the Superior Court of Justice, dated May 3, 2019. REASONS FOR DECISION [1] The motion judge granted summary judgment to the respondents, a security company and its principal, dismissing the appellant’s claim for trespass and the intentional infliction of mental anguish arising out of their installation of a security system at a home he owned. The system was installed at the request of the appellant’s estranged common law partner, Ms. Cardenas, who had sole possession of the home. The appellant had been charged with assaulting Ms. Cardenas and was subject to bail conditions and a peace bond that restricted him from contact with her and required him to stay away from the home. [2] The appellant says that the motion judge erred in law in determining that Ms. Cardenas had authority to permit the respondents to enter the premise and to effect alterations and that there were genuine issues for trial that rendered summary judgment inappropriate. [3] We disagree. [4] It is not disputed that Ms. Cardenas had exclusive possession of the home and that the appellant was prohibited from having contact with her and prohibited from attending at the home. As exclusive possessor, Ms. Cardenas had the authority to permit the respondents access to the home and nothing turns on the motion judge’s use of the term “ostensible”. In any event, we note that the motion judge disbelieved the appellant’s allegations that the respondents knew about the appellant’s title to the home. [5] The motion judge made no error in concluding that there was no trespass. Ms. Cardenas’s authority to order the work and admit the respondents into the home also precluded the appellant’s claim for intentional infliction of mental suffering, as the respondents’ conduct could not have been flagrant and deliberate. [6] In summary, the appellant has failed to demonstrate that the motion judge made any error that would justify intervention on appeal. [7] The appeal is dismissed. [8] If the parties cannot agree upon costs, they may make brief (2 pages) written submissions to the court within 10 days of this decision. “J.C. MacPherson J.A.” “G. Pardu J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Sagos v. Canada (Attorney General), 2020 ONCA 360 DATE: 20200608 DOCKET: C67723 Strathy C.J.O., Lauwers and van Rensburg JJ.A. BETWEEN Peter Sagos Plaintiff (Appellant) and Attorney General of Canada and Ottawa Police Services Board Defendants (Respondents) Peter Sagos, in person Kevin Palframan, for the respondent Attorney General of Canada Mary Simms, for the respondent Ottawa Police Services Board Heard by videoconference and released orally: June 4, 2020 On appeal from the judgment of Justice Robyn M. Ryan Bell of the Superior Court of Justice, dated October 2, 2019. REASONS FOR DECISION [1] Mr. Sagos appeals the dismissal on summary judgment of his claims against the Attorney General of Canada and Ottawa Police Services Board (OPSB) alleging negligent investigation, harassment and other wrongs by the RCMP and OPSB. [2] Based on the evidence filed on the motion, the motion judge found there was no genuine issue requiring a trial in relation to either defendant and granted summary judgment dismissing the action with costs. [3] Mr. Sagos has provided us with no basis in evidence or law on which to interfere with the comprehensive and thorough reasons of the motion judge. The motion judge was entitled to weigh the evidence, evaluate credibility and draw reasonable inferences from the evidence. She did exactly that. The exercise of her fact-finding powers is entitled to deference. [4] We give no effect to the submissions Mr. Sagos sought to raise concerning the actions or inactions of his counsel. [5] The appeal is therefore dismissed, with costs to each respondent in the amount of $2,500, inclusive of taxes and disbursements. “G.R. Strathy C.J.O.” “P. Lauwers J.A.” “K. van Rensburg J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Samuels v. Mai, 2020 ONCA 408 DATE: 20200624 DOCKET: C67621 Strathy C.J.O., Lauwers and van Rensburg JJ.A. BETWEEN Donovan Samuels Plaintiff/Appellant and Jen Ling Mai , Hao Cheung Mark , Mark Holdings Inc. and CPM Realty Corporation Defendants/ Respondents David Silver, for the appellant Pulat Yunusov, for the respondents Heard: in writing On appeal from the order of Justice Shaun O’Brien of the Superior Court of Justice, dated September 23, 2019. REASONS FOR DECISION [1] The appellant appeals an order dismissing his action. The order was made on the appellant’s motion to vary a litigation timetable and for summary judgment against the respondents. On that motion, the respondents sought an order dismissing the motion to vary the timeline and dismissing the appellant’s action for delay. [2] For the reasons that follow, we allow the appeal and remit the matter to the Superior Court. Procedural History [3] The action is based on an Agreement of Purchase and Sale dated September 6, 2011, for a 12-unit apartment building in Toronto for the sum of $1.28 million. The agreement called for a $50,000 deposit and was conditional on the buyer, the appellant, obtaining financing. The appellant was allegedly unable to do so and purported to terminate the agreement. [4] On December 6, 2011, the appellant commenced this action for recovery of his $50,000 deposit under the Simplified Procedure: see r. 76 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. He claimed an additional $50,000 for loss of opportunity to invest the deposit. [5] On January 11, 2012, the respondents delivered a statement of defence and counterclaim, claiming damages of $100,000 for breach of contract. Nine months later, on October 26, 2012, the appellant delivered a reply and defence to counterclaim. [6] At that point, the action stalled. There is little evidence of why that happened, although there is a suggestion that the appellant’s then counsel had a serious illness. [7] Whatever the reason, there is no evidence of any step having been taken by any party to move the action forward for over four years. There were some inconclusive communications between the lawyers concerning settlement and other issues, but nothing of significance occurred. [8] In March 2016, the appellant retained new counsel, but there was no progress in the action for almost a year. In January 2017, the respondents retained new counsel. [9] The appellant’s counsel requested a status hearing to prevent an administrative dismissal. At that hearing, on February 27, 2017, the Master directed the Registrar not to dismiss the action for delay and set a litigation timetable, which called for discoveries and motions to be completed and the action to be set down for trial by June 1, 2018. That order was not opposed by the respondents. [10] In spite of being handed a lifeline by the Master, the appellant took no steps to move the action forward. [11] On January 26, 2018, the respondents served a motion to dismiss the action for delay or, in the alternative, for summary judgment dismissing the appellant’s claim and granting the respondents judgment on their counterclaim. [12] Between January and August 2018, the parties delivered affidavits of documents and exchanged communications concerning settlement, but once again, the appellant did little to move the action forward. [13] On March 19, 2018, counsel for the appellant stated an intention to bring a cross-motion for summary judgment on the same timeline as the respondents’ motion for dismissal for delay or summary judgment. [14] On March 20, 2018, a motion schedule was set in Civil Practice Court, leading to a return date for the respondents’ motion on September 11, 2018. [15] On August 10, 2018, having filed no materials on their scheduled motion to dismiss the action for delay or for summary judgment, the respondents’ counsel proposed to withdraw their motion to focus on “the next stage of this action.” [16] On September 6, 2018, counsel for the respondents advised the court in an email that the motion would be proceeding on September 11, 2018, but “only on costs” and the respondents would be “seeking a deadline to set this action down for trial”. [17] On September 10, 2018, counsel for the respondents advised the appellant’s counsel, “[m]y offer on costs [of the withdrawn motion] will remain open until the hearing tomorrow but regardless of your acceptance I will seek a new deadline to set this matter down for trial.” [18] On September 11, 2018, the motion did not go ahead because the matter had not been listed. On this day, counsel agreed that the appellant’s motion for summary judgment would be scheduled and a timetable would be set at Civil Practice Court. The costs of the respondents’ withdrawn motion would be reserved to the motion judge. [19] In the five months thereafter, there were inconclusive settlement discussions, but nothing substantive occurred. [20] On February 27, 2019, the appellant’s counsel appeared in Civil Practice Court to schedule a motion to vary the timetable set by the Master and for summary judgment. The motion, which resulted in the order at issue, was scheduled for July 24, 2019. [21] Both parties delivered materials on the July 24, 2019 motion. The respondents’ materials addressed both the merits of the claim and counterclaim and responded to the appellant’s request for variance of the timetable. The appellant and one of his affiants were cross-examined. [22] On September 23, 2019, the motion judge dismissed the appellant’s action for delay and provided written reasons for decision. She did not address the respondents’ counterclaim. [23] On October 21, 2019, after the dismissal of the action, the respondents served a notice of election to proceed with their counterclaim. The Motion Judge’s Reasons [24] The motion judge noted the appellant’s failure to take any steps to move the action forward for several years after the exchange of pleadings. Even after the retainer of new counsel in March 2016, the appellant took no action until bringing a motion to avoid dismissal for delay in January 2017. As a result of that motion, the Master set a timetable order. Yet again, the appellant took no steps to advance the action, which prompted the respondents’ motion, served in January 2018, to dismiss the action for delay or alternatively for summary judgment. [25] While the respondents ultimately did not proceed with their motion, which was scheduled for September 11, 2018, the appellant took no steps to schedule his own motion until February 2019. In the meantime, “the parties had one phone call and the [appellant] sent one letter in an attempt to settle the matter.” [26] The motion judge found that the eight years’ delay since the commencement of the action was “inordinate.” The appellant had failed to provide a satisfactory explanation for the delay, either before or after the Master’s timetable order. While courts are prepared to make some allowance for delay due to settlement discussions, this was not a satisfactory explanation in the circumstances. [27] In considering the motion to vary the timetable, the motion judge made reference to the test in Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont. S.C.), rev’d on other grounds (2002), 48 C.P.C. (5th) 93. (Ont. Div. Ct.), which was referred to by this court in Prescott v. Barbon , 2018 ONCA 504, 141 O.R. (3d) 616. The motion judge laid out the four Reid factors, namely: (1) the explanation for the litigation delay; (2) inadvertence in missing the deadline; (3) efforts to move promptly to set aside the dismissal; and (4) absence of prejudice to the defendant. [28] The motion judge also cited to Jadid v. Toronto Transit Commission , 2016 ONSC 1176, aff’d 2016 ONCA 936, dealing with the application of the Reid factors in a situation where a party comes to the court seeking a “second lifeline”. [29] Finally, the motion judge properly noted two points. First, it is not necessary to satisfy each part of the Reid test. A contextual approach requires the weighing of all relevant factors to determine what is just in the circumstances: Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited , 2007 ONCA 695, 87 O.R. (3d) 660, at para. 20. Second, she was required to balance two principles, namely: (a) that actions should be determined on their merits if possible; and (b) that the timely and efficient resolution of disputes requires that rules be respected and enforced: 1196158 Ontario Inc. v. 6274013 Canada Limited , 2012 ONCA 544, 112 O.R. (3d) 67, at para. 18. [30] Considering the Reid factors, and applying them with heightened scrutiny due to the appellant’s complete disregard of the timelines established by the Master, the motion judge found that the plaintiff: 1. had not provided a satisfactory explanation for the delay; 2. did not demonstrate that he failed to prosecute the action due to inadvertence; 3. did not move promptly to bring a motion to vary the timetable; and 4. had not proven that the defendants would not suffer prejudice. [31] The motion judge added that if she were wrong in dismissing the action for delay, she would not have decided the summary judgment motion because the parties had disclosed the terms of settlement offers in their motion materials. She would have referred the matter to another judge. Submissions on Appeal (1) Appellant [32] The appellant submits that the motion judge erred in dismissing the action because she failed to consider whether the order was just under the circumstances. She ought to have considered the overall context and history of the litigation and should not have dismissed an action that was ripe for summary determination on the merits. The order was “punitive rather than efficient”, citing to Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited , 2015 ONCA 592, 128 O.R. (3d) 143, at para. 54. (2) Respondents [33] The respondents submit that the appellant was responsible for unreasonable delay and failed to proceed with his motion in a timely way, particularly after the respondents withdrew their motion on September 11, 2018, in the expectation that the plaintiff would move promptly with his. The respondents also submit that the nature of their counterclaim is different from the claim advanced by the plaintiff. Specifically, the plaintiff sought return of the deposit and damages for loss of investment opportunity; whereas, the respondents sought damages for failure to close the real estate transaction. The respondents submit that this court should not consider the notice of election to proceed with the counterclaim, as it amounts to fresh evidence and would require a re-weighing of the Reid factors. Discussion [34] The motion judge’s decision is entitled to deference in the absence of an error in legal principle or a palpable and overriding error of fact. [35] While the motion judge identified the need for a contextual analysis, she failed to consider a critical contextual factor: the dismissal of the appellant’s claim left the respondents’ counterclaim alive. In fact, the respondents have evidenced an intention to proceed with their counterclaim. [36] We do not accept the respondents’ submission that the counterclaim is somehow different from the claim. It is a mirror image of the claim. If the appellant’s claim had been successful, he would have established that he was entitled to refuse to complete the transaction and the respondents’ counterclaim would have failed. Success on the counterclaim, on the other hand, would necessarily mean the failure of the claim. [37] In Cardon Developments Ltd. et al. v. Butterfield , 1999 BCCA 642, 131 B.C.A.C. 197, at para. 5, Southin J.A. set aside an order dismissing a claim for delay because a counterclaim that arose out of the same events remained. Since the claim and counterclaim were “inextricably wound up one with the other” and the defendants were planning on proceeding on the counterclaim, the interests of justice would not be properly served if the claim was not also permitted to proceed. [38] As in Cardon , it was not in the interests of justice to dismiss the appellant’s claim while permitting the respondents to litigate the very same issues in their counterclaim. The order did not promote the timely and efficient resolution of the proceeding. While the claim and counterclaim were well past their “best