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WARNING
THIS APPEAL IS SUBJECT TO a publication ban issued October 31,
2019 by Justice Thomas M. Wood:
1. THIS
COURT ORDERS that there will be an order that the publication of any material
that could identify either of the plaintiffs is prohibited.
COURT OF APPEAL FOR ONTARIO
CITATION: X.H. v. Cota, 2022 ONCA 274
DATE: 20220406
DOCKET: C69700
Doherty, Huscroft and Harvison Young
JJ.A.
BETWEEN
X.H. and C.H.
Respondents
and
Her Majesty the Queen in Right
of Ontario and
OPP Sergeant Randy Cota
Appellant
Norman Groot and Erin Stoik, for the
appellant Randy Cota
Shahana Kar and Michael Saad, for the defendant
Her Majesty the Queen
Daniel Zacks, Cara Valiquette and Jay
Herbert, for the respondents
Heard: March 28, 2022 by video conference
On appeal from the order of Justice Mark
L. Edwards of the Superior Court of Justice, dated June 22, 2021.
REASONS FOR DECISION
[1]
The respondents issued a statement of claim on
September 19, 2016, alleging that the appellant police officer, Randy Cota, had
committed various torts including negligence, intrusion upon seclusion,
extortion/intimidation, misfeasance in public office, and intentional
infliction of nervous shock. The claim alleged that the appellant attempted to
manipulate and control the respondents, and to exact revenge on them for C.H.s
rejection of his sexual advances. The respondents were granted leave to amend
their claim in October 2019 to include sexual assault and battery. The amended
claim pleaded that the appellant used his authority as a police officer to
force sex on C.H.
The motions to strike and for summary
judgment
[2]
The appellant brought a number of motions, including
motions to strike the 2016 claims and for summary judgment. The appellant
argued the claims were statute barred and that the respondents added
allegations of sexual assault to their 2016 claims in order to circumvent the
defence the appellant would otherwise have had under the
Limitations Act
,
2002, S.O. 2002 c. 24, Sch. B.
[3]
The motion judge found that the pleadings of
sexual assault triggered s. 16(1)(h) of the Act, which provides that there
is no limitation period in respect of a proceeding based on a sexual assault.
The motion judge found, further, that s. 16(1.3) operated to bring the
claims arising from the other torts within the scope of s. 16(1)(h) and s. 16(h.1),
because the appellant was a police officer at the time the acts were alleged to
have occurred and so was in a position of trust and authority over C.H.
[4]
Consequently, the motion judge dismissed the
appellants motion to strike the claim and motion for summary judgment. In
addition, the motion judge declared that no limitation period applied to any of
the respondents claims.
[5]
The appellant makes two arguments on appeal.
First, he argues that s. 16(1.3) applies only to claims against third
parties. We disagree.
[6]
This argument proceeds from a misreading of the
decision in
Jane Doe v. Weinstein
, 2018 ONSC 1126 and of s. 16(1.3),
which provides:
(1.3) For greater certainty, clauses (1)(h),
(h.1) and (h.2) are not limited in any way with respect to the claims that may
be made in the proceeding in relation to the applicable act, which may include
claims for negligence, for breach of fiduciary or any other duty or for
vicarious liability.
[7]
This section makes plain that no limitation
period applies to any claim in relation to the sexual misconduct.
Jane Doe
applied but did not limit the application of the s. 16(1.3) to third parties.
It applies to claims against the perpetrator of the sexual misconduct as well
as third parties.
[8]
The motion judge did not err in finding that the
claims in the amended Statement of Claim were in relation to sexual misconduct.
The record before the motion judge established a connection between the alleged
sexual assaults and the non-sexual torts alleged. That connection was
sufficient to potentially afford all of the claims the protection of s. 16.
[9]
The motion judge properly dismissed the
appellants motion for summary judgment. We do, however, agree with the
appellants further submission that the motion judge erred in not only
dismissing the summary judgment motion, but also declaring that no limitation
defence applied to the claims. Paragraph 2 of the order reads:
THE COURT DECLARES that no limitation
period applies to any of the Plaintiffs claims.
[10]
The effect of this declaration was to deny the
appellant the opportunity to establish at trial that s. 16 did not apply to the
non-sexual torts. For example, if the trial judge were to conclude that the
sexual assaults alleged by the plaintiffs did not occur, s. 16 would not be
engaged and the non-sexual assault torts would be subject to the normal
two-year limitation period. Under that limitation period, those claims are
statute-barred.
[11]
The motion judge should have left the ultimate
determination of the application of s. 16 to the non-sexual assault torts to
the trial judge. The trial judge could make that determination based on the
findings of fact made at trial, especially any finding as to whether the
alleged sexual assaults actually occurred.
[12]
Accordingly, the declaration must be set aside.
The costs order
[13]
The appellant argues that success on the motion
was divided and the motion judge erred in principle by awarding costs on a
substantial indemnity basis.
[14]
We disagree.
[15]
Success on the motion was not divided. The
appellants motion was largely dismissed. The motion judge considered it
appropriate to award costs on a blended substantial/partial indemnity basis
because he found that the appellant had, by his conduct, needlessly inflated
the costs of the motion. That was the motion judges call to make.
[16]
Finally, we note that the blended amount fixed
by the motion judge was only slightly lower than what the respondents had
sought on a partial indemnity basis. The costs awarded were not unreasonable
and there is no basis for this court to interfere with them.
Conclusion
[17]
The appeal is allowed in part. The declaration in
s. 2 of the order is set aside. The other terms of the order remain in place.
[18]
The appeal from the costs decision is dismissed.
[19]
As success on the appeal was divided, each party
shall bear its own costs of the appeal.
Doherty
J.A.
Grant
Huscroft J.A.
Harvison
Young J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Marshall v. Meirik, 2022 ONCA 275
DATE: 20220405
DOCKET: C69311
Doherty, Huscroft and Harvison
Young JJ.A.
BETWEEN
Robert Leonard Marshall and
Tracey Dorothy Hoyt
Plaintiffs/Defendants by Counterclaim
(Respondents)
and
John Peter Meirik and Amber
Madelynn Meirik
Defendants/Plaintiffs by Counterclaim
(Appellants)
Michael Bookman, for the appellants
Colby Linthwaite, for the respondents
Heard: March 31, 2022 by video
conference
On appeal from the judgment of Justice Jessica
Kimmel of the Superior Court of Justice, dated March 8, 2021, with reasons
reported at 2021 ONSC 1687, and 2021 ONSC 3059.
REASONS FOR DECISION
The Main Appeal
[1]
The appellants (defendants) agreed to purchase a
cottage from the respondents (plaintiffs). The appellants repudiated the
agreement prior to closing. The respondents relisted the property and sold the
property a short time later for a considerably lower price.
[2]
On the summary judgment motion, the appellants
acknowledged they had breached the agreement of purchase and sale. Among other
things, they argued:
·
the resale price did not reflect the true value
of the property when the respondents sold it; and
·
the respondents did not take available
reasonable steps to mitigate their loss and, had they done so, their losses
would have been eliminated or at least substantially reduced.
[3]
The motion judge rejected both arguments. She
held the purchase price on the resale reflected the market value, meaning the
respondents loss equalled the difference between the sale price agreed upon by
the appellants and the ultimate resale price. In addition, the respondents were
entitled to a commission adjustment.
[4]
The motion judge also rejected the appellants
mitigation argument. She held the appellants had failed to meet their onus to
show on the balance of probabilities that the respondents did not take
reasonable steps that would have led to a higher resale price.
[5]
The appellants challenge the motion judges
mitigation analysis. They advance two arguments:
·
the motion judge wrongly held, as a matter of
law, that absent expert evidence the appellants could not meet their burden on
the mitigation issue; and
·
the motion judge made various errors in her
consideration of the evidence proffered by the appellants, including a failure to
consider some of that evidence, and a failure to draw certain inferences.
[6]
We reject both arguments. Both amount to an
attempt to re-argue the merits of the case before this court.
[7]
The motion judge did not hold, as a matter of
law, that the appellants could not meet their onus without supporting expert
evidence. In fact, the appellants did lead some expert evidence. The motion
judge held that, having regard to the totality of the evidence led by the
appellants, including the expert evidence, the appellants could not meet their
onus on the mitigation issue. The motion judge applied the mitigation
principles to the evidence adduced and found the evidence wanting in the
absence of any independent expert testimony. We see no legal error in this
analysis.
[8]
The appellants second argument takes issue with
the motion judges findings of fact. The appellants submit the motion judge did
not consider certain evidence and did not draw certain inferences. This ground
of appeal is a straightforward attack on the motion judges fact-finding and
runs headlong into the strong deference owed in this court to that fact-finding.
[9]
We see no basis to conclude the motion judge
failed to consider evidence. She specifically outlined the evidence which the
appellants claim she failed to consider. The inference to be drawn from that
evidence was for the motion judge. We cannot interfere, absent palpable and
overriding error. There is none.
The Costs Appeal
[10]
The appellants also seek leave to appeal the
costs order. Leave to appeal is granted sparingly, but, in our view, should be
granted in this case.
[11]
The respondents made a formal offer to settle
the action in 2019. That offer was substantially lower than the amount
ultimately awarded to the respondents.
[12]
In May 2020, counsel for the respondents, in
reply to a query from counsel for the appellants, advised counsel that he was
prepared to recommend that his clients accept $375,000 in settlement of the
action. While that figure was much closer to the amount claimed and ultimately
awarded than the earlier offer, it was still about $100,000 less than the total
amount of the judgment eventually awarded.
[13]
The motion judge found that the 2020 exchange of
correspondence between counsel was not an offer to settle and did not have the
effect of revoking the 2019 offer. That offer remained alive to trial.
[14]
The motion judge, applying r. 49.10, held the
respondents were entitled to their costs on a partial indemnity basis up to the
date of the 2019 offer and on a substantial indemnity basis after that date.
[15]
There is no error in the motion judges
conclusion that the 2019 offer remained in effect. The 2020 correspondence was
not an offer to settle, but only an indication to counsel for the appellants of
an amount counsel for the respondents was prepared to recommend to his clients
should further negotiations ensue.
[16]
We also agree with the motion judge that, even
if the 2020 correspondence is considered to be an offer to settle, the amount
proposed in that correspondence was significantly lower than the total amount
ultimately awarded to the respondents in the judgment. Assuming the 2020
correspondence was an offer under r. 49, the respondents would be entitled to
substantial indemnity costs on the basis of that offer.
[17]
The motion judge properly triggered the costs
consequences of r. 49.10. There is no reason to interfere with the quantum
awarded.
Conclusion
[18]
The appeal is dismissed. Leave to appeal costs
is granted and the appeal is dismissed. Pursuant to counsels agreement, the
respondents should have costs of the appeal in the amount of $11,000, inclusive
of disbursements and relevant taxes.
Doherty J.A.
Grant Huscroft J.A.
A. Harvison Young J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Billimoria v. Mistry, 2022 ONCA 276
DATE: 20220406
DOCKET: C69330
Pardu, Paciocco and Thorburn
JJ.A.
BETWEEN
Homi Billimoria
Plaintiff (Appellant)
and
Maharukh Mistry and Firoze
Mistry
Defendants (Respondents)
Michael S. Deverett, for
the appellant
Ted Evangelidis and Eric
Blay, for the respondents
Heard: March 23, 2022, by
videoconference
On appeal from
the judgment of Justice Jennifer Woollcombe of the Superior Court of Justice,
dated March 24, 2021, with reasons at 2021 ONSC 1939.
REASONS FOR DECISION
OVERVIEW
[1]
This appeal arises from a dispute between two
owners of a residential property located at 347 Glenn Hawthorne Boulevard,
Mississauga (the property).
[2]
At the summary trial, the appellant Homi
Billimoria sought a declaration that he is the sole owner of the property by
virtue of ss. 4, 5, and 15 of the
Real Property Limitations Act
,
R.S.O. 1980, c. L.15 (
RPLA
).
[3]
The appellant pointed to his exclusive possession
of the property for more than ten years, the fact that he paid the expenses
throughout, the respondents had not inspected the property for more than ten
years, and that the respondents had done nothing to protect their property
interest in more than ten years. He denied that there was a verbal agreement
allowing him to stay in the home in exchange for paying carrying costs, with
the expectation that the property would eventually be sold. He said that this
alleged verbal agreement was incomplete, missing essential terms, and
unenforceable.
[4]
The trial judge held that the appellant had a
65% interest in the property, the respondents had a 35% interest in it, and
that it should be sold.
[5]
The appellant claims the trial judge erred by
holding that (i) the respondents could recover possession of the property
despite ss. 4, 5, and 15 of the
RPLA
; and (ii) the property should be
sold pursuant to the
Partition Act
, R.S.O. 1990, c. P.4. The appellant
claims he is the sole owner of the property and that the respondents are
dispossessed of their interest in the home as he has been in exclusive
possession of the home for over ten years.
[6]
The respondents raise a third issue for the
first time on appeal, which is that title to the property was registered under
the
Land Titles Act,
R.S.O. 1990, c. L.5 before it was purchased by
the parties, and consequently their interest could not be extinguished by the
appellants exclusive possession because his possessory interest would have
been adverse to or in derogation of the title of the registered owner,
contrary to s. 51(1) of the
LTA
.
[7]
For the reasons that follow, the appeal is
dismissed.
FACTUAL BACKGROUND
[8]
The history of the parties involvement with the
property is set out below.
[9]
In the 1980s, the parties began buying properties
to sell for profit. In 1988, the parties jointly purchased the property for
$171,900 and paid a $30,000 deposit. At the time of purchase, the property was
registered in Land Titles.
[10]
The parties took title as tenants in common,
with 50% owned by the appellant and 50% by the respondent Ms. Maharukh Mistry.
The appellant paid half of the $15,000 deposit and the parties disagree as to
who paid the other $15,000. Until 1991, the property was rented for $7,800 per
annum.
[11]
In 1991, when the parties were unable to rent or
sell the property, they agreed that the appellant would move into it.
[12]
The appellant claims he became the sole owner of
the property. He claims he paid all costs to maintain it including property
taxes, mortgage, insurance and repairs. The respondents claim that when the
appellant moved in, they had a verbal agreement that although the appellant
would live there, make mortgage and property tax payments in lieu of paying
rent, he and Ms. Mistry would remain joint owners and that the property would
eventually be sold. The mortgage was paid off by May 1, 2004.
[13]
In January 1992, Ms. Mistry transferred her
ownership interest to one of joint interest with her husband who is the other
respondent, Mr. Firoze Mistry. In July 2016, the appellants interest in the
property was transferred to Armin Mistry (unrelated to the respondents). The
respondents did not know of and did not consent to the transfer. In May 2018,
all the parties signed a document to restore the appellants and the
respondents names on title.
[14]
In September 2018, counsel for the respondents
advised that, given what had transpired, they wished to sell the property. In
January 2019, counsel for the appellant registered a charge against it without
the respondents knowledge or consent.
[15]
The appellant commenced an action seeking a
declaration that he was the sole owner of the property because he was in
exclusive possession of it for more than ten years and paid the carrying costs.
The respondents brought a counterclaim asking that the property be sold
pursuant to the
Partition Act
.
THE JUDGMENT
[16]
The trial judge held that the appellant had not
established exclusive possession of the property under the
RPLA
because:
a.
The business history suggested that the parties
bought six properties together including this one and they were jointly
purchased as investment properties;
b.
The trial judge accepted Ms. Mistrys evidence
that the respondents paid 50% of the deposit. This was consistent with their
other business arrangements and with the fact that Ms. Mistry was registered on
title as a 50% owner;
c.
The trial judge found that they had a well
established trusting friendship and that in 1991, there was a verbal agreement
that the appellant would live at the property without paying rent as long as he
carried the major costs, and at some point, the property would be sold;
d.
After the appellant moved into the property, the
parties did not conduct themselves as though the respondents had been
dispossessed.
[17]
The trial judge also dismissed the appellants
claim of proprietary estoppel, as there was never an express or implied
representation that the appellant was to become sole owner, and there was no
basis to find the respondents behaviour had been unconscionable.
[18]
However, the trial judge found that there was a
proper basis, grounded in unjust enrichment, for an unequal division of the
property. The trial judge found that the agreed arrangement lasted longer than
was expected and that a constructive trust should be imposed to recognize the
extent of the appellants contribution. She ordered that the appellant should
receive 65% of the value of the property because the appellants contribution
to the property was significantly more than the value of rent a tenant would
have paid, which payments enabled the property value to increase. She held that
if the proceeds of the sale were shared equally, the respondents would be
enriched and the appellant would suffer a corresponding deprivation.
[19]
The trial judge therefore ordered that the
property be partitioned and sold pursuant to the
Partition Act
. While
she recognized that there may have been an agreement to sell the property only
upon the agreement of all parties in 1991, the respondents decision to seek to
sell the property now was reasonable in light of the appellants conduct from
2016 to 2018.
ANALYSIS AND CONCLUSION
Jurisdiction
[20]
The appellant raises three issues on this
appeal: the first is whether s. 51 of the
Land Titles Act
bars the
appellants claim, the second is whether the trial judge erred in assessing the
appellants actual possession of the property under the
RPLA
, and the
third is whether the trial judge erred in ordering the sale of the property
pursuant to the
Partition Act
.
The issues are
interconnected and the interests of justice favour joinder:
Cavanaugh v.
Grenville Christian College
, 2013 ONCA 139, 360 D.L.R. (4th) 670, at
para. 86.
[21]
Although appeals from orders made under the
Partition
Act
lie to the Divisional Court, the appeal from the final judgment
determining the ownership of the property lies to this court, and this court
has jurisdiction to deal with all the issues on appeal pursuant to s. 6(2) of
the Courts of Justice Act.
Standard of
Review
[22]
The issues raised by the appellant are issues of
mixed fact and law which are subject to the standard of review of palpable and
overriding error, absent an extricable legal error:
Housen v. Nikolaisen,
2002
SCC 33, [2002] 2 S.C.R. 262,
at paras. 26-36. The trial judges
factual findings are also subject to the standard of review of palpable and
overriding error:
Housen,
at para. 10. A palpable and overriding error
includes a finding that is clearly wrong, unreasonable or unsupported by the
evidence:
H.L. v. Canada (Attorney General)
, 2005 SCC 25, [2005] 1
S.C.R. 401, at para 4.
The
Land Titles Act
Issue
[23]
In our view, the new issue the respondents raise
on appeal, that s. 51 of the
Land Titles Act
bars the appellants
claim, is properly before us and is dispositive.
[24]
Appellate courts will generally not entertain
new issues on appeal, because of the unfairness of requiring a party to argue
an issue on appeal that it had no chance to adduce evidence on at trial:
Whitby
(Town) v. G & G 878996 LM Ltd.
, 2020 ONCA 654, 5 M.P.L.R. (6th) 174,
at para. 9. The burden is on the appellant to persuade the court that all the
facts necessary to address the new issue are already before the court, and the
decision as to whether to grant leave to allow a new argument is a
discretionary decision to be guided by balancing the interests of justice:
Kaiman
v. Graham,
2009 ONCA 77, 75 R.P.R. (4th) 157, at para. 18.
[25]
While the effect of s. 51 of the
Land Titles
Act
was not raised at trial by different counsel for the respondents, this
is a legal issue which does not depend on findings of fact, nor is there any
suggestion that prior counsel failed to raise it for tactical reasons or that
the interests of justice weigh in favour of not considering it. As such, and
with the consent of the appellant, the respondents have satisfied their burden
and we exercise our discretion to allow this issue to be raised on appeal:
Kaiman
.
[26]
The appellant claims that he is the sole owner
of the property because his long physical occupation of the property
dispossessed the respondents of their interest, within the meaning of s. 5 of
the
RPLA
, and the respondents are now statute-barred pursuant to s.4
of the
RPLA
, from bringing an action to recover the property. He
argues that reliance on the
RPLA
is not a claim for adverse
possession and is not governed by the principles of adverse possession, but
instead rests on a finding that the person entitled to the property has been
dispossessed or had discontinued
possession more than 10 years before
attempting to make entry or distress or bringing an action. He argues that the
trial judge erred in applying the principles of adverse possession. He also
argues that his claim falls outside of s.51 of the
Land Titles Act
. We
do not accept the distinction the appellant is attempting to make. In essence,
his claim is for adverse possession under the
RPLA
. Nor do we accept
his argument that his claim is not caught by s. 51 of the
Land Titles Act
.
[27]
Adverse possession is established where that
claimant had actual open, notorious, constant, continuous, [and] peaceful
possession for the statutory period of ten years in accordance with s. 4 of the
RPLA
, as well as an intention to exclude the true owner from
possession, and effective exclusion of the true owner for the entire ten-year statutory
period:
Vivekanandan v. Terzian,
2020 ONCA 110, 443 D.L.R. (4th) 678,
at para. 21.
[28]
However, land that is registered in Land
Titles cannot be obtained by adverse possession unless the ten-year exclusion
period ran before the land was registered:
Sipsas v. 1299781 Ontario Inc.
,
2017 ONCA 265, 85 R.P.R. (5th) 24, at para. 18. Section 51(1) is worded broadly
and clearly embraces the claim the appellant is making. It provides, in
relevant part:
Despite any provision of
the
Real
Property Limitations Act
no title to and
no right or interest
in registered lands under this Act
that is adverse to or in derogation of
the title of the registered owner shall be acquired
hereafter or deemed to
have been acquired heretofore
by any length of possession or by prescription
(emphasis added).
[29]
In this case, the property was already
registered in Land Titles at the time it was purchased by the parties, and
thus, the appellant could not have obtained title to it by adverse possession.
The appellant cannot make out a claim of adverse possession regardless of how
long the appellant actually occupied the home.
[30]
This alone is sufficient ground to dismiss
the appeal.
The
RPLA
Issue
[31]
Second, even if a limitation claim under the
RPLA
had been available, we see no error in the trial judges conclusion that
the appellant had not established actual possession of the property for the
requisite ten-year period under the
RPLA.
[32]
She correctly articulated the law in respect of
adverse possession as set out by this court in
Vivekanandan
.
[33]
She then provided comprehensive reasons for
finding that the appellant had never established actual possession sufficient
to dispossess the respondents. In particular, she noted that the appellant was
occupying the property pursuant to a verbal agreement with the respondents.
Given her finding that that the respondent co-owners permitted his occupation,
the adversity element of adverse possession could not have been made out:
Teis
v. Ancaster (Town)
(1997), 35 O.R. (3d) 216 (C.A.), at p. 221.
[34]
She cited the fact that the property was an
investment property, the informality of their relationship due to their
friendship, the joint deposit on the property, the agreement that the appellant
should live at the property rent-free in exchange for paying carrying costs
with the idea that one day the property would be sold, the mortgage, insurance
and tax documents which were sent to the respondents, two mortgage payments
which were paid by the respondents and other ownership obligations which were
assumed by the respondents.
[35]
She also noted that the appellant had never told
the respondents that the property was his alone. In fact, as recently as 2018,
the parties jointly retained counsel to rectify the title issues to reflect the
fact that they were all registered owners as tenants in common. She concluded
that this evidence is inconsistent with the appellants intention to exclude
the respondents from possession of the property.
[36]
For all these reasons, the trial judge held that
as a factual matter, the respondents never lost possession of the property,
either by dispossession or discontinuance of possession. She held that the
appellant therefore failed to meet his burden of showing that he had
successfully
dispossessed
the respondents of their interest in the property or that the
respondents had discontinued their possessory interest in the property such
that their rights in the property were extinguished.
[37]
We see no error in the trial judges conclusion
that the appellant had failed to establish his claim under the
RPLA
.
The
Partition Act
Issue
[38]
Section 2 of the
Partition Act
provides
that a joint tenant or tenant in common may be compelled to make partition or
sale. The onus is on the party resisting sale to demonstrate reasons why it
ought not to be sold. There must be malicious, vexatious or oppressive conduct
to justify the refusal to sell:
Brienza v. Brienza
, 2014 ONSC 6942, at
paras 24-27.
[39]
The appellant claims the trial judge erred in
ordering the sale of the property having found that there was an agreement that
the appellant could continue to live in the property on condition that he pay
the carrying costs.
[40]
We disagree. While the trial judge accepted that
there was an agreement among the parties in 1991, she also accepted that,
there was an expectation on the [respondents] part that the [appellant] would
move into the property for a much shorter period than ended up happening. There
was an expectation that the property would be sold much earlier. Moreover,
there was evidence that the agreement changed when the respondents discovered
that they had been removed from title without being told, and steps had to be
taken to rectify this. She found that there was no evidence that the
respondents actions were malicious, oppressive or vexatious.
[41]
For these reasons and given the deference
accorded to the trial judges exercise of discretion in ordering sale under the
Partition Act
, we see no error in the trial judges decision to allow
the sale of the property.
[42]
The appeal is therefore dismissed. Costs of this
appeal are awarded to the respondents in the amount of $25,000 as agreed by the
parties.
G. Pardu J.A.
David
M. Paciocco J.A.
J.A.
Thorburn J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Jayco Inc. v. Canada (Revenue
Agency), 2022 ONCA 277
DATE: 20220407
DOCKET: C69359
Pardu, Paciocco and Thorburn
JJ.A.
BETWEEN
Jayco,
Inc.
Plaintiff (Appellant)
and
Her Majesty the Queen in Right
of Canada and The Canada Revenue Agency
Defendants (Respondents)
David Douglas Robertson, Jonathan Ip
and Brittany Rossler for the appellant
Nancy Arnold, Kevin Dias and Benjamin
Chamberland, for the respondents
Heard: March 21, 2022 by video conference
On appeal from the order of Justice Frederick L. Myers of the Superior
Court of Justice, dated March 22, 2021, with reasons reported at 2021 ONSC
2120.
Pardu J.A.:
[1]
Jayco, Inc. [Jayco] manufactures
recreational vehicles in the United States and sells them to Canadian dealers. The
Canada Revenue Agency [the CRA] took the position that delivery occurred in
Canada and that Jayco was obliged to and failed to collect and remit GST/HST from
the dealers. It assessed Jayco for almost $14 million in taxes.