before” dates, neither party had displayed any diligence in moving the proceedings forward and there was no evidence of prejudice. When the litigation was finally ready for determination, the motion judge erred in failing to consider the fact that dismissing the claim would leave the counterclaim outstanding, exposing the appellant to liability in relation to the very same issue he was litigating. [39] We do not think it was necessary for the motion judge to recuse herself from hearing the summary judgment motion, had she permitted the variation of the timetable. The parties waived privilege over the settlement discussions by referring to them in their materials. It does not appear that she was asked to recuse herself. Having received the evidence and heard the submissions, it would not have been efficient to refer the matter to another judge to decide the summary judgment motion. [40] We cannot leave this matter without observing that this proceeding could have been resolved by a one-day trial. Liability turned on the credibility of the appellant and on one or two documents. Proof of the respondents’ damages, if any, should have been uncomplicated. Sometimes a trial is the just, most expeditious, and least expensive determination of a civil proceeding on its merits, as required by r. 1.04(1). Disposition [41] For these reasons, the appeal is allowed, the dismissal of the action and the costs award are set aside, and the matter is remitted to the Superior Court for determination. There were no submissions as to costs. In the particular circumstances of this case, the costs of this appeal are fixed at $5,000, inclusive of disbursements and all applicable taxes, in the cause. “G.R. Strathy C.J.O.” “P. Lauwers J.A.” “K. van Rensburg J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Taylor v. 864773 Ontario Inc., 2020 ONCA 345 DATE: 20200603 DOCKET: C67381 Rouleau, van Rensburg and Roberts J.J.A. BETWEEN Donald Taylor, Eleanor Hepburn, Mary Lou Taylor-Hawley and Janet Taylor Walker Applicants (Respondents/ Appellants by way of cross-appeal) and 864773 Ontario Inc. Respondent (Appellant/ Respondent by way of cross-appeal) Frank Sperduti and Graham Splawski, for the appellant/respondent by way of cross-appeal 864773 Ontario Inc. Cameron Fiske and William S.M. Cord, for the respondents/appellants by way of cross-appeal Donald Taylor, Eleanor Hepburn, Mary Lou Taylor-Hawley and Janet Taylor Walker Heard: in writing On appeal from the judgments of Justice Michael R. Gibson of the Superior Court of Justice dated July 25, 2019. REASONS FOR DECISION A. Overview [1] Pursuant to an option agreement, the appellant had a right of first refusal in respect of land owned by the respondents. A dispute arose as to whether the appellant had validly exercised its option. The application judge declared that the appellant’s purported exercise of the option was invalid because its offer was not for a “like amount” to a third party offer for the purpose of the agreement. [2] On appeal, the appellant argues that the application judge erred in concluding that its offer was not sufficiently “like” the third-party offer. The respondents cross-appeal, seeking to vary the language in the judgments to facilitate the sale to the third party. [3] For the following reasons, we dismiss the appeal and allow the cross-appeal. B. Background [4] The subject property is a piece of undeveloped farmland in Burlington. The appellant, a neighbouring land owner, has a right of first refusal in respect of the sale of the property pursuant to an option agreement entered into by the parties’ legal predecessors. The appellant can exercise its option under the agreement by indicating its willingness to purchase the property “upon the same terms and conditions and for a like amount” as a third-party offer. [5] There have been many unsuccessful attempts to sell the land. The respondents now seek to sell the land to a third party pursuant to a conditional agreement of purchase and sale with a purchase price of $15.3 million. The conditions in the agreement include the purchaser’s satisfaction with the environmental condition and development suitability of the property. The respondents notified the appellant of this offer pursuant to the terms of the option agreement. The appellant then purported to exercise the option by making an offer to buy the property for $10,000,000, with no conditions. [6] The respondents brought the underlying application seeking a declaration that this was an invalid exercise of the option and that the option be discharged from title. The appellant brought a counter-application, seeking a declaration that it had validly exercised the option. Its position was that considering the factual matrix of the property and the option, and notably the impediments to development of the property, the proposed $10,000,000 purchase price offered without conditions is a “like amount”. [7] The application judge allowed the respondents’ application in part and dismissed the appellant’s counter-application. He declared that the option had not been validly exercised because $10,000,000 is not a “like amount” to the $15.3 million offer. The application judge further declared that the option to purchase will be extinguished should the transaction be completed and at that point the respondents could move for an order directing the removal of certain instruments related to the option agreement from title. C. Analysis (1) The Application Judge Did Not Err in Concluding that the Exercise of the Option is Invalid [8] The appellant alleges that the application judge disregarded two key pieces of evidence. First, the appellant explains that the development costs it alleges will have to be incurred to develop the property for residential purposes are such that its offer of $10,000,000 without conditions is a like amount to the $15.3 million offer received by the respondents. The appellant argues that the application judge disregarded this evidence solely on the basis that no expert opinion was led in support, despite the fact that the evidence filed by the appellant came from its corporate vice-president who had first-hand knowledge of the matter. Second, the appellant argues that the application judge did not consider the fact that numerous prior agreements of purchase and sale had failed to close because of the significant development costs that would have to be incurred by prospective purchasers. [9] We see no reason to interfere with the application judge’s conclusion. He considered all of the relevant evidence and his conclusion that the appellant's offer was not in a “like amount” is well supported in the record. [10] The third-party agreement of purchase and sale in the amount of $15.3 million received by the respondents, states that the property is being bought “as is” without representations or warranties. Nothing in the record indicates the purchaser’s proposed use of the property. Even accepting the existence of “extraordinary costs” associated with developing the property, as advanced by the appellant in its supporting affidavit, adjustments to the purchase price to account for these costs may not be demanded. It is simply speculation as to whether the third-party purchaser will seek to renegotiate the price and, if such a renegotiation is attempted, whether it will result in a new or modified agreement of purchase and sale or the agreement simply falling through. In our view, none of these possibilities change the nature of the existing offer. [11] Further, we do not accept the appellant’s argument that the application judge did not consider the property’s history of failed attempts at sale. These prior offers are referenced in his reasons. The fact that prior offers have fallen through as a result of higher than expected development costs does not establish the requisite similarity between the purchase prices at issue. [12] As for the appellant’s argument that the application judge erred by concluding there was insufficient evidence that the unconditional offer is worth the difference in price, we disagree. The application judge was not required to accept the partisan opinion of similarity tendered by the appellant’s own officer, an opinion premised on the appellant’s proposed use of the property. He properly concluded that absent expert evidence confirming the appellant’s proposed adjustments are necessary and appropriate when comparing the two offers, it would not “accord with sound commercial principles and good business sense, or indeed common sense” to make adjustments of that magnitude. [13] In these circumstances, we see no error in the application judge’s conclusion that the proposed purchase price of $10,000,000 is not a “like amount” to the $15.3 million purchase price being considered by the respondents. It may well be that, if the appellant was the party seeking to purchase the property, it would demand a reduction in the purchase price equal to the amount of the costs it alleges need to be incurred to develop the property for residential purposes. The fact remains, however, that the $15.3 million price has not been renegotiated and, at this point, nothing in the record indicates that it will be. (2) The Cross-appeal is Allowed on Consent [14] The appellant agrees that, if its appeal is dismissed, the respondents’ cross-appeal regarding the form of the judgments should be allowed. As a result, we allow the cross-appeal, set aside paragraph two of both judgments and replace them with the following: THIS COURT DECLARES that the rights of 864773 Ontario Inc. to purchase the Property (as hereinafter described) pursuant to the Option to Purchase dated the 14 th day of June, 1973, registered against those lands and premises known municipally as 1309 Appleby Line, in the City of Burlington, Ontario and registered as Instrument No. 364344 as against PIN 07183-0185 (LT), (the “Property”), which rights were assigned by Instruments Nos. 642060 registered June 3, 1986, 680569 registered November 19, 1987 and 684283 registered January 15, 1988, are extinguished in their entirety on the completion of the purchase of the Property pursuant to an Agreement of Purchase and Sale between Taylor, Donald; Hepburn, Eleanor, Walker, Janet Taylor; and Taylor-Hawley, Mary Lou as Sellers and John Vitulli Jr. in trust (and without personal liability) as Buyer, dated the 17th day of December, 2018, (the “Agreement of Purchase and Sale”) by John Vitulli Jr. in trust (and without personal liability) or his Permitted Assignee, as defined in Schedule A, paragraph 10 of the Agreement of Purchase and Sale. THIS COURT ORDERS that immediately following the registration of a Transfer/Deed of Land from Donald Taylor, Eleanor Hepburn, Janet Taylor Walker and Mary Lou Taylor-Hawley to John Vitulli Jr. in trust (and without personal liability) or his Permitted Assignee, showing consideration of $15,300,000.00, the Land Registrar for the Regional Municipality of Halton (No. 20) (hereinafter referred to as the “Land Registrar”) is hereby directed to delete, discharge or otherwise rule off the title abstract for PIN 07183-0185 (LT) Instruments Nos. 364344, registered June 14, 1973, 642060, registered June 3, 1986, 680569, registered November 19, 1987 and 684283, registered January 15, 1988, forthwith upon this Order, being submitted for registration. THIS COURT ORDERS that a law statement of a lawyer for Donald Taylor, Eleanor Hepburn, Janet Taylor Walker and Mary Lou Taylor-Hawley that the Transfer of the Property has been made to either John Vitulli Jr. in trust or a Permitted Assignee, as defined in Schedule A, paragraph 10 of the Agreement of Purchase and Sale, shall be full and sufficient evidence of same having occurred and the Land Registrar shall accept such law statement as good and sufficient evidence of same, and is directed and shall on the registration of such Transfer of the Property with such law statement, delete, discharge or otherwise rule off the instruments referred to in paragraph 2 of this Order. D. Disposition [15] The appeal is dismissed, the cross-appeal is allowed and the judgment is varied as described above. [16] If the parties cannot agree on costs of this appeal and cross-appeal, they may make brief submissions in writing electronically to coa.e-file@ontario.ca, not to exceed five pages in length as follows: the respondent within ten days of the release of this decision, and the appellant within five days thereafter. “Paul Rouleau J.A.” “K. van Rensburg J.A.” “L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Travelers Insurance Company of Canada v. CAA Insurance Company, 2020 ONCA 382 DATE: 20200615 DOCKET: C66783 Lauwers, Paciocco and Fairburn JJ.A. IN THE MATTER OF the Insurance Act , R.S.O. 1990, c. I.8, s. 268 (2) and Ontario Regulations 34/10 and 283/96 thereunder; AND IN THE MATTER OF the Arbitration Act , 1991, S.O. 1991, c.17; AND IN THE MATTER OF an Arbitration: BETWEEN Travelers Insurance Company of Canada Appellant and CAA Insurance Company Respondent Daniel Strigberger and Julianne Brimfield, for the appellant Jamie R. Pollack and Stacey A. Morrow, for the respondent Heard: November 26, 2019 On appeal from the judgment of Justice Andra Pollak of the Superior Court of Justice, dated September 13, 2018, with reasons reported at 2018 ONSC 3911. Lauwers J.A.: I. Overview [1] The claimant, Patricia Soloway, was catastrophically injured in an accident in Nunavut, where she was temporarily employed as a nurse supervisor. She was driving a Nunavut-plated vehicle owned by the Government of Nunavut and covered by a Nunavut motor vehicle insurance policy issued by Travelers Insurance Company of Canada to the Government of Nunavut. Under that policy the claimant was entitled to Nunavut statutory accident benefits. [2] The claimant was ordinarily resident in Ontario. She owned a car plated in Ontario and insured by CAA Insurance Company under the terms of the Ontario Standard Automobile Policy (“OAP”), which included coverage for prescribed statutory accident benefits. Ontario statutory accident benefits are more generous than those of Nunavut. [3] Under the terms of her Ontario insurance policy, the claimant was contractually entitled to claim Ontario statutory accident benefits from CAA. The OAP covers an insured wherever he or she drives in North America. Section 1.2 of the prescribed policy form provides: This policy covers you and other insured persons for incidents occurring in Canada, the United States of America and any other jurisdiction designated in the Statutory Accident Benefits Schedule, and on a vessel travelling between ports of those countries. All of the dollar limits described in this policy are in Canadian funds. The CAA coverage followed the claimant to Nunavut. This was the basis on which the claimant was entitled to seek statutory accident benefits under the CAA policy, even though the accident that led to her injuries occurred in Nunavut and did not involve her Ontario-insured car. CAA has been paying those benefits. [4] CAA pursued Travelers for reimbursement for some or all of the benefits CAA paid to the claimant under Ontario’s legislated motor vehicle insurance regime as a form of a “statutory cause of action”: Unifund Assurance Company of Canada v. Insurance Corporation of British Columbia , 2003 SCC 40, [2003] 2 S.C.R. 63, at para. 10, per Binnie J. [5] CAA succeeded in its claim against Travelers in an arbitration under s. 268 of the Ontario Insurance Act [1] . The arbitrator required Travelers to reimburse CAA for the benefits CAA had paid to the claimant and to assume responsibility for paying the benefits to her in the future. The appeal judge upheld the arbitrator’s decision, accepting the arbitrator’s analysis. Travelers appeals to this court. [6] Nothing in this decision affects the claimant’s entitlement to Ontario statutory accident benefits. The only question is which insurer must pay them. II. The Issue [7] The issue in this appeal is whether CAA is entitled under the Ontario Insurance Act to recover from Travelers some or all of the statutory accident benefits that CAA has paid to the claimant and to compel Travelers to pay these benefits to her in the future. [8] As I will explain, this issue turns on whether, in respect of the Nunavut policy and the accident in Nunavut, Travelers is to be considered an “Ontario insurer” for the purpose of the priority provisions of the Ontario Insurance Act . I conclude that Travelers is not an Ontario insurer for that purpose and is not obliged to indemnify CAA or to assume CAA’s obligations to the claimant. III. The Positions of the Parties [9] Travelers is prepared to pay what it is obliged to pay as statutory accident benefits under the Nunavut policy (for which it received premiums at the Nunavut level), but not the higher Ontario statutory accident benefits. Travelers argues that the statutory scheme does not oblige it to pay the Ontario benefits and that the arbitrator erred in so finding. [10] CAA argues that, having elected to take the benefits of its presence in the lucrative Ontario insurance market, Travelers must also take the burdens, one of which is the possibility that it would have to assume financial responsibility under the priority provisions of the Ontario Insurance Act , as CAA submits the arbitrator correctly found. IV. The Arbitrator’s Decision [11] The operative decision in this dispute is that of the arbitrator, who concluded that s. 268 of the Ontario Insurance Act supplied CAA with a statutory basis for its claim against Travelers. The arbitrator relied on two connections between Travelers and Ontario to do so. First, he found that Travelers is an “Ontario insurer” because it: “is licensed to undertake automobile insurance in Ontario as outlined in section 224(1) of the Insurance Act ”: at p. 8. Second, he found that Travelers is bound by the Power of Attorney and Undertaking (“PAU”), which Travelers signed in 1964 . He said: “ I am satisfied that as a signatory to the PAU, Travelers is considered to be an Ontario insurer for the purposes of this dispute between insurers and is therefore subject to the provisions of the Insurance Act , the Statutory Accident Benefits Schedule and its Regulations”: at p. 14. [12] The arbitrator then added a determination of considerably broader application: “I find that a signatory to the PAU essentially becomes an insurer in the province or Territory where the claim is brought and with that exposure to the liability limits, accident benefit limits, as well as the loss transfer and priority obligations, if any, of that jurisdiction”: at p. 16. The result is that: “the priority provisions of the Ontario Insurance Act apply to Travelers”: at p. 16. [13] The arbitrator then applied s. 268(5.2) of the Ontario Insurance Act and stipulated that Travelers was the priority insurer with responsibility for paying and adjusting statutory accident benefits to and on behalf of the claimant, on the basis that she was the occupant of the vehicle Travelers insured at the time of the accident. The arbitrator required Travelers to indemnify CAA for the benefits it has paid to or on behalf of the claimant together with interest, and to assume the financial burden of future payments. V. Analysis [14] Because this is a statutory appeal that raises questions of law, including questions of statutory interpretation, the standard of correctness applies: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65, at paras. 37, 53. In any event, the arbitrator made several serious legal errors that I would consider constitutional, jurisdictional, and exceptional, in respect of which deference is not due: Intact Insurance Company v. Allstate Insurance Company of Canada , 2016 ONCA 609, 131 O.R. (3d) 625, at para. 53, leave to appeal refused, [2016] S.C.C.A. No. 392. The standard of correctness has always applied to questions of law: Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada , 2010 SCC 33, [2010] 2 S.C.R. 245, at para. 23; Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23, at para. 46; MacDonald v. Chicago Title Insurance Co. of Canada , 2015 ONCA 842, 127 O.R. (3d) 663, leave to appeal refused, [2016] S.C.C.A. No. 39. [15] I now consider whether the arbitrator correctly applied Unifund to determine that Travelers was an Ontario insurer for the purposes of s. 268 and the role of the PAU in reaching that conclusion. In my view, the arbitrator erred in his application of the Unifund decision. His approach to the significance of the PAU would effectively turn Unifund on its head. [16] The governing principle in Unifund is that Ontario’s insurance laws do not have extraterritorial effect, as Binnie J. explained, at paras. 50-51: It is well established that a province has no legislative competence to legislate extraterritorially. If the Ontario Act purported to regulate civil rights in British Columbia arising out of an accident in that province, this would be an impermissible extraterritorial application of provincial legislation. This territorial restriction is fundamental to our system of federalism in which each province is obliged to respect the sovereignty of the other provinces within their respective legislative spheres, and expects the same respect in return. It flows from the opening words of s. 92 of the Constitution Act, 1867 , which limit the territorial reach of provincial legislation: “ In each Province the Legislature may exclusively make Laws in relation to” the enumerated heads of power. [Emphasis in original; Internal citations omitted.] [17] In Unifund , the Brennans were insured under an Ontario policy issued by Unifund. While driving a rental car in British Columbia, they were struck by a tractor-trailer insured by the Insurance Corporation of British Columbia ("ICBC") under a British Columbia insurance policy. The Brennans sued in British Columbia and were awarded damages of about $2.5 million. Unifund had paid the Brennans statutory accident benefits under the Ontario policy from the time the Brennans claimed benefits from Unifund until the trial judge's decision, several years later. In the British Columbia action, ICBC, under British Columbia legislation, had deducted the amount of the statutory accident benefits from the trial award payable to the Brennans. Unifund sought reimbursement from ICBC of the benefits it had paid to the Brennans. [18] The Supreme Court found that Unifund could not use the provisions of the Ontario Insurance Act to recover the statutory accident benefits it had paid. In my view, the result in this case is the same. [19] As noted, the arbitrator in this case relied on two factors to tie Travelers into the Ontario statutory regime for determining priorities. The first was that Travelers had signed the PAU; the second is Travelers’ status as an “Ontario insurer”. I address each factor in turn. [20] The arbitrator’s reliance on the fact that Travelers had signed the PAU is contrary to Binnie J.’s reasoning about the role of the PAU. He stated in Unifund , at para. 100: The PAU is about enforcement of insurance policies , not about helping insurance companies, which have been paid a premium for the no-fault coverage, to seek to recover in their home jurisdictions their losses from other insurance companies located in a different jurisdiction when the accident took place in that other jurisdiction, and where the claims arising out of the accident were litigated there. [Emphasis in original.] [21] The PAU is a complex document containing many provisions designed to protect insureds, which Binnie J. discussed at length. He quoted and agreed with Professor Vaughan Black’s observation: “The reciprocal system, of which the PAU is a key part, thus has what might loosely be described as a pro-compensation, consumer-protection function”: Unifund , at para. 100, citing V. Black, “Interprovincial Inter-Insurer Interactions: Unifund v. ICBC ” (2002), 36 Can. Bus. L.J. 436, at p. 444. The PAU’s purpose is to protect insureds, not insurers. It therefore offers no assistance to CAA in this dispute. [22] Accordingly, the arbitrator was not correct in his bald assertion that “a signatory to the PAU essentially becomes an insurer in the province or Territory where the claim is brought and with that exposure to the liability limits, accident benefit limits, as well as the loss transfer and priority obligations, if any, of that jurisdiction”: at p. 16. The use and application of the PAU in favour of insureds is context specific. If, for example, the claimant had driven the Nunavut vehicle into Ontario and had the accident here, Travelers would have had to provide her with statutory accident benefits at the Ontario level under the Nunavut policy. That is how the PAU is designed to work. But there is no basis for the arbitrator’s assertion that the PAU operates to extend “loss transfer and priority obligations” between or among insurers otherwise liable to compensate an insured under the Ontario Insurance Act ’s provisions. [23] The second factor the arbitrator relied on to tie Travelers into the Ontario priorities regime was Travelers’ status as an “Ontario insurer”: at p. 16. He rooted his decision in a single statement Binnie J. made in the last sentence of para. 12 of Unifund : Section 275(4) of the Ontario Act provides that disputes about indemnification are to be resolved by arbitration, pursuant to the Ontario Arbitration Act, 1991 , S.O. 1991, c. 17. There is no doubt that if the appellant were an Ontario insurer, it would be required to arbitrate Unifund's claim. [Emphasis added.] [24] Binnie J. did not explain what he meant by the term “Ontario insurer.” This is not a term of art or a technical legal term. The arbitrator assumed that Travelers was an Ontario insurer on the evidence presented by CAA – that it was licensed to undertake automobile insurance in Ontario, as required by s. 224(1) of the Ontario Insurance Act , and had offices in Ontario. [25] In my view, the correct approach is not quite so simple. Like Travelers, many of Canada’s car insurers are licensed to write car insurance here and elsewhere in Canada. Mere licensing, or the presence of an office, does not convert these insurers into Ontario insurers for all purposes, nor does it make the Ontario Insurance Act the governing legislation for all of the automobile insurance policies they underwrite. Treating mere Ontario licensing as the sole reason to constitute an insurer as an “Ontario insurer” would give Ontario insurance legislation extraterritorial effect, which would be contrary to the essential holding in Unifund . [26] In this case, Travelers issued a Nunavut motor vehicle policy insuring a Nunavut-plated vehicle owned by the Government of Nunavut. The accident occurred in Nunavut. Under that policy, which is governed by Nunavut insurance law, the claimant was entitled to Nunavut statutory accident benefits. [27] There are several reasons to conclude that the Ontario Insurance Act has no application to the Nunavut policy on the facts of this case. [28] The first is in the interpretation of the legislation. Ontario requires automobiles driven in the province to have valid insurance. Ontario-registered cars are usually covered by the prescribed OAP. Those who drive a vehicle into Ontario from elsewhere must also have adequate insurance. These concepts are captured by the language of the Ontario Insurance Act , in particular Part VI, which deals with automobile insurance. Section 224(1) provides: 224(1) In this Part, “automobile” includes, (a) a motor vehicle required under any Act to be insured under a motor vehicle liability policy “contract” means a contract of automobile insurance that, (b) is undertaken by an insurer that is licensed to undertake automobile insurance in Ontario, or (c) is evidenced by a policy issued in another province or territory of Canada, the United States of America or a jurisdiction designated in the Statutory Accident Benefits Schedule by an insurer that has filed an undertaking under section 226.1. [29] In Benson v. Belair Insurance Company Inc. , 2019 ONCA 840, 148 O.R. (3d) 589, Feldman J.A. said, at para. 41, that the phrase “required under any Act” in s. 224(1) refers only to an Ontario statute: I say Ontario statutes because s. 241(1) refers to “any Act”, and s. 87 of the Legislation Act, 2006 , S.O. 2006, c. 21, Sched. F. states that the words “Act” and “statute”, when used in an Act or regulation means an Act of the Legislature of Ontario. [30] Section 224(1) must be read together with ss. 226 and 226.1 of the Ontario Insurance Act . Section 226 addresses the application of Part VI and provides: 226(2) This Part does not apply to a contract providing insurance in respect of an automobile not required to be registered under the Highway Traffic Act unless it is insured under a contract evidenced by a form of policy approved under this Part. [Emphasis added.] [31] Section 226.1 supplies additional context for out-of-province insurers. It provides: 226.1  An insurer that issues motor vehicle liability policies in another province or territory of Canada, the United States of America or a jurisdiction designated in the Statutory Accident Benefits Schedule may file an undertaking with the Chief Executive Officer, in the form provided by the Chief Executive Officer, providing that the insurer’s motor vehicle liability policies will provide at least the coverage described in sections 251, 265 and 268 when the insured automobiles are operated in Ontario . [Emphasis added.] [32] These provisions, properly interpreted, include policies that are issued in Ontario and policies that are issued in another province when vehicles from those jurisdictions are operated in Ontario. They make it plain that Part VI of the Ontario Insurance Act did not apply to the Nunavut vehicle operated by the claimant in Nunavut at the time of the accident because the vehicle was not then required to be insured in Ontario. [33] How did Ontario statutory accident benefits for the Nunavut accident come to be arbitrated under s. 268 of the Ontario Insurance Act ? The purpose of s. 268 is to permit two or more insurers who might have responsibility for paying Ontario statutory accident benefits to determine responsibility on a set of prescribed priority rules. If the insurers cannot agree, then the issue is arbitrated under the Disputes Between Insurers regulation. [34] Although s. 268 appears to require the insured to select a certain insurer from which to claim benefits, that is not how the scheme works in practice. The historic refusal of insurers to pay benefits before their liability had been established through litigation led to the enactment in 1995 of the Dispute Between Insurers regulation: Ontario (Finance) v. Echelon General Insurance Company , 2019 ONCA 629, 147 O.R. (3d) 1, at para. 12; Allstate Insurance Company of Canada v. Motor Vehicle Accident Claims Fund , 2007 ONCA 61, 84 O.R. (3d) 401, at para. 24. The regulation allows the claimant to select the insurer that will pay statutory accident benefits and the selected insurer must pay. The paying insurer may then initiate an arbitration under the regulation to sort out priorities where another insurer is involved. At that point the claimant is no longer involved or affected by the outcome; the claimant will receive the benefits regardless of how responsibility is allocated between the insurers. That is how this case got before the arbitrator. [35] But the priority rules stipulated by s. 268 only apply if both insurers are subject to those rules. Section 268(1) 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] [36] Section 226(2) limits the application of the Ontario Insurance Act in providing that Part VI “ does not apply to a contract providing insurance in respect of an automobile not required to be registered under the Highway Traffic Act ” (emphasis added). The Nunavut Insurance Act , R.S.N.W.T. (NU) 1988, c. I-4 contains similar provisions: ss. 1(1), 2(2), 2(3), 39, 40, 124(1), 124(3). An insurance policy cannot both be governed by Ontario and Nunavut law at the same time. As this court clarified in Benson , it is a “legal misapprehension that the lex loci delicti [principle] should be applied to a contract and statutory interpretation issue involving an Ontario contract and Ontario legislation where that legislation specifically directs that Ontario law is to apply”: at para. 52. By parity of reasoning the same is true with respect to a Nunavut insurance policy where the Nunavut legislation clearly states that Nunavut law governs the contract. [37] I note that this conclusion accords with this court’s analysis in Young v. Ontario (Minister of Finance) (2003), 68 O.R. (3d) 321 (C.A.). In Young , this court concluded that a policy of insurance issued in New Mexico was not a policy of insurance within the meaning of s. 268. The plaintiff was catastrophically injured when her pick-up truck flipped over in New Mexico, where she resided. She returned home to Ontario and sought statutory accident benefits from t he Motor Vehicle Accident Claims Fund , which is “the payor of last resort of no-fault accident benefits to persons injured in Ontario where there is otherwise no access to coverage under a motor vehicle liability policy”: at para. 2. This court refused relief. As MacPherson J.A. explained, at paras. 