[2]
Jayco was successful in the Tax
Court of Canada in establishing that delivery occurred in the United States,
and the assessment was set aside. Jayco incurred legal costs in contesting the
assessment and interest charges on the security posted for the taxes claimed
pending the hearing of the appeal. It sued for recovery of these expenses but
its action was dismissed pursuant to r. 21.1(1)(b) of the
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194, on motion by the defendants. The motion judge accepted
the argument of the respondents that the CRA had no duty to indemnify the
appellant for costs incurred in dealing with a GST/HST audit and had no private
law duty of care which could found a claim for recovery of expenses incurred in
contesting an audit by the CRA.
[3]
The appellant submits that the
motion judge erred in striking its two claims, which it defined in the
following terms in its factum:
1.
Whether the respondents, as principal, owe a duty to indemnify their
agent (the appellant) for damages caused as a result of the agent following the
principals instructions. The appellant claims that it was the statutory agent
of the respondent under the
Excise Tax Act
, R.S.C., 1985, c. E-15 [the
ETA
].
2.
Whether the respondents owe a duty of care to GST/HST registrants who
are appointed under the
ETA
to be agents of Her Majesty the Queen in right
of Canada, thus permitting an action in negligence to proceed.
[4]
It is common ground that the standard of review is correctness. Furthermore,
there is no dispute that the legal test for determining whether a claim should
be struck under r. 21.01(1)(b) is whether it is plain and obvious that the statement
of claim discloses no reasonable cause of action, or put another way, that the
claim has no reasonable prospect of success. Novel but arguable claims should
be allowed to proceed to trial:
R. v. Imperial Tobacco
Canada Ltd.
, 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 21;
Hunt v. Carey Canada Inc
., [1990] 2 S.C.R. 959.
The Nature of the Tax
[5]
In
Quebec (Revenue) v. Caisse populaire
Desjardins de Montmagny
, 2009 SCC 49, [2009] 3 S.C.R. 286, at para.
10, the court described the operation of the GST/HST:
The GST, which was
implemented in 1990 by legislation that amended the
ETA
(S.C. 1990, c. 45), replaced the former federal manufacturers sales tax. The GST
can be regarded as a value-added tax. It is collected at every stage of the
manufacturing and marketing of goods and services and is payable by the
recipient, who is regarded as the debtor in respect of the tax liability to the
Crown (s. 165
ETA
). However, the supplier is responsible for collecting
and remitting the tax (s. 221(1)
ETA
). The supplier is deemed to hold
the amounts so collected in trust for Her Majesty (s. 222(1) and (3)
ETA
)
and must periodically file returns and make remittances. In addition, the Act
establishes a system under which input credits can be claimed, at each step of
the marketing and supply of the good, in respect of the taxes the supplier has
had to pay to his or her own suppliers (
ss. 141.01
and
169(1)
ETA
).
The ultimate recipient bears the full burden of the tax. [Citation omitted.]
The Claim for Indemnity
[6]
The appellant relies on s. 221(1) of the
ETA
,
which requires a supplier to collect
the tax payable by a recipient:
221(1)
Every person who makes a taxable supply shall, as agent of Her Majesty in right
of Canada, collect the tax [
] payable by the recipient in respect of the
supply.
[7]
The appellant argues that this provision made it
an agent of the respondents when it carried out the instructions of the CRA to
either pay or secure the taxes claimed. Accordingly, the appellant argues that
it is entitled to an indemnity owed by a principal to an agent when the
principals instructions turn out to be based on an erroneous view of tax
liability. The appellant acknowledges that the weight of authority has
concluded that auditors carrying out administrative duties under the
Income
Tax Act
, R.S.C., 1985, c. 1 (5th Supp.) [the
ITA
] owe no duty of
care to taxpayers, but it argues that s. 221(1) of the
ETA
makes the
present relationship different.
[8]
It is plain and obvious that this claim could
not succeed.
[9]
The motion judge held that the Supreme Court of
Canada resolved the issues of indemnity raised by this appeal in
Reference
re Goods and Services Tax
, [1992] 2 S.C.R. 445. The appellant, however, submits
that reference questions are advisory opinions which are not a decision by a
court on the merits and which bind no one:
In Re Statutes of Manitoba relating
to Education
(1894), 22 S.C.R. 577, at pp. 677-678;
Reference re
Secession of Quebec
, [1998] 2 S.C.R. 217, at para. 25.
[10]
In
Reference re Goods and Services Tax
,
Alberta argued that since suppliers were designated as agents of the government
for the collection of the GST/HST, the common law duties of principals to
agents were triggered, including a duty to reimburse agents for all costs and
liabilities incurred in the course of the agency. The court found this to be an
exaggeration of the common law duty of principals to agents, and adopted the
language of Professor Fridman in The Law of Agency (5
th
ed. 1983), at
p. 164:
The most important
duty of the principal is to remunerate the agent for services rendered. The
obligation to pay such remuneration the agents commission exists only
where it has been created by an express or implied contract between principal
and agent.
[11]
The court concluded that the duty to remunerate
the agent for costs incurred in the course of the agency does not arise
automatically, and only arises in cases in which the principal and the agent
contract, expressly or by implication, for such remuneration to be paid. In the
case of the GST/HST, it concluded that there was no contractual duty of
reimbursement arising expressly or by implication, although it left open the
case of whether there could ever arise a case in which governments would be
under a duty to reimburse agents unilaterally created by statute for the costs
incurred in the course of their agency: at p. 476.
[12]
The court went on to consider the common law
right of indemnification for agents who inadvertently cause tortious injury to
others in the course of their agency, and concluded that the collection of
taxes as an agent in compliance with the
ETA
could not give rise to a
right to indemnification: at pp. 476-477.
[13]
Finally, the court noted that any right to
remuneration for the time and trouble involved in collecting the GST/HST would
have to flow from the
Act
itself. The
Act
was silent on
compensation, though it provided for a one-time transitional credit. Since Parliament
had directed its mind to the issue of compensation for the costs of compliance
with GST/HST collection, and established a scheme for compensation, common law
rights which might have operated but for the statute cannot be relied upon: at
p. 478.
[14]
Here, there is no question of express or implied
contractual entitlement to reimbursement. There is no tortious liability to a
third party which is the subject of a claim for indemnification. Section 221(1)
of the
ETA
limits the agency to the collection of the tax from a
recipient of a supply.
[15]
Both the
ITA
and the
ETA
rely
on self-reporting by taxpayers. Those acts establish administrative structures
for the assessment and audit of taxpayers. When the CRA delivers a Notice of
Assessment or Reassessment claiming that more taxes are owing and the taxpayer
delivers a Notice of Objection, the parties are taking opposing positions. Under
these circumstances, it cannot be said that the taxpayer is acting as agent of
the tax authority when it incurs interest or legal costs in the course of
asserting its position.
[16]
Interest paid to post security for the taxes
claimed, and legal fees incurred to contest the assessment, are not incurred
for the collection of the tax from a recipient of a supply.
[17]
In the face of the comprehensive statutory
scheme providing for Notices of Objection, appeals to the Tax Court of Canada,
judicial review and some remedies for overpayment, such as interest on refunds
and awards of costs, the absence of statutory provisions for indemnification for
other interest paid and other legal costs is telling. Here, the Tax Court of
Canada awarded solicitor and client costs to Jayco. Section 221 does not
provide a basis to infer a statutory entitlement to more costs and interest
beyond that provided in the
ETA
and the
Tax Court of Canada Act
,
R.S.C., 1985, c. T-2.
[1]
[18]
Reference re Goods and Services Tax
is not binding, but it is persuasive. The motion judge was correct
to conclude that it is plain and obvious that there is no right of indemnity
arising from s. 221 of the
ETA
for the expenses claimed by the
appellant.
Does the CRA owe a duty of care in relation
to its administrative and audit functions?
[19]
The motion judge held that there was ample case
law rejecting the proximity required to formulate a private law duty of care
between the CRA and taxpayers facing an audit. While he noted that there could
be a private law duty of care where the CRA undertook a criminal investigation,
an investigator of criminal offences did not have the same relationship of an
auditor to a taxpayer while carrying out administrative duties in an audit. This
conclusion is so clearly right that the motion judge came to the correct
decision in dismissing Jaycos duty of care claim pursuant to r. 21.1(1)(b).
[20]
Resolution of this issue turns on whether there
is sufficient proximity between a taxpayer and the CRA to establish a prima
facie duty of care. The relationship between the parties and broad questions of
policy are relevant here:
Cooper v. Hobart
, 2001 SCC 79, [2001] 3
S.C.R. 537, at para. 30. The second stage of the inquiry asks whether there are
residual policy considerations which should negate or limit that duty of care.
[21]
Where a statutory regulator is mandated to
protect the public interest, the creation of a private law duty of care may
conflict with the regulators public duties. As noted in
Imperial Tobacco
,
at paras. 43-45:
A complicating factor is the role that
legislation should play when determining if a government actor owed a
prima
facie
duty of care. Two situations may be distinguished. The first is the
situation where the alleged duty of care is said to arise explicitly or by
implication from the statutory scheme. The second is the situation where the
duty of care is alleged to arise from interactions between the claimant and the
government, and is not negated by the statute.
The argument in the first kind of case is that
the statute itself creates a private relationship of proximity giving rise to a
prima facie
duty of care. It may be difficult to find that a statute
creates sufficient proximity to give rise to a duty of care. Some statutes may
impose duties on state actors with respect to particular claimants. However,
more often, statutes are aimed at public goods, like regulating an industry (
Cooper
),
or removing children from harmful environments (
Syl Apps
). In such
cases, it may be difficult to infer that the legislature intended to create
private law tort duties to claimants. This may be even more difficult if the
recognition of a private law duty would conflict with the public authoritys
duty to the public: see, e.g.,
Cooper
and
Syl Apps
. As stated
in
Syl Apps
, [w]here an alleged duty of care is found to conflict
with an overarching statutory or public duty, this may constitute a compelling
policy reason for refusing to find proximity (at para. 28; see also
Fullowka
v. Pinkertons of Canada Ltd.
, 2010 SCC 5, [2010] 1 S.C.R. 132, at para.
39).
The second
situation is where the proximity essential to the private duty of care is
alleged to arise from a series of specific interactions between the government
and the claimant. The argument in these cases is that the government has,
through its conduct, entered into a special relationship with the plaintiff
sufficient to establish the necessary proximity for a duty of care. In these
cases, the governing statutes are still relevant to the analysis. For instance,
if a finding of proximity would conflict with the states general public duty
established by the statute, the court may hold that no proximity arises:
Syl
Apps
; see also
Heaslip Estate v. Mansfield Ski Club Inc.
, 2009
ONCA 594, 96 O.R. (3d) 401. However, the factor that gives rise to a duty of care
in these types of cases is the specific interactions between the government
actor and the claimant.
[22]
Here, the mandate of the CRA is to ensure that
taxpayers pay taxes that are lawfully owed, for the benefit of all taxpayers
and the country as a whole. The
ETA
establishes a comprehensive regime
to deal with disputes over taxes owing, including appeals and judicial review. Recognition
of a private law duty here would conflict with the agencys duty to the public;
there is nothing in the legislative scheme to suggest that such a duty was
contemplated. The administrative regime for enforcement of the GST/HST is
broadly similar to that in place to enforce the
ITA
.
[23]
There are many instances where courts have held
that broad statutory public duties foreclose a private law duty of care. As
noted in
Reference re Broome v. Prince Edward Island
, 2010 SCC 11,
[2010] 1 S.C.R. 360, such public duties do not generally, in and of themselves,
give rise to private law duties of care: at para. 13; see also
Eliopoulos
v. Ontario (Minister of Health & Long Term Care)
(2006), 82 O.R. (3d)
321 (Ont. C.A.); and
River Valley Poultry Farm Ltd. v. Canada (Attorney
General)
, 2009 ONCA 326, 95 O.R. (3d) 1.
[24]
Nor is there anything in the specific
relationship between the appellant and the CRA that suggests that a finding of
sufficient proximity would be appropriate. That the CRA was ultimately shown to
have been wrong to assess the appellant for the taxes it claimed is not enough.
[25]
The appellant argues that
McCreight v.
Canada (Attorney General)
, 2013 ONCA
483,
116 O.R. (3d) 429 holds that in some circumstances, revenue
authorities will owe a duty of care to a taxpayer.
[26]
In
McCreight
, the CRA was concerned
that taxpayers and their accountants were applying for fraudulent research and
development credits. It obtained search warrants for the homes and businesses
of the taxpayers, their lawyers and accountants. It was authorized to retain
the materials seized until July 1999. It had not completed its examination of the
materials by then and applied for an extension. It was ordered to return the
original materials by November 9, 1999.
[27]
On November 9, 1999, criminal charges were laid
against various taxpayers and advisors alleging fraud and conspiracy. There was
a judicial finding that the information in support of the charges was sworn primarily
to retain possession of the seized documents: at para. 6. The criminal charges
were ended by discharges, withdrawals or stays.
[28]
The plaintiffs sued for a variety of causes of
action, including negligence. This court overturned the motion judges ruling
that it was plain and obvious that the CRA investigator owed no duty of care to
the plaintiffs, at paras. 60-62:
In my view, in this case, the motion judge
erred in concluding that it was plain and obvious that the respondent CRA
investigators did not owe a duty of care to McCreight and Skinner, policy
considerations would foreclose such a duty in any event and, therefore, the
negligence claim had no reasonable prospect of success and should be struck.
Firstly, given the Supreme Court's ruling in
Hamilton-Wentworth
that, in certain circumstances, police officers may owe a duty of care to their
suspects, surely it is not plain and obvious that a CRA investigator owes no
such duty when operating under
ITA
provisions that attract criminal
sanction and under the
Criminal Code
. The same analogical reasoning
applies to any residual policy rationale that could negate such a duty.
Secondly, I see no
relevant distinction between the above-cited case of
Leroux
and this
case. That case that involved a claim of negligence against CRA employees as
well and the British Columbia Court of Appeal dismissed an appeal of an order
permitting the cause of action to proceed to trial. The Court was not persuaded
that the claim should be struck because it was at least arguable that such a
cause of action could succeed and the issue was to be considered at trial.
[29]
The critical distinction that made
McCreight
different from the present case was the institution of criminal proceedings.
Hill
v. Hamilton
‑
Wentworth Regional Police Services Board
, 2007 SCC 41, [2007] 3 S.C.R. 129
established that police officers have a duty in certain
circumstances to an identified suspect to conduct a reasonable investigation.
[30]
This courts approval of
Leroux v. Canada
Revenue Agency
, 2012 BCCA 63, 347 D.L.R. (4th) 122 as a basis to allow the
action to proceed where criminal charges have been laid does not amount to
affirmation that a duty of care also exists when the CRA undertakes
administrative assessments and audits.
[31]
As the court noted in
McCreight
, it is
not plain and obvious that CRA investigators owe no duty of care to those they
are investigating when operating under
ITA
provisions that attract
criminal sanction and under the
Criminal Code
: at para. 61.
[32]
Here, the appellants proximity claim was made
in a non-criminal investigation where only its economic interests were at
stake. Any liberty interests it might have had were not threatened and it
asserted no
Charter
rights:
River Valley
,
at para. 51.
[33]
Policy reasons also favour rejection of a
private law duty of care in relation to administrative assessments and audits. Such
a duty would expose the government to unlimited liability to a practically
unlimited class: taxpayers.
[34]
I agree with the views expressed in
Grenon
v. Canada Revenue Agency
, 2017 ABCA
96, 49 Alta. L.R. (6th) 228
, at para. 25, leave to appeal refused, [2017]
2 S.C.R. vii (note):
[I]t is plain and obvious
that an action in negligence cannot succeed. It is clear that, because of the
inherently adverse relationship between auditors who are exercising a statutory
function and taxpayers, a finding of sufficient proximity to ground a private
law duty of care does not exist.
[35]
I conclude that the motion judge was correct to
conclude that the CRA did not owe a private law duty of care to Jayco when it
assessed Jayco for the taxes it claimed were owing.
[36]
A taxpayer may not be left without a remedy
where it can establish the ingredients of an intentional tort, such as
misfeasance in public office, which requires a showing of deliberate unlawful
conduct in the exercise of public functions and awareness of the unlawfulness
of the conduct and the likelihood of injury to the plaintiff:
Odhavji
Estate v. Woodhouse
, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 23.
Here, the appellant has not established any such intentional tort.
[37]
Accordingly, I would dismiss the appeal by
Jayco, with costs to the respondent fixed at $10,000 inclusive of disbursements
and taxes.
Released: April 7, 2022 G.P.
G.
Pardu J.A.
I
agree David M. Paciocco J.A.
I
agree J.A. Thorburn J.A.
[1]
Section 296 of the
ETA
provides for interest on overpayments
of tax, at a prescribed rate. Section 18.26 of the
Tax Court of Canada Act
allows that court to award costs to a taxpayer.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Vale v. Vale, 2022 ONCA 278
DATE: 20220407
DOCKET: C69016
Pardu, Paciocco and Thorburn
JJ.A.
BETWEEN
Lisa
Michelle Vale
Applicant (Respondent)
and
Michael Vale
Respondent (Appellant)
Anna Towlson, for the appellant
Caroline Kim, for the respondent
Diane McInnis, for the Office of the
Childrens Lawyer
[1]
Heard: March 22, 2022 by video conference
On
appeal from the orders of Justice James W. Sloan of the Superior Court of
Justice, dated December 9, 2020 and December 22, 2020.
REASONS FOR DECISION
[1]
Mr. Vale appeals from the following final orders made on a motion by Ms. Vale:
1.
The
child E shall primarily reside with the mother.
2.
The
father shall exercise access to E in accordance with her wishes.
3.
Child
support, commencing January 1, 2021, shall be in the guideline amount of $1,244.00
per month, payable by the father to the mother.
4.
Child
support arrears as of December 9, 2020 are set at $3,678.00, payable by the
father to the mother.
5.
The mother shall have the right to send medical receipts for the
children directly to the fathers health insurance company and receive the
reimbursement money directly from them. The father shall cooperate in setting
this mechanism up.
[2]
The issue of special or extraordinary expenses under s. 7 of the
Federal Child Support Guidelines
, SOR/97-175 [the
Guidelines
] was adjourned to a later date.
[3]
The parties were married on July 23, 2004. They have three children: Z,
born in 2002; E, born in 2006; and N, born in 2007. The parties separated on
December 9, 2016.
[4]
Ms. Vale began divorce proceedings and also claimed custody and child
support, together with other relief related to the breakdown of the marriage. The
Office of the Childrens Lawyer [the OCL] became involved and recommended joint
custody and a shared alternating week parenting schedule.
[5]
The parties entered into a comprehensive separation agreement on
December 12, 2018. They agreed to the recommendations of the OCL and agreed to
continue to negotiate the details of a comprehensive parenting plan. The
agreement indicated that the parties were to try to resolve any future
differences between them, but if it was unreasonable to expect a difference
between the parties to be resolved by negotiation or continued negotiations,
any such difference would be resolved by a court upon application of either
party.
[6]
The terms of the separation agreement were not incorporated into a final
order in the divorce proceedings, which were left without any final
disposition. Ms. Vale filed the separation agreement with the court for
enforcement.
[7]
Differences arose between the parties about health insurance
reimbursement for the substantial health care expenses for the children.
Because of changes in the parties incomes, Ms. Vale also submitted that she
was entitled to a recalculation of the child support then paid to her, which
was based on an offset taking into account the alternating week schedule and
the parties incomes, applying the
Guidelines
.
[8]
In March 2020, E stopped staying with Mr. Vale and began living full
time with her mother. Her decision was supported by the OCL.
[9]
Ms. Vale brought the motion leading to the orders in dispute on this
appeal on July 13, 2020. At the hearing of the motion, counsel for the mother
observed that the father would not acknowledge that E was living with her
mother. The motion judge responded that there was now that acknowledgement and
told both counsel that theres going to be an interim without prejudice order
to take that off the table.
[10]
The
father would not consent to an order that E reside with her mother but
indicated that he was not asking that the child be removed from her mothers
home or be forced to live with each parent in alternating weeks. He accepted
that his obligations to pay child support had to be recalculated as a result of
that change. He proposed that the parties engage in some form of dispute
resolution and argued that the issue of child custody was not properly before
the court.
[11]
The
mother requested a change in child support to $1,244.00 per month because of
the change in Es residence in March 2020. The father had been paying $723.00
per month based on the circumstances before the change in Es residence,
without increasing the support payable.
[12]
The
father acknowledged that the mothers calculation of $1,244.00 per month was
mathematically correct, based on the parties incomes and the
Guidelines
. He was concerned about future expenses that
might be required for Zs post-secondary education, although he essentially
acknowledged that those expenses were covered by other resources available to Z
for the period then in issue. The fathers income was approximately $116,000
per annum and the mother earned a little over $55,000 per year. The father said
because Z was an adult child and because of substantial s. 7 expenses for
counseling, he wanted to take a holistic approach to child support and pay $1,000.00
per month instead of $1,244.00.
[13]
The
mother sought arrears. She proposed that although E had been with her full-time
since March 2020, arrears should be paid effective from July 2020. Although the
separation agreement contemplated yearly exchange of income tax information,
that never occurred. Both parties acknowledged that the separation agreement
provided that the parties would adjust child support every year beginning July
1 and would also adjust it to reflect any change in the residence of a child.
The father agreed that, assuming he was to pay $1,000.00 per month in child support,
he owed $2,514.00 in arrears. The mother based her calculations on the father
having to pay $1,244.00 per month, resulting in arrears of $3,678.00.
[14]
The
mother had incurred over $12,000 in s. 7 expenses for the childrens health
care. The parties had been unsuccessful in navigating the fathers health
insurance plan to secure reimbursement for those expenses. The mother stated
that she was paying over $700 per month just for psychologists, and that the
father would not submit the bills to his insurer.
[15]
After
hearing from counsel, the motion judge stated: Therell be an interim without
prejudice order. I think [Es] principal residence [will be] with mom. She will
see dad when she wants to. Im going to set the arrears of child support at $3,678
and I dont see any reason why the ongoing support isnt $1,244 per month. He
went on to make an order permitting the mother to file claims with the fathers
health insurer directly and directed the parties to file written submissions regarding
costs. He adjourned the issue of s. 7 expenses to another date.
[16]
The
actual endorsement signed by the judge did not specify whether the orders made
were temporary or final. The parties sought clarification on this point from
the motion judge and on December 14, 2020, the motion judge clarified that all
orders made were final orders.
[17]
Ultimately,
the motion judge awarded costs to Ms. Vale in the amount of $22,541.81.
[18]
This
is a high conflict family. The motion had been adjourned three times without
any increase in support by the father.
Analysis
(1)
The Separation Agreement and Relevant Statutory Provisions
[19]
Paragraph
10(2) of the separation agreement included the following term for adjustment of
child support on an annual basis:
(2) Commencing June 1,
2019 and on June 1st in every year thereafter, the parties will exchange their
income tax information and they will determine the appropriate child support
payable for the children and such adjustment of child support will commence on
July 1st in any subsequent year after considering the residence of the
child(ren) and the income of both parties. If the parties do not agree about
the adjustment to be made, they will use the section of this Agreement entitled
Dispute Resolution to resolve the issue.
[20]
Section
35(1) of the
Family Law Act
, R.S.O. 1990, c. F.3
provides
that a person who is a party to a domestic contract may file that contract with
the Family Court of the Superior Court of Justice.
[21]
Section
35(2) provides that a provision for support or maintenance contained in a
contract that is filed in this manner may be enforced, varied under s. 37 or
recalculated under s. 39.1 of the
Act
.
[22]
Section
39.1 contemplates that a service operated by the government of Ontario will
recalculate child support according to the
Guidelines
.
If a party to an order for child support believes that the income information
on which the order was based has changed, the party may apply to this service
for a recalculation of the support payable.
(2)
Did the Motion Judge Err by Varying Support?
[23]
We
do not accept the fathers argument that the motion judge erred by varying the
support contrary to the terms of the separation agreement. Here, the mother was
not attempting to vary the provisions for child support contained in the
separation agreement. She was attempting to enforce them. Contrary to the
fathers arguments, a motion to change support was not required in these
circumstances: see
Bouchard v. Sgovio
,
2021 ONCA 709.
(3)
Did the Motion Judge Err in Quantifying Support?
[24]
Nor
do we agree with the fathers submission that the motion judge erred in
resolving the issues about the quantum of support payable on an ongoing basis
and the amount of the arrears. The preamble to the
Family
Law Act
notes the need for the orderly and equitable settlement of
the affairs of the spouses and the equitable sharing by parents of
responsibility for their children. The motion judge had all the information he
needed to make a decision about these issues. No one asked for a trial of that
issue or objected to the motion judge deciding that issue. Both parties
provided their calculations to him. There was no real justification advanced
for the time period in issue for the discount the father sought to the amount
of support set out in the
Guidelines
. Section
3(1) of the
Child Support Guidelines
, O. Reg.
391/91 provides that unless otherwise provided under those guidelines, the
amount of an order for child support for children under the age of majority
is
the table amount plus s. 7
expenses. Section 10 provides that a court may award a different amount of
support if the payor would otherwise suffer undue hardship. Undue hardship is
defined to extend to limited circumstances and is only available when the
payors standard of living would be less than that of the recipient of the
support. The appellant could not meet that test because of his income. Zs
circumstances did not justify a deviation from the table amount of support.
(4)
Did the Motion Judge Lack Jurisdiction to Vary Parenting Time?
[25]
We
do not accept the fathers submission that the motion judge did not have
jurisdiction to vary parenting time for E because the parties had signed a
separation agreement. The motion judge had jurisdiction to make an interim
variation of custody on a motion brought in these proceedings, where the best
interests of the child demanded it. No final order had been taken out in these
proceedings. Section 56(1) of the
Family Law Act
provides that in the determination of a matter respecting parenting time with
respect to a child, the court may disregard any provision of a domestic
contract where in the opinion of the court, to do so is in the best interests
of the child. Here, it was obvious and agreed that E was going to remain living
with her mother, and the motion judge would not have erred in giving effect to
that reality by making an order that she was to reside with her mother on an
interim basis.