31-32: The respondent's vehicle did not need to be registered in Ontario. Nor did the respondent's insurance policy need to comply with the mandatory coverage provisions of the Compulsory Automobile Insurance Act. The respondent's insurance policy could not be deemed by s. 268(1) of the Insurance Act to provide for the statutory accident benefits set out in the Schedule. This is because the respondent's vehicle was not being operated in Ontario. Moreover, the respondent did not sustain injuries in a motor vehicle accident in Ontario. It follows that Part VI of the Insurance Act, including s. 268, has no application to the respondent or her vehicle. The only way in which the respondent could qualify for Ontario statutory accident benefits for an accident in New Mexico would have been if she were an insured person in respect of a particular motor vehicle liability policy issued in Ontario. In other words, her recourse for the payment of Ontario statutory benefits would have been contractual in nature. The respondent did not have such a policy, nor was she an insured person on any other Ontario policy. [38] Accordingly, the arbitrator erred in applying s. 268 of the Ontario Insurance Act to Travelers and to the Nunavut policy on the facts of this case. [39] The second reason for questioning the application of s. 268 of the Ontario Insurance Act is that the Ontario legislation provides no basis on these facts for managing the inconsistencies in the intersection of the statutory insurance schemes of different political entities in Canada, nor could it do so constitutionally under Unifund . The anomalies emerge quickly. In their text, Insurance Law in Canada , 4th ed (Toronto: LexisNexis Canada, 2018), Craig Brown and Andrew Mercer make the following observations in s. 14.5(c)(i) on medical and rehabilitation benefits: In most jurisdictions ( all except Ontario ), where the alternative source of compensation is another automobile no-fault policy, the automobile insurer of the owner of the vehicle involved in the accident pays the no-fault benefits. If there are two or more vehicles involved, the insurance on each car covers the occupants of that car. If there are two cars involved in a collision with a pedestrian, the claim is paid by the insurer of the car that created the force which caused the impact. [Emphasis added.] [40] The authors explain their statement that: “ the automobile insurer of the owner of the vehicle involved in the accident pays the no-fault benefits ” in an instructive footnote: This is made clear in most of the Insurance Acts; see Alberta, s. 591(1); New Brunswick, s. 260(1); Nova Scotia, s. 143(1); Northwest Territories, s. 161(1). The matter appears to be dealt with in Newfoundland (s. 34(3)) and the Yukon (s. 159(3)) by a provision (which also appears in addition to those cited above in other Insurance Acts except P.E.I. and Nova Scotia) which provides: (3) The insurance mentioned in paragraph (a) of subsection (1) is first loss insurance, and any other automobile insurance of the same type available to the injured person or in respect of a deceased person is excess insurance only. Although the meaning of this provision is not entirely clear, the confusion has been resolved in practice by a rule in the Insurance Bureau of Canada Inter-Company Claims Agreement. The insurer of the vehicle involved in the accident pays. In contrast, in Ontario, a claimant's first recourse is to his/her own insurer. See Ontario Insurance Act , s. 268(2). [Internal citations omitted.] [41] T he Nunavut Insurance Act has a similar provision to the usual provisions outside Ontario and stipulates what happens when more than one policy applies: 157(1) Every contract evidenced by a motor vehicle liability policy shall provide the benefits set out in subsection 1 of the Schedule subject to the limits, terms and conditions set out in the Schedule. 157(4) The insurance mentioned in subsection (1) is a first loss insurance, and any other automobile insurance of the same type available to the injured person or in respect of a deceased person is excess insurance only. 161(1) Where a person entitled to benefits provided by insurance under sections 157 and 158, or either of them, (a) is an occupant of a motor vehicle involved in an accident, the insurer of the owner of the motor vehicle is, in the first instance, liable for payment of the benefits provided by the insurance. [Emphasis added.] [42] If the claimant had made a claim in Nunavut against her employer’s policy with Travelers, the Nunavut legislation would have designated the Nunavut policy as the primary policy. It is not clear how or whether the claimant’s entitlement to coverage under CAA’s Ontario insurance policy would have figured in, since Nunavut legislation can have no extraterritorial application under Unifund . There is no evidence before the court on the impact of the Insurance Bureau of Canada Inter-Company Claims Agreement, which Brown and Mercer mention, on the way that insurers privately address the primary and excess coverage issues that this legislation and the legislation of other provinces might create. [43] Next, assuming that s. 268 of the Ontario Insurance Act governs in these circumstances, did the arbitrator apply the section properly? That question turns on which of two subsections is applicable, ss. 268(5.1) or (5.2). They provide: (5.1)  Subject to subsection (5.2), if there is more than one insurer against which a person may claim benefits under subsection (5), the person, in his or her discretion, may decide the insurer from which he or she will claim the benefits. (5.2)  If there is more than one insurer against which a person may claim benefits under subsection (5) and the person was, at the time of the incident, an occupant of an automobile in respect of which the person is the named insured or the spouse or a dependant of the named insured, the person shall claim statutory accident benefits against the insurer of the automobile in which the person was an occupant. [44] The arbitrator quoted these subsections and referred to s. 3(7)(f) of the Statutory Accidents Benefits Schedule , O. Reg. 34/10, which provides: An individual who is living and ordinarily present in Ontario is deemed to be the named insured under the policy insuring an automobile at the time of an accident if, at the time of the accident, (i) the insured automobile is being made available for the individual’s regular use by a corporation, unincorporated association, partnership, sole proprietorship or other entity…. [45] The arbitrator took this view, at p. 17: If it were demonstrated that the claimant had “regular use” of the vehicle she was operating at the time of the accident, she would be considered a deemed named insured. Being a named insured on a policy with CAA and a deemed named insurer under the Travelers’ policy, the tie breaking mechanism of s. 268(5.2) would apply and the insurer of the vehicle in which she was an occupant, Travelers, would stand in priority if “regular use” cannot be demonstrated then CAA would stand in priority by reason of s. 268(2)(i). [46] The arbitrator found that: “the claimant had ‘regular use’ at the time of the accident and was a deemed ‘named insured’ under the Travelers policy and also a ‘named insured’ under her policy with CAA”: at p. 19.  He applied s. 268(5.2) and found Travelers to be the priority insurer. I note that Travelers did not appeal the arbitrator’s determination that the claimant is “deemed” to be a “named insured” under the Nunavut policy analyzed under Ontario law. However, I see this as a legal question that must be resolved in order to correctly determine the appeal. [47] The difficulty with this analysis is that the arbitrator assumed that Ontario law was applicable in determining both the claimant’s status under the Nunavut policy and her entitlement to statutory accident benefits, without regard to the Nunavut legislation or to the Nunavut policy limits. Under the Nunavut policy, the claimant was not a “named insured” and the Nunavut legislation does not include the concept of a “deemed named insured.” If Nunavut legislation had been considered and applied in determining the claimant’s status under the Nunavut policy, the claimant would not be a “named insured” within the meaning of s. 268(5.2). Instead, s. 268(5.1) of the Ontario Insurance Act would apply. The claimant, in her discretion, claimed benefits from CAA, and that choice would govern. [48] Further, under Nunavut law, the claimant was only entitled to Nunavut statutory accident benefits. As noted, if the claimant had been driving the Nunavut vehicle in Ontario at the time of the accident, the PAU would have obliged Travelers to pay statutory accident benefits at the Ontario rate and not the Nunavut rate, but that is not what happened here. There is no legal basis on which the arbitrator could force Travelers to pay more than the Nunavut limits under its Nunavut policy. Ontario’s Insurance Act cannot have extraterritorial application to compel Travelers to accept the burden of Ontario statutory benefits in this case, and the terms of the PAU do not alter that. [49] Both the arbitrator and the appeal judge erroneously treated Travelers as an Ontario insurer in this case and the Nunavut policy as an Ontario policy. The arbitrator and the appeal judge mistakenly looked to the PAU as preventing Travelers from taking the position that it was not required to pay Ontario statutory accident benefits under the Nunavut policy. As noted, this is contrary to Unifund because it would constitute an extraterritorial application of Ontario law. Nor is it justified under the PAU, which does not have the effect of converting a Nunavut insurance contract into an Ontario insurance contract and does not, by its terms, require Travelers to pay Ontario statutory accident benefits in this case: Potts v. Gluckstein (1992), 8 O.R. (3d) 556 (C.A.), at para. 12, leave to appeal refused, [1992] S.C.C.A. No. 42, citing Corbett v. Co-operative Fire & Casualty Co. (1984), 34 Alta. L.R. (2d) 158 (Q.B.), at para. 31, per Shannon J., citing MacDonald v. Proctor (1977), 19 O.R. (2d) 745 (C.A.), aff’d [1979] 2 S.C.R. 153. [50] CAA submits that this court should apply the reasoning in Primmum Insurance Co. v. Allstate Insurance Co. , 2010 ONSC 986, 100 O.R. (3d) 788, aff’d 2010 ONCA 756, 107 O.R. (3d) 159 , leave to appeal refused, [2011] S.C.C.A. No. 13, a case that specifically addresses the application of s. 275 of the Ontario Insurance Act . [51] In Primmum , an Ontario resident was insured under an Ontario policy issued by Primmum. He was riding his motorcycle in North Carolina when he was struck and injured by a pick-up truck insured by Allstate under a policy issued in North Carolina. As of 2010, Allstate was licensed to provide insurance in Ontario and had an office in Markham, Ontario. Allstate argued that s. 275 of the Ontario Insurance Act – the loss transfer provision – only applied where “the accident occur[ed] in Ontario or both policies were issued in Ontario” and that the section “d[id] not apply where one of the policies was issued outside of Ontario to cover a vehicle licensed and registered outside Ontario, even though it has signed a PAU”: at para. 22. [52] The Primmum application judge stated, at paras. 20, 28: If both of the insurers are registered in and carry on business in Ontario, they may claim loss transfer, even if the accident occurred in a non-loss-transfer jurisdiction such as Vermont: Royal & Sun Alliance Insurance Co. v. Wawanesa Mutual Insurance Co . (2006), 84 O.R. (3d) 449, [2006] O.J. No. 5131, 2006 CanLII 42663 (S.C.J.), per Newbould J., who followed Binnie J. in Unifund . In the Insurance Act , Allstate is an “insurer” under s. 1 and it issues “contracts” because it is licensed to sell insurance in Ontario under s. 224(1)(a). The premiums it charges for the insurance or the limits of coverage in North Carolina are of no concern to Ontario. [53] He therefore determined Allstate was a licensed Ontario insurer under the Ontario Insurance Act because Allstate met the definition of “insurer” and was licensed to undertake and sell automobile insurance in Ontario: at paras. 17, 20. He concluded that Allstate could have avoided liability by either “deregister[ing] as an Ontario insurance company or incorporat[ing] a subsidiary to sell insurance in North Carolina”: at para. 29. [54] This court upheld the Primmum decision. In a brief endorsement, this court simply quoted Binnie J.’s sentence in Unifund and held that “Allstate is an Ontario insurer, accordingly it must arbitrate Primmum’s claim”: at para. 7. In doing so, it appears that the court rejected Allstate’s argument in its written submissions that Binnie J.’s statement was obiter . [55] I conclude that Primmum is of no assistance in this case. It does not touch the earlier determination that the arbitrator in this case erred in his interpretation of s. 268 of the Ontario Insurance Act , which was not at issue in that case. Primmum dealt only with the application of s. 275 of the Ontario Insurance Act , the underlying purpose of which is distinct from the purpose underlying the priority rules in s. 268. [3] [56] Moreover, neither the Primmum application judge nor this court explored what Binnie J. meant by “Ontario insurer,” which, as noted earlier, is not a defined term. That exploration remains open to the court and has been undertaken in this case. [57] For these reasons, I conclude that Primmum is not applicable to the factual scenario presented in this appeal. [4] Conclusions [58] In my view, the arbitrator erred in law in finding that Travelers was an Ontario insurer required to arbitrate priorities with CAA under s. 268 of the Ontario Insurance Act , for the reasons set out above. Further, if the arbitrator had been correct in that finding, he misapplied the section by failing to give effect to Nunavut law regarding the claimant’s status and the limits on her entitlement to Nunavut benefits under Nunavut legislation. The arbitrator should have found that s. 268(5.1) applied so that the claimant’s decision to seek statutory accident benefits from CAA was final and binding on CAA. VI. Disposition [59] I would allow the appeal, set aside both the order of the appeal judge and the award of the arbitrator, and issue a declaration that Travelers is not liable under s. 268 of the Ontario Insurance Act to reimburse CAA for the benefits CAA has paid to the claimant or to assume responsibility for paying the benefits to her in the future. [60] I would award the costs of the appeal to Travelers in the agreed amount of $10,000 all-inclusive, reverse the costs awards made by the arbitrator and the appeal judge against Travelers, and require CAA to pay the same amounts to Travelers. Released: “P.L.” June 15, 2020 “P. Lauwers J.A.” “I agree. David M. Paciocco J.A.” “I agree. Fairburn J.A.” [1] Insurance Act , R.S.O. 1990, c. I.8. The arbitration took place under s. 7 of Disputes Between Insurers , O. Reg. 283/95 before Arbitrator Kenneth J. Bialkowski: CAA Insurance Co. and Travelers Insurance Co., Re (2017), 66 C.C.L.I. (5th) 149. [2] I note that Part VI of the Ontario Insurance Act also applies to a foreign insured when they are injured in any vehicle driven in Ontario through the operation of the PAU: Healy v. Interboro Mutual Indemnity Insurance Company (1999), 44 O.R. (3d) 404 (C.A.). [3] See the discussion by John S. MacNeil in “The Enigmatic Exception to the Bar Against Subrogation: S. 275 of the Insurance Act” (2008), 34 Adv. Q. 172 at pp. 175-178. Section 275 was introduced as a limited exception to the prohibition against recovering no-fault benefits through subrogation. As Mr. MacNeil points out, s . 275 was not intended to re-order the priority rules for payment of benefits. Instead, it introduced a statutory indemnity to give effect to a fault-based balancing of any inequity introduced by the expanded no-fault regime. It does not transfer responsibility for payment of accident benefits but permits a partial statutory indemnity in certain cases. [4] Travelers did not argue that Primmum was wrongly decided or that the per incuriam exception should be applied. The Primmum application judge did not address Young v. Ontario (Minister of Finance) in concluding that Allstate was an Ontario insurer within Binnie J.'s meaning in Unifund . I leave the question of whether Primmum was correctly decided for another day.