(5)
Did the Motion Judge Err in Issuing a Final Order?
[26]
We
do find, however, that the motion judge erred in issuing a final order. To be
clear, neither party suggested to the motion judge that his disposition of the
issue of ongoing child support and arrears should be made on an interim basis. The
motion judges manner of dealing with the issue of ongoing support and arrears
was proportionate and appropriate to the issues in dispute. The same comments
apply to the motion judges enforcement of the provision in the separation
agreement dealing with health care insurance reimbursement.
[27]
The
motion judge did, however, indicate during the hearing that the change to Es
living arrangements would be made on an interim basis. For some unexpressed
reason, he later indicated that the order would be final. The trial judges
decision to impose a final order was understandable; E was fragile in some respects,
and to subject her to an ongoing custody dispute in the circumstances seems
futile. This child has been a subject of ongoing proceedings since she was ten
years old. She is now sixteen and has been living with her mother for some two
years and the father indicated that he did not propose to alter that
arrangement.
[28]
Having
indicated that he would make the order on an interim basis, the motion judge
erred in making it final. Procedural fairness was denied to the parties, who
had no reason to believe that the finality of the order should be addressed
during the hearing. We would vary the motion judges order that the child [E]
shall be primarily a resident with the mother and [t]he father shall exercise
access to E in accordance with her wishes by adding on an interim basis to
both of those aspects of the order.
(6)
Should Leave to Appeal Costs be Granted, and the Appeal of Costs be
Allowed?
[29]
Mr.
Vale also seeks leave to appeal from the costs order made against him in the
sum of $22,541.81. The motion judges costs endorsement noted:
The applicant was substantially
successful on almost all points raised in her motion. She served an offer to
settle which was not accepted and if it had been, there would have been no need
for the motion.
With respect to the issue of costs
the father basically tried to re-argue the motion.
[30]
We
accept that the award of costs in favour of the mother may have been affected
by the final nature of the disposition of parenting time for E. We would grant
leave to appeal costs and vary the costs awarded in favour of the mother by
reducing it by $2,000.00 to $20,541.81, with post judgment interest to run from
the date of the award of costs by the motion judge.
CONCLUSION
[31]
Success
has been divided on this appeal. It is difficult to see how the pursuit of this
appeal will have any practical consequences for the parties, except to increase
their legal costs. In these circumstances, we award costs of the appeal to the
respondent Ms. Vale in the sum of $3,000.00 inclusive of taxes and
disbursements, an amount proportionate to the issues at stake on the appeal.
G.
Pardu J.A.
David
M. Paciocco J.A.
J.A.
Thorburn J.A.
[1]
Ms. McInnis appeared but made no written or oral submissions
on behalf of the Office of the Childrens Lawyer.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Akhtar, 2022 ONCA 279
DATE: 20220407
DOCKET: C65994
Fairburn A.C.J.O., Feldman and
Harvison Young JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Furqan Akhtar
Appellant
Mark C. Halfyard, for the appellant
Andreea Baiasu, for the respondent
Heard: November 30, 2021
On appeal from the conviction entered on
July 6, 2018, by Justice Nola Garton of the Superior Court of Justice, sitting
with a jury.
Harvison Young J.A.
OVERVIEW
[1]
On September 20, 2015, just before 8 p.m.,
Christopher and Susanna Ho, together with Ms. Hos mother, were driving home
after visiting Ms. Hos father in a nursing home on Ellesmere Road in
Scarborough. Their route home, which Mr. Ho had driven hundreds of times, took
them east on Ellesmere and then left or north onto Midland Avenue. When the
road was clear, with no oncoming traffic in sight, Mr. Ho began to turn left.
Suddenly he saw lights coming towards them at a very high speed. He had no time
to react before two cars travelling westbound on Ellesmere crashed into his car
at virtually the same time. Ms. Hos 81-year-old mother was killed instantly.
Mr. and Ms. Ho survived but suffered serious injuries. The two cars were driven
by the appellant, Furqan Akhtar, and his co-accused, Saifullah Dero.
[2]
A jury found that the two accused were street
racing with each other along Ellesmere, approaching the intersection with
Midland. The accused were convicted of twelve offences, including dangerous
driving: section 249(1)(a) of the
Criminal Code
, R.S.C. 1985, c. C-46;
criminal negligence: ss. 220 and 221; and street racing causing death and
bodily harm: ss. 249. 3 and 249.4.
[3]
The appellant appeals his convictions on the
basis that the trial judge misdirected the jury on dangerous driving, criminal
negligence, and the effect of Mr. Deros abscondment.
FACTS
[4]
The Crowns case relied on the testimony of the
Hos, other witnesses to the accident, and forensic evidence. Mrs. Ho described
the lights as moving like bullets or a freight train coming. Mr. Ho testified
that he saw the lights crest the hill on the east side of the intersection, and
then just a split second and the, the lights [are] right in front of my car.
[5]
Another witness, Ms. Villanueva, testified that
she believed the appellants Lincoln and Mr. Deros Mercedes were racing. She
thought one car was trying to overtake the other, and that the appellants
Lincoln overtook Mr. Deros Mercedes just before the crash. She described the
Lincoln hitting the back of the Hos vehicle first, followed by the Mercedes one,
two seconds later.
[6]
Ms. Vllianuevas evidence was corroborated by
that of Detective Constable Spencer, the accident reconstructionist who was
qualified as an expert witness at trial. His report opined that the appellants
Lincoln hit the rear passenger corner of Mr. Hos vehicle, crushing its trunk
and ripping off its metal bumper. Mr. Deros Mercedes then struck the drivers
side front corner of Mr. Hos vehicle, crushing the Mercedes radiator and
engine components.
[7]
Detective Spencer extrapolated the speed of the
Mercedes and the Lincoln from a one-second surveillance video captured from a
nearby property. He estimated that the Lincoln was traveling at 127 kilometers
per hour (kph) approximately 47 meters away from the point of impact, and the
Mercedes was travelling at 129 kph about 63 metres from the point of impact.
His calculations were subjected to rigorous cross-examination.
[8]
The appellants Lincoln was equipped with an
Event Data Recorder (EDR) programmed to record five seconds of data when
certain events occurred, such as a sudden drop in speed or airbag deployment. It
indicated that the appellant reached a speed of 144 kph three seconds before
the accident. The speed limit on Ellesmere is 60 kph.
[9]
The appellant testified at trial and maintained
that he never exceeded 80 kph. He challenged the EDR evidence because it had
erroneously recorded a passenger in his vehicle seconds before the accident. If
the EDR could err on the presence of a passenger, it could also err with
respect to speed. The appellants theory at trial was that Mr. Ho jumped in
front of moving cars in their lane.
[10]
Mr. Dero also testified, but he did not challenge
the EDR speed readings and admitted that his speed was excessive, though he
could not say precisely how fast he was driving. He testified that he was
driving faster than the flow of traffic and passing cars before reaching the
crest of the hill. On cross-examination, counsel for the Crown suggested that
Mr. Dero could have been driving as fast as 120 kph. Mr. Dero only indicated
that he had not driven in some time. Other witnesses who were in their cars
waiting to enter the intersection gave varying estimates as to the speed of the
two cars just before the crash.
[11]
After the closing submissions were complete, and
just before the trial judge delivered her charge to the jury, Mr. Dero
absconded. The trial judge cautioned the jury that:
[W]hen
deliberating your verdicts with respect to Mr. Dero, you may draw an adverse
inference from the fact that he has absconded. However, the fact that he has
absconded must play no part in your deliberations with respect to [the
appellant]. Mr. Deros absconding has nothing whatsoever to do with [the
appellants] case and must play no role whatsoever when you are deliberating
your verdicts with respect to [the appellant].
[12]
This forms the basis for one of the grounds of
appeal.
ISSUES
[13]
The appellant advances three grounds of appeal
against his conviction.
1.
The trial judge erred in instructing the jury on
the
mens rea
for dangerous driving and criminal negligence by defining
the marked departure test in common parlance terms, rather than the legal tests
set out by the jurisprudence.
2.
The trial judge erred by giving inadequate jury
instruction on the effect of Mr. Deros abscondment, particularly with respect
to the street racing counts.
3.
The trial judge erred in instructing the jury that
the appellants prior infractions under the
Highway Traffic Act
, R.S.O.
1990, c. H.8 (
HTA
), could be considered in assessing his credibility.
[14]
For the following reasons, I would dismiss the
appeal.
A.
The Dangerous Driving and criminal negligence charges
[15]
The appellant argues that the trial judge erred
in her use of dictionary definitions and common parlance terms to explain
marked departure with respect to dangerous driving, and marked and
substantial departure with respect to criminal negligence.
[16]
With respect to the
mens rea
for dangerous
driving, the trial judge began by instructing the jury to take into account all
the circumstances in which their driving occurred, such as the conditions and
place and the amount of traffic (both pedestrian and vehicular) that was
actually there and that might reasonably be expected to be there at the time.
[17]
She then continued:
Dangerous driving involves more than
carelessness. Crown counsel must satisfy you beyond a reasonable doubt that [the
appellants] driving was a marked departure from what a reasonable, prudent
driver would do in the same circumstances.
The word marked means, in this context
noticeable, obvious, distinct, appreciable or conspicuous. As stated, the
required marked departure from the standard of care that a reasonable and
prudent driver would have exhibited is not established by proof of mere
carelessness. Dangerous driving involves more than just carelessness or
momentary inattention, unless carelessness or momentary inattention is part of
a larger pattern of driving that, considered as a whole, amounts to a marked
departure from how a reasonably prudent person would have driven in like
circumstances.
What you have to decide in all of the
circumstances is not what [the appellant] or Mr. Dero meant to do, but rather
whether they drove in a manner that was a marked departure from the manner in
which a reasonable, prudent driver would do in the same or similar
circumstances. It is the manner in which [the appellant] and Mr. Dero were
driving on which you must focus. Crown counsel does not have to prove that [the
appellant] meant to endanger the life of Ms. Chan or the lives or safety of
anyone else who was, or might have bee there at the time.
In the end, after
consideration of all the evidence, you will have to decide whether the manner
in which [the appellant] and Mr. Dero were driving constituted a marked
departure from what a reasonable, prudent driver would do in similar
circumstances.
[18]
With respect to criminal negligence, the trial
judge correctly stated that the jury had to find that the appellant or Mr. Dero
had, in the operation of their vehicles, shown a wanton or reckless disregard
for the lives or the safety of others. She stated that:
To prove this essential element, Crown counsel
does not have to prove that [the appellant] or Mr. Dero meant to kill or
seriously harm Ms. Chan or anybody else.
The word wanton
in this context means heedlessly, ungoverned, undisciplined or having an
unrestrained disregard for the consequences. The word reckless means heedless
of the consequences of ones action, headlong, irresponsible.
[19]
She continued to explain that this required a
finding of more than carelessness, saying that the jury had to be satisfied
that:
[T]he manner in which [the appellant] and Mr.
Dero operated their respective vehicles constituted a marked and substantial
departure from what a reasonably prudent person would do in the same
circumstances. The required marked and substantial departure is not
established by proof of mere momentary inattention, unless such momentary inattention
is part of a larger pattern that, considered as a whole, establishes a marked
and substantial departure from what a reasonably, prudent person would do in
the circumstances.
The word marked
is to be given its everyday meaning, namely, clearly evident, strikingly
noticeable, conspicuous. The word substantial is also to be given its
everyday meaning, namely, considerable in importance, significant.
[20]
Counsel for the co-accused did not seriously
challenge the dangerous driving counts, but concentrated on the criminal
negligence and racing charges. For this reason, there were extensive
discussions with the trial judge both before and during the charge, as counsel
for the co-accused was particularly concerned that the jury understand the
difference between dangerous driving and criminal negligence. As a result, the
trial judge delivered the following clarification:
It is not easy to define the precise
difference between dangerous driving and criminal negligence in the operation
of a motor vehicle. However, with respect to dangerous driving in the operation
of a motor vehicle, the driving must amount to more than an absence of
reasonable care in the circumstances. It must be dangerous to the public and a
marked departure in the standard of care of a reasonably prudent driver, having
regard to all of the circumstances.
The more serious or blameworthy kind of
negligence in the operation of a motor vehicle is criminal negligence. To be
guilty of criminal negligence in the operation of a motor vehicle there must be
more than mere dangerous driving. There must be conduct that shows a wanton or
reckless disregard for the lives or safety of other people. The driving must be
a marked and substantial departure from the standard that we would expect of a
reasonably prudent driver in the circumstances.
[21]
Following her instructions as to the elements of
the offence of dangerous driving, the trial judge reviewed the evidence on
these issues including:
i.
The fact that the posted speed limit on Ellesmere
Road was 60 kilometers per hour;
ii.
The amount of vehicular and pedestrian traffic
at the time was what would have been reasonably expected; and
iii.
The surveillance videos indicating the amount of
traffic that evening.
[22]
The trial judge also referred to the respective
counsels submissions on the evidence. The appellants counsel submitted that
the data from the restraint control module was not reliable, that the video
evidence and Officer Spencers calculations were flawed, and that Mr. and Ms.
Ho were not reliable witnesses. He also submitted that the estimates of speed
provided by witnesses in other cars at the intersection at the time of the
crash were lower and supported Mr. Akhtars evidence that he was travelling 65
to 70, or perhaps 80 kph. He argued that this did not constitute a marked
departure from what a reasonable, prudent driver would do in similar
circumstances
[23]
Counsel on behalf of Mr. Dero acknowledged that
his client may have been driving as fast as 120 kph but, was likely driving 10
to 20 kph slower than that. He did not dispute the event data recorder, but
argued that that evidence did not necessarily correlate to Mr. Deros speed. He
acknowledged that it was open to the jury to find that Mr. Dero was driving at
an excessive speed as he hit the crest of the hill toward the intersection and
that this met the elements of dangerous driving.
[24]
In this court, the appellant focuses his
submissions on the dangerous driving counts. He submits that the charge, in
relying on common parlance, gave rise to two problems that could have confused
the jury and prejudiced the appellant. First, using a common parlance
definition of a legal term or term of art may employ descriptors that give
a misleadingly low, and therefore prejudicial, understanding of the marked
departure test. He highlights the trial judges use of noticeable and
appreciable that, in his view, falls short of a marked departure.
[25]
Second, the appellant claims that the trial
judge failed to explain that the marked departure test is a matter of degree
and that the lack of care must be serious enough to merit punishment or
criminal sanction i.e., a marked departure from the standard of a reasonably
prudent driver. The prejudice here arises from the fact that the appellants
own evidence was that he was driving no faster than 80 kph. That would not have
constituted dangerous driving given the conditions at the time and the flow of
traffic. However, the jury could have, the appellant argues, accepted his
evidence as to speed and still convicted for dangerous driving because his
speed might have been noticeable.
[26]
Further, though the appellant does not take as
strong an issue with the criminal negligence charge, he still submits that the
trial judge erred in defining the word marked with different words than those
used in the dangerous driving instruction. This charge was thus confusing. That
said, the appellant also acknowledges that the criminal negligence charge came
much closer to the test because it was qualified with terms like clearly
and strikingly and therefore suggested a measure of degree which was lacking from
the dangerous driving charge.
[27]
The respondent submits that the trial judge made
no error in explaining the
mens rea
for dangerous driving and criminal
negligence. The jury charge correctly and sufficiently equipped the jury to
appreciate the central
mens rea
issue, namely that the departure from
the expected standard had to go beyond that required for civil liability and serious
enough to merit punishment. The charge accomplished this by telling the jury
that the departure had to be marked for dangerous driving, and marked and
substantial for criminal negligence, that a higher degree of negligence was
required than for careless driving, and that a criminal conviction required
more than carelessness or momentary inattention.
[28]
The respondent further argues that references to
dictionary synonyms for terms such as marked or substantial is not
inherently objectionable, and it did not dilute the required legal standard for
a criminal conviction here. The trial judge correctly and comprehensively set
out the requisite degree of fault for the jury. In any event, the respondent
argues that the appellant was not prejudiced in the circumstances given the
evidence and the mid-charge instruction given by the trial judge.
(1)
The Principles
[29]
It is clear that the
actus reus
of the
dangerous driving offence is conduct which, viewed objectively in all the
circumstances, constitutes a danger to the public actually present or who may
reasonably be expected to be present. It is the manner in which the vehicle was
driven that is at issue, not the consequences of that driving:
R. v. Roy
,
2012 SCC 26, [2012] 2 S.C.R. 60, at para. 35. However, the consequences may
assist the trier of fact in assessing the risk involved:
R. v. Mueller
(1975), 29 C.C.C. (2d) 243 (Ont. C.A.).
[30]
With respect to the
mens rea
for both
dangerous driving and criminal negligence, the starting principle is that penal
negligence must exceed the objective norm for establishing civil negligence: A
mere departure from the standard expected of a reasonably prudent person will
meet the threshold for civil negligence, but will not suffice to ground
liability of penal negligence:
R. v. Beatty
, 2008 SCC 5, [2008] 1
S.C.R. 49, at para. 7.
[31]
In
Beatty
, the driver of a pickup truck
had suddenly veered into oncoming traffic, causing a serious accident in which
all three occupants of the oncoming car were killed. There was no doubt that
the
actus reus
of dangerous driving was made out in that the driver
crossed the centre line, but the evidence indicated that the dangerous conduct
was only due to a momentary lapse of attention. There was no evidence of
improper driving before the car momentarily crossed the centre line, nor was
there any evidence that the driver was under the influence of intoxicants.
Charron J., writing for the majority, set out the
mens rea
for
dangerous driving, at para. 7, as follows:
The modified objective
test established by this Courts jurisprudence remains the appropriate test to
determine the requisite
mens rea
for negligence-based
criminal offences. As the label suggests, this test for penal negligence
modifies the purely objective norm for determining civil negligence. It
does so in two important respects. First, there must be a marked departure
from the civil norm in the circumstances of the case. A mere departure
from the standard expected of a reasonably prudent person will meet the
threshold for civil negligence, but will not suffice to ground liability for
penal negligence. The distinction between a mere departure and a marked
departure from the norm is a question of degree. It is only when the conduct
meets the higher threshold that the court may find, on the basis of that
conduct alone, a blameworthy state of mind.
[32]
At para. 8, Charron J. went on to explain that
the modified objective test for penal negligence cannot ignore the actual
mental state of the accused:
[
U]nlike the test for civil
negligence which does not concern itself with the mental state of the driver,
the modified objective test for penal negligence cannot ignore the actual
mental state of the accused.
Objective
mens rea
is
based on the premise that a reasonable person in the accuseds position would
have been aware of the risks arising from the conduct. The fault lies in the
absence of the requisite mental state of care. Hence, the accused cannot avoid
a conviction by simply stating that he or she
was not thinking
about
the manner of driving. However, where the accused raises a reasonable doubt
whether a reasonable person in his or her position would have been aware of the
risks arising from the conduct, the premise for finding objective fault is no
longer sound and there must be an acquittal. [Emphasis in original.]
[33]
Instructing a jury on dangerous driving and
criminal negligence has long been recognized as a challenging endeavor. As
Sopinka J. noted in
R. v. Anderson,
[1990] 1 S.C.R. 265, at p. 269:
In approaching the
critique of a trial judgment dealing with a charge of criminal negligence, one
can only have profound sympathy for the plight of the trial judge. This area of
the law, both here and in other common law countries, has proved to be one of
the most difficult and uncertain in the whole of the criminal field.
[34]
The Supreme Court, in
R. v. MacGillivray
,
[1995] 1 S.C.R. 890
,
held that it is not an error of law for a judge
to use words other than marked to describe the level of departure from the
standard of care that a reasonable person would observe in the accuseds
situation as long as the word is truly a synonym. In that case, the trial judge
had used the term significant instead of marked, which the court found to
have been more stringent and thus not prejudicial to the accused. However, Cory
J. stated that, while using a term that is clearly synonymous to marked will
not constitute an error of law, it is nevertheless preferable to use the words
employed by the Supreme Court in
R. v.
Hundal,
[1993] 1
S.C.R. 867;
MacGillivray,
at para. 14. The clear message is that,
while it is tempting to employ apparent synonyms in an attempt to explain or
flesh out the meaning of marked to a jury, a trial judge who does so risks
falling into error.
(2)
The Principles Applied
[35]
I would not give effect to this ground of appeal
for a few reasons. At the outset, I would observe that there were extensive
pre-charge discussions between counsel and the trial judge. There were also
discussions during the charge that resulted in some modifications, particularly
with respect to the distinction between dangerous driving and criminal
negligence. Trial counsel were in the best position to understand the triable
issues in this case and whether the charge adequately addressed those issues. Neither
counsel made any objections to the charge.
[36]
Second, I disagree that the trial judge erred by
using synonyms to explain that the departure from what a reasonable, prudent
driver would do in the same circumstances had to be a marked one to warrant
criminal punishment. Although it would have been better had the trial judge
altogether stayed away from synonyms, no one objected to their use and,
importantly, the ones used did not inject confusion into the charge. At the end
of the day, read in totality, the charge clearly conveyed what a
marked and a marked and substantial departure from
a reasonable, prudent driver meant, and eschewed any notion of mere
carelessness or momentary inattention.
[37]
Third, I disagree with the suggestion that the
trial judge failed to instruct the jury that dangerous driving is a measure of
degree. She explicitly told them that the fault requirement must be higher than
civil negligence. In her charge, she tells the jury that [d]angerous driving
involves more than just carelessness or momentary inattention. Further, as a
result of Mr. Deros counsels request, she delivered a clarifying instruction,
as set out above, that fleshed out the distinction between dangerous driving and
criminal negligence. That clarifying instruction clearly conveyed the spectrum
of criminal responsibility represented by the two charges.
[38]
Fourth, I do not accept the suggestion that the
jury may have convicted the appellant on the mere basis that he admitted to
driving at a speed up to 80 kph because the jury could have found that speed to
be noticeable. The record in this case belies that suggestion, particularly
the convictions for street racing. Those convictions were well founded in the
evidence, including Mr. Dero evidence regarding the speed at which the cars
were travelling and the evidence of the accident reconstructionist.
[39]
Finally, in the event that the charge on the street
racing counts was free of error, a subject I will arrive at soon, there can be
no doubt that the two accused were also guilty of dangerous driving and
criminal negligence. Indeed, the parties agreed that if the appellant and his
co-accused were involved in a street race, this would effectively amount to
proof on all counts.
[40]
This brings me to the submissions on the trial
judges adverse inference instruction and its effect on the street racing
counts.
B.
The Adverse Inference Charge
[41]
The appellant does not submit that the trial
judge erred in her charge with respect to her instructions to the jury on street
racing
per se
. Rather, he argues that her charge was inadequate with
respect to the effect of her finding that Mr. Dero had absconded. The appellant
argues that the trial judges instruction on the adverse inference resulting
from Mr. Deros abscondment should have been more precise, and specifically
tailored to avoid Mr. Deros consciousness of guilt bleeding into, or
bolstering, the appellants culpability.
[42]
Section 475(1) of the
Criminal
Code
provides as follows:
475 (1) Notwithstanding any other
provision of this Act, where an accused, whether or not he is charged jointly
with another, absconds during the course of his trial,
(a) he
shall be deemed to have waived his right to be present at his trial, and
(b) the
court may
(i)
continue the trial and proceed to a judgment or verdict and, if it finds the
accused guilty, impose a sentence on him in his absence, or
(ii) if a
warrant in Form 7 is issued for the arrest of the accused, adjourn the trial to
await his appearance,
but where
the trial is adjourned pursuant to subparagraph (b)(ii), the court may, at any
time, continue the trial if it is satisfied that it is no longer in the
interests of justice to await the appearance of the accused.
(2) Where
a court continues a trial pursuant to subsection (1), it may draw an inference
adverse to the accused from the fact that he has absconded.
[43]
During the pre-charge discussions, in the wake
of Mr. Deros abscondment, the trial judge stated that the charge would follow
the language of s. 475(2) and need not include more detail. Counsel understood
that the adverse inference would go to consciousness of guilt. The Crown also
sought an adverse inference as to Mr. Deros credibility since he had testified
at trial and put his character in issue. The appellants lawyer was concerned
that an adverse inference on credibility could reflect very badly on the
appellant. In response, the trial judge added the caution that the adverse
inference against the co-accused should have no role in the jurys
deliberations with respect to the appellant. The appellants lawyer took no
issue with this charge and the trial judge proceeded to charge the jury as
follows:
I just wanted, I instructed you yesterday, I advised
you that the
Criminal Code
provides that a trial can continue in the
absence of an accused and that is what we are doing in this case. We are
continuing the trial in the absence of Mr. Dero. I have found that Mr. Dero has
absconded, and he has absented himself from the trial and that being the case
you may draw an adverse inference from the fact that he has absconded.
Just before we go
for the break I wanted to remind you that, as I instructed you earlier, when
deliberating your verdicts with respect to Mr. Dero you may draw an adverse
inference from the fact that he has absconded. However, the fact that he has
absconded must play no part in your deliberations with respect to [the
appellant]. Mr. Deros absconding has nothing whatsoever to do with [the appellants]
case and must play no role whatsoever when you are deliberating your verdicts
with respect to [the appellant].
[44]
Despite this limiting instruction, the appellant
submits that the instruction did not go far enough, particularly in light of
the street racing counts. As I noted earlier, the parties agreed that, if the appellant
and Mr. Dero were involved in a street race particularly at the speeds the
Crown alleged they drove this would effectively amount to proof of all the
counts, as it would be a deliberate act of dangerous or negligent driving. As
the co-accuseds counsel told the jury:
Because if he was
racing his car then a finding of guilt on any of the counts 7 to 12, the racing
charges, is going to be available. And that effectively provides you with a
legal shortcut to a conclusion of either dangerous operation or criminal
negligence.