COURT OF APPEAL FOR ONTARIO CITATION: Tuffnail v. Meekes, 2020 ONCA 340 DATE: 20200601 DOCKET: C66633, C64430 & C64479 Hoy A.C.J.O., Doherty J.A. and Marrocco A.C.J. ( ad hoc ) DOCKET: C66633 BETWEEN Gregory Alan Tuffnail, Patricia Diane Tuffnail, David Alan Tuffnail and Michael Alan Tuffnail Plaintiffs (Appellants/Respondents by way of cross-appeal) and Steven Andrew Meekes, State Farm Mutual Automobile Insurance Company and Sharon Carlene Drown as Litigation Administrator for the Estate of Thomas Michael Bolton Defendants ( Respondent / Respondent and Appellant by way of cross-appeal ) and Steve Coulthard Third Party (Respondent) DOCKET: C64430 AND BETWEEN Gregory Alan Tuffnail, Patricia Diane Tuffnail, David Alan Tuffnail and Michael Alan Tuffnail Plaintiffs (Respondents) and Steven Andrew Meekes, State Farm Mutual Automobile Insurance Company and Sharon Carlene Drown as Litigation Administrator for the Estate of Thomas Michael Bolton Defendants ( Appellant ) and Steve Coulthard Third Party (Respondent) DOCKET: C64479 AND BETWEEN Gregory Alan Tuffnail, Patricia Diane Tuffnail, David Alan Tuffnail and Michael Alan Tuffnail Plaintiffs (Respondents) and Steven Andrew Meekes, State Farm Mutual Automobile Insurance Company and Sharon Carlene Drown as Litigation Administrator for the Estate of Thomas Michael Bolton Defendants ( Respondents ) and Steve Coulthard Third Party (Appellant) Peter W. Kryworuk and Jacob R.W. Damstra, for State Farm Mutual Automobile Insurance Company James D. Virtue and Rasha M. El-Tawil, for Gregory Alan Tuffnail, Patricia Diane Tuffnail, David Alan Tuffnail, and Michael Alan Tuffnail D. Romano Reid, for the Litigation Administrator for the Estate of Thomas Michael Bolton Brian A. Pickard, James K. Brown and Ayren J. Brown, for Steve Coulthard Heard: January 14 and 15, 2020 On appeal from the judgment of Justice Helen A. Rady of the Superior Court of Justice, dated July 23, 2019, with reasons reported at 2017 ONSC 4610, 72 C.C.L.I. (5th) 281; 2018 ONSC 4113; 2019 ONSC 525, [2019] I.L.R. I-6127; 2019 ONSC 1334; and 2019 ONSC 2399. Hoy A.C.J.O.: overview [1] Gregory Tuffnail was seriously injured in a single-vehicle crash on September 13, 2009, following a rural wedding reception. The other passenger, Kristopher Petrie, was killed. Tuffnail and the driver, Steven Meekes, had been served alcohol at the reception. The groom, Thomas Bolton, had hosted the reception. Steve Coulthard was the bartender. [2] Tuffnail and his family – to whom I refer individually and collectively as “Tuffnail” – commenced an action against Meekes, Bolton and State Farm, Tuffnail’s automobile insurer. Tuffnail claimed that the collision and resulting injuries were caused by Meekes’ and Bolton’s negligence and/or, in the case of Bolton, breach of the provisions of the Liquor Licence Act , R.S.O. 1990, c. L.19. In the case of State Farm, Tuffnail sought a declaration that they were entitled to coverage under the OPCF 44R (Ontario Policy Change Form 44R – Family Protection Coverage endorsement), the optional underinsured motorist coverage Tuffnail had purchased from State Farm. [3] State Farm defended Tuffnail’s claim for a declaration that Tuffnail was entitled to coverage under the OPCF 44R and brought a third party claim against Coulthard for contribution and indemnity in respect of amounts it was required to pay under the OPCF 44R. Bolton also brought a third party claim against Coulthard. Both State Farm and Bolton alleged that Coulthard’s negligence and/or breach of the Liquor Licence Act caused or contributed to the accident. Tuffnail did not sue Coulthard. [4] On May 10, 2017, following a six-week trial, the jury awarded damages and apportioned liability among Meekes, Bolton, [1] Coulthard and Tuffnail as follows: Meekes (the driver) – 65% Bolton (the host) – 20.03% Coulthard (the bartender) – 11.12% Tuffnail (the plaintiff) – 3.85% [5] Taking Tuffnail’s contributory negligence into account, the net amount payable to Tuffnail is $3,435,034.71. [6] The following insurance coverage was available to the tortfeasors: Meekes – $200,000 Bolton – $2,000,000 Coulthard – $1,000,000 [7] Petrie’s family were plaintiffs in a companion action. The Petrie plaintiffs agreed to be bound by the findings of liability and apportionment of damages in the Tuffnail action. According to counsel, Meekes’ and Bolton’s policy limits were subject to pro rata sharing with the Petrie plaintiffs, with Tuffnail entitled to 94.89 percent of the proceeds. Accordingly, Tuffnail is entitled to $189,780 from Meekes and $1,897,800 from Bolton. [8] This does not cover Tuffnail’s loss. The net amount Tuffnail is entitled to under the judgment exceeds the aggregate of Meekes’, Bolton’s and Coulthard’s insurance coverage. Key issues on the appeal impact how much State Farm is required to pay to Tuffnail under the OPCF 44R and how, given the “shortfall”, the amount recovered should be divided between State Farm and Tuffnail. [9] State Farm, Tuffnail and Coulthard sought numerous post-verdict rulings, many of which were inter-related. They were heard between June 2017 and April 2019, and the judgment is dated July 23, 2019. Each of State Farm, Tuffnail and Coulthard appeals the judgment, arguing that the trial judge made various errors in her post-verdict rulings. They raise the following five issues: 1. State Farm argues that the trial judge erred in her interpretation of s. 7 of the OPCF 44R, leading to an erroneous calculation of the amount State Farm is required to pay Tuffnail; 2. Tuffnail argues that the trial judge erred in ordering that State Farm share any amounts it recovers by way of subrogation with Tuffnail until Tuffnail “receive[s] full indemnification pursuant to the terms of the OPCF 44R endorsement” and, by way of conditional cross-appeal, State Farm argues that the trial judge erred in requiring it to share at all; 3. Tuffnail argues that the trial judge erred in limiting Coulthard’s liability to Bolton to a proportion of the total judgment equal to the 11.12% of fault found by the jury; 4. State Farm argues that the trial judge improperly exercised her discretion to award prejudgment interest at a rate higher than the bank rate; and 5. Coulthard argues that the trial judge erred in denying him leave to amend his pleadings, after the jury returned their verdict, to plead limitations defences. [10] A sixth issue – the costs awarded to Tuffnail – was resolved by the parties before the appeal was heard. [11] I address the five alleged errors, in turn. 1. Did the trial judge err in her interpretation of the OPCF 44R? Background [12] In para. 6 of her judgment, the trial judge ordered State Farm to pay Tuffnail the sum of $800,000, which the parties agree is the limit of coverage under the OPCF 44R. [2] [13] The OPCF 44R is the standard form contract which applies when, for an additional premium, an Ontario insured purchases optional underinsured motorist coverage. Meekes was an “inadequately insured motorist” within the meaning of the OPCF 44R: he had motor vehicle liability coverage for only $200,000, an amount less than the $1,000,000 limit of Tuffnail’s family protection coverage under the OPCF 44R. [14] Pursuant to s. 7 of the OPCF 44R, the amount payable by an insurer (State Farm) to an eligible claimant (Tuffnail) is excess to “an amount received by the eligible claimant from any source, …and is excess to amounts that were available to the eligible claimant from” nine enumerated sources. This case is concerned with amounts available from the source enumerated in s. 7(b): “the insurers of a person jointly liable with the inadequately insured motorist”. Section 7(b) provides as follows: 7.       The amount payable under this change form to an eligible claimant is excess to an amount received by the eligible claimant from any source, other than money payable on death under a policy of insurance, and is excess to amounts that were available to the eligible claimant from (b) the insurers of a person jointly liable with the inadequately insured motorist for the damages sustained by an insured person; [15] The specific issue before the trial judge was whether Coulthard’s insurance coverage was “available” to Tuffnail. If so, the $1,000,000 limit of Coulthard’s policy would be deducted in calculating State Farm’s liability to Tuffnail under s. 7 and, on State Farm’s calculation, its liability under the OPCF 44R would be reduced from $800,000 to $347,454.71. [16] The trial judge rejected State Farm’s argument that, because Tuffnail could have sued Coulthard, the limits of Coulthard’s policy were “available” to Tuffnail. In State Farm’s submission, an insured can only resort to the coverage provided by the OPCF 44R as a matter of last resort, and an insured’s failure to sue all reasonably possible tortfeasors should not increase the insured’s entitlement under the OPCF 44R. [17] In summary, in the trial judge’s view, because Tuffnail had not commenced a claim against Coulthard in their own name and named Coulthard as a defendant, the proceeds of Coulthard’s policy were not “available” to Tuffnail within the meaning of s. 7 of the OPCF 44R. [18] The trial judge noted that, under the prior version of s. 7(b) in the SEF 44 Family Protection Endorsement, [3] the insured’s liability was calculated with reference to “any amounts the eligible claimant is entitled to recover ( whether such entitlement is pursued or not )”. The reference to “whether such entitlement is pursued or not” was not included in s. 7(b) of the OPCF 44R. The trial judge concluded that “the change in the language of the OPCF 44R is significant and signals that it is not necessary for an insured to pursue all possible tortfeasors before becoming entitled to access his own insurance”: Tuffnail, et al v. Meekes et al , 2017 ONSC 4610 (“September 20, 2017 reasons”), at para. 84. The trial judge rejected State Farm’s argument that Loftus v. Robertson , 2009 ONCA 618, 96 O.R. (3d) 721, interpreted the OPCF 44R as requiring plaintiffs to seek recovery from all reasonably possible tortfeasors. The trial judge characterized the court’s comments in Loftus as obiter and noted that the court did not consider the change in language between the SEF 44 and the OPCF 44R. The trial judge wrote that, at the very least, there is an ambiguity that must be resolved in favour of the insured: September 20, 2017 reasons, at para. 89. Analysis [19] The parties agree that because the OPCF 44R is a standard form contract, the standard of review applicable to the trial judge’s interpretation of s. 7 is one of correctness. [20] The parties advance numerous arguments as to whether the trial judge’s interpretation was correct. One of them, only fully explored for the first time on appeal, is in my view determinative. Accordingly, I need not address the balance of the arguments. [21] In response to State Farm’s arguments that the trial judge erred in her interpretation of s. 7, Tuffnail focuses on the wording in s. 7(b): “excess to the amounts that were available to the eligible claimant from…the insurers of a person jointly liable with the inadequately insured motorist ”. Tuffnail argues that Coulthard is a third party only and, therefore, cannot be “jointly” liable to Tuffnail. Further, in her ruling of January 23, 2019 – made about 16 months after her ruling interpreting s. 7 of the OPCF 44R – the trial judge found that Coulthard is severally liable to Bolton: Tuffnail v. Meekes , 2019 ONSC 525, [2019] I.L.R. I-6127 (“January 23, 2019 reasons”). This is repeated at paragraph 8 of the judgment. [22] Tuffnail is clear that, if Coulthard were jointly liable to Tuffnail, his insurance coverage would be “available” to Tuffnail, within the meaning of s. 7(b). But Tuffnail adds that a person cannot be “jointly liable” unless and until so found, and the trial judge did not find Coulthard “jointly liable”. [23] Tuffnail’s argument on appeal that Coulthard is not “jointly liable” to Tuffnail sits uneasily with Tuffnail’s position before the trial judge as reflected in the January 23, 2019 reasons. In that ruling Tuffnail took the position that Coulthard was jointly and severally liable to Tuffnail for the full amount of the damages awarded by the jury and that the Bolton Estate was entitled to recover from Coulthard a proportionate share of the plaintiff’s damages. [24] As I will explain, Coulthard is “jointly liable” to Tuffnail within the meaning of s. 7(b), his insurance is “available” to Tuffnail within the meaning of s. 7(b), and accordingly, State Farm is entitled to deduct the limits of Coulthard’s insurance coverage in calculating the amount it is required to pay to Tuffnail. [25] In short, the trial judge’s determination that Coulthard’s policy was not “available” to Tuffnail resulted from the fact that Tuffnail had not commenced a claim against Coulthard in their own name and named Coulthard as a defendant. She was not asked to and did not consider whether Coulthard was “jointly liable” through the lens of the State Farm subrogated action against Coulthard. [26] As I will explain, while State Farm framed its claim against Coulthard as a claim for contribution and indemnity in respect of any amounts it is called upon to pay Tuffnail, it actually makes a subrogated claim against Coulthard on behalf of Tuffnail. The legal consequence of State Farm’s claim is that Coulthard’s liability to Tuffnail was effectively put in issue. In finding that State Farm had a right of subrogation against Coulthard under s. 20 of the OPCF 44R, the trial judge necessarily found that Coulthard is jointly liable with Meekes. [27] Thus, correctly interpreted, s. 7 of the OPCF 44R permits State Farm to deduct the limits of Coulthard’s insurance coverage. [4] [28] In analyzing whether Coulthard is “jointly liable” within the meaning of s. 7(b) of the OPCF 44R, I turn first to the nature of State Farm’s claim against Coulthard and then to the effect of bringing such a claim as a third party claim. a) The nature of State Farm’s third party claim against Coulthard [29] The trial judge ordered, at para. 8 of the judgment, that Coulthard is severally liable to Bolton . However, the nature of Bolton’s third party claim against Coulthard is very different from State Farm’s third party claim against Coulthard. [30] Unlike Bolton’s third party claim against Coulthard, State Farm had no independent right to claim against Coulthard. State Farm did not cause or contribute to Tuffnail’s damages, and therefore, unlike Bolton, could not assert a right of contribution and indemnity against Coulthard under s. 1 of the Negligence Act , R.S.O. 1990, c. N.1. [31] Rather, it sought contribution and indemnity from Coulthard through its subrogated third party claim. [32] Under the common law, an insurer has a right, upon fully indemnifying the insured for both the insured and uninsured losses caused by a third party, to bring an action against the third party in the insured’s name. When an insurer is entitled to bring such an action, it is said to be subrogated to the insured’s rights and is entitled to exercise those rights in the name of the insured: Zurich Insurance Co. v. Ison T.H. Auto Sales Inc. , 2011 ONSC 1870, 106 O.R. (3d) 201, aff’d 2011 ONCA 663, 342 D.L.R. (4th) 501; Douglas v. Stan Fergusson Fuels Ltd. 2018 ONCA 192, 139 O.R. (3d) 721, at para. 48, leave to appeal refused, [2018] S.C.C.A. No. 141. [33] The common law doctrine of subrogation can be modified by contract and statute and, in this case, both the Insurance Act , R.S.O. 1990, c. I.8, and the OPCF 44R permitted State Farm to subrogate before Tuffnail was fully indemnified. [34] Subsection 278(1) of the Insurance Act provides as follows: Subrogation 278(1) An insurer who makes any payment or assumes liability therefor under a contract is subrogated to all rights of recovery of the insured against any person and may bring action in the name of the insured to enforce those rights. [35] Section 20 of OPCF 44R provides as follows: 20. Where a claim is made under this change form, the insurer is subrogated to the rights of the eligible claimant by whom a claim is made, and may maintain an action in the name of that person against the inadequately insured motorist and the persons referred to in section 7 of this change form. [36] State Farm relied on its right of subrogation under s. 20 of the OPCF 44R, submitting that s. 7(b) permitted it to subrogate against Coulthard because Coulthard was “a person jointly liable” with Meekes, the inadequately insured motorist, for the damages sustained by Tuffnail. [37] Notably, the right of subrogation is derivative in nature and in exercising the right of subrogation, the insurer is advancing only the cause of action that the insured would otherwise have against the party responsible for causing the loss to the insured. In other words, the insurer assumes the insured’s right of recovery against the tortfeasor: Barbara Billingsley, General Principles of Canadian Insurance Law , 2nd ed. (Markham: LexisNexis Canada Inc., 2014), at pp. 343, 350. This means that the insured must have a legally enforceable cause of action against the tortfeasor: Denis Boivin, Insurance Law , 2nd ed., (Toronto: Irwin Law Inc., 2015), at p. 491; Craig Brown and Thomas Donnelly, Insurance Law in Canada , loose-leaf, vol. 2 (Toronto: Thomson Reuters Canada Ltd., 2019), at p. 13-2. [38] Because the right of subrogation is derivative, the insurer can be in no better position as against the third party than the insured would be: Douglas , at para. 55, Matt (Litigation Guardian of) v. Barber (2002), 216 D.L.R. (4th) 574 (Ont. C.A.), at para. 25; Freudmann-Cohen v. Tran (2004), 70 O.R. (3d) 667 (C.A.), at para. 40. If Tuffnail did not have a claim against Coulthard, State Farm did not have a right to subrogate. In substance, then, in bringing its third party claim against Coulthard, State Farm stepped into Tuffnail’s shoes to claim against Coulthard. b) The effect of bringing a subrogated claim as a third party claim [39] As indicated above, State Farm relied on its right of subrogation under s. 20 of the OPCF 44R. Similarly, s. 278(1) of the Insurance Act permits an insurer to bring an action in the name of the insured. These sections do not contemplate that State Farm could bring the action in its own name. [40] The issue of whether State Farm could proceed by way of third party claim in its own name does not appear to have been raised before the trial judge. The trial judge simply accepted that State Farm was entitled to bring a third party subrogated claim for contribution and indemnity: September 20, 2017 reasons, at paras. 40-41. [41] In this court, State Farm relied on this court’s decision in Freudmann-Cohen . An examination of that case explains the underlying basis for State Farm’s right to bring a third party subrogated claim against Coulthard. [42] In Freudmann-Cohen , the plaintiff had not sought to add Pizza Nova as a defendant and the insurer issued a third party claim against Pizza Nova. This court held that, in certain circumstances, an insurer is entitled to resort to r. 29.01(c) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, to put its subrogated claim on behalf of the plaintiffs into play, by way of a third party claim, instead of bringing a claim against the third party in the plaintiff’s name. [5] The rationale for permitting a third party subrogated claim is that the proposed third party is a person who should be bound by the determination of an issue between the plaintiff and the defendant. In that case, this issue was the insurer’s maximum liability under the O.E.F. 44 Family Protection Endorsement, which in turn would require an assessment as to whether Pizza Nova’s insurance had to be deducted in that calculation. This necessarily entailed an examination of Pizza Nova’s potential liability to the plaintiff. [43] It is important to recognize that in Freudmann-Cohen the insurer’s subrogated action was based on the theory that if the plaintiff suffered injuries, the injuries were caused or contributed to as a result of the want of care or negligence of the third party, Pizza Nova. Zurich pleaded the following particulars of negligence: Pizza Nova failed to train the employee defendants; it employed incompetent employees; and it implemented a delivery system that involved the risk of harm to others. In addition, Zurich alleged Pizza Nova was potentially liable to the plaintiff as a joint tortfeasor on the basis of its vicarious liability for its employees. Blair J.A. specifically noted, at para. 24, that the insurer sought to add Pizza Nova on the basis of a claim by which Pizza Nova was or might be liable to the plaintiff . [44] He also referred to the result in Morey v. Knipple (1994), 7 M.V.R. (3d) 134 (Ont. Gen. Div.). In Morey , the injured plaintiff was a passenger in the defendant Knipple’s car. The plaintiff’s SEF 44 insurer had brought a subrogated third party claim against the driver of a second car that had allegedly been racing with the defendant Knipple’s car. The plaintiff had not sued the driver of the second car, Wannamaker. The motion judge noted at para. 21: As a result of obtaining statements from independent witnesses, it became apparent that another party (i.e. Wannamaker) was “ jointly liable” with Knipple for this accident. [Emphasis added.] [45] The insurer’s action alleged that Wannamaker caused or contributed to the motor vehicle accident because Wannamaker and Knipple were racing prior to the accident. [46] It is apparent from both these cases that the subrogated claims were advanced as causes of action that could have been available to the plaintiffs and in both cases the third party’s negligence vis-à-vis the plaintiff was in issue. The insurers sought to add the third parties on the basis of a claim by which the third parties were or might be liable to the plaintiffs. [47] In this case, the third party claim similarly makes an allegation of negligence on the part of Coulthard vis-à-vis Tuffnail. Paragraph 7 of State Farm’s third party claim alleges that Coulthard was negligent in that he: failed to monitor the quantity of alcohol that he served to Meekes and Tuffnail; continued to serve alcohol to them when he knew or should have known that they were intoxicated and in danger of causing injury to themselves or others; failed to ensure that Meekes did not drive when leaving; and failed to warn Tuffnail that Meekes was intoxicated. [48] A subrogated claim advanced by way of a third party claim is necessarily based on the third party’s status as a potentially responsible joint or concurrent tortfeasor and given the pleadings, Coulthard was a concurrent tortfeasor who was potentially “jointly liable” for causing the plaintiff’s damages. If, in substance, State Farm was asserting Tuffnail’s claim against Coulthard, as well as against Meekes and Bolton, a conclusion that State Farm was entitled to bring that action in conjunction with the jury’s finding of Coulthard’s liability necessarily means that Coulthard is jointly liable with them for causing Tuffnail’s injuries for the purposes of s. 7 of the OPCF 44R. In this case, not only was Coulthard potentially liable for having caused Tuffnail’s injuries given State Farm’s pleading, the parties asked the jury to apportion liability as between Tuffnail, Meekes, Bolton and Coulthard. The jury found that Coulthard was in fact partially liable for causing or contributing to Tuffnail’s injuries. [49] Accordingly, the nature of State Farm’s subrogated action, the trial judge’s determination that State Farm was entitled to bring that action, and the jury’s finding of Coulthard’s liability compel the conclusion that Coulthard is jointly liable with Meekes, within the meaning of s. 7 of the OPCF 44R. [50] I would add that even if an insurer’s objective in bringing a third party claim is only to protect its right to subrogate in relation to amounts it is called upon to pay the insured plaintiff, and the insurer accordingly restricts its third party claim to a claim in contribution for amounts it is required to pay the insured plaintiff, such a claim is necessarily founded on the third party’s potential responsibility for causing the insured’s damages. 2.       Did the trial judge err in ordering that State Farm share any amounts it recovers by way of subrogation with Tuffnail only until Tuffnail receives “full indemnification pursuant to the terms of the OPCF 44R endorsement”? [51] The net amount received or recoverable from Meekes’, Bolton’s, and Coulthard’s insurers is less than the amount of the judgment in favour of Tuffnail. Tuffnail and State Farm disagreed on who, as between them, should bear the shortfall and sought a ruling from the trial judge. She ordered, at para. 7 of the judgment: This Court further orders that State Farm is entitled to pursue recovery of its subrogated interest against the Defendant, Bolton Estate, and against the Third Party. State Farm shall share with the Plaintiffs on a pro rata basis any amounts it recovers by way of subrogation until the Plaintiffs receive full indemnification pursuant to the terms of the OPCF 44R endorsement . [Emphasis added.] [52] In the absence of statutory or contractual terms to the contrary, the insurer’s right of subrogation does not arise until the insured has been fully indemnified for both insured and uninsured losses: Douglas , at para. 50. Thus, at common law, the insurer generally stands behind its insured, in terms of recovery. [6] [53] In Ontario, the common law of subrogation has been modified by the provisions of the Insurance Act , including ss. 278(1) and (2). Subsection 278(1) permits an insurer to subrogate before the insured is fully indemnified and s. 278(2) stipulates that where the net amount recovered is insufficient to provide complete indemnity, the insurer and the insured shall recover pro rata : Subrogation 278(1) An insurer who makes payment or assumes liability therefore under a contract is subrogated to all rights of recovery of the insured against any person and may bring action in the name of the insured to enforce those rights. Pro-rating recovery (2) Where the net amount recovered whether by action or on settlement is, after deduction of the costs of the recovery, not sufficient to provide complete indemnity for the loss or damage suffered, the amount remaining shall be divided between the insurer and the insured in the proportion in which the loss or damage has been borne by them. [54] As indicated above, in this case State Farm’s common law right of subrogation was also modified by s. 20 of the OPCF 44R which permits State Farm to subrogate even sooner than s. 278(1) (when a claim is made under the OPCF 44R, as opposed to when the insurer makes any payment or assumes liability, as s. 278(1) provides). However, the OPCF 44R is silent on what happens where the net recovery is insufficient to provide complete indemnity. [55] The issues in this case are did the trial judge err in providing for pro rata sharing under s. 278(2) only until Tuffnail receives full indemnification pursuant to the terms of the OPCF 44R, or in concluding that the section was applicable? [7] [56] Tuffnail argues that the trial judge erred in providing for pro rata sharing only until Tuffnail receives full indemnification pursuant to the terms of the OPCF 44R endorsement, rather than until they receive full indemnification under the judgment. They submit that this is a clear, and possibly unintentional, error. On Tuffnail’s argument, the “loss or damage suffered” in s. 278(2) means the amount of damages awarded to him, as reflected in the judgment, that will not be recovered from the defendants in the action or from State Farm under the OPCF 44R, plus State Farm’s payment to Tuffnail. [57] State Farm argues that there was no error. As I understand its argument, it says that, in this context, the “loss or damage suffered” in s. 278(2) means the limit of coverage under the OPCF 44R, which it describes as Tuffnail’s underinsured loss. Accordingly, once Tuffnail receives the $800,000 limit of coverage under OPCF 44R, he has received the maximum indemnity that he is contractually entitled to and State Farm is not required to share anything recovered in the subrogated action. [58] If this court accepts Tuffnail’s argument that there is an error in the judgment, State Farm argues, by way of conditional cross-appeal, that the trial judge erred in concluding that s. 278(2) applies for two reasons. [59] First, State Farm argues that s. 278(2) of the Insurance Act does not apply to it because its right of subrogation arose under s. 20 of the OPCF 44R. Section 20 of the OPCF 44R contains no pro rata sharing requirement and s. 278(2) cannot be imported into s. 20. Accordingly, it is entitled to recover in priority to Tuffnail. [60] Second, in the alternative, it also argues that s. 278(2) only applies to property damages. [61] State Farm does not argue that s. 278(2) does not apply to excess insurance or where the insurer frames its subrogated claim against the tortfeasor as a third party claim, in the insurer’s name, for contribution and indemnity in respect of any amounts it is called to pay its insured. [62] In response to State Farm’s cross-appeal, Tuffnail argues that s. 278(2) applies in this instance. a) There was an error in the judgment [63] State Farm’s argument respecting the alleged error in the judgment seems to have been premised on the requirement in the judgment that it pay Tuffnail $800,000 under the OPCF 44R. Given that State Farm has been successful on the first issue, its liability under the OPCF 44R is reduced from $800,000 to $347,454.71 and Tuffnail will not receive the limit of coverage under the OPCF 44R. [64] However, even without taking into account State Farm’s success on the first issue, I agree with Tuffnail that the trial judgment as written contains what is possibly an unintentional error. To require pro rata sharing of those amounts that State Farm receives by way of subrogation only until Tuffnail receives full indemnification pursuant to the terms of the OPCF 44R endorsement makes no sense. Had the trial judge intended to give effect to State Farm’s position that indemnification for the purpose of s. 278(2) is achieved on Tuffnail’s recovery of the OPCF 44R policy limit, there would have been no need to provide both for State Farm’s payment of $800,000 under the OPCF 44R and pro rata sharing with Tuffnail out of State Farm’s subrogation recoveries. [65] At least notionally, an insurer pays under an insurance contract before it can seek to recover, by way of subrogation, the amounts that it has paid its insured. Subsection 278(2) is about sharing the recovery. The wording at issue in paragraph 7 of the judgment gives no effect to the purpose of s. 278(2). It results in the pro rata sharing ending before it would even begin. [66] I also note that State Farm’s argument would require this court to read the words “the loss or damage suffered” in s. 278(2) as really meaning “the maximum possible loss or damage recoverable under the OPCF 44R”. Among other things, the “maximum possible” loss is inconsistent with the clear wording of the section which requires that the loss have been “suffered”. [67] The point I decide is a narrow one: did the trial judge err in providing for pro rata sharing only until Tuffnail receives full indemnification pursuant to the terms of the OPCF 44R endorsement? While the parties attempted to give us assistance on the interpretation