[45]
The act of racing requires joint participation
or mutuality. The previous version of s. 2 of the
Code
defines street
racing as operating a motor vehicle in a race with at least one other motor
vehicle on a street, road, or highway or other public place.
[1]
As counsel for the appellant
put it: You cant have a one-horse race. Later in the closing submissions,
the appellants lawyer told the jury:
But to prove
racing, the Crown must prove an engagement by two or more people to the race.
Her Honour will give you the law in this regard. And in other words, it takes
two to tango. There cant be a one, there cant be a one-person race.
[46]
Moreover, the trial judge defined street racing
to the jury as a mutual endeavour, involving the participation of both accused.
She set out the racing counts in the charge to the jury as follows:
In order to
establish street racing the Crown must establish that [the appellant] and Mr.
Dero engaged in a race, a contest of speed. This essential mutuality component
requires evidence that both were jointly and intentionally involved in a race.
[47]
The appellant submits that the trial judge erred
in failing to give an adverse inference instruction that distinguished between
making an adverse inference as going to Mr. Deros credibility and one going to
consciousness of guilt.
[48]
With respect to an adverse inference against Mr.
Deros credibility, the appellant argues that the jury should have been told
not to reason that, because his co-accused admitted to driving well in excess
of the speed limit, they could apply the adverse inference to the appellant as
well. Further, the jury should have been told not to reject the exculpatory
portions of Mr. Deros evidence that were helpful to the appellant.
[49]
With respect to the adverse inference of
consciousness of guilt, the appellant submits that this inference made it
nearly impossible to conclude the appellant was not also racing given the
mutuality requirement of the offence. Therefore, the appellant argues that the
instructions needed to set out that the jury could not infer that he had a
guilty mind simply because Mr. Dero absconded.
Issue #1: Impact of an adverse inference in
relation to credibility
[50]
The appellant submits that the adverse inference
instruction was proper as far as it went but that it should have gone further.
As the adverse inference was only admissible against Mr. Dero, the jury should
have been instructed that, if they were assessing Mr. Deros evidence in terms
of his admissions - particularly his admission that he was driving well above
the speed limit - this evidence could not be bolstered on account of his
absconding, nor could it be used against the appellant. Moreover, the jury
should have been told not to reject parts of Mr. Deros evidence that assisted
the appellant - for instance, that they were not racing or that he saw no
passenger in his vehicle - simply because he had absconded.
[51]
I would not accept this submission.
[52]
To begin with, it is entirely appropriate for
the adverse inference against the co-accuseds credibility to have an indirect
impact on the appellant because the jury can consider the totality of the
evidence it heard, including evidence both for and against the appellant, in
determining the appellants culpability.
[53]
Mr. Dero chose to take the stand at trial. It
was open to the jury to apply an adverse inference against his credibility when
he absconded since he had opened the door to having the trustworthiness of his
evidence challenged by testifying.
[54]
The adverse inference drawn against the
co-accused was part of the totality of the evidence that the jury heard and
could permissibly impact the jurys overall assessment of the Crowns case. As
this court has noted: [I]t is perfectly proper for the jurys assessment of
the overall credibility of one co-accused to be influenced by the totality of
the evidence they have heard, including evidence relating to another
co-accused:
R. v. Salah
, 2015 ONCA 23, 328 O.A.C. 333, at para. 122,
citing
R. v. Rojas
, 2008 SCC 56, [2008] 3 S.C.R. 111, at paras. 24-25.
Even where a co-accused pleads guilty, the accuseds trial is not rendered
unfair by the jury considering a co-accuseds evidence if they are warned not
to draw an adverse inference against the accused.
[55]
In this case, the trial judge cautioned the jury
that an adverse inference should not be drawn against the appellant. The
appellant got the benefit of the co-accuseds evidence, untainted by his
abscondment, to the extent that it assisted the appellant and, similarly, the
disadvantage of the co-accuseds evidence to the extent that this evidence
could be used against him. For example, it was open to the jury to accept Mr.
Deros evidence as to the speed he was driving and reject the appellants
evidence that he was driving no faster than 80 kph.
[56]
In my view, the trial judge could not have gone
farther than explicitly instructing the jury that Mr. Deros abscondment could
play no role whatsoever in the jurys deliberations. The charge effectively
shielded the appellant from the effect of Mr. Deros abscondment.
Issue #2: Impact of adverse inference in
relation to consciousness of guilt
[57]
A trial against an accused is not rendered
unfair when a co-accused absconds, provided that the jury is cautioned that
they are not to draw an adverse inference against the remaining accused:
R.
v. Garofoli
(1988), 64 C.R. (3d) 193 (Ont. C.A.), revd on other grounds,
[1990] 2 S.C.R. 1421. While it is preferable for a trial judge to caution the
jury that an adverse inference should not be drawn against an accused by reason
of the fact that his co-accused absconded during the trial, failure to do so
does not necessarily result in a miscarriage of justice:
R. v. Mitchell
,
[1979] O.J. No. 95 (C.A.), at para. 3.
[58]
Here, the trial judge did caution the jury, in
strong terms, not to use the adverse inference against the appellant. The
appellant, however, states that a caution was not enough. Instead, the jury
should have been told not to draw an adverse inference in relation to street
racing because of the mutuality requirement of that offence. Essentially, he
argues that the adverse inference that Mr. Dero absconded because of his
consciousness of guilt could, at least theoretically, tip the balance towards a
finding that Mr. Dero was street racing. Due to the mutuality requirement of
the offence, this could prejudice the appellant if, for example, but for an adverse
inference as to his consciousness of guilt, Mr. Dero would have been acquitted
on that count.
[59]
The mutuality component of street racing
requires evidence of a common intention between the two parties to encourage or
incite each other to race. As described by Hill J. in
R. v. Menezes
(2002), 50 C.R. (5th) 343 (Ont. S.C.), at para. 101:
By their actions,
those who race at excessive speeds on a public roadway assist one another in
creating a dangerous risk. Each encourages and incites the other. The drivers
either deliberately assume the risk of danger to themselves and others or, in
the circumstances of the degree of departure from reasonably prudent and lawful
driving standards, can be taken as having an unrestrained disregard for the
consequences of their actions. It is the mutuality of their contribution toward
the rivalry of speed which creates a singular hazardous situation.
[60]
Evidence of a race is often drawn from
circumstantial evidence such as synchronized or in-tandem aggressive movements
of two vehicles, marked by high speed and close proximity over a material
distance, often accompanied by abrupt lane changes, blocking, or bold
manoeuvres in and out of traffic to name a few indicia:
R. v. Machado
(2010), 92 M.V.R. (5th) 58.
[61]
Each case falls to be decided on its own set of
facts. The
actus reus
and
mens rea
components of the offence require
the trier of fact to consider each partys overall driving conduct:
R v.
Durani
, 2022 ONCA 17, at para. 11. For example, one party accused of
street racing may raise an intervening event, such as evidence that he or she
has withdrawn from the race, to avoid culpability. However, absent an
intervening event, when two drivers engage in street racing, both are
considered in law to have caused injury to those harmed by their racing:
R.
v. Williams
, 2020 ONCA 30, at para. 15.
[62]
Therefore, as a matter of law, it is not true
that the finding of guilt of one co-accused to an offence containing a
mutuality requirement must result in a finding of guilt of another co-accused:
R.
v. Guimond
, [1979] 1 S.C.R. 960 at 977.
[63]
In effect, the appellants position reads into
s. 475(2) a limitation that does not exist: that an adverse inference against
the absconding accused cannot be drawn in an offence with a mutuality
requirement because one accuseds consciousness of guilt means the guilt of the
other. This is not correct.
[64]
Here, the trial judge correctly instructed the
jury to consider each charge separately for each co-accused. The charge
instructed them to consider all of the circumstances to assess whether there
had been a race, to consider the testimony of each accused to assess whether
they believed some, none, or all of it and the burden on the Crown to prove the
essential elements beyond a reasonable doubt against each accused.
[65]
Even if it were theoretically possible that the
adverse inference against one accused might tip the balance on road racing and
result in a conviction of both accused when it might otherwise have been an
acquittal or inconsistent verdicts, that scenario was not borne out by the
evidence in this case. The evidence of road racing was supported by the record,
including:
·
The relative speeds of the vehicle as shown by
the video and the EDR;
·
Mr. Deros evidence that he was passing other
vehicles before the appellant passed him;
·
The appellants own evidence that he passed Mr.
Dero on the downslope towards the intersection;
·
Det. Spencers accident reconstruction that
showed the appellant hitting Mr. Hos vehicle first, followed seconds later by
Mr. Dero; and
·
The evidence of Ms. Villanueva who said they
appeared to be racing as they approached the intersection.
[66]
While some of the witnesses at the scene did
estimate the speed of the two cars as quite low, the objective and expert
evidence supports the jurys conclusion. And, while Mr. Dero denied racing, his
concession on his speed and the evidence showing that the appellant passed him
just before the crash shows that the accused were driving very fast indeed.
[67]
The appellant was not entitled to effectively
immunize himself from the effect of Mr. Deros evidence with the evidence as a
whole before the jury. It was open to the jury to find, as it did, that the two
men had been engaged in street racing, and I find no error in the trial judges
instruction to the jury.
C.
The Highway Traffic Act Instruction
[68]
Finally, the appellant submits that the trial
judge erred in her discussion of the
appellants
HTA
offences
as a prior inconsistent statement that could affect the jurys assessment of
his credibility.
[69]
In his direct examination, the appellant
testified that he had a clean driving record when, in fact, he had a 2014
conviction for speeding and failing to produce his insurance. The trial judge
referred to this evidence at two points in her charge: as an example of a prior
inconsistent statement given by the appellant, and generally in relation to his
credibility and character. In its use as a prior inconsistent statement, the
trial judge noted:
Inconsistency may also arise when a witness
says different things within the course of the trial itself, for example, when
a witness says something different in examination in-chief than he later says
in cross-examination. For example, in the present case, [the appellant] was
asked about his driving record during his examination in-chief. He stated that
it was clean and that he never even had a parking ticket. He denied having any
speeding tickets. After the lunch break his lawyer showed him his driving
record, which includes a conviction for speeding and failing to produce his
insurance card. [The appellant] testified that he got a ticket in 2013 for
going 64 kilometres an hour in a 50-kilometre zone. In cross-examination [the
appellant] was asked why when he was initially asked about his driving record
he stated that it was clean and made no mention of a speeding ticket, he explained
that he thought the question referred only to convictions within the last three
years. The driving record indicates that [the appellant] on July 8th, 2014 of
going 72 kilometres an hour in a 50-kilometres an hour zone and that he
received three demerit points. On that same date he was also convicted of
failing to produce his insurance card. [The appellant] insisted that he was
only convicted of going 14 or 15 kilometres over the speed limit, but
acknowledged that he got the speeding ticket on the same day that he got the
ticket for not having his insurance card. He did not remember receiving the
demerit points.
If you find that
there is an inconsistency in what [the appellant] initially said when he was
asked about his driving record, and what he later said about it, consider the
fact, nature and extent of any differences between the versions in deciding
whether or how much you will believe of or rely upon his testimony in deciding
this case. Bear in mind that not every inconsistency will be significant. You
must also take into account any explanation [the appellant] gave for any
inconsistency in his testimony.
[70]
Later in the charge, she commented on the appellants
prior
HTA
convictions in her discussion about good character, and in
relation to the appellants credibility generally. The trial judge instructed
the jury as follows:
[The appellant] also testified that he had a
clean driving record but later acknowledged that he had been convicted of the
Highway
Traffic Act
offences of speeding and failing to produce his insurance
card. As I earlier stated, you must not use the fact that [the appellant] has
previously been convicted of an offence in the past as evidence that he
committed the offences charged or that he is the sort of person who would
commit the offences charged. However, you may use the fact and nature of a
prior conviction to help you decide how much or how little you will believe of
and will rely upon [the appellants] evidence in deciding this case.
A previous conviction does not necessarily
mean that you cannot or should not believe or rely upon the testimony of [the
appellant] to help you decide this case. Some convictions, for example,
convictions involving dishonesty, may be more important than others in deciding
how much or how little you would believe or rely upon the testimony of a
witness. Other convictions, such as driving offences, may be less important.
Consider as well whether the previous convictions are recent or happened a
number of years ago. An old conviction may be less important than a more recent
one. Use your common sense and experience.
Through [the
appellants] testimony you have heard evidence of his good character. You may
also consider the evidence of his previous
Highway Traffic Act
convictions to help you decide how much or how little you will believe of and
rely upon his testimony regarding his good character. However, it is very
important that you understand that you must not use the fact or nature of the
prior convictions to decide or help you decide that [the appellant] is the sort
of person who would commit the offences charged.
[71]
The appellant submits that the trial judges
instruction that they could use the
HTA
offence akin to a prior
criminal conviction in assessing his credibility was unduly prejudicial and unfair,
particularly given the similarity of the
HTA
offence to the matters
before the court: see
R. v Corbett
, [1988] 1 S.C.R. 670, at pp. 738-39.
The jury had already been instructed that, as a potential prior inconsistent
statement, they could take it into account in assessing the appellants
credibility.
[72]
The respondent refers to the pre-charge
conference, at which the trial judge initially took the view that the
HTA
record was only relevant to the appellants credibility assessment, but made
the more extensive and impugned instructions after his trial counsel advised
that he was going to rely on the appellants good character for the purpose of
both enhancing his credibility and making him less likely to commit the
offences.
[73]
I would agree that, read in its entirety, this
instruction went too far and was prejudicial to the appellant. Despite the fact
that the trial judge cautioned the jury that they were not to reason that the
accuseds inconsistent statements meant that he was the sort of person who
would commit these offences, the prejudice was implicit both from the fact that
these were similar to the charges at issue, and thus invoked the heart of
Corbett
,
and from the fact that the trial judge devoted undue attention to the point.
[74]
That said, I am satisfied that this is a
circumstance that justifies the application of the curative proviso s.
686(1)(b)(iii) of the
Code
. The appellants credibility was significantly
undermined when he first volunteered that he had a clean driving record,
without even a parking ticket, and then insisted that the official driving
record was inaccurate. Any vestigial effect on his credibility from the trial
judges
Corbett
instruction was so minor that any error in this regard
caused the appellant no substantial wrong or miscarriage of justice. As
discussed earlier in these reasons, the appellant testified in a number of
other respects, such as his speed, his suggestion that neither his Lincoln nor
Mr. Deros Mercedes appeared in the video, and that the EDR was inaccurate. The
jury had ample grounds to conclude that the appellant was not credible in a
number of key elements of his evidence. Accordingly, the error was harmless, and
would not have affected the outcome:
R. v. Samaniego
, 2022 SCC 9,
at
para. 78. I would reject this ground of appeal.
Disposition
[75]
For these reasons, I would dismiss the appeal.
Released: April 7, 2022 J.M.F.
A. Harvison Young J.A.
I agree Fairburn A.C.J.O.
I agree K. Feldman J.A.
[1]
This definition of street racing has been repealed from the
Code
.
Street racing is now considered an aggravating factor in the dangerous
operation of a conveyance in s. 320.22 of the
Code
. The current
provision warns that it is an aggravating factor to operate a motor vehicle in
a race with at least one other person or in a contest of speed:
An Act to
amend the Criminal Code (offences relating to conveyances) and to make
consequential amendments to other Acts
, S.C. 2018, c. 21, s. 12.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Rieder zu Wallburg v. Plista Gmbh, 2022 ONCA 281
DATE: 20220408
DOCKET: C69668
Doherty, Huscroft and Harvison Young JJ.A.
BETWEEN
Dr. Ralph Peter Rieder zu Wallburg and ADMG
Publishing Ltd.
Appellants/Plaintiffs
and
Plista Gmbh, Michel Gagnon, Stephanie Kohnert and
Stefan Klimek
Respondents/Defendants
Douglas J. Spiller, for the appellants
Elizabeth Kurz, for the respondents
Heard: April 1, 2022 by video conference
On appeal from the order of Regional Senior Justice Edwards
of the Superior Court of Justice, dated June 21, 2021, with reasons reported at
2021 ONSC 4458.
REASONS FOR DECISION
[1]
The motion judge dismissed the appellants claim for lack of
jurisdiction. Alternatively, he held Germany, and not Ontario, was the
appropriate forum in which to conduct this litigation.
[2]
The appellants appeal from the dismissal and seek leave to appeal the
motion judges costs order.
[3]
The relevant background is set out in the motion judges reasons and
need not be repeated here.
Jurisdiction
[4]
Counsel challenges the motion judges jurisdiction ruling on two
grounds. First, he argues the motion judge erred in law by characterizing the
nature of the claim as contractual, as opposed to taking the claim at face
value as a tort claim. Counsel submits the characterization of the claim as
contractual was crucial to the motion judges ruling on the jurisdiction motion.
Counsel further contends, that by characterizing the claim the way he did, the
motion judge wrongly turned what was a jurisdictional motion into a pleadings
motion.
[5]
Second, the appellants submit that some of the motion judges factual
findings in respect of the presumptive connecting factors relevant to
jurisdiction cannot stand. For example, the appellants take issue with the
factual finding that the defendant corporation did not carry on business in
Ontario.
[6]
We will address the second submission first. The motion judge considered
the evidence said to be relevant to the existence of the presumptive factors,
including whether the corporate defendant carried on business in Ontario. After
considering the evidence, he concluded the appellants had failed to demonstrate
the corporate defendant carried on business in Ontario. That is a finding of
fact and is reviewable only for palpable and overriding error. We see none.
[7]
The first argument advanced by the appellants does raise a question of
law. The argument targets para. 31 of the motion judges reasons:
The claim advanced by the plaintiffs in this action, in my
view, rises or falls with respect to whether or not there has been a breach of
contract. The action, if it was allowed to proceed in Ontario, in my view is a
simple breach of contract action.
What the plaintiff
Rieder has attempted to do is plead claims in tort and defamation in the hope
that he can obtain a jurisdictional advantage by proceeding with his claim in
Ontario. Without the contract Rieder has no claim. The plaintiffs claim, if
there is one, is a breach of contract action
. [Emphasis added.]
[8]
The appellants argue the motion judge could not go behind the characterization
of the claims as pleaded, but was, for the purposes of jurisdiction, required
to accept that characterization.
[9]
We do not agree. At root, jurisdictional assessments are about
determining the connection of the claims made by a plaintiff to Ontario. As
indicated in
Club Resorts Ltd. v. Van Breda
, 2012 SCC 17, at para. 99:
The purpose of the conflicts rules is to establish whether a
real and substantial connection exists between the forum, the subject matter of
the litigation and the defendant. If such a connection exists in respect of a
factual and legal situation, the court must assume jurisdiction over all
aspects of the case.
[10]
A court considering a jurisdictional motion must consider the subject
matter of the litigation and the factual and legal situation presented in the
claim. This inquiry does not necessarily end with the plaintiffs
characterization of the claim. The form of the claim cannot trump the substance
of the claim when addressing a jurisdictional argument.
Forum Non Conveniens
[11]
The motion judge went on to hold that even if an Ontario court had
jurisdiction over the claim, Germany was the appropriate forum for any trial.
[12]
The connections to Germany included:
·
the
parties had agreed, with exceptions that are irrelevant here, that all claims
arising from their business relationship would be litigated in Germany,
applying German law;
·
all
of the defendants and their witnesses are resident in Germany; and
·
physical
evidence potentially relevant to the claims was located in Germany.
[13]
The motion judge recognized there were factors that provided some
connection to Ontario (Reasons, at para. 34). He described the connection as
weak at best, holding that Germany was the appropriate forum for the
determination of the issues. The appellant has not pointed to any error in law
made by the motion judge in his
forum non-conveniens
analysis. Nor has
he demonstrated any misapprehension of material facts. The balancing of the
competing factors was an exercise for the motion judge. He made no reversible
error.
The Costs Appeal
[14]
The appellants seek leave to appeal costs. Counsel submits that the
amount awarded, $15,000, is excessive.
[15]
Leave to appeal costs, especially if the proposed grounds of appeal
relate solely to quantum, is seldom granted by this court. There is no reason
to grant leave in this case.
Conclusion
[16]
The appeal is dismissed. Leave to appeal costs is refused.
[17]
The parties may make written submissions as to the costs of the appeal.
Those submissions should not exceed 3 pages. The parties will exchange
submissions and file those submissions with the court within 30 days.
Doherty J.A.
Grant Huscroft J.A.
A. Harvison Young
J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Lewis, 2022 ONCA 282
DATE: 20220408
DOCKET: C68399
Gillese, Brown and Coroza JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Courtney Anthony Lewis
Appellant
Maija Martin and Stephanie Brown, for the appellant
Sunil Mathai, for the respondent
Heard: April 1, 2022 by video conference
On appeal from the conviction entered on November 29,
2019 by Justice Vanessa V. Christie of the Superior Court of Justice.
REASONS FOR DECISION
Overview
[1]
On June 25, 2012, Ryan Turcotte
spent the evening at a bar in Muskoka. He returned to Barrie in the early
morning hours of June 26, 2012, on a bus provided by the bar. Ryan Zaroski, a
security person employed by the bar, was also on the bus with the passengers.
During the ride back to Barrie, Mr. Zaroski noticed tension between Mr.
Turcotte and another bus passenger, Aaron Lewis. Before the bus arrived in
Barrie, Mr. Zaroski called the police to report that there was going to be a
confrontation.
[2]
When the bus stopped at a strip
plaza in Barrie, the police had not arrived. Mr. Zaroski was still on the phone
with a 911 dispatcher when he witnessed Mr. Turcotte being set upon by
three people in the parking lot of the plaza. Mr. Turcotte was pushed and
punched. Upon falling to the ground, he was kicked. The assault happened
quickly, but it left Mr. Turcotte with a significant brain injury.
[3]
The appellant and his cousin,
Aaron Lewis, were tried on the offence of aggravated assault by a judge sitting
without a jury.
[1]
The Crown alleged that the appellant had participated in the assault on Mr.
Turcotte by punching him. The Crown relied on the evidence of three eyewitnesses:
Mr. Zaroski; David Ribble, the bus driver; and Kiki Mukendi, a friend of Mr.
Turcotte who was also on the bus. The trial judge convicted the appellant but
acquitted Aaron Lewis.
[4]
The appellant argues on appeal
that the trial judge erred in her assessment of the eyewitness evidence. We
disagree. For the reasons below, we dismiss the conviction appeal.
[2]
The Identification Evidence
[5]
Mr. Mukendi and Mr. Zaroski
testified that the appellant participated in the assault. Mr. Ribble did not
identify the appellant as having participated. When the police arrived at the
scene, Mr. Mukendi told them that the individuals who were responsible for the
attack lived at an address on Rose Street. He took the officers to that address.
The appellant was at the residence located at that address, and he was
arrested.
[6]
Mr. Zaroski was an important
witness for the Crown. He testified that, upon arrival in Barrie, he told Mr.
Turcotte that it would be in his best interest to go home quickly. Mr. Turcotte
exited the bus once it pulled into the parking lot of the strip plaza.
[7]
Mr. Zaroski testified that, from
his position inside the bus, he saw the appellant waiting in the parking lot
alone when the bus arrived at the plaza. He described the appellant as wearing
a black hoodie and black pants. He recognized the appellant as soon as the bus
stopped. He said that the appellant was a casual acquaintance with whom he would
have spoken a few times before, and whom he had seen around the bar scene. He
said that he had seen the appellant enough times before that day that he would
have been comfortable saying hey to him, asking him hows it going?, and
telling him to have a good night.
[8]
Upon exiting the bus, Aaron Lewis
walked up to the appellant. They joined some others, who all then approached
Mr. Turcotte.
[9]
According to Mr. Zaroski, Aaron
Lewis pushed Mr. Turcotte, then the appellant punched Mr. Turcotte on the left
side of his head. He testified that there were more punches that followed the
first punch, but that he did not know who threw those punches. After the
assault, the assailants fled the scene toward townhouses around Rose Street.
[10]
A brief cellphone video was taken
of the altercation by an unknown individual. However, the video was of poor
quality. Mr. Zaroski testified that he could not identify the appellant in this
video.
The Trial Judges Reasons
[11]
The trial judge convicted the
appellant but acquitted Aaron Lewis. The trial judge concluded that the Crown
had established that the appellant had punched Mr. Turcotte on the left side of
his head in the parking lot.
[12]
The trial judge found Mr. Mukendi
to be neither a credible nor a reliable witness. She found that Mr. Zaroski and
Mr. Ribble were credible, but that significant parts of their testimonies were
unreliable.
[13]
Although the Crown relied on
eyewitness identification from all three individuals to prove its case against
the appellant and Aaron Lewis, the trial judge noted that the circumstances of
the case against the appellant were different. She comprehensively reviewed the
law on identification evidence and then discussed the specific frailties with
respect to the eyewitness evidence against each accused. Although she found the
identification evidence regarding Aaron Lewis to be replete with problems, she
found the identification evidence of the appellant to be very strong. Ultimately,
largely relying on Mr. Zaroskis evidence, the trial judge was satisfied beyond
a reasonable doubt that the appellant was in the parking lot waiting for the
bus to arrive, that he approached Mr. Turcotte, that another individual pushed
Mr. Turcotte, and that the appellant then punched Mr. Turcotte in the
head. She further concluded that other people were also involved in punching
Mr. Turcotte, and that he went down to the ground and was not moving.
[3]
Discussion
[14]
The appellant takes issue with the
trial judges approach to the identification evidence in this case. He makes four
main submissions.
[15]
First, the appellant argues that
the trial judge erred by treating Mr. Zaroskis evidence as recognition
evidence. According to the appellant, the nature of Mr. Zaroskis
observations fell short of being recognition evidence, and the trial judge
should have subjected Mr. Zaroskis purported identification to a more stringent
analysis. We disagree.
[16]
It is not disputed that triers of
fact are entitled to take into account whether a witness is acquainted with an
accused when assessing the reliability of that witnesss identification
evidence:
R. v. Chafe
, 2019 ONCA
113, 145 O.R. (3d) 783, at para. 31, citing
R. v. Olliffe
, 2015 ONCA 242, 331 O.A.C. 12, at para. 38. In her
reasons, the trial judge correctly noted that recognition evidence, as a
subcategory of identification evidence, has the same frailties and risks as
identification evidence, demands the same cautious approach as identification
evidence, and requires the same level of reliability as identification evidence:
Chafe
, at paras. 29, 30, and 32;
Olliffe
, at paras. 39-40.
[17]
We are not persuaded by the
appellants submission that the trial judge erred in her approach to Mr. Zaroskis
evidence. The trial judge succinctly explained why she accepted Mr. Zaroskis testimony
as powerful evidence of recognition:
Mr. Zaroski provided a detailed account of the assault, one
that appears to me to be corroborated by the video evidence. In my view, Ryan
Zaroski, having had previous interactions with [the appellant], had ample
opportunity to observe him on June 26th, 2012. Mr. Zaroski recognized [the
appellant] from the moment they parked in the parking lot. While this was a
fast-moving event without a lot of light, Mr. Zaroski clearly saw [the
appellant] punch Mr. Turcotte, sending him to the ground. Mr. Zaroski saw who
he believed to be [the appellant] going toward the townhouses. He gave the name
of [the appellant] to police at the scene, however, he wanted to verify with a
photo. That very morning he was able to find a picture of [the appellant], who
he already believed the person to be, and confirmed it was him. There was no
suggestion that Mr. Zaroski colluded or worked with anyone when coming up with
that photo. [The appellant] was arrested in the area of
Rose Street, having
been associated with that address.
[18]
It was open to the trial judge to
find that Mr. Zaroskis evidence was recognition evidence. As described
earlier, Mr. Zaroski testified that the appellant was a casual acquaintance,
that he saw him around the bar scene, and that he had spoken with him enough
times prior to the assault that he would have felt comfortable making small
talk with him.
[19]
The trial judges finding that Mr.
Zaroski was a recognition witness was firmly rooted in the evidence. It was for
the trial judge to assign weight to this evidence, and we see no error in her
approach.
[20]
Nor do we agree with the
appellants argument that the trial judge erred in relying on Mr. Zaroskis
evidence because she failed to comment upon what the appellant submits is his distinctive
lazy eye. Counsel on appeal acknowledge that this was never put to Mr.
Zaroski, and that it was only raised during closing submissions. The respondent
points out that the trial judge observed that one of the eyes of [the
appellant] opens larger than the other, yet there was no evidence on this
point, and the pictures of the appellant filed as exhibits at the trial did not
demonstrate that the appellant did, in fact, have a lazy eye.
[21]
In our view, the trial judge dealt
with this purported omission. In any event, the absence of extensive commentary
on this single feature, about which no evidence was filed at the trial, does
not demonstrate that the trial judge fell into error.
[22]
Second, the appellant submits that
the trial judge erred by failing to consider that Mr. Zaroskis identification
evidence was tainted two times: first, when he apparently heard someone say the
name Lewis at the scene; and again, later that morning after the assault, when
he retrieved a photograph of the appellant from a Facebook page and gave that
picture to the police. The appellant argues that the trial judge did not
consider the possibility that the utterance at the scene and the retrieval of
the photograph did not strengthen Mr. Zaroskis identification of the appellant,
but rather served as confirmation of Mr. Zaroskis inaccurate belief that the
appellant participated in the assault.
[23]
We do not accept this submission.
We see no error in how the trial judge treated these pieces of evidence. Mr.
Zaroski confirmed that, at the time of the assault, the appellants name was
on the tip of [his] tongue already and that hearing the name Lewis simply
connected the dots in his mind about the appellants identity. Significantly,
the trial judge reviewed this testimony and noted that she had to be extremely
cautious about relying on it. Moreover, the trial judge noted that it was
unclear whether the word Lewis was uttered before or after Mr. Zaroski spoke
to the police at the scene. This was important because it was not disputed that
the appellant had told the police that the appellant was possibly involved in
the assault, and hearing the name Lewis after making this report would rebut
the allegation of tainting.
[24]
With respect to the Facebook photograph,
we do not share the concern urged upon us by the appellant. Mr. Zaroski immediately
recognized the appellant from the moment the bus entered the parking lot, and then
gave the name of the appellant to the police at the scene following the assault.
Only after all of that did Mr. Zaroski decide to retrieve a Facebook picture to
verify what he already believed to be true. Importantly, we note that the trial
judge concluded that there was no suggestion that Mr. Zaroski colluded or
worked with anyone to find the Facebook page on which he viewed the photograph
of the appellant. As a result, the only way the Facebook photograph could have
tainted Mr. Zaroskis identification of the appellant is if it bolstered his
confidence in a false identification, such that the trial judge was unable to meaningfully
rely on the identification evidence.
[25]
The trial judge
s reasons demonstrate that she did not commit this
error as alleged by the appellant. To begin, the trial judge reviewed
jurisprudence
in
which viewing Facebook photographs formed part of the identification process:
R. v. T.A.H.
, 2012 BCCA 427;
R. v. Mohamed
, 2014 ABCA 398, 588 A.R. 89, leave to appeal to S.
C.C. refused, 37404 (April 13, 2017). In addition, she
provided herself with an extensive self-instruction against using confidence as
a proxy for correctness, as this court has repeatedly endorsed: see e.g.,
R.
v. Deakin
, 2021 ONCA 823, at paras. 16, 18;
Olliffe
, at para. 43;
R.
v. Goran
, 2008 ONCA 195, 234 O.A.C.
283, at para. 27. Taken together, we are confident that the relevance and
impact of the Facebook photograph was properly assessed and addressed in the
trial judges reasons.
This ground of
appeal is therefore dismissed.
[26]
Third, the appellant contends that
the trial judge erred by failing to consider the cross-racial nature of Mr.
Zaroskis identification because Mr. Zaroski is white and the appellant is black.
According to the appellant, Mr. Zaroskis description of the appellant was so
generic that the trial judge was required to self-instruct on the frailties
inherent in cross-racial identification: see e.g.,
R. v. Bao
, 2019 ONCA 458, 146 O.R. (3d) 225, at para. 23;
R.
v. Richards
(2004), 70 O.R. (3d) 737
(C.A.), at para. 32. We reject this submission.
[27]
Trial counsel for the appellant did
not provide any meaningful submissions on this issue before the trial judge.
Trial counsel focused on what he perceived to be a tainted identification that
was replete with confirmation bias. At one point during his closing submissions,
trial counsel simply said:
An additional complicating factor for Mr. Zaroski is that its
a cross racial identification, and
thats a notorious additional complicating
factor that I ask Your Honour to instruct yourself about. Hes only able to say
that
[the appellant] was wearing dark pants and a dark top, nothing else. So
thats
another problem.
[28]
The trial judge can hardly be
faulted for failing to mention cross-racial identification in her reasons given
that trial counsel almost exclusively focused on other matters. Trial counsel
specifically
argued that Mr. Zaroskis
identification of the appellant suffered from the following frailties: (1) Mr.
Zaroski did not identify the appellant during his call to the police; (2) Mr.
Zaroski heard the name Lewis at the scene and then searched Facebook for the
identity of the person; (3) Mr. Zaroski was not certain that the appellant
was involved, advising police that it was possibly the appellant; (4) no
witness identified the appellant from the cellphone video; and (5) Mr. Zaroski
and Mr. Mukendi did not identify the appellants lazy eye. Yet all of these
issues were covered by the trial judge in her reasons.
[29]
Considered in light of the way the
matter was argued and the trial judges reasons as a whole, the absence of this
self-instruction is not fatal.
[30]
The reasons reveal that the trial
judge quite properly took an extremely cautious approach to Mr. Zaroskis
identification evidence. She clearly noted the frailties in his evidence and commented
that his description of the appellant as wearing dark pants and a dark hoodie was
not particularly helpful.
[31]
This was not a case such as
Bao
, on which the appellant relies, where the Crown
purported to rely on the description of a suspect by a police officer who only
had a few seconds to observe who he described as an Asian male with dark
hair. The trial judge in this case specifically found that Mr. Zaroski
recognized the appellant as the bus pulled into the plaza; knew the appellant by
name; and told the police that name. She found it would make sense that Mr.
Zaroski would tell the police that it was possibly the appellant as opposed
to providing physical characteristics, since he had some familiarity with the
appellant. The trial judge also noted that the appellant was standing ahead of
the bus and not among a crowd of people, giving Mr. Zaroski a clear view of the
appellant. Although the assault was a fast-moving event, Mr. Zaroski described
the appellant punching Mr. Turcotte on the side of his head in an area
which was consistent with the photographs tendered at trial depicting the injuries
that Mr. Turcotte suffered.
[32]
To summarize, there was no
suggestion in this case that Mr. Zaroski had any difficulty identifying the
appellant because of race. He knew him from around the bar scene and the trial
judge accepted that this was sufficient recognition evidence. Trial counsel only
briefly raised the issue of cross-racial recognition challenges in passing. In
our view, absent specific evidence of cross-racial identification concerns, the
absence of that self instruction was not an error:
R. v. Hird
, 2021 ONCA 881, at para. 21. This ground of appeal therefore
fails.
[33]
Finally, the appellant argues that
the trial judges reasons were insufficient and do not permit meaningful
appellate review. We reject this submission, which appears to be a repackaging
of the previous grounds of appeal. The trial judges reasons are thorough,
comprehensive, and more than sufficient for appellate review. She clearly
grappled with the live issues at trial as presented to her by counsel. The
trial judge admirably reviewed the law, set out the strengths and weaknesses of
each witness, and provided cogent reasons explaining why she was satisfied
beyond a reasonable doubt of the appellants guilt. Indeed, it was this same
thorough and cautious approach that led her to acquit Aaron Lewis. The evidence
with regard to the appellant was different, largely due to Mr. Zaroskis
recognition evidence. The trial judge was entitled to treat the appellants
situation differently as a result, and her reasons do not demonstrate any
insufficiency. This ground of appeal is dismissed.
Disposition
[34]
For these reasons, the conviction appeal
is dismissed.
The sentence appeal is
dismissed as abandoned.
E.E.
Gillese J.A.
David Brown J.A.
S. Coroza J.A.
[1]
Both accused had originally been tried and convicted of the offence by a judge
sitting with a jury, but that conviction was set aside on appeal because of
deficiencies in the trial judges charge to the jury:
R. v. Lewis
,
2018 ONCA 351. A new trial was conducted by a judge alone.
[2]
The appellant has abandoned his sentence appeal by filing a notice dated October
1, 2021.
[3]
The trial judge found that the punch was a contributing cause of Mr. Turcottes
injuries. The appellant has not taken issue with this finding on appeal.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Smith (Re), 2022 ONCA 286
DATE: 20220411
DOCKET: C69775
Gillese, Brown and
Coroza JJ.A.
IN THE MATTER OF: Jeffery Smith
AN APPEAL UNDER PART XX.1 OF
THE
CODE
BETWEEN
Jeffery Smith
Appellant
and
Her Majesty the Queen
Respondent
and
Person in Charge of
St. Josephs Healthcare Hamilton
Respondent
Anita Szigeti and Maya Kotob, for the appellant
Heather Fregeau, for the respondent, Her Majesty the
Queen
Julia Lefebvre, for the respondent, Person in Charge of St.
Josephs Healthcare Hamilton
Heard: April 1, 2022 by video conference
On appeal from the disposition of the Ontario Review
Board, dated July 26, 2021, with reasons dated August 6, 2021.
REASONS FOR DECISION
OVERVIEW
[1]
On August 14, 2012, the appellant was found not criminally responsible (NCR)
on account of mental disorder on two counts of assault and one count of
uttering a threat to cause death or bodily harm. As a result, he came under the
jurisdiction of the Ontario Review Board (the Board). After gradual release
into the community, he was conditionally discharged in April 2018.
[2]
This appeal arises from the appellants annual review board hearing on
July 21, 2021 (the Hearing).
[3]
At the Hearing, the appellant sought an absolute discharge. Dr. Prat,
the appellants treating psychiatrist, opined that the appellant no longer
posed a significant threat to the safety of the public and, therefore, was
entitled to an absolute discharge. Dr. Chaimowitz, the head of the forensic
psychiatry program at St. Josephs Healthcare Hamilton, took a different view.
In his clinical opinion, the appellant continued to meet the test for significant
threat.
[4]
The Board found that the appellant continued to pose a significant
threat to public safety. By disposition dated July 26, 2021, it ordered a continuation
of the appellants conditional discharge (the Disposition).
[5]
In this appeal, the appellant asks that the Disposition be quashed and
an order substituted with an order that the appellant be absolutely discharged.
[6]
For the reasons that follow, the appeal is dismissed.
BACKGROUND
[7]
The appellant was found NCR in 2012 after assaulting his mother and then
a neighbour who came to check on the family. He also threatened to kill the neighbour.
At the time of this incident, the appellant was on a peace bond, stemming from
a charge of assault and criminal harassment against his intimate partner.
Several other violent but uncharged incidents also occurred before the index
offences.
[8]
The hospital report dated July 15, 2021 sets out the appellants current
diagnoses: other specified schizophrenia spectrum and psychotic disorder;
alcohol use disorder, currently in remission; and, unspecified personality
disorder with strong features of paranoid personality disorder and narcissistic
personality disorder (by history). The appellant has been taking an
antipsychotic medication since 2016 and has been treatment compliant.
[9]
The appellant has been found to be incapable of making his own treatment
decisions. He did not challenge this finding at the Hearing (or otherwise).
[10]
While conditionally discharged, the appellant has maintained employment,
complied with his medication, and attended his medical appointments.
[11]
On May 1, 2021, the appellant travelled to Huntsville, very near to where
he had committed the index offences. While there, he was charged with stunt
driving (the Incident).
[12]
On May 19, 2021, his treatment team learned that the appellant had been
in Huntsville and charged with stunt driving. When they asked the appellant about
the Incident the following day, he said he had gone to Huntsville for a day on
his own and spent the day driving around the town. He denied using substances
and said he had not been within 1 km of his family cottage or the cottage of
the other victims of his index offences, which would have been in breach of his
disposition. He said the police claimed he had been driving 164 km/h on a highway,
but he thought he was likely travelling at 140 km/h. According to the occurrence
report, the appellant was driving at 165 km/h in a
posted
100 km/h zone.
[13]
After the Incident, the appellant's brother called the Crown Attorney
assigned to his brothers case. He told the Crown Attorney that, following the
Incident, he picked up the appellant from the hotel in which he was staying in
Huntsville and drove him back to Hamilton. He said that there was an empty
bottle of vodka in his brothers hotel room, his brother appeared mentally
unstable, and he was worried about his brothers driving habits.
[14]
When the appellant later met with his treatment team, he admitted he had
not been entirely truthful with them. He told them he had gone to Huntsville
with his roommate and the pair stayed in a hotel there for two nights, in
breach of a term of his disposition. He again denied using substances and claimed
it was his roommate who had been consuming alcohol.
[15]
At the Hearing, Dr. Prat stated his opinion that the appellant no longer
constituted a significant threat to public safety. He questioned whether the diagnosis
of a personality disorder continued to be valid and indicated that he did not
believe the events of the Incident were attributable to symptoms of mental
illness. Dr. Prat acknowledged that the appellant continued to display a lack
of insight into his need for medication but noted that the appellant now says he
will follow medical advice. Dr. Prat also acknowledged there was no therapeutic
relationship between the appellant and the Schizophrenia Outpatient Clinic and that
the appellant said his involvement in cognitive behavioural therapy would
depend on his workload. Further, Dr. Prat noted that the appellant had not
challenged his incapacity finding, and he still considers the appellant incapable
of making his own treatment decisions.
[16]
Dr. Chaimowitz also testified at the Hearing. Although he had not been directly
involved in the appellants clinical care, based on the appellants health
records and the hospital files, in his professional opinion, the appellant met
the test for significant threat to a medical certainty and would meet that
test even without considering the stunt driving Incident.
[17]
In Dr. Chaimowitzs opinion, absent Board supervision, the appellant
would stop taking medication and revert to behaviour similar to that of the
index offences. He explained that the appellant suffers from a serious mental
disorder as well as a substance abuse disorder, and had frequently indicated
that he is not mentally ill and does not need any antipsychotic medication. As
well, the appellant has been found incapable of consenting to treatment, a
determination which includes a finding that the appellant has an inability to
appreciate the reasonably foreseeable consequences of a decision or lack of
decision with respect to treatment. Dr. Chaimowitz stated that the
appellants risk is high and well over the threshold finding required for a
finding of significant risk. In Dr. Chaimowitzs opinion, the Incident tends to
support the appellants original diagnosis of a personality disorder.
[18]
Dr. Chaimowitz also stated that he agreed with Dr. Sheridans clinical
opinion of the appellant. Dr. Sheridan and Ms. Katrina Bouchard prepared a
psychological risk assessment report of the appellant prior to his annual Board
hearing in 2019 (the 2019 Report). In the 2019 Report, the authors state that
the appellant represents a high risk of reoffence, well over the threshold finding
required for a finding of significant risk. Because the appellant had refused
to participate in the assessment that underlay the 2019 Report, the authors opinion
was formed based on the appellant's health records. In a further report dated
February 25, 2021, Dr. Sheridan updated the 2019 Report. He noted that in the prior
year, the appellant had enjoyed a period of stability, in large part because of
the monitoring and support of the Forensic Outpatient Program (FOP). He
affirmed that the appellants long-term risk for future violence is high,
absent the oversight of the ORB and support of the FOB or other intensive case
management program. Dr. Sheridan said that, given his limited insight, the
appellant would likely discontinue psychiatric follow-up, become nonadherent to
medication, and/or resume regular substance use if granted an absolute
discharge. In such a scenario, the appellant would experience a significant
deterioration in his mental status and the recurrence of his psychotic
symptoms. Ultimately, the coalescence of risk factors might prompt the
appellant to act out violently, as he did at the time of the index offences, with
the potential victims likely to be those closest to him, including family
members.
ANALYSIS
[19]
The sole issue on this appeal is whether the Board erred in finding that
the appellant is a significant threat to public safety (the Board finding).
[20]
We remind ourselves of the standard of review applicable to the Board
finding. Section 672.78(1) of the
Criminal Code
, R.S.C. 1985, c. C-46 provides
that an appeal against disposition may be allowed only where the court 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.
[21]
Guidance on the application of that provision by a reviewing court is
found at paras. 29-37 of
R. v. Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779.
In those paragraphs, the Supreme Court begins by observing that to make the difficult
assessments of mental disorders and attendant safety risks, the Board is
provided with expert membership and broad inquisitorial powers: at para. 29. The
assessment of whether an NCR individuals mental condition renders him or her a
significant threat to public safety calls for significant expertise: at para. 30.
The Boards medical expertise, specialized knowledge, and advantage in
observing witnesses, commands deference: at para. 37. A Board decision on significant
threat is reviewed on a reasonableness standard; such a decision is
unreasonable if not supported by reasons that can bear even a somewhat probing
examination:
at paras. 33, 37.
[22]
Our examination of the Boards reasons leads us to conclude that there
is no basis on which to interfere with the Board finding of significant threat.
That finding is reasonable based on:
-
The Boards acceptance of Dr. Chaimowitzs clinical opinion that absent
Board oversight, the appellant would likely fall away from treatment and experience
psychotic symptoms like those he experienced at the time of the index offences;
-
The risk assessment report and the assessors opinion that the
appellants risk for future violence remains high, without Board oversight;
-
The appellants treatment hesitancy and family concerns that the appellant
might not remain treatment compliant. Although the appellant has recently
indicated he would follow medical advice, his treatment adherence has been entirely
externally motivated, and he has historically denied his mental illness and
need for medication;
-
The appellants incapacity to consent to treatment, which entails a
finding of an inability to appreciate the reasonably foreseeable consequences
of treatment decisions;
-
The lack of an established therapeutic relationship between the
appellant and the Schizophrenia Outpatient Clinic;
-
The appellants significant history of psychosis, including delusions
and paranoia, which has led him to act out and cause significant harm to
members of his family and others;
-
The appellants history of being able to appear normal despite his experiencing
psychotic symptoms;
-
The Boards acceptance of Dr. Chaimowitzs opinion that the stunt
driving Incident supports the appellants personality disorder diagnosis; and
-
The appellants dishonesty regarding the Incident.
[23]
We conclude on this matter by addressing two points pressed by the
appellant.
[24]
First, the appellant stressed the significance of Dr. Prats opinion, as
his treating psychiatrist, that he no longer poses a significant threat to
public safety. We appreciate the significance of that evidence. However, it was
for the Board to decide which of the clinical opinions it would accept: that of
Dr. Prat or of Dr. Chaimowitz. Its reasoned acceptance of Dr. Chaimowitzs
evidence fell squarely within its expertise and was amply supported by the
evidence. It is entitled to deference by this court.
[25]
Second, the appellant contended that the Board erred in law in finding that
the civil mental health system was inadequate to manage any risk that he might
pose if granted an absolute discharge. This contention rests on the words in
the second sentence of para. 61 of the Boards reasons that a higher threshold
is required for continued hospitalization under the
Mental Health Act
,
R.S.O. 1990, c. M.7. Assuming that those words are incorrect, it does not
derogate from the Boards overall finding that the civil mental health system could
not adequately manage the appellants risk on an absolute discharge should he
discontinue treatment and decompensate. The Board finding on this matter is
reasonable, given its findings that: at the time of the Hearing, the appellant
had not yet established a therapeutic relationship with the Schizophrenia
Outpatient Clinic, participation in which is voluntary in any event; while the
appellant benefits from strong family support, his family had expressed concern
about the possibility of an absolute discharge and their reluctance to rely on
a Form 2 to return him to hospital; the appellants decompensation when unmedicated
would likely be gradual, making it more difficult to detect; and, his history
of appearing normal while experiencing the symptoms of psychosis.
DISPOSITION
[26]
Accordingly, the appeal is dismissed.
E.E. Gillese J.A.
David Brown J.A.
S. Coroza J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Hall v. Niagara (Police Services Board), 2022 ONCA 288
DATE: 20220412
DOCKET: C68415
Brown, Paciocco and Sossin JJ.A.
BETWEEN
John Hall
Plaintiff (Respondent/
Appellant by way of cross-appeal)
and
Regional Municipality of
Niagara Police Services Board
,
Steven Magistrale
,
David Biggar, Shawn Donovan and General Motors of Canada Company
Defendants (
Appellants
/
Respondents by way of cross-appeal
)
Eugene G. Mazzuca and Rafal Szymanski, for the appellants/respondents
by way of cross-appeal
Peter I. Waldmann and Cizan Suliman, for the respondent/appellant
by way of cross-appeal
Heard: March 16, 2022, by video conference
On appeal from the judgment of Justice Linda M. Walters,
dated April 21, 2020, with reasons at 2020 ONSC 241, and on cross-appeal from
the ruling on costs, dated August 14, 2020, with reasons at 2020 ONSC 4867.
REASONS FOR DECISION
[1]
The appellants Regional Municipality of Niagara Police Services Board
(the Board) and Detective Steven Magistrale (Det. Magistrale) were found
liable to the respondent, John Hall, for $686,216.92 in damages for false
arrest, negligent investigation, and malicious prosecution. The action against two
other named defendants was dismissed and the action against General Motors of
Canada Company (GM) was settled out of court.
[2]
The civil suit arises out of a police investigation resulting in the
arrest of Mr. Hall for attempted theft of a copper bar from the GM
assembly plant in St. Catharines, Ontario, contrary to s. 463(d) of the
Criminal
Code
, R.S.C. 1985, c. C-46. Mr. Hall was acquitted at trial.
[3]
The appellants allege the trial judge made a number of factual and legal
errors in her judgment in the civil suit which warrant intervention by this
court.
[4]
The respondent cross-appeals and challenges the trial judges
calculation of costs in his favour.
[5]
For the following reasons, we dismiss both the appeal and the
cross-appeal.
BACKGROUND FACTS
[6]
In the evening of December 21, 2009, the GM plant on Glendale Ave. in
St. Catharines, Ontario, experienced an electrical outage caused by a
flash explosion in an electrical cabinet. After ruling out other possible
causes, the investigative team concluded that the outage was the result of an
arc flash explosion which could have been caused by a person attempting to
remove a copper bar from the electrical cabinet. This theory was consistent
with earlier incidents of copper being stolen from the Glendale plant.
[7]
GM referred the matter to the police, and Det. Magistrale eventually
became the lead detective in the police investigation. His investigation led to
the arrest of Mr. Hall, who was a security guard with Securitas, a company
which was contracted to provide security at the Glendale plant.
[8]
Mr. Hall was on duty at the time of the incident and had physical symptoms
afterwards, which Det. Magistrale understood as consistent with Mr. Halls
involvement in the incident.
[9]
Mr. Hall was terminated from his employment following the incident.
[10]
The
criminal trial took place over eight days before Wilkie J. in July 2012. In his
reasons, Wilkie J. stated that, while a close case, he was left with a
sliver of doubt as to whether Mr. Hall was the person responsible for the
attempted theft of the copper bar and thus found Mr. Hall not guilty.
[11]
Mr.
Hall launched his civil action in July 2014.
[12]
The
trial took place over 16 days in May and August 2019.
PROCEEDING BELOW
[13]
The
trial judge found Det. Magistrale liable for malicious prosecution (and the Board,
in turn, liable for the actions of its officer).
[14]
Applying
the test as set out by McIntyre J. in
Nelles v. Ontario
, [1989] 2 S.C.R.
170, at p. 204, the trial judge considered the four elements of malicious
prosecution which must be established by the plaintiff:
1.
The proceedings must have been initiated by the defendant;
2.
The proceedings must have terminated in favour of the plaintiff;
3.
The plaintiff must show that the proceedings were instituted without
reasonable cause; and
4.
The defendant was actuated by malice.
[15]
In
this case, the first two elements were not contested. The trial judges
analysis focused on the latter two elements.