of s. 278(2) at the hearing of the appeal, the correct interpretation of s. 278(2) was not explored below and I am not satisfied that the court has a sufficient record to more broadly address the correct interpretation of s. 278(2). My conclusion that the trial judgment contains a possibly unintentional error (and my conclusion below that s. 278(2) applies) are based on the arguments made by the parties. I make no comment on Tuffnail’s precise interpretation of and calculations under s. 278(2). b) Subsection 278(2) applies [68] With respect to State Farm’s arguments on its cross-appeal, I disagree that s. 278(2) cannot apply to its right of subrogation under the OPCF 44R. While, as State Farm asserts, its right of subrogation arose under the OPCF 44R, State Farm also acquired a right of subrogation under the stricter provisions of s. 278(1) of the Insurance Act . Section 278(1) provides that an “insurer who makes any payment or assumes liability therefor under a contract is subrogated…” By virtue of the judgment, if not before, State Farm assumed liability for payment under the OPCF 44R, thereby meeting the stricter pre-condition for subrogation in s. 278(1). Moreover, State Farm will have made payment under the OPCF 44R by the time the issue of sharing of recovery arises. [69] As I have said, the OPCF 44R is silent on what happens where the net recovery is insufficient to provide complete recovery. Subsection 278(2) fills that gap. [70] Lastly, I reject State Farm’s argument that s. 278 only applies to claims for property damages. There is nothing in the section that suggests that this is the case. Moreover, under the legislative scheme, subrogation rights in respect of property damage are narrowly limited. Property damage is addressed through a direct compensation scheme in the Insurance Act ; the insured’s own insurer is liable to the extent that the insured is not responsible for the accident: Denis Boivin, Insurance Law , 2nd ed. (Toronto: Irwin Law Inc., 2015), at pp. 510-11. An insurer’s right of subrogation in respect of damage to an automobile is specifically dealt with in s. 263(5)(b). Except as permitted in the narrowly enumerated instances by ss. 6 to 8 of the regulation Automobile Insurance , R.R.O. 1990, Reg. 664, insurers have no subrogation right. There would have been no need to specifically include a general subrogation right in s. 278 if subrogation were restricted to the narrow property damage circumstances already designated by the Automobile Insurance regulation. [71] Accordingly, I would allow Tuffnail’s appeal and dismiss State Farm’s conditional cross-appeal of para. 7 of the judgment and alter para. 7 of the judgment to provide that: This Court further orders that State Farm is entitled to pursue recovery of its subrogated interest against the Defendant, Bolton Estate, and against the Third Party. State Farm shall share with the Plaintiffs on a pro rata basis any amounts it recovers by way of subrogation until the Plaintiffs receive full indemnification under the Judgment . [Emphasis added.] 3.       Did the trial judge err in limiting Coulthard’s liability to Bolton to a proportion of the total judgment equal to the 11.12% of fault found by the jury? [72] Shortly before the trial commenced, Tuffnail, Meekes, Bolton, Coulthard, the Petrie plaintiffs and State Farm entered into an agreement whereby Meekes admitted liability for the accident and the parties agreed that the jury would be told of his admission, and that the trial was to determine which of the other parties may also be liable. The parties agreed to accept $200,000, the full limit of Meekes’ automobile insurance policy, plus a further $75,000 towards costs and disbursements, as representing Meekes’ and his insurer’s full contribution. The agreement provided that the defendants were entitled to maintain their crossclaims for the purpose of trial but would not pursue Meekes personally for judgment in excess of his $275,000 settlement contribution. [73] As indicated above, Bolton brought a third party claim against Coulthard for contribution or indemnity in respect of any amounts Bolton was called upon to pay to Tuffnail. In light of the agreement with Meekes, Coulthard is the only other party Bolton can look to for contribution and indemnity. [74] The jury was asked whether there was negligence on the part of each of Meekes, Bolton, Coulthard and Tuffnail which caused, or caused or contributed, to the collision or (in the case of Tuffnail) to his damages. The trial judge told them, with respect to Meekes, that, obviously, the answer was “yes”. The jury answered “yes”, with respect to each of Meekes, Bolton, Coulthard and Tuffnail. [75] The jury was asked to apportion liability among Meekes, Bolton, Coulthard and Tuffnail, and did so as follows: Meekes – 65% Bolton – 20.03% Coulthard – 11.12% Tuffnail – 3.85% contributory negligence [76] All parties were provided an opportunity at trial to make submissions about the jury questions, and there is no suggestion in the transcripts that any party took issue with the jury being asked to assign a percentage of liability to Meekes. [77] After trial, Bolton and Tuffnail entered into minutes of settlement pursuant to which Bolton agreed to pay Tuffnail $1,897,800 plus $325,241 for legal fees and disbursements, Tuffnail agreed to execute a release of Bolton, and Bolton assigned his claim against Coulthard to Tuffnail. Therefore, the amount that Bolton is entitled to recover from Coulthard now belongs to Tuffnail. This portion of the decision addresses only what Tuffnail can recover from Coulthard via Bolton’s assignment of his claim against Coulthard, and not Tuffnail’s ability to recover from Coulthard via State Farm’s subrogated claim. [78] Section 1 of the Negligence Act provides as follows: Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent. [Emphasis added.] [79] According to the trial judge’s reasons, after Bolton assigned his claim against Coulthard to Tuffnail, Tuffnail sought a determination that Coulthard was jointly and severally liable to Tuffnail for the full amount of the damages awarded by the jury, and that Bolton was entitled to recover from Coulthard a proportionate share of Tuffnail’s damages as contribution and indemnity: January 23, 2019 reasons. In Tuffnail’s submission, this was because Coulthard defended the main action and because of s. 1 of the Negligence Act . The trial judge did not elaborate upon Tuffnail’s submission relying on s. 1 of the Negligence Act . [80] Coulthard conceded that he would have been jointly and severally liable to Tuffnail had he been named as a defendant, but argued that he was not jointly and severally liable to Tuffnail because Tuffnail did not sue him. State Farm argued that Coulthard was liable to make contribution and indemnity to Bolton only to the degree he was found to be at fault. [81] The trial judge first addressed Tuffnail’s argument that Coulthard was jointly and severally liable because he defended the main action. She concluded that the fact that Coulthard defended the main action did not render him liable for damages to Tuffnail under r. 29 and did not make him jointly and severally liable for damages to Tuffnail: January 23, 2019 reasons, at para. 26. [82] The trial judge reasoned that r. 29.01(a) of the Rules of Civil Procedure speaks to the third party’s liability to the defendant for all or part of the plaintiff’s damages, not liability for all or part of the plaintiff’s damages. Accordingly, a plaintiff cannot recover from a third party, absent a finding of fault against the defendant who commenced the third party claim: January 23, 2019 reasons, at para. 28. [83] She held that Martin v. Listowel Memorial Hospital (2000) , 51 O.R. (3d) 384 (C.A.) answered the issue. It held, at para. 48, that under s. 1 of the Negligence Act , joint and several liability only attaches to party defendants. She also considered this court’s decision in Taylor v. Canada (Attorney General) , 2009 ONCA 487, 95 O.R. (3d) 561, at paras. 16-19, which describes how a tortfeasor can exercise its statutory right to apportion fault by adding third parties. [84] The trial judge concluded, in her January 23, 2019 reasons, at para. 38: As a result, I have concluded that the fact that [Coulthard] is a third party and he participated in the main action does not render him jointly and severally liable to the plaintiffs. Rather, on the strength of Martin and Taylor , [Coulthard’s] liability is several vis-à-vis the Bolton Estate . [Emphasis added.] [85] At para. 8 of the judgment, the trial judge ordered: This Court further orders that [Coulthard] is severally liable and must contribute to and indemnify the Bolton Estate for the damages owed to [Tuffnail] under this Judgment in the degree to which [Coulthard] is at fault, i.e. 11.12%, being the sum of $381,975.86, plus pre-judgment interest thereon[.] [86] In this appeal, relying on this court’s decision in Endean v. St. Joseph Hospital , 2019 ONCA 181, C.C.L.T. (4th) 183, which was released after the trial judge’s January 23, 2019 ruling, [8] Tuffnail argues that: because of Meekes’ admission of liability and agreement to limit his liability in the settlement agreement, Meekes effectively became a “non-party”; Endean directs that a non-party’s fault should not be considered in apportioning liability; and the trial judge accordingly erred in considering the jury’s finding as to the degree to which Meekes was at fault in calculating Bolton’s entitlement to contribution from Coulthard. Tuffnail does not otherwise challenge the trial judge’s reasoning. Tuffnail submits that proportional division of Meekes’ 65 percent results in Bolton being 64.3 percent at fault and Coulthard being 35.7 percent at fault. Accordingly, Tuffnail submits, Coulthard should contribute 35.7 percent of the damages, or $1,125, 339.14 to Bolton. [87] I do not agree that Endean requires that fault be reapportioned, without regard to Meekes. Endean is very different from this case. [88] In Endean , the plaintiffs suffered injury from devices implanted in their temporomandibular joints. They sued the hospital where the surgery was performed and the oral surgeons who performed the surgery and provided follow up care. Before trial, the plaintiffs settled with the oral surgeons and Pierringer Orders were made in each action. [89] The Pierringer Orders dismissed the actions against the oral surgeons and the crossclaims between the hospital and the oral surgeons and restricted the plaintiffs’ claims “such that [the plaintiffs] will only claim those damages, if any, arising from the actions or omissions of the Defendant Hospital.” The Pierringer Orders also required the statement of claim in each action to be amended to limit the claim against the hospital to its several liability or proportionate share of joint liability to the plaintiffs and to include an acknowledgment that the court at trial had the authority to adjudicate upon the apportionment of fault among all defendants who had been named in each action, i.e. the hospital and the oral surgeons. [90] The trial was bifurcated and the trial judge first dealt with the issue of liability. Relying on this court’s decision in Taylor , he apportioned 5 percent of the fault to the hospital; 20 percent of the fault to the oral surgeons; 50 percent of the fault to the manufacturer of the device; and 25 percent of the fault to the distributor of the device. Neither the manufacturer nor the distributor was ever party to the actions and both were bankrupt. [91] In the one action that he did not dismiss on the basis that it was statute barred, the trial judge granted judgment against the hospital for 5 percent of the damages that were to be assessed at the second phase of the trial. [92] On appeal, Zarnett J.A., writing for the court, concluded that the trial judge erred in doing so. While the Pierringer Order required the plaintiffs to reduce their claim against the hospital by the amount that would be apportioned to the oral surgeons at trial, the Pierringer Order did not authorize the reduction of recovery due to fault of any other person. For this reason, the fault of the manufacturer and the distributor should have been irrelevant to the hospital’s liability to the plaintiffs. [93] Further, while Taylor held that fault could be apportioned at trial to proposed third parties even though they were non-parties, the facts of Taylor were unique. In Taylor , the plaintiff made clear by an amendment to the claim that the liability of the defendant was limited only to the defendant’s relative degree of fault. In other words, the plaintiff in Taylor was not pursuing the defendant for 100 percent of its damages. Zarnett J.A. held that Taylor does not entitle the court in any case to apportion fault to non-parties and then reduce the plaintiff’s recovery by that apportioned share of fault: at para. 69. [94] To remedy the error of the trial judge, Zarnett J.A. reapportioned the fault of the non-party manufacturer and distributor to the hospital and the oral surgeons, in the same proportions as the hospital’s and oral surgeons’ own degrees of fault: 20 percent and 80 percent. [95] The trial judge in the instant appeal made no error in apportioning fault to Meekes. The position of Meekes is very different from that of the manufacturer and distributor in Endean . Meekes was a party to the action. He was not released from the action by the settlement agreement; in fact the settlement agreement specifically provided that the defendants were entitled to maintain their crossclaims for the purpose of trial. Moreover, there is no suggestion in the transcript that any party objected to the jury question which asked the jury to apportion fault to Meekes. [96] Accordingly, I would dismiss Tuffnail’s appeal of para. 8 of the judgment. 4.       Did the trial judge improperly exercise her discretion to award prejudgment interest at a rate higher than the bank rate? [97] The trial judge exercised her discretion under s. 130 of the Courts of Justice Act , R.S.O. 1990, c. C.43, to allow prejudgment interest at a rate of 3 percent – a rate higher than the statutory bank rate of 1.3 percent otherwise applicable in this case under ss. 127(1) and 128(1) of the Courts of Justice Act . [98] As I will explain, I agree with State Farm that the trial judge erred in the exercise of her discretion in two ways. First, in her reasons dated February 26, 2019, the trial judge misapplied the factor of changes in market interest rates specified under s. 130(2). Second, the trial judge considered an inappropriate factor, namely that “[t]he case was undoubtedly conducted by [Tuffnail] with the understanding or expectation (although no vested entitlement) of a certain rate of prejudgment interest”: Tuffnail v. Meekes , 2019 ONSC 1334 (“February 26, 2019 reasons”), at para. 16. As a result, deference to her exercise of discretion is displaced. Taking the factors under s. 130(2) of the Courts of Justice Act into account, I would not award prejudgment interest at a rate higher than the default rate. [99] As the trial judge noted, prior to January 1, 2015, the rate of prejudgment interest on non-pecuniary damages in an action for personal injury was 5 percent: Courts of Justice Act , ss. 66(2)(w), 128(2); Rules of Civil Procedure . As the result of an amendment to the Insurance Act , as of January 1, 2015, prejudgment interest on damages for non-pecuniary loss in an action for loss or damage from bodily injury or death arising from the use or operation of an automobile was exempted from s. 128(2) of the Courts of Justice Act . It is now calculated pursuant to s. 127(1) of the Courts of Justice Act by reference to the bank rate: Insurance Act , s. 258.3(8.1). The parties agree that the bank rate calculated under s. 127(1) of the Courts of Justice Act in this case is 1.3 percent. The amendment operates retrospectively: Cobb v. Long Estate , 2017 ONCA 717, 416 D.L.R. (4th) 222, at paras. 66-105; El-Khodr v. Lackie , 2017 ONCA 716, 416 D.L.R. (4th) 189, at paras. 