[16]
The
trial judge recognized that in the case of malicious prosecution involving a
police investigation, a key question is whether the police officer responsible
for the arrest had reasonable and probable grounds for the arrest. The trial
judge also highlighted the subjective and objective aspects of reasonable and
probable grounds.
[17]
The
trial judge found that Det. Magistrale lacked objective reasonable and probable
grounds given the incomplete and improper investigation against Mr. Hall and
the challenges with the circumstantial evidence gathered in that investigation.
[18]
Further,
the trial judge found that Det. Magistrale was not credible with respect to his
assertion that he believed he had reasonable and probable grounds for the
arrest. Therefore, she found that Det. Magistrale lacked subjective reasonable
and probable grounds as well.
[19]
With
respect to malice, the trial judge found that Det. Magistrale acted with an
improper purpose in the prosecution of Mr. Hall. She found that after the Crown
and the defence inaccurately answered a question posed by the criminal trial
judge, Det. Magistrale did not meet his obligation of notifying the Crown of
the correct answer, which would have assisted Mr. Hall in his defence. The
trial judge also found that Det. Magistrale engaged in inappropriate conduct in
high fiving a Crown witness, and that inaccuracies in his police notes and testimony
went beyond carelessness and amounted to deliberate falsehoods.
[20]
In
light of these findings, the trial judge concluded that Det. Magistrale, and by
extension the Board, were liable to Mr. Hall for malicious prosecution.
[21]
The
trial judge also found that the appellants were liable for negligent
investigation and false arrest.
[22]
With
respect to damages, the trial judge fixed the general damages at $50,000. She
found that special damages of $178,484.55 were appropriate in light of Mr. Halls
legal fees to defend himself on the criminal charges and to obtain disability
benefits from his own insurer. The trial judge fixed Mr. Halls past loss of
income at $395,777.
[23]
In
light of her other findings, the trial judge did not address the
Charter
claim.
[24]
After
comparing the bills of costs of the parties,
and
applying the principles in r. 57.01 of the
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194, the trial judge awarded
costs against the appellants in the amount of $275,000, inclusive of fees and
disbursements.
ANALYSIS
[25]
The
appellants raise various grounds of appeal which may be organized into three
main categories.
[26]
First,
the appellants argue that the trial judge misapplied the law relating to
reasonable and probable grounds in the context of malicious prosecution.
[27]
Second,
the appellants argue that the trial judge misapplied the law relating to malice
in the context of malicious prosecution.
[28]
Third,
the appellants argue that the trial judge erred in her award of damages.
[29]
Finally,
the respondent cross-appeals against the trial judges award of costs.
[30]
Each
issue is addressed in turn.
(1)
The trial judge made
no reversible error in finding that Det. Magistrale lacked reasonable and
probable grounds for the arrest
[31]
In
order to have reasonable and probable grounds to arrest, an arresting officer
must subjectively believe they have reasonable and probable grounds on which to
base the arrest, and those grounds must be justifiable from an objective point
of view:
R. v. Storrey
, [1990] 1 S.C.R. 241, at pp. 250-51.
[32]
The
question of whether there are reasonable and probable grounds to arrest rests
on the trial judge's factual findings, which are entitled to deference on
appeal. However, the trial judge's ultimate ruling that those facts were insufficient
to constitute reasonable and probable grounds is reviewable on a correctness
standard:
R. v. Shepherd
,
2009 SCC 35
, [2009] 2
S.C.R. 527, at para.
20
.
[33]
As
indicated, the trial judge found that Det. Magistrale lacked both subjective
and objective reasonable and probable grounds for the arrest of Mr. Hall.
[34]
The
trial judges conclusion that Det. Magistrale lacked subjective reasonable and
probable grounds was based on her assessment of Det. Magistrales
credibility. She stated, at para. 114, Magistrales assertions that he
subjectively believed he had probable grounds to arrest are not credible. How
else can one explain the discrepancies, exaggerations, inaccuracies, and an
outright lie in Magistrales written reports and affidavits.
[35]
Her
finding that Det. Magistrale lacked objective grounds was based on her
conclusion that the circumstantial case against him was insufficient. This
conclusion was buttressed by Det. Magistrales concession that prior to
interviewing Mr. Hall he did not have reasonable and probable grounds to arrest
him. After closely examining the interview the trial judge concluded that nothing
occurred during the interview to furnish additional grounds. In contrast to
Det. Magistrales submission that he had a strong circumstantial case against
Mr. Hall, the trial judge found that there was a very weak circumstantial
case. She added, at para. 67, I cannot even find that a crime was committed,
let alone that all the evidence pointed to the commission of any offence by
Hall.
[36]
In
arguing that the trial judge erred in concluding that reasonable and probable grounds
for the arrest of Mr. Hall was lacking, the appellants focus on the trial
judges conclusion that the objective ground for arrest was insufficient.
Specifically, they argue that the trial judge erred by focusing mistakenly on
Det. Magistrales failure to exhaust all avenues of investigation,
contrary to this courts decision in
Tremblay v. Ottawa (Police Services
Board)
, 2018 ONCA 497, 48 C.C.L.T. (4th) 1. The appellants also argue
that the trial judge erred by failing to consider the whole of the evidence
available at the time of the appellants arrest and by failing to consider or to
give due weight to the criminal proceeding as a whole, including the criminal
trial judges decision to acquit Mr. Hall on a sliver of doubt and the
prosecutors decision to proceed with the prosecution.
[37]
We
need not decide whether any of these alleged errors occurred because the
subjective and objective components of the reasonable and probable grounds test
are conjunctive. Both the subjective and objective elements must be satisfied
for reasonable and probable grounds to exist:
Nelles v. Ontario
, [1989]
2 S.C.R. 170, at p.193. As explained, the trial judges decision that Det. Magistrale
lacked the requisite subjective grounds is a credibility finding. This
credibility finding is entitled to deference. Given this finding that Det. Magistrale
lacked subjective reasonable and probable grounds for the arrest, we see no
basis for disturbing the trial judges conclusion with respect to the third
element of the test for malicious prosecution.
[38]
This
ground of appeal is dismissed.
(2)
The trial judge made
no error in finding that Det. Magistrale acted on the basis of malice
[39]
The
appellants argue that the trial judge erred in concluding that Det. Magistrale
acted for improper purposes sufficient to meet the test for malice as the
fourth element of the test for malicious prosecution.
[40]
The
trial judge based her conclusion on the following facts: (1) Det. Magistrale
failed to intervene in the criminal trial to correct flawed evidence that was
put to the judge; (2) Det. Magistrale and one of the GM witnesses for the
prosecution were seen giving each other a high five outside the courtroom at
the criminal trial; and (3) Det. Magistrale deliberately lied in his characterizing
of the evidence of Mr. Gatti, a key witness at trial.
[41]
Turning
to the first finding, the appellants argue that Det. Magistrale had no duty to
intervene in the criminal trial on the issue of whether something one of
witnesses, Dr. Zimakas, could not recall was in the record before him. It was
in fact there, in a report by Det. Magistrale. Det. Magistrale knew that Dr.
Zimakas had that information in front of him as he testified but did not advise
Crown counsel, defence counsel or the court of this fact during the trial.
[42]
Det.
Magistrale had included the correct information in a report dated February 8,
2011, which was provided to defence counsel. According to the appellants, the
police are under no duty to interrupt a trial to correct evidence, and Det. Magistrales
failure to do so was not improper.
[43]
In
making her finding, the trial judge relied on expert evidence regarding the
duty of a police officer in these circumstances and drew an inference that Det. Magistrale
remained silent in order to aid the prosecutions case. Such an inference was
available on the record, and we see no error in the trial judges reliance on
this inference.
[44]
With
respect to the high five, the trial judge relied on evidence from defence
counsel, whose veracity she had no reason to doubt. She not only drew an
adverse inference from this concerning conduct, but from Det. Magistrales
subsequent denial of it. These inferences were available on the record.
[45]
Finally,
Det. Magistrales mistaken summary of Mr. Gattis evidence that Mr. Gatti had
seen Mr. Hall washing his face in the washroom after the incident was
described by the trial judge, at para. 145, as a deliberate attempt to tailor
the evidence against Mr. Hall.
[46]
We
see no error in this finding, nor in the trial judges conclusion in light of
these findings that Det. Magistrales prosecution of Mr. Hall was motivated by
an improper purpose sufficient to meet the threshold of malice with respect to
liability for malicious prosecution.
[47]
This
ground of appeal is dismissed.
(3)
The trial judge did
not err in the award of damages
[48]
The
parties spent little time on the issue of damages in their oral submissions. In
the appellants written submissions, they argue the trial judge erred in
awarding special damages. Specifically, the appellants contend that the trial
judges award of special damages in the amount of $106,603 to Mr. Hall to
compensate for the cost of his challenge to the denial of disability benefits was
beyond any connection to actions of the appellants.
[49]
The
appellants submit that the trial judge failed to distinguish between the costs
of the prosecution of Mr. Hall and the costs of the disability benefits
dispute. The disability benefits dispute, they submit, was too remote to
constitute a basis for special damages in this action.
[50]
The
trial judge found that expenses compensated by the special damages, both those related
to the prosecution itself and those related to the disability benefits dispute,
would not have been incurred but for the malicious prosecution. This finding is
entitled to deference and we would not disturb it.
[51]
The
appellants also take issue with the damages for lost income, as they argue Mr. Halls
termination was not connected to his arrest and prosecution.
[52]
The
trial judge found that there was no evidence for why Mr. Hall would be
terminated by his employer, Securitas, but for the charge against him from this
incident. We see no basis to interfere with this finding.
[53]
This
ground of appeal is dismissed.
The cross-appeal and the trial judges award of costs
[54]
The
respondent as appellant in the cross-appeal appeals against the award of costs
on the basis of the trial judges comparative approach to the determination of costs.
[55]
The
plaintiff had sought $611,393.36 in costs. The defendants had suggested that $182,322.56
plus disbursements and a 15 percent gross-up would be a reasonable amount. The
trial judge considered the bills of costs of each party and properly considered
the criteria under r. 57.01 of the
Rules of Civil Procedure
.
[56]
According
to the respondent as appellant in the cross-appeal, the trial judge should not
have compared in-house counsel rates of the Board with the rates of Mr. Halls
counsel.
[57]
We
would not give effect to this argument.
[58]
The
trial judge did not simply compare the costs sought by each party. She accepted
that the plaintiff would be expected to claim higher costs than the defendants.
Nonetheless, she found the hours claimed in Mr. Halls bill of costs to be
excessive, especially in light of the fact that the issues in the trial were
not complex.
[59]
The
respondent as appellant in the cross-appeal also claims that the trial judge
neglected to include the harmonized sales tax (HST) in her calculation of the
costs award. The trial judge stated that the $275,000 in costs was inclusive
of fees and disbursements. There is no basis to conclude that she did not
intend HST to be counted within this inclusive language, especially as the
other costs figures cited in her judgment as the amounts sought by each party
also included HST along with other fees and disbursements.
[60]
The
discretion afforded to trial judges in determining costs is broad. An appellate
court will only interfere with a costs award where the judge making the award
committed an error in principle or the costs award is clearly wrong:
Hamilton
v. Open Window Bakery Ltd.
, 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.
[61]
We
see no error in the approach taken or in the result reached by the trial judge
in this award of costs.
DISPOSITION
[62]
For
the reasons given above, both the appeal and the cross-appeal are dismissed.
[63]
The
respondent is entitled to costs on the appeal.
[64]
The
respondent submitted that he would be seeking $54,542.61, all-inclusive, in
costs for the appeal.
[65]
We
must also consider that the appellants, as respondents by way of cross-appeal,
were successful on the cross-appeal. They submitted that they would be seeking
approximately $4,350.50 on the cross-appeal.
[66]
Taking
the success of the parties and their submissions with respect to costs in mind,
we fix those costs in favour of Mr. Hall at $50,000, all-inclusive.
David Brown J.A.
David M. Paciocco J.A.
L. Sossin J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
R. v.
Lin, 2022 ONCA 289
DATE: 20220411
DOCKET: C67451 & C67452
Gillese, Lauwers and Brown JJ.A.
DOCKET:
C67451
BETWEEN
Her Majesty the Queen
Respondent
and
Ting Lin
Appellant
DOCKET: C67452
AND BETWEEN
Her Majesty the Queen
Respondent
and
Shuhao Shi
Appellant
Ricardo Golec, for the appellants
Howard Piafsky, for the respondent
Heard: March 30, 2022 by video conference
On appeal from the convictions entered on January 28,
2019 and the sentence imposed on September 26, 2019 by Justice John R. McCarthy
of the Superior Court of Justice, sitting with a jury.
REASONS FOR DECISION
I. OVERVIEW
[1]
Following a trial by judge and jury, the appellants, Ting Lin and Shuhao
Shi, were convicted of: (i) Count 1 - unlawful possession of a Class A
precursor, gamma butyrolactone (GBL), for the purpose of producing a
controlled substance, gamma hydroxybutyrate (GHB), contrary to s. 6.1 of the
Precursor
Control Regulations
, SOR/2002-359, and s. 46 of the
Controlled Drugs
and Substances Act
, S.C. 1996, c. 19, as amended (
CDSA
); and
(ii) Counts 2, 3, and 4 - unlawfully possessing ketamine for the purpose of
trafficking contrary to s. 5(2) of the
CDSA
.
[2]
They were each sentenced to terms of imprisonment of six years,
calculated as follows: Count 2 6 years; Count 1 2.5 years concurrent; Count
3 6 years concurrent; and Count 4 6 months concurrent.
[3]
The appellants appeal their convictions and seek leave to appeal their
sentences.
II. BACKGROUND
[4]
The material facts were not in dispute. Indeed, in their closing
submissions defence counsel told the jury to believe the testimony of all the
police officers: Everything youve heard from them is true and is accurate.
[5]
Lin rented a locker in a public storage facility in Toronto. Lin and Shi
attended the locker on a number of occasions, several of which were captured by
the premises video surveillance cameras. The police entered and searched the
locker five times pursuant to a general warrant. The searches disclosed that
the appellants were in actual or constructive possession of GBL, a controlled
precursor, and ketamine, a controlled substance. The appellants were also
subject to police surveillance on three separate occasions.
[6]
According to the expert evidence led at trial, ketamine is sold for both
medical and illegal use. GBL is a precursor, or chemical compound, that is used
to make GHB. While GHB has several legitimate uses, including the treatment of
sleep disorders, it is also popular as an intoxicant and party drug, sometimes
used to facilitate sexual assaults.
III. THE STATUTORY REGIME.
[7]
In respect of a Class A precursor such as GBL, s. 6.1 of the
Precursor
Control Regulation
provides that no person may possess a Class A
precursor for the purpose of producing a controlled substance unless the person
is the holder of a licence issued under specified regulations or a ministerial
exemption issued under s. 56 of the
CDSA
. Section 46 of the
CDSA
makes it an offence to contravene a provision of a regulation made under the
CDSA
.
[8]
As to ketamine, s. 5(2) of the
CDSA
makes it an offence to
possess for the purpose of trafficking a substance such as ketamine that is included
in Schedule 1. However, there are permitted uses of ketamine, as it is included
in the schedule to the
Narcotic Control Regulations
, C.R.C., c. 1041,
made under the
CDSA
. A licenced dealer may possess ketamine, as well
as produce, assemble, sell, provide, transport, send, deliver, import or
export ketamine:
Narcotic Control Regulations
, ss. 3(1)(a)(i), 3(2)
and 8(1).
IV. ISSUES ON APPEAL.
[9]
At the hearing of the appeal, the appellants submitted that the trial
judge made two reversible errors. First, he erred by failing to put to the jury
the defence that the appellants honestly but mistakenly believed an
authorization existed that permitted them to engage in their activities with the
two substances, ketamine and GBL. Second, and relatedly, the trial judge failed
to include a proper instruction in his jury charge on the meaning of mistake of
fact and to connect the principles of mistake of fact to the evidence.
V. THE
PRE-CHARGE CONFERENCE, CLOSING SUBMISSIONS, AND CHARGE
[10]
Assessing the appellants primary submission that the trial judge failed
to put the defence of mistake of fact to the jury first requires a brief review
of how the issue was dealt with at trial.
[11]
In the first portion of the pre-charge conference, before counsel went
to the jury with their closings, defence counsel informed the trial judge that there
are no positive defences but certainly theres a defence position. A
discussion about how the trial judge would charge the jury on the specific elements
of the offences and the defence position on those offences did not take place
until after closing submissions.
[12]
In his closing to the jury, counsel for Lin acknowledged that the jury
probably recognized that the accused were dealing suspiciously. He told the
jury that there was a single issue for their consideration: did the accused
know that the chemicals they were moving around were unlawful? Counsel
submitted that the Crown had not proven beyond a reasonable doubt that the
accused knew they were dealing with unlawful drugs; and it was not for the
accused to address whether the entities from whom they acquired the two
substances were legitimately licensed to deal with them, instead that was
something about which the Crown had to give evidence. Defence counsel also contended
that the open way in which the accused carried on their activities were
inconsistent with them having guilty minds.
[13]
In his closing to the jury, counsel for Shi took a similar approach. The
issue, he submitted, was that the Crown had to prove that the accused dealt
with the two substances unlawfully: The issue for you here is not only whether
these substances are legal or illegal, it is whether the accused had knowledge
of that status. Thats vital. Since under the regulatory regime governing the
two substances there are circumstances in which a person can lawfully possess
them, the Crown had to prove that the accused unlawfully possessed the two
substances. Counsel contended that the accused certainly did not behave as if
they knew they were dealing with illicit substances.
[14]
Counsel for Shi framed for the jury the key issue concerning the two accused
in the following terms:
Given that ketamine is available in both legal and illicit
forms you have to ask yourselves, given the circumstances of this case, which
is all that matters to us, which was the ketamine in this case in the accuseds
mind? Did the accused know they had illicit rather than illegal, or sorry, did
they have illicit or legal ketamine in their possession? Now, as to the GBL, there
are a number of issues here. Was the GBL legitimately obtained? That is a
central issue for you to consider. Did either Mr. Shi or Mr. Lin have an import
licence? Were told with an import licence one can legally import that
substance. We heard no evidence on that point whatsoever.
This is a very significant issue in this trial with respect to
Count 1 on the indictment before you. That requires the, Count 1 on the
indictment requires at its starting point the unlawful possession of GBL.
Its the Crowns duty, the Crowns responsibility to prove that
to you. In my submission, they have not done so.
You have not heard any
evidence on that point. GBL can be lawfully possessed with a licence. [Emphasis
added]
[15]
Following counsels closings, the pre-charge conference continued.
Counsel for Lin argued that the charge needed to address the unlawful aspect
of the possession of the substances by including a sentence or two calling the
jurys attention to what unlawful means in the context of each of these
substances. When the trial judge commented that he was at a loss for the
wording counsel wanted included in the charge, defence counsel agreed to
provide him with some wording, which they did. In the result, the trial judge
included in the charge the language proposed by defence counsel.
[16]
The parties provided the trial judge with summaries of their positions
for inclusion in the charge. The charges section on the joint defence position
included the following language:
Neither Shuhao Shi nor Ting Lin knew that the unlawful drugs
ultimately seized were unlawful. Shuhao Shi and Ting Lin were living normal
lives in plain sight. Their actions are consistent with people who had nothing
to hide. Their actions are inconsistent with guilty minds.
The Crown did not lead any evidence to refute the inference
that Shuhao Shi, Ting Lin, or other mentioned persons or companies did not
possess a legal licence to import GBL. This is a vital consideration when trying
to arrive to near certainty that Shuhao Shi and Ting Lin were involved, and
knew that they were involved, with unlawful drugs.
To what extent would Shuhao Shi and Ting Lin have known that
the ketamine found was illicit ketamine as opposed to legal, lawful ketamine?
To what extent would Shuhao Shi and Ting Lin have known that
the packages passing customs through at least two countries would have illicit
rather than legal, lawful substances?
While some of the evidence is suspicious, most of the evidence
is also consistent with innocent minds, and a lack of knowledge about illicit
or unlawful drugs. The Crown has failed to prove that the only reasonable
inference is one of guilt.
[17]
Counsel did not make any objections to the charge as delivered.
[18]
Accordingly, the record discloses that: (i) at trial appellants counsel
expressly stated they were not advancing any positive defence; (ii) they were
able to put to the jury their positions that since both substances could be possessed
lawfully or unlawfully, the Crown was required to prove beyond a reasonable
doubt that the appellants knew the chemicals they possessed and handled were
unlawful; (iii) when they submitted to the trial judge that the charge should
so inform the jury, the trial judge incorporated into his charge the language
on the point drafted by defence counsel; and (iv) defence counsel were able to
put to the jury the case that the way the appellants carried on their
activities with the substances did not disclose guilty minds. Simply put, the
jury was instructed in the fashion sought by the appellants. The appellants
received the charge they desired.
VI. DID THE
TRIAL JUDGE ERR BY FAILING TO CHARGE THE JURY ON MISTAKE OF FACT?
[19]
As advanced on appeal, the submissions of the appellants contain both legal
and evidentiary components. First, the appellants argue that, as a matter of
law,
an element of the offences charged required the
Crown to prove beyond a reasonable doubt that the appellants did not operate
under a mistaken belief that the drugs found in the storage locker were
acquired through a proper authorization
. Second, they further argue that
there was evidence in the record that the appellants honestly believed they
lawfully possessed the substances which, if believed, could lead a properly
instructed jury acting reasonably to acquit them.
The submission based on the law
[20]
We do not accept the appellants submission that an element of the
offences charged required the Crown to prove beyond a reasonable doubt that the
appellants did not operate under a mistaken belief that the drugs found in the
storage locker were acquired through a proper authorization. We agree with the
Crown that the appellants position would require the Crown to prove, in
effect, that an accused knew the law. That would run counter to the
established jurisprudence, s. 19 of the
Criminal Code
, R.S.C., 1985,
c. C-46, which provides that [i]gnorance of the law by a person who commits an
offence is not an excuse for committing that offence, and s. 48(2) of the
CDSA
,
which provides:
48(2). In any prosecution under this Act, the
prosecutor is not required, except by way of rebuttal, to prove that a certificate,
licence, permit or other qualification does not operate in favour of the
accused, whether or not the qualification is set out in the information or
indictment.
[21]
In
R. v. MacDonald
, 2014 SCC 3, [2014] 1 S.C.R. 37, the Supreme
Court of Canada considered the elements of the offence under s. 95(1) of the
Criminal
Code
of possession of specified firearms without being the holder of an
authorization (or licence) and registration certificate for the firearm. The
Supreme Court held that the
mens rea
for the Crown to prove under s.
95(1) does not include knowledge that possession of the firearm in the place in
question is unauthorized. The Court explained, at paras. 55 and 56:
[K]nowledge that one possesses a loaded restricted firearm,
together with an intention to possess the loaded firearm in that place, is
enough. An individual who knowingly possesses a loaded restricted firearm
in a particular place with an intention to do so will be liable to punishment
for the offence provided for in s. 95(1) unless he or she holds an
authorization or a licence under which the firearm may be possessed in that
place. Thus, a proper authorization or licence serves to negate the
actus
reus
of the offence, thereby allowing someone who legitimately
possesses a restricted firearm in a given place to avoid liability.
With respect, the Court of Appeal erred
in law by improperly reading a defence of ignorance of the law into s.
95(1). In the majoritys view, the Crown had to prove that Mr. MacDonald
knew or was wilfully blind to the fact that his possession was
unauthorized. Such a burden would compel the Crown to prove that an
accused knew the conditions of his or her authorization or licence. This
amounts to requiring the Crown to prove that the accused knew the law
.
[Emphasis added]
[22]
More recently, in
R. v. Fan
, 2021 ONCA 674, 75 C.R. (7th) 1, a
case involving offences under the
CDSA
, this court observed, at para.
47, that s. 19 of the
Criminal Code
applies to the existence and
language of offence-creating provisions, as well as authorizations required for
regulated activities, such as the possession of firearms and drugs. Writing
for the court, Trotter J.A. stated, at para. 50:
To require the Crown to prove that the appellants understood
the legal framework in which they operated confuses
actus reus
and
mens
rea
requirements. In this context, a proper authorization or licence
negates the
actus reus
of activity that would otherwise be
illegal. Conceived as a
mens rea
component, it would require
the Crown to prove that an accused person knew the conditions of their licence
or authorization. As Lamer C.J. held in
R. v. Forster
, [1992]
1 S.C.R. 339, at p. 346: [K]nowledge that ones actions are contrary to the
law is not a component of the
mens rea
for an offence, and
consequently does not operate as a defence. See also
R. v. Docherty
,
[1989] 2 S.C.R. 941, at pp. 960-61.
[23]
In the present case, the appellants submission that for each offence the
Crown was required to prove that the appellants knew they were dealing with
substances, the possession of which was unauthorized, is tantamount to
requiring the Crown to prove the appellants knew the law. That position was
clearly rejected by the Supreme Court in
MacDonald
and this court in
Fan
,
runs counter to s. 19 of the
Criminal Code
, and is contrary to s.
48(2) of the
CDSA
, which is a specific application of s. 19 in the
forensic setting of a prosecution.
[1]
Accordingly, we see no basis for the appellants legal submission.
The submission based on the evidence
[24]
The appellants further argue that there was evidence in the record that
they honestly but mistakenly believed they lawfully possessed both substances
which, if believed, could lead a properly instructed jury acting reasonably to
acquit them and, therefore, the trial judge erred by failing to place before
the jury a formal defence of mistake of fact.
[25]
The threshold question for putting a defence of mistake of fact to a
jury is whether there is evidence on the record upon which a properly
instructed jury acting reasonably could acquit if it believed the evidence to
be true, in the sense of whether the evidence put forth is reasonably capable
of supporting the inferences required to acquit the accused:
R. v. Cinous
,
2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 49 and 82. The principles
constituting the air of reality test are well-known: (i) a single air of
reality test applies to all defences; (ii) a trial judge must put to the jury
all defences that arise on the facts, whether or not they have been
specifically raised by an accused; (iii) a trial judge has a positive duty to
keep from the jury defences lacking an evidential foundation; (iv) the test
imposes a burden on the accused that is merely evidential, rather than
persuasive; it is the burden of putting an issue in play; (v) that said, the
evidential foundation can emanate from any source on the record; there is no
requirement that the evidence be adduced by the accused; (vi) in applying the
test, a trial judge considers the totality of the evidence and assumes the
evidence relied upon by the accused to be true; (vii) the trial judge does not
make determinations about the credibility of witnesses, weigh the evidence,
make findings of fact, or draw determinate factual inferences but engages in a
limited weighing to ascertain the field of factual inferences that could
reasonably be drawn from the evidence; (viii) the air of reality test is not
intended to assess whether the defence is likely, unlikely, somewhat likely, or
very likely to succeed at the end of the day; the question for the trial
judge is whether the evidence discloses a real issue to be decided by the jury,
and not how the jury should ultimately decide the issue; and (ix) where
evidence does not permit a reasonable inference raising a reasonable doubt on
the basis of the defence, the defence must be kept from the jury:
Cinous
,
at paras. 50-57, 86, 90 and 91.
[26]
Whether or not there is an air of reality to a defence is a question of
law, subject to appellate review. It is an error of law to put to the jury a
defence lacking an air of reality, just as it is an error of law to keep from
the jury a defence that has an air of reality:
Cinous
, at para. 55.
[27]
Appellants counsel acknowledged that there was no evidence in the
record about the existence of an authorization or licence for the appellants
activities nor any direct evidence that the appellants believed their activities
were lawful indeed, the appellants did not testify at trial. However, the
appellants submit that evidence about how they handled both substances provided
a basis upon which to put a formal defence of honest but mistaken belief to the
jury: the appellants did not attempt to hide their activities; Lin rented the
storage locker in his own name; they did not attempt to shield themselves from
the surveillance cameras at the storage facility; they visited the storage
facility during the day and used the access code given to Lin; they did not
drive in a manner that attempted any counter-surveillance moves; they moved
items in and out of their cars in plain sight of others; and on one occasion
they complained to the police about the efforts by someone it turned out to
be a police officer to follow them. According to the appellants, the evidence
about what they did and what they did not do provided an air of reality to a
defence of mistaken belief that their activities were authorized under the
regulatory regime governing the two substances.
[28]
We are not persuaded by this submission. Quite apart from the
speculative nature of many of the inferences advanced by the appellants, their
submission faces a very high hurdle. The conduct which they now argue should
have led the trial judge to put before the jury a formal defence of mistake of
fact notwithstanding trial counsels disavowal of asserting any positive
defence is exactly the same conduct defence trial counsel reviewed at length
with the jury in their closing submissions in their bid to persuade the jury to
acquit the appellants on the basis that their conduct did not disclose guilty
minds. However, the jury obviously was not persuaded by those submissions and
convicted the appellants.
[29]
Having put before the jury, at some length, their positions that what
they did and what they did not do failed to disclose guilty minds, and having secured
the charge they sought, it is not now open to the appellants to challenge, in
effect, the jurys rejection of their submissions about their state of mind made
at the close of the trial in the absence of demonstrating that the jurys
verdict was unreasonable. Yet, the appellants are not advancing unreasonable
verdict as a ground of appeal.
[30]
Accordingly, in the circumstances of this case we see no merit in the
appellants contention that the trial judge erred by failing to put formally to
the jury a defence of honest but mistaken belief. We accept the Crowns
submission, at para. 36 of its factum, that [d]espite the absence of any
evidence suggesting an honest but mistaken belief, the trial judge fully and
fairly put the defence position to the jury.
[31]
At the hearing, appellants counsel acknowledged that should we conclude
the trial judge did not err in failing to instruct formally on a defence of
mistaken belief, the appellants second ground of appeal regarding the content
of the charge on such a defence would fall away. We therefore need not deal
with that ground of appeal.
[32]
For these reasons, the appeals from conviction are dismissed.
VII. SENTENCE APPEALS
[33]
The appellants seek leave to appeal from their sentences.
[34]
Below, the defence sought global sentences of four to five years imprisonment.
The Crown asked for eight and one-half year sentences. The sentencing judge
imposed sentences of six years imprisonment.
[35]
The appellants contend their sentences were harsh and excessive, the
result of the trial judge placing too much emphasis on the use of GBH to
facilitate sexual assaults and insufficient weight on the relatively young
age of the appellants. (At the time of sentencing, Lin was 37 years old and
Shi was 36.) The appellants also contend that the highest sentence imposed for
one of the ketamine offences 6 years concurrent on Count 3 was excessive
and harsh since ketamine is not in the same category as more dangerous hard
drugs such as cocaine and heroin.
[36]
We see no basis for appellate interference with the sentences. The
appellants have not persuaded us that the sentencing judge erred in principle,
failed to consider a relevant factor, or imposed a sentence that was
demonstrably unfit:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at
paras. 44 and 52. On the latter point, this court stated in
R. v. Lin
,
2020 ONCA 768, 97 C.C.C. (3d) 471, at para. 27, that a sentence of between five
and eight years would normally be imposed for possession of ketamine for the
purpose of trafficking. In those circumstances, the trial judges balancing of
the various factors relevant to sentencing is entitled to deference.
VIII. DISPOSITION
[37]
The appeals from conviction are dismissed. Leave to appeal the sentences
is granted and the appeals from sentence are dismissed.
E.E. Gillese J.A.
P. Lauwers J.A.
David Brown J.A.
[1]
CDSA
s. 48(2) contains language similar to that found in s. 7(2) of the
former
Narcotic Control Act
, which provided:
In any prosecution under this Act the burden of proving
that an exception, exemption, excuse or qualification prescribed by law
operates in favour of the accused is on the accused, and the prosecutor is not
required, except by way of rebuttal, to prove that the exception, exemption,
excuse or qualification does not operate in favour of the accused, whether or
not it is set out in the information or indictment. In
Perka v. The Queen.
, [1984] 2 S.C.R.
232, the majority of the Supreme Court commented, at p. 258, on the effect of
s. 7(2):
One who wishes to plead the
possession of a licence or other lawful authority in response to a charge of
importation bears, under s. 7(2), the burden of persuading the trier of
fact that such licence exists.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Lavallee v. Isak, 2022 ONCA 290
DATE: 20220407
DOCKET: M53215 (C69999)
Roberts J.A. (Motion Judge)
BETWEEN
Shania Lavallee and Justine Lavallee
Plaintiffs
(Respondents/Moving Parties)
and
Solit Isak
Defendant
(Appellant/Responding Party)
Charles R. Daoust, for the moving parties
Cedric Nahum, for the responding party
Heard: March 10, 2022 by video conference
REASONS FOR DECISION
Overview
[1]
The moving parties, Shania and Justine
Lavallee (the Lavallees) seek an order that the responding party, Solit Isak,
post security for their costs: $30,000 as security for the $20,000 cost award granted
to them in their successful defamation action; and $10,000 for their estimated appeal
costs. The Lavallees argument, in a nutshell, is that they should not be
subjected to the costs of an unmeritorious appeal that they will not be able to
compel Ms. Isak to pay.
[2]
Ms. Isak has filed no evidence in response to
this motion. Her counsel submits that she is impecunious and does not dispute
that she has insufficient assets to pay the Lavallees costs. There is no
objection to the amount requested as security for costs or that it covers both
the trial and estimated appeal costs. However, she submits her appeal is
meritorious and brought in good faith, and no security of costs should
therefore be ordered.
[3]
In the alternative, if security for costs is
not granted, the parties agree that the Lavallees may have an extension of time
to file a cross-appeal and to file their factum.
[4]
The following reasons explain why I conclude
that it is fair and just in all the circumstances that Ms. Isak post security
for the Lavallees costs of the trial and the appeal.
Background
[5]
The Lavallees action arises out of Ms. Isaks
online comments and actions in response to a screenshot from a video created by
the Lavallees, who are sisters. Shania Lavallee posted a video of her sister
and Shanias partner playfighting for a group of her followers on the media
platform, Snapchat. An isolated screenshot of one scene from the video was
surreptitiously taken by one of Shanias followers and then circulated. The
screenshot ultimately reached Ms. Isak.
[6]
The screenshot shows Justine Lavallee lying
facedown on the ground. Shanias partner has Justines arms pinned behind her
back and his knee placed on the middle of Justines back. According to the
unchallenged evidence filed by the Lavallees and other witnesses who had seen
the video on Snapchat while it was still available online, the posted video was
typical of those that Shania regularly took and posted of her sister and Shanias
partner playfighting. They stated that the screenshot was only a small part of
the entire video that showed Justine and Shanias partner playfighting. No
comments or remarks related to George Floyd, police brutality, and/or racism
were spoken in the video.
[7]
Ms. Isaks reaction was immediate. She testified
that she unsuccessfully tried to obtain a copy of the video and spoke to a few
people who had viewed it; one of them erroneously reported that the words
police brutality were said in the video. Although Ms. Isak did not see (and
has never seen) the entire video, she denounced the video, the screenshot and
the Lavallees as racist in over 100 social media posts. She stated that they
were mocking the tragic death of George Floyd that had occurred only days
before the video was posted. She also called them disgusting, said they
deserve to rot in hell, and labelled them K K & K. She did not know and
had never met the Lavallees before receiving the screenshot, but managed to
discover their addresses, phone numbers, and employers. She launched an online
campaign encouraging others to denounce the Lavallees and have them dismissed
from their employment.
[8]
As the motion judge found at para. 6 of his
reasons, Ms. Isaks online campaign was successful: the Lavallees lost their
employment; Shania was investigated by the Ontario College of Teachers and the
Ottawa Catholic School Board rescinded their offer of employment; their home
was vandalized; their neighbours car was seriously damaged; and their friends
and family, who had nothing to do with Shanias posting, were subjected to death
threats and harassing phone calls and social media messages.
[9]
In response to the unexpected viral and
intense backlash that the screenshot had caused, Shania posted an apology
including that she did not mean any disrespect, but she could see how the video
could be taken out of context.
[10]
The Lavallees through their counsel attempted
to resolve matters with Ms. Isak. In response, Ms. Isak intensified her
campaign against them. The Lavallees commenced an action against Ms. Isak,
seeking damages and a permanent injunction with respect to her postings. Ms.
Isak defended the action, initially including and then abandoning a
counterclaim. The Lavallees brought a motion for summary judgment and filed
affidavits. Ms. Isak was examined for discovery but did not examine the
Lavallees. Subsequently, Ms. Isak filed a very short affidavit in response to
the motion for summary judgment that essentially adopted the contents of her
statement of defence and examination for discovery.
[11]
The motion judge concluded that this was an
appropriate case for summary judgment because there were no material facts in
dispute and noted Ms. Isak did not challenge the appropriateness of summary judgment.
He accepted the Lavallees unchallenged evidence concerning the nature and
contents of the video. It was not contested that Ms. Isak was the author of her
impugned statements, the statements were about the Lavallees, and her
statements were published to third parties on social media accounts. He further
found that Ms. Isaks statements denouncing the Lavallees as racist tended to lower
the Lavallees reputations in the eyes of a reasonable person. Following
Grant
v. Torstar
, 2009 SCC 61, [2009] 3 S.C.R. 640, at paras. 28-29, he
determined that the three elements of defamation were established. He therefore
concluded that Ms. Isaks postings were defamatory of the Lavallees.
[12]
The motion judge then turned to Ms. Isaks
defences. He rejected Ms. Isaks defences of justification and fair comment. He
noted that Ms. Isak had never seen the video and had only seen the screenshot
before sharing it on social media and denouncing the screenshot, video, and the
Lavallees as racist. He concluded that the defences were unavailable primarily
because Ms. Isak did not establish an adequate factual foundation for her
comments that the Lavallees actions and their video were racist, noting that
she did not see the video. He rejected that Shanias posted apology represented
an admission of guilt.
[13]
The motion judge allowed the motion for
summary judgment and granted judgment to the Lavallees in the amount of $50,000
to each party, plus costs. He noted that there was a real possibility that the
Lavallees would not receive any compensation given that Ms. Isak was unemployed
as of her examination for discovery in December 2020 and likely did not have
significant financial resources to pay the judgment and costs awarded.
[14]
Ms. Isak appealed. The main thrust of her
appeal is that the motion judge erred in finding that there was no provable,
factual basis supporting her opinion that the Lavallees were racist because, in
her view, the screenshot and their video mocked the tragic death of George
Floyd.
Analysis
Security for costs
[15]
This motion is brought pursuant to rule 61.06(1)(a)
and (c) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, which
provide as follows:
In an appeal where it appears that,
(a) 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;
or
(c) for other good reason, security for costs should be ordered,
a judge of the appellate court, on motion by the respondent,
may make such order for security for costs of the proceeding and of the appeal
as is just.
[16]
The ordering of security for costs is
discretionary and not routine. It involves the consideration of the criteria
under rule 61.06(1) and requires the overarching assessment of whether it would
be just to order security, having regard to the particular circumstances of the
case and the interests of justice:
Yaiguaje v. Chevron Corporation
,
2017 ONCA 827, 418 D.L.R. (4th) 679, at paras. 18-19, 22. As court further
noted in
Yaiguaje
, at para. 25, as each case must be considered on its
own facts, [i]t is neither helpful nor just to compose a static list of
factors to be used in all cases in determining the justness for a security for
costs order.
(i)
Rule 61.06(1)(a)
[17]
I agree that the provisions of rule 61.06(1)(a)
are met. As earlier noted, it is conceded that Ms. Isak has insufficient assets
to pay the Lavallees costs. Moreover, there is good reason to believe that Ms.
Isaks appeal is frivolous and vexatious.
[18]
I am not required to determine that Ms. Isaks
appeal
is
frivolous and vexatious; I must only be satisfied that there
is good reason to believe that it is:
Schmidt v. Toronto Dominion Bank
(1995), 24 O.R. (3d) 1 (C.A.), at para. 16. Relevant factors to be considered
in my analysis include those set out in the following oft-cited passage from
Schmidt
,
at para. 18:
The apparent merits of the appeal, the presence or absence of
an oblique motive for the launching of the appeal, and the appellants conduct
in the prosecution of the appeal will be relevant to a determination of whether
there appears to be good reason to believe that the appeal is frivolous and
vexatious. No doubt, in specific cases, other factors will also be relevant.
[19]
The interpretation of frivolous and
vexatious is not defined under the
Rules of Civil Procedure or the Courts
of Justice Act
, RSO 1990, c C.43 nor has any rigid categorization arisen
in the case law. Judicial treatment of these terms is however consistent. A frivolous
appeal has been interpreted as meaning one readily recognizable as devoid of
merit, as one having little prospect of success:
Pickard v. London Police
Services Board
, 2010 ONCA 643, 268 O.A.C. 153, at para. 19. A vexatious
appeal includes one taken to annoy or embarrass the opposite party or
conducted in a less than diligent or vexatious manner:
York University
v. Markicevic
, 2017 ONCA 651, at para. 33;
Henderson v. Wright
,
2016 ONCA 89, 345 O.A.C. 231, at para. 20;
Pickard
, at para. 19;
Schmidt
,
at para. 20. This may include an oblique motive for launching the appeal,
such as to harm a party or delay the proceedings or a given result:
Heidari
v. Naghshbandi
, 2020 ONCA 757, 153 O.R. (3d) 756, at para. 10;
Schmidt
,
at para. 20;
York University
, at paras. 33-34. It also may include a
failure to comply with the rules, court orders and costs orders, including
filing out of time and only when forced to:
Pickard
, at para. 25;
Schmidt
,
at para. 20;
York University
, at para. 36;
Henderson
, at
para. 20.
[20]
Ms. Isak says that her appeal is meritorious.
She accepts that the motion judge applied the correct tests for the defences of
justification and fair comment and acknowledges that those tests required her
to demonstrate a factual foundation for her impugned statements. However, she maintains
that the motion judge erred by conflating opinion with fact, and that the
screenshot provided the factual basis for her opinion that the Lavallees were
racist because it was open to her to describe the screenshot in the way that she
did. Ms. Isak contends that the screenshot speaks for itself.
[21]
The difficulty with Ms. Isaks position is
that her appeal essentially amounts to a challenge of the motion judges
factual findings that were open to him to make on the record before him, contain
no apparent error, and would therefore be owed deference on appellate review. Apposite
are this courts comments in
Henderson
, at para. 16: This appeal does
not raise any arguable error in law, and challenges findings of fact and credibility
for which the trial judge set out detailed, facially sound reasons. This court
has held that such appeals appear to have no merit (citations omitted).
[22]
In my view, Ms. Isak has not put forward an
arguable basis to interfere with the trial judges findings. As the motion
judge found, Ms. Isak based her views of the entire video and the Lavallees
actions on an out of context screenshot and on others erroneous hearsay
observations. Moreover, her impugned statements were not restricted to the screenshot:
they included the video that she had never viewed. She anchored her statements that
the Lavallees were racists on a misapprehension of what the video contained,
including the erroneous allegation that it contained the words police
brutality. The motion judge found that Ms. Isak did not and could not provide
a factual foundation for her opinion that the Lavallees and their video were
racist, because she had not seen the video, could not say what it contained,
and the screenshot was taken out of context.
[23]
Importantly, as the motion judge found, Ms.
Isak did not provide evidence of what the video contained to counter the
Lavallees and their affiants evidence that the motion judge accepted. Her speculative
assumption of what the video depicted, based on erroneous hearsay information and
an isolated screenshot, was at odds with the evidence that the motion judge
accepted to be the correct, factual description of what the video showed,
including the screenshot. This was not a difference of opinions, as Ms. Isak
argues, but evidence of the factual content of the video from witnesses who saw
the video that the motion judge was entitled to accept. In my view, there is no
apparent basis to interfere with the motion judges factual findings.
[24]
Ms. Isak contends that her appeal is not
vexatious because she has brought and pursued her appeal in good faith, and not
for any oblique purpose or to annoy or harass the Lavallees.
[25]
In considering this point, it is important not
to conflate an appellants subjectively and firmly held belief in the rightness
of an appeal with good faith. To be sure, deliberately pursuing an appeal in
bad faith, for an oblique purpose, or to annoy, harass or harm are all indicia
of a vexatious proceeding. However, so, too, is the failure to follow rules of
procedure and court orders and the failure to pursue an appeal responsibly and with
diligence:
Henderson
, at para. 20;
York
, at para. 36;
Schmidt
,
at para. 20. In those circumstances, it can hardly be said that an appeal is
being pursued in good faith. Rather, there is good reason to believe it is
vexatious.
[26]
In the present case, there is good reason to
believe that the appeal is vexatious. Ms. Isak did not pursue her appeal or
follow the rules with diligence which resulted in unexplained and unnecessary delay
and costs.
[27]
The motion judges reasons for decision were released
on October 7, 2021. Ms. Isak did not serve her notice of appeal until November
10, 2021 and then required the consent of the Lavallees counsel to the late
filing of the notice on November 15, 2021. She failed to perfect her appeal by
the deadline under the Rules. As a result, the Registrar issued a Notice of
Intention to dismiss the appeal for delay dated December 20, 2021, which
required perfection of the appeal on or before January 11, 2022. Ms. Isak again
required the consent of the Lavallees counsel to the late filing of her appeal
book, compendium, and factum on January 14, 2022.
[28]
With respect to the Lavallees motion for
security for costs, the notice was served on November 24, 2021. However, the
motion was not brought because of Ms. Isaks delay in perfecting her appeal.
The original return date for the motion on March 2, 2022 was further adjourned
by this court at Ms. Isaks last minute request because she did not realize
the motion was set for that day although motion materials had been served on
February 16, 2022. The court ordered Ms. Isak to pay costs of $500.
[29]
The appeals lack of merit combined with Ms.
Isaks less than diligent pursuit of this appeal that resulted in unnecessary
delay and costs provide good reason to believe the appeal is frivolous and
vexatious:
Henderson
, at para. 20.
(ii)
Rule 61.06(1)(c)
[30]
If I am wrong in my analysis and conclusion with
respect to rule 61.06(1)(a), I am of the view that the Lavallees are entitled
to security for costs under rule 61.06(1)(c) which, as noted above, provides
that security may be ordered for other good reason.
[31]
Jamal J.A. (as he then was), sitting as a
motion judge, explored what other good reason means in
Heidari
,
at para. 23:
Although the list of reasons justifying security under this
residual category is not closed, the other good reason must be: (1)
consistent with the purpose for ordering security namely, that the respondent
is entitled to a measure of protection for costs; and (2) fairly compelling,
because the residual category is only engaged where the respondent cannot meet
the requirements of rules 61.06(1)(a) or (b). [Citations omitted.]
[32]
As this court observed in
Henderson
,
at para. 28, the other good reason criterion balances the need to ensure an
appellant is not denied access to the courts, with the respondents right to be
protected from the risk the appellant will not satisfy the costs of the
appeal.
[33]
In my view, there are compelling reasons here to
order security for costs.
[34]
For the reasons earlier noted, I am of the
view that the appeal is without merit. As Ms. Isak concedes that she does not
have sufficient assets to satisfy the Lavallees costs, it will prove
practically impossible for them to compel payment of their costs. There is no
evidence, however, that Ms. Isak does not have any means to pay costs.
[35]
In balancing the equities here, I am mindful of
this courts caution in
Yaiguaje
, at para. 23, that [c]ourts must be
vigilant to ensure 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.
That is not the case here.
[36]
There is no indication that an order for
security for costs will effectively bring this appeal to an end. While I
appreciate that it may prove difficult for Ms. Isak to post the security for
costs requested by the Lavallees, she has not filed any evidence that she will
be unable to do so. While it is conceded that she has insufficient assets to
pay costs, Ms. Isak filed no evidence concerning her present employment or
financial status or ability to raise or borrow funds. I also note the evidence
from Shania Lavallees affidavit on the motion for summary judgment and Ms.
Isaks examination for discovery that Ms. Isak previously had recourse to the
GoFundMe website to raise donations for her legal costs at trial. Moreover, her
counsel did not argue that she would be unable to post security; rather, she
would need some time to do so.
[37]
The Lavallees motion for security for their
costs is not a litigation tactic. They have incurred considerable expense
to-date. As Shania Lavallee indicated in her uncontroverted affidavit filed on
this motion, the Lavallees actual trial costs were more than double the costs
awarded. Like Ms. Isak, the Lavallees are of modest means and their employment
prospects were undone by Ms. Isaks actions that the motion judge characterized
as inexcusable. As the motion judge found: [Ms. Isak] demonstrated
complete disregard for the well-being of another human being and blindly
embarked on a brutal and unempathetic campaign to destroy the lives of two
young women.
[38]
Considering the lack of the appeals merit and
Ms. Isaks delay in pursuing it, it would be unfair to expect the Lavallees to
shoulder the burden of the costs of an unmeritorious appeal.
[39]
Even if I were to accept that Ms. Isak is
impecunious, given my serious reservations about the merits of her appeal, it would
be unfair to allow Ms. Isak to proceed in such circumstances with impunity.
Doing so would cause the Lavallees to incur significant further costs
themselves, without Ms. Isak having to face the normal consequences of costs if
she is unsuccessful:
Schmidt
, at para. 17.
Conclusion
[40]
Stepping back and looking at all of the
circumstances, I am persuaded that the justice of the case requires that
security for the Lavallees estimated costs of the appeal in the amount of $15,000
should be ordered to be paid into court by Ms. Isak. The circumstances of
this case warrant security for both the trial and the appeal costs; however,
the reduced amount recognizes Ms. Isaks limited financial circumstances.
[41]
In this event, the parties agree that the
appeal shall be stayed until the security is paid, and that if the security is
not paid by June 8, 2022, the appeal date shall be vacated, and the moving
parties may move to dismiss the appeal under rule 61.06(2).
Disposition
[42]
For these reasons, order to go as follows:
1.
The appeal is stayed until security for costs is posted by Ms. Isak;
2.
Ms. Isak shall post security for costs in the amount of $15,000 by June
8, 2022;
3.
If Ms. Isak fails to post the ordered security by June 8, 2022, the
appeal date of June 27, 2022, shall be vacated and the Lavallees may move to
dismiss the appeal under rule 61.06(2).
[43]
The Lavallees are entitled to their costs of
this motion from Ms. Isak in the amount of $4,400, inclusive of disbursements
and applicable taxes, payable forthwith.
L.B. Roberts J.A
|
COURT OF APPEAL FOR ONTARIO
CITATION: Jergovic (Re), 2022 ONCA 291
DATE: 20220412
DOCKET: C69836
Roberts, Miller and Zarnett JJ.A.
IN THE MATTER OF: Nikolas
Jergovic
AN APPEAL UNDER PART
XX.1 OF THE
CODE
Michael Davies, for the appellant
Alysa Holmes, for the respondent, Attorney General of
Ontario
Hilary Chung, for the respondent, Person in Charge of Brockville
Mental Health Centre
Heard: March 31, 2021 by video conference
On appeal from the disposition of
the Ontario Review Board, dated June 4, 2021, with reasons dated June 24, 2021,
reported at [2021] O.R.B.D. No. 1378.
REASONS FOR DECISION
[1]
Nikolas Jergovic has
been under the supervision of the Ontario Review Board since December 21, 2010,
when he was found not criminally responsible on account of mental disorder
(NCR) for arson. He set fire to a newspaper distribution box and the police
reported seeing him fanning and blowing on the flames. When the police
attempted to arrest him, he actively resisted, attempted to punch one officer,
kicked at them, and tried to run away. When placed handcuffed in the back of
the police cruiser, he kicked at the cruisers rear right window, separating it
from the frame.
[2]
Since June 2018, Mr.
Jergovic has been alternatively living in an eight-hour supervised group home
and a twenty-four-hour supervised residence, while followed by his treatment
team at the Brockville Mental Health Centre. He has been under a conditional
discharge order since June 2019.