6-7, leave to appeal refused, [2017] S.C.C.A. No. 461; Cadieux v. Cloutier , 2018 ONCA 903, at para. 145, leave to appeal refused, [2019] S.C.C.A. No. 63. [100] However, s. 130 of the Courts of Justice Act permits the court, having regard to all the circumstances, to exercise discretion to award prejudgment interest at a rate other than the default rate prescribed by s. 127: 130 (1) The court may, where it considers it just to do so, in respect of the whole or any part of the amount on which interest is payable under section 128 or 129, (a) disallow interest under either section; (b) allow interest at a rate higher or lower than that provided in either section; (c) allow interest for a period other than that provided in either section. Same (2) For the purpose of subsection (1), the court shall take into account, (a) changes in market interest rates; (b) the circumstances of the case; (c) the fact that an advance payment was made; (d) the circumstances of medical disclosure by the plaintiff; (e) the amount claimed and the amount recovered in the proceeding; (f) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; and (g) any other relevant consideration. [101] The trial judge averted to s. 130(2) and the circumstances of the case. In her February 26, 2019 reasons, the trial judge noted, among other considerations, the following: – The lawsuit commenced on March 18, 2011, arising from a collision on September 13, 2009. – With respect to s. 130(2)(a), there was some fluctuation in market interest rates from 2009 to 2017. – “The case was undoubtedly conducted by [Tuffnail] with the understanding or the expectation (although no vested entitlement) of a certain rate of prejudgment interest”: February 26, 2019 reasons, at para. 16. [102] Respectfully, the fluctuation in market rates adverted to by the trial judge was not relevant. She relied on this factor to justify awarding prejudgment interest at a rate higher than the default rate, but market rates never fluctuated above the 1.3 percent default rate during the litigation. [103] Further, the trial judge improperly exercised her discretion to overrule the intention of the legislation amending the Insurance Act on the basis that Tuffnail had “the understanding or the expectation (although no vested entitlement) of a certain rate of prejudgment interest”. [104] As MacFarland J.A. explained in Cobb , there can never be a vested entitlement to a certain rate of prejudgment interest because, while there is an entitlement to prejudgment interest, the actual rate was always subject to judicial discretion that could only be exercised at the time the damage award was made. As a result, “there can be no expectation on the part of a litigant that he or she is entitled to prejudgment interest at any particular rate until the trial judge determines that rate”: Cobb , at para. 90. [105] Cobb is not authority for awarding prejudgment interest at a rate of 3 percent simply because the action was commenced before the Insurance Act was amended. This court concluded that the amendments to the Insurance Act were retrospective: at para. 104. In Cobb , the trial judge had exercised his discretion to award prejudgment interest at a rate of 3 percent, while explicitly refraining from taking a position on the retrospectivity of the legislation. The defendant in Cobb was content with prejudgment interest at a rate of 3 percent, and this court did not interfere with the trial judge’s exercise of discretion to award prejudgment interest at that rate: at para. 105. [106] MacFarland J.A. left open the possibility in Cobb that s. 130 of the Courts of Justice Act could be used to ameliorate any perceived unfairness to litigants who commenced their actions before the effective date of the retrospective amendment: at para. 103. However, recent Superior Court decisions have relied on s. 130 to depart from the default rate where some external or prior unfairness made the retrospective application of the amendment particularly acute, such as where proceedings were delayed so that the amendment to the Insurance Act applied where it might not have otherwise. I endorse that view. [107] For example, in A.B. v. Waite , MacLeod J. noted that he was not entitled to exercise his discretion under s. 130 to overrule the retrospective effect of the legislation amending the Insurance Act : 2018 ONSC 2151, at para. 11. In awarding interest at a rate of 4 percent under s. 130 of the Courts of Justice Act , he relied on the length of time the matter had been before the court and the fact that the trial was originally scheduled to take place before Cobb was decided. In relying on these factors, MacLeod J. was in essence relying on prior unfairness – delay in proceedings – in exercising his discretion under s. 130. [108] Similarly, in McKnight v. Ontario (Transportation) , Edwards J. declined to order interest at a rate greater than the default interest rate, noting that to do so would overrule the clear intention of the legislation amending the Insurance Act : 2018 ONSC 1742, at paras. 34-35. [109] As a result of the trial judge’s errors, deference to her exercise of discretion to award prejudgment interest at a rate other than the default rate prescribed by s. 127(1) is displaced. [110] Considering the factors in s. 130(2), the justness of the case does not require that prejudgment interest be allowed at a rate greater than the default rate. [111] As indicated above, market interest rates have not fluctuated above the default rate during the period of the litigation. Under s. 130(2)(a) of the Courts of Justice Act , this factor weighs against departing from the default interest rate. [112] As the trial judge noted, the jury awarded Tuffnail damages which, subject to contributory negligence, were reasonably close to what they had proposed to the jury, albeit considerably less than what they had claimed in their statement of claim. In my view, this factor, considered under s. 130(2)(e), is neutral. [113] None of the remaining factors under s. 130(2) influence my conclusion. There are no unusual circumstances that warrant departing from the default rate. Nor is there special, case-specific unfairness resulting from the operation of the retrospective amendment. No advance payment was made. The trial judge indicated that there had been no suggestion that medical disclosure was withheld or delayed. The trial judge made no findings, and the parties made no submissions on appeal, about conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding. [114] Accordingly, taking the factors in s. 130(2) into account, I would decline to award prejudgment interest at a rate other than the default rate of 1.3 percent calculated in accordance with s. 127(1) of the Courts of Justice Act . I would delete the reference to “3 percent” in paragraph four of the judgment and substitute “1.3 percent”. 5.       Did the trial judge err in not allowing Coulthard to amend his pleading to plead a limitation defence, after the jury returned their verdict? [115] After the jury returned their verdict, Coulthard sought leave to amend his pleadings to plead limitation defences in the Tuffnail and Petrie actions, pursuant to the Limitations Act , 2002, S.O. 2002, c. 24, Sched. B, and the Trustee Act, R.S.O. 1990, c. T.23. [116] In her September 20, 2017 reasons, the trial judge noted that r. 26.01 of the Rules of Civil Procedure provides that leave to amend a pleading must be granted at any stage of an action, absent non-compensable prejudice. The trial judge acknowledged that it is possible to amend a pleading, even post-verdict, for example, to amend the prayer for relief to accord with a verdict on damages. However, she concluded that there was non-compensable prejudice and denied Coulthard leave to amend his pleadings. [117] In the case of Tuffnail, she held that evidence would undoubtedly have been led at trial on the issue of discoverability, and it was now too late to do so. Moreover, trial and pre-trial tactics might have been affected. [118] In the case of Petrie , the trial judge proceeded on the basis that the limitation period in the Trustee Act applied, and that the concept of discoverability did not apply to the limitation period under that Act. Therefore, she did not rely on the inability to lead evidence on the issue of discoverability in her analysis. However, she concluded that there was non-compensable prejudice because the Petrie s’ strategy in proceeding with the case would undoubtedly have been affected. [119] Coulthard’s main argument on appeal is that the trial judge’s finding of non-compensable prejudice constitutes a palpable and overriding error: he had raised the possibility of a limitation defence some three years before the trial commenced and there was no evidentiary basis for the trial judge’s finding of prejudice. Rather, her finding of prejudice was based on speculation that Tuffnail would have led evidence on discoverability, or that trial tactics might have been different. [120] I reject this argument. The trial judge’s finding of non-compensable prejudice is entitled to deference. Moreover, I agree with her conclusion. Had Coulthard raised a limitations defence earlier, Tuffnail may have led different evidence at trial, and both Tuffnail and the Petrie plaintiffs may have made different pre-trial strategy and settlement decisions. This is not improper speculation. Moreover, at some point, “the delay in seeking an amendment will be so lengthy, and the justification so inadequate, that prejudice to the responding party is presumed. In this event, the onus to rebut the presumed prejudice lies with the moving party”: Klassen v. Beausoleil , 2019 ONCA 407, 34 C.P.C. (8th) 180, at para. 31, citing 1588444 Ontario Inc. v. State Farm Fire and Casualty Co. , 2017 ONCA 42, 135 O.R. (3d) 681, at para. 25. [121] Coulthard also argued that the trial judge erred in law because she held that only minor amendments can be made post-verdict. Respectfully, this misconstrues her reasons. As noted above, she acknowledged that amendments can be made post-verdict, and gave an example of when they might be allowed. She dismissed Coulthard’s motion to amend because of her finding of non-compensable prejudice, not because she categorized it as a non-minor amendment. [122] I would dismiss this ground of appeal. disposition [123] For these reasons: I would allow State Farm’s appeal, amend para. 6 of the judgment by substituting “$347,454.71” for “$800,000”, and amend para. 4 of the judgment by substituting “1.3 percent” for “3 percent”; I would allow Tuffnail’s appeal, to the extent of amending para. 7 of the judgment by substituting “under the Judgment” for “pursuant to the terms of the OPCF 44R endorsement”, and dismiss State Farm’s conditional cross-appeal of para. 7 of the judgment; and I would dismiss Coulthard’s appeal. [124] I would order that if the parties are unable to resolve the issue of costs of the appeals, they make written submissions to the panel, via the court’s Senior Legal Officer, not more than three pages in length, within three weeks of the release of these reasons. Released:  “AH”  “JUN 01 2020” “Alexandra Hoy A.C.J.O.” “I agree Doherty J.A.” “I agree Marrocco ACJSC” [1] Thomas Bolton died during the litigation. The litigation was continued by Sharon Carlene Drown, as Litigation Administrator for the Estate of Thomas Michael Bolton. For simplicity, I use “Bolton” throughout to refer to Mr. Bolton himself, as well as the legal liabilities and interests of the Estate. [2] The limit of coverage is determined by s. 4 of the OPCF 44R. That section indicates that coverage under the OPCF 44R is excess to the total of all limits of motor vehicle liability insurance held by the inadequately insured motorist (Meekes) and any person jointly liable with that motorist. Separate and apart from the question of whether Coulthard was “jointly liable” with Meekes, the Bolton and Coulthard policies were not motor vehicle liability insurance policies. Thus, State Farm’s maximum liability under the OPCF 44R is $800,000 (i.e. the amount by which the $1,000,000 of family protection coverage under the OPCF 44R exceeds the $200,000 limit of the Meekes motor vehicle policy). [3] The language referred to by the trial judge was last used in the SEF 44 Family Protection Endorsement, which was superseded by the O.E.F. 44. The wording of the O.E.F. 44 removed reference to “whether such entitlement is pursued or not” and adopted the current language, which was maintained in OPCF 44R. [4] I note that Tuffnail does not argue that if Coulthard is jointly liable to Tuffnail, the amount deductible under s. 7 of OPCF 44R is the amount of State Farm’s claim for contribution and indemnity, to the extent it is characterized as such, and not the limits of Coulthard’s insurance policy. For the purposes of my analysis, I therefore accept that the amount deductible is the limits of Coulthard’s insurance policy. [5] I make a cautionary observation: it is not clear that Freudmann-Cohen permits an insurer to resort to r. 29.01 in all circumstances. [6] Napier v. Hunter , [1993] A.C. 713 (H.L.) provides support for the proposition that where insurance is layered, subrogated recovery is applied on a downward basis, beginning with the top layer of insurance. Accordingly, it appears that in the United Kingdom an excess insurer may recover its loss first from the subrogation proceeds, where those proceeds are payments in respect of the layer of insurance the excess insurer agreed to cover. However, to my knowledge, Napier has not been considered with respect to this particular point by a Canadian court. [7] State Farm seeks to recover from Coulthard’s policy – an amount deducted in calculating its liability to Tuffnail under the OPCF 44R. There is authority for the proposition that an insurer is not entitled to recover payments allocated to uninsured losses: T&N Limited v. Royal & Sun Alliance plc , [2003] EWHC 1016 (Ch), at paras. 605-606. Query whether the amount of Coulthard’s policy is an uninsured loss under the OPCF 44R. However, none of the parties have appealed or dispute the trial judge’s conclusion that State Farm is entitled to “pursue recovery” of its subrogated interest against Coulthard. They dispute only whether and how the pro rata sharing mechanism operates. My analysis accordingly proceeds on the assumption that State Farm is entitled to recovery from Coulthard’s policy. I leave an insurer’s right of recovery against amounts deducted in calculating its liability under the OPCF 44R for another day. [8] Endean was released on March 8, 2019. On April 10, 2019, the parties appeared before the trial judge to seek clarification of her January 23, 2019 reasons. At this hearing, counsel for Tuffnail relied on Endean and argued that Coulthard should owe Bolton 35.7 percent of the damages awarded by the jury. The trial judge held that she was not being asked to clarify her January 23, 2019 reasons, but was being asked to reconsider them. She declined to do so, noting that appeals had already been filed.

COURT OF APPEAL FOR ONTARIO CITATION: Van Delst v. Hronowsky, 2020 ONCA 402 DATE: 20200619 DOCKET: C66973 Rouleau, Hourigan and Roberts JJ.A. BETWEEN Lynda Mary Van Delst (Hronowsky) Respondent and Thomas John Hronowsky Appellant Thomas John Hronowsky, acting in person Katherine Shadbolt and David Migicovsky, for the respondent Heard: in writing On appeal from the order of Justice Tracy Engelking of the Superior Court of Justice, dated April 24, 2019, with reasons reported at 2019 ONSC 2569, 23 R.F.L. (8th) 306. COSTS ENDORSEMENT [1] On May 29, 2020, we released our reasons, granting the appeal in part. The parties have been unable to agree on the costs of the appeal and trial, and have filed written submissions. [2] There was divided success on the appeal, but the respondent was the more successful party, succeeding on all but one issue. Therefore, we order the appellant to pay to the respondent costs of the appeal on a partial indemnity basis that reflects the mixed result. We fix those costs in the all-inclusive amount of $15,000. [3] In our reasons, we referred the final calculation of the equalization payment to the trial judge to reflect our conclusions regarding the value of the respondent’s pension. We also refer the fixing of the trial costs to the trial judge after she has recalculated the equalization payment. “Paul Rouleau J.A.” “C.W. Hourigan J.A.” “L.B. Roberts J.A.”