[3]
Mr. Jergovic appeals
the Boards most recent disposition, which continues the conditional discharge.
He seeks an absolute discharge. Alternatively, he seeks a new hearing before a
differently constituted panel. He submits that the Board erred in its analysis
of the issue of whether he represented a significant risk to the public and that
its decision was unreasonable because the evidence did not support the
conclusion that he posed a significant risk to public safety.
[4]
The standard of
appellate review is well established. An appellate court may only allow an
appeal from a Boards disposition under s. 672.78(1) of the
Criminal
Code of Canada
, R.S.C. 1985, c.
C-46 where the Boards disposition is unreasonable or cannot be supported by
the evidence, it is based on a wrong decision on a question of law, or there
was a miscarriage of justice.
[5]
While we agree that the
Board could have organized and written its reasons in a clearer fashion, when
they are read as a whole and in light of the record, we are not persuaded that
the Board erred in its analysis and conclusion that Mr. Jergovic continued
to pose a significant risk to public safety. Moreover, the Boards disposition
is amply supported by the record that it reviewed and referenced.
[6]
We are satisfied that the
Boards reasons are able to withstand a somewhat probing examination, and
that the decision is internally coherent, demonstrates a rational chain of
analysis and is justified in relation to the facts and the law and falls
within the range of possible outcomes:
Sim (Re)
, 2020 ONCA 563, at para. 68;
Nguyen
(Re)
, 2020 ONCA 247, 387 C.C.C.
(3d) 13, at para. 28;
Canada (Minister of Citizenship and Immigration)
v.
Vavilov
, 2019 SCC 65, 441 D.L.R. (4th) 1, at paras. 84-86.
[7]
There is no issue that
the Board referenced the correct test. In assessing whether Mr. Jergovic posed
a significant risk to public safety, the Board was required to analyze whether
the evidence disclosed a significant or real risk to the community should Mr.
Jergovic be released. Mr. Jergovic need not prove lack of dangerousness and,
absent a finding of significant risk, is entitled to an absolute discharge. As
a result, the Board had to assess the likelihood of that risk and the
seriousness of the harm that would result if the risk materialized. As the
Board also recognized, there must be a real, foreseeable risk that is more than
speculative and that the consequent physical or psychological harm must be
serious and criminal in nature: see
Winko v. British Columbia
(Forensic Psychiatric Services)
[1999] 2 S.C.R. 625, at paras. 51, 54 and 57;
Carrick
(Re),
2015 ONCA 866, 128 O.R.
(3d) 209, at paras. 16-20;
R. v. Ferguson
, 2010 ONCA 810, 264 C.C.C. (3d) 451, at para. 8.
[8]
Mr. Jergovic maintains
that while the Board referenced the correct test, it did not apply it because
it erred in its consideration of both the likelihood of the risk materializing
and the seriousness of the harm that might occur, conflating significant risk
with enhanced risk, which is not the test. According to Mr. Jergovic,
the Boards overemphasis on his likelihood of relapse into drug abuse resulted
in its failure to grapple with the relevant question of whether there was a
real, foreseeable risk that he would cause physical or psychological harm, even
if he relapsed.
[9]
We disagree.
[10]
The Boards summary of
its conclusion on significant risk is set out in paragraph 46 of its reasons:
The panel is satisfied should [Mr. Jergovic]
be granted an absolute discharge, it is a virtual certainty he will return to
crack cocaine use. The use of crack cocaine will negatively impact his mental
state and will enhance his threat to public safety. The panel is satisfied this
threat is not speculative, but real.
[11]
This paragraph must be
read in the context of the Boards thorough review of the constellation of
relevant risk factors and the broad range of relevant evidence that the Board
was required to examine, including the recommendations provided by Dr. Gray:
Winko
, at para. 61;
Mott (Re)
,
2019 ONCA 560, at para.
10;
McAnuff (Re)
, 2020 ONCA 676, at para. 17
. The Board examined Mr. Jergovics long psychiatric
history and diagnoses that included schizophrenia, cocaine and alcohol use
disorders, Unspecified Disruptive, Impulse Control, and Conduct Disorder, and
the fact that his mental illness has never been under complete control despite
adherence to medications. The Board also considered his significant struggles
with substance abuse and its destabilizing effect (including the index offence
and his elopement from the hospitals grounds during the reporting year), his
difficulties in transitioning to and numerous evictions from supervised housing,
his lengthy criminal record that includes previous convictions for arson, pointing
a firearm, and break and enter,
[1]
and which culminated in the index offence in 2010, his long history of anger
management problems from his teens, his assault of a co-patient, his verbal
aggressions (though the Board noted that they occurred some time ago), and
finally his threat to smother a nurse with a rag because voices were telling
him to do so.
[12]
We do not agree that
the Boards reliance on Dr. Grays evidence concerning the cascade of factors
that supported his opinion of significant risk of harm was misplaced or that
Dr. Grays opinion was speculative. Dr. Gray testified that if he were granted
an absolute discharge, Mr. Jergovic would inevitably relapse into drug abuse
and that
the
sequelae of disengagement with his treatment team and his medications would
probably be followed by decompensation, psychosis, and unlawful conduct. While
Dr. Gray could not say that it was even likely that the unlawful conduct would
be very seriously violent, he did opine that the next step of Mr. Jergovic committing
an offence of any sort was quite high and might include some kind of
criminal harassment
a minor assault, a mischief, something like that. Dr.
Gray also referenced Mr. Jergovics recent threat to smother a nurse which was
de-escalated because he was within a controlled setting. The risk of this kind
of unlawful conduct meets the threshold for risk of significant harm that is
neither a minuscule risk of a grave harm nor a high risk of trivial harm:
Winko
, at para. 57.
[13]
Dr. Grays opinion was
firmly grounded in the evidence. Notably, this evidence included the sequence
of events that led to Mr. Jergovics commission of the index offence. The
historical record demonstrates that Mr. Jergovics very serious substance abuse
issues exacerbate the symptoms of his illness that are not completely
controlled by medications and have caused him previously to engage in criminal
activity and aggressive behaviour. Recently, they have led to numerous
evictions from supervised housing and his elopement from the hospital grounds.
[14]
It is also important to
note that the Board reviewed and weighed the very positive and encouraging
evidence of Mr. Jergovics progress over the last few years: he has a very
supportive relationship with members of his family, he has good insight into
his illness and the need for medication, and he is engaged with his treatment
team. He is compliant with medications and directions and, absent relapse into
substance abuse, would continue to take his medications. He is also not
physically violent and initially his residence in supervised housing went
extremely well. All of these factors bode well for the future and underlie the
treatment teams plan for Mr. Jergovic to live in the community, initially with
support and supervision, until he has developed the skills to live more
independently.
[15]
However, the Board concluded that at the
time of the hearing, Mr. Jergovic posed a significant risk to public safety and
that a conditional discharge was the least onerous and most appropriate
disposition. This was a decision that was within the range of reasonable
outcomes. We see no basis for appellate intervention.
Disposition
[16]
As a result, we dismiss
the appeal.
L.B.
Roberts J.A.
B.W.
Miller J.A.
B. Zarnett J.A.
[1]
The Board also referenced a number of withdrawn charges on
Mr. Jergovics criminal record. We agree that without the factual underpinnings
of those charges, those charges were irrelevant. However, we are not persuaded,
and it was not forcefully argued, that the Boards reference to those charges was
material to or tainted its decision.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. St. Pierre, 2022 ONCA 293
DATE: 20220413
DOCKET: C69646
van Rensburg, Nordheimer and Sossin JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Terrance St. Pierre
Appellant
Erec Rolfe, for the appellant
Maria Gaspar, for the respondent
Heard: in writing
On appeal from the sentence imposed by Justice Joe P.P. Fiorucci
of the Ontario Court of Justice on June 30, 2021.
REASONS FOR DECISION
[1]
Mr. St. Pierre seeks leave to appeal the sentence imposed on him on his
conviction for possession of cocaine for the purpose of trafficking. On consent
of the respondent, we would grant leave to appeal and reduce the sentence.
[2]
The problem with the sentence imposed arose from an unfortunate
miscommunication within the offices of the Public Prosecution Service of
Canada. The prosecutions intention had been to propose a joint submission for
a conditional sentence. However, that position was not properly communicated to
the trial counsel. At the sentencing hearing, the prosecution actually sought a
sentence of nine months. The defence sought a conditional sentence. The
sentencing judge ultimately imposed a custodial sentence of six months.
[3]
As soon as the error was identified, the prosecution advised the appellants
counsel, consented to bail for the appellant, and then co-operated in the
expeditious hearing of the appeal.
[4]
We agree that in the particular personal circumstances of the appellant,
a conditional sentence was appropriate. The appellant trafficked to support his
drug addiction. He has taken steps to address his addiction. He is gainfully
employed and has two young children. Further, the appellant pleaded guilty and
was remorseful for his conduct.
[5]
For these reasons, we grant leave to appeal sentence, set aside the sentence
imposed, and substitute a conditional sentence of 150 days on the terms set out
in Appendix III of the joint factum.
K. van Rensburg J.A.
I.V.B. Nordheimer J.A.
L. Sossin J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Collins v. Canada Post Corporation, 2022 ONCA 295
DATE: 20220413
DOCKET: C69883
Roberts, Miller and Zarnett JJ.A.
BETWEEN
R. Maxine Collins
Plaintiff (Appellant)
and
Canada Post Corporation and Norton Rose Fulbright
Canada
Defendants (Respondents)
R. Maxine Collins, acting in person
Michael R. Kestenberg and David S. Lipkus, for the
respondent, Norton Rose Fulbright Canada
Ted Brook, for the respondent, Canada Post Corporation
Heard: in writing
Determination pursuant to r. 2.1 of the
Rules of
Civil Procedure
, R.R.O. 1990, Reg. 194 with respect to the appeal from
the order of Justice Marc E. Smith of the Superior Court of Justice, dated
September 9, 2021, with reasons at 2021 ONSC 5987.
REASONS FOR DECISION
[1]
The appellant brought an action against the respondents in the Superior
Court of Justice seeking damages for conduct in, and concerning an action in,
the Federal Court. The appellants Federal Court action is against the
respondent Canada Post. The respondent Norton Rose acts as counsel for Canada
Post in the Federal Court action.
[2]
Proceeding under r. 2.1.01 of the
Rules
of Civil Procedure
, R.R.O. 1990, Reg. 194, the motion judge found
that the appellants Superior Court action as against each respondent was frivolous,
vexatious, and otherwise an abuse of the courts processes. He dismissed her Superior
Court action. The appellant has appealed that dismissal.
The Parties Positions
[3]
The respondents each made a request to this court that the appeal be
dismissed under r. 2.1.01, on the basis that the appeal appears, on its face,
to be frivolous, vexatious, and/or an abuse of process.
[4]
After the respondents requests were received, the registrar asked the
parties to make written submissions.
[5]
On March 9 and 11, 2022, both of the respondents, by counsel, filed
written submissions in support of their requests. The respondents essentially
submit that the appellants Superior Court action, complaining about events in
a Federal Court action, was correctly determined by the motion judge to be
frivolous, vexatious, and an abuse of process based on the doctrine of absolute
privilege and the prohibition against collateral attack, and that the appellant
has no viable ground of appeal from that determination.
[6]
The appellant filed a letter dated March 14, 2022, acknowledging receipt
of the respondents written submissions in support of their r. 2.1 requests. In
her letter, she asserts that each respondent should be considered self-represented
due to defects in their respective appointments of the lawyers who filed the
submissions. She also refers to certain case law relating to r. 2.1.01, and highlights
the propositions that: (1) the rule is a streamlined procedure for proceedings
that are on their face frivolous, vexatious, or otherwise an abuse of process; (2)
the rule is not intended to supplant the established procedure for a motion to
quash an appeal for want of jurisdiction or merit; and (3) a court must
consider whether a motion to quash may be the more appropriate procedural
vehicle to address a respondents merit or jurisdiction complaints. After asserting
that the registrar had not called for submissions in the manner or sequence
contemplated by r. 2.1, the appellants letter declines to take a position on
[the respondents submissions] as the Court has the requisite knowledge and
experience to determine on the face of any Rule 2.1 Request whether or not it
is an attempt to avoid a proper motion.
Analysis
[7]
We see no merit to the appellants concern about the respondents
representation by counsel, nor about the manner and sequence in which written
submissions were requested. The appellant had the opportunity to consider and
respond to the respondents submissions. We agree with the appellant that in
considering the respondents requests in light of the decision below and the
points she intends to raise on her appeal as explained and amplified in her
factum, we must consider, among other things, whether a motion to quash would
be the more appropriate procedural vehicle.
[8]
One of the appellants grounds of appeal is that the motion judge should
have recused himself. After the respondents made requests that the Superior
Court action be dismissed under r. 2.1.01, the motion judge directed that the
appellant be given notice that he was considering making that order, gave her
the opportunity to file submissions and, in the interim, stayed the action. The
appellant made submissions, which included a request that the motion judge
recuse himself from ruling on the r. 2.1.01 requests because he had stayed her
action pending receipt of her submissions.
[9]
The appellants ground of appeal that the motion judge was disqualified
from dealing with whether the action should be finally dismissed because he
granted an interim stay of her action is without substance. The motion judge
made it clear that he was staying the action pending receipt and consideration
of any submissions the appellant made on whether a r. 2.1 dismissal was appropriate.
This did not constitute a prejudgment of the issues in a manner that would
foreclose his further involvement.
[10]
The
motion judge found that the claims against Norton Rose in the Superior Court action
relate entirely to their participation as counsel in the Federal Court proceedings
and include allegations that Norton Rose commissioned a misleading affidavit
and omitted to advise the Federal Court of material facts. He held that the
claims against Norton Rose were barred by the doctrine of absolute privilege, which
provides that no action can be brought against (among others) counsel for
statements made in the ordinary course of a judicial proceeding:
Salasel v.
Cuthbertson
, 2015 ONCA 115, 124 O.R. (3d) 401, at para. 35.
[11]
As
concerned the claims against Canada Post in the action, the motion judge
interpreted them to include the same accusations as were made against Norton
Rose, which were not actionable on the basis of absolute privilege, and complaints
about decisions and rulings made in the Federal Court proceeding and other
proceedings, which were barred by the doctrine against collateral attack
articulated by the Supreme Court in
Wilson v. The Queen
, [1983] 2 S.C.R.
594, at p. 599. Although some of the claims were alleged to be for defamation
or conspiracy to defame, they were not tenable because all the statements alleged
to be defamatory were made by Canada Posts counsel in the Federal Court
proceedings.
[12]
There
is no arguable merit to the grounds of appeal that assert that the motion judge
was wrong to come to these conclusions and to employ r. 2.1.01 in these
circumstances. The appellant herself describes her
Superior
Court
action as alleging the respondents abused the process of the
Federal Court
by improperly filing a motion record in
the Federal Court proceedings and making statements in those proceedings that she
considers defamatory. The motion judge made no arguable error in applying the
doctrines of absolute privilege and collateral attack to conclude that such
claims were not actionable in the Superior Court and that her action was
therefore frivolous, vexatious, or an abuse of process.
[13]
The
appeal appears on its face to be frivolous, vexatious, or otherwise an abuse of
the process of the court within the meaning of r. 2.1.01. This is a case where
resort to the streamlined process in that rule is appropriate, rather than
requiring a motion to quash.
Conclusion
[14]
The
appeal is therefore dismissed.
L.B. Roberts J.A.
B.W. Miller J.A.
B. Zarnett J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Taylor
v. Mayes, 2022 ONCA 297
DATE: 20220413
DOCKET: C69434
MacPherson, Paciocco and George JJ.A.
BETWEEN
George Taylor
Plaintiff
and
Sean Mayes and Diana Story
Defendants (Respondents)
and
Her Majesty the Queen, in Right of the Province
of Ontario, Represented by the Ministry of Transportation of Ontario
Third Party
Robert Moss and Anna Dylewski, for the proposed third party
(appellant), Cruickshank Construction Limited
R. Steven Baldwin, for the respondents
Casey Dorey, for George Taylor
[1]
Andrew Choi, for Her Majesty the Queen, in Right of
Ontario, Represented by the Ministry of Transportation of Ontario
[2]
Heard: April 6, 2022
On appeal from the order
of Justice Kristin Muszynski of the Superior Court of Justice, dated March 24,
2021, with reasons at 2021 ONSC 2239.
REASONS FOR DECISION
[1]
Sean Mayes vehicle rear-ended George Taylors vehicle on Highway 401 in
February 2013. Taylor commenced a lawsuit against the defendants.
[2]
The defendants, in turn, filed a Statement of Defence in which they
blamed the accident on the condition of snow and slush on Highway 401 owned by
Her Majesty the Queen, in Right of the Province of Ontario, as Represented by
the Ministry of Transportation of Ontario (MTO). The defendants issued a
third-party claim against MTO on November 10, 2016.
[3]
MTO refused to attend examinations for discovery or deliver productions
after initially agreeing to do so. On October 1, 2019, the defendants obtained
an order from Justice Ryan Bell of the Superior Court of Justice compelling MTO
to attend discoveries and deliver productions.
[4]
During the examination for discovery of MTO on November 19, 2019, MTO
identified Cruickshank Construction Limited (Cruickshank) as the contractor responsible
for the relevant winter maintenance of the section of Highway 401 where the
accident occurred.
[5]
The defendants brought a motion to add Cruickshank as a party.
Cruickshank and MTO opposed the motion on the basis that the proposed claim
against Cruickshank was statute barred by virtue of the
Limitations Act
2002
, S.O. 2002, c. 24, Sch. B.
[6]
The motion judge dismissed the motion. She applied the two-stage test,
essentially mirroring the wording of sections 5(1)(a) and 5(1)(b) of the
Limitations
Act
, enunciated by this court in
Morrison v. Barzo
, 2018 ONCA
979, at paras. 31-32:
The evidentiary burden on a plaintiff seeking to add a
defendant to an action after the apparent expiry of a limitation period is two-fold.
First, the plaintiff must overcome the presumption in s. 5(2) that he or she
knew of the matters referred to in s. 5(1)(a) on the day the act or omission on
which the claim is based took place, by leading evidence as to the date the
claim was actually discovered (which evidence can be tested and contradicted by
the proposed defendant). The presumption is displaced by the courts finding as
to when the plaintiff subjectively knew he had a claim against the defendants.
To overcome the presumption, the plaintiff needs to prove only that the actual
discovery of the claim was not on the date the events giving rise to the claim
took place. It is therefore wrong to say that a plaintiff has an onus to show
due diligence to rebut the presumption under s. 5(2).
Second, the plaintiff must offer a reasonable explanation on
proper evidence as to why the claim could not have been discovered through the
exercise of reasonable diligence. The evidentiary threshold here is low, and
the plaintiffs explanation should be given a generous reading, and
considered in the context of the claim. [Citation omitted.]
[7]
Against the backdrop of this test, the motion judge carefully reviewed
the factual background involving all the parties and reached this two-part
conclusion:
I find that the defendants third party claim against
Cruickshank is not statute barred by virtue of the
Limitations Act
.
Consequently, Cruickshank is not at liberty to plead a limitation defence to
the third party claim.
[8]
Cruickshank appeals from both components of this conclusion.
(1)
The statute barred issue
[9]
Cruickshank concedes that the standard of review on this issue is
palpable and overriding error. As expressed in its factum:
The Learned Judges finding of fact that the Defendants had a reasonable
explanation as to why they could not have discovered the Appellants in the two
years after service of the Statement of Claim is entitled to deference. This
finding of fact
was not reasonably supported by the evidence and was a
palpable an overriding error
. [Emphasis in original.]
[10]
Cruickshanks
principal submission is that the motion judge erred by not concluding that the
defendants ought to have known of the potential claim against Cruickshank once
it was served with the Statement of Claim. After that happened, says Cruickshank,
the defendants offered no evidence or explanation to articulate why it took no
steps in the relevant (for limitation purposes) two-year period.
[11]
We
do not accept this submission. The motion judge pointed out that MTOs defence
to third party claim makes no mention of an independent contractor whatsoever.
Moreover, MTO completely refused to participate in the proceedings for a very
long period of time (for reasons not connected to the legal issues in this
appeal). This led the motion judge to conclude:
By the time [MTO] delivered its defence to third party claim,
on January 6, 2017, I find that it was reasonable for the defendants to assume
that [MTO] was responsible for the winter maintenance of this section of
Highway 401 at the material time. The failure of [MTO] to plead any material
facts regarding the involvement of an independent contractor should not be to
the detriment of the defendants.
If [MTO] had made timely documentary disclosure in accordance
with its obligations, the Defendants would have had an opportunity to inspect
the patrol records and identify that an independent contractor was involved in
maintaining this section of Highway 401 at the material time. The failure of [MTO]
to make timely and appropriate documentary disclosure and [MTOs] initial
refusal to produce a representative for an examination for discovery should not
be to the detriment of the defendants.
[12]
In
our view, this is an entirely fair analysis and conclusion. In any event, it is
far removed from the labels unreasonable and palpable and overriding error.
Accordingly, we uphold the motion judges decision to add Cruickshank as a
third party in the action.
(2)
The second kick at the can issue
[13]
If
unsuccessful on the first issue (which we have found to be the case),
Cruickshank submits that it should have been added to the action as a third
party but with leave to plead a limitations defence. Accordingly, the motion
judge erred by saying: Consequently, Cruickshank is not at liberty to plead a
limitation defence to the third party claim.
[14]
We
do not agree with this submission. The motion was brought under Rule 26.01 of
the
Rules of Civil Procedure
, RRO 1990, Reg 194, which provides:
On motion at any stage of an action the court shall
grant leave to amend a pleading
on such
terms as are just
, unless prejudice would result that could not
be compensated for by costs or an adjournment. [Emphasis added.]
[15]
In
an appropriate case, a motion judge can make a final determination on a
limitation issue: see
Azzeh (Litigation Guardian of) v. Legendre
, 2017
ONCA 385, at para. 38. In our view, it was just for the motion judge to do so.
The parties provided a comprehensive record and made full submissions on the
limitation issue. The litigation is now on the cusp of being seven years old.
The motion judges legal analysis in support of her decision to add Cruickshank
as a third party is sound. Taking these points together, what this seven-year-old
litigation does not need is a second round in the ring on the limitation issue.
[16]
The
appeal is dismissed. The respondents are entitled to their costs of the appeal
fixed at $10,000 inclusive of disbursements and HST.
J.C. MacPherson J.A.
David M. Paciocco
J.A.
J. George J.A.
[1]
George Taylor was not named as a respondent in this appeal. Counsel for Mr.
Taylor appeared at the appeal hearing, but made no submissions.
[2]
Her Majesty the Queen, in Right of the Province of Ontario, Represented by the
Ministry of Transportation of Ontario, was not named as a respondent in this
appeal. Counsel for Her Majesty the Queen appeared at the appeal hearing, but
made no submissions.
|
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 complainants 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. Bempong, 2022 ONCA 298
DATE: 20220413
DOCKET: C65430
Tulloch, Huscroft and Miller JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Pius Bempong
Appellant
Mark Halfyard, for the appellant
Andrew Cappell, for the respondent
Heard: February 22, 2022 by video conference
On appeal from the convictions entered on February 12,
2018 by Justice Michael F. Brown of the Superior Court of Justice, sitting with
a jury.
Huscroft J.A.:
OVERVIEW
[1]
The appellant was convicted of two counts of sexual interference following
trial by judge and jury. He was acquitted of one count of sexual assault and
one count of being party to sexual assault. The appellant does not challenge
his sexual interference conviction for sexual activity that occurred in the
stairwell of the parking garage. This appeal concerns only the sexual conduct
alleged to have occurred in the appellants car, and raises a single question:
Are the jurys verdicts finding the appellant not guilty of sexual assault but
guilty of sexual interference inconsistent, and therefore unreasonable?
[2]
If the court concludes that the verdicts are unreasonable and allows the
appeal, the appellant seeks a conditional sentence for the sexual interference conviction
that he does not contest.
[3]
I conclude that although the verdicts appear to be inconsistent, they can
be reconciled in accordance with the framework set out recently by the Supreme
Court in
R. v. R.V.
, 2021 SCC 10, 455 D.L.R. (4th) 253.
[4]
I would dismiss the appeal for the reasons that follow.
BACKGROUND
[5]
The complainant, who was 15 years of age at the time of the offences,
and the appellant were previously known to each other. The complainant
contacted the appellant via social media to wish him a happy birthday. The
complainant told him that she had an iPod she wanted to sell and testified that
the appellant offered to buy it. She arranged to meet the appellant at Humber
College to complete the sale and took public transit to the meeting.
[6]
The appellant arrived in his car with two other men, neither of whom the
complainant knew. One was the co-accused named Bobby Joe, and the other was
Buck. The complainant got into the rear passenger seat of the appellants car.
Bobby Joe was in the front passenger seat and Buck was beside her in the back
seat. The appellant then drove to the underground parking garage of his
residence.
[7]
The complainant testified that on arrival at the garage the appellant left
her alone in the car, first with Bobby Joe then with Buck. She described non-consensual
sexual activity that occurred during the appellants absence, but these
allegations are not relevant to the determination of this appeal.
[8]
After Bobby Joe and Buck left the car, the appellant returned and joined
the complainant in the backseat. He took out his penis and asked for oral sex.
The complainant testified that she initially refused, but then performed oral
sex on the appellant for approximately ten minutes because she felt she had no
choice if she wanted to be able to go home.
[9]
The complainant testified that the appellant then drove her to the other
side of the garage and led her to a stairwell. He told her to pull down her
pants and bend over. She said she did not want to. The appellant asked again in
an angry tone. He then pulled down her pants and penetrated her vagina with his
penis. After a short time he pulled his penis out, forced it into her mouth,
and ejaculated.
[10]
The
appellant testified that he met with the complainant because he thought she was
going to give him the iPod as a birthday gift. He said he was surprised that
she wanted money for it; they argued, and he did not buy the iPod from her. The
appellant said that he refused to give the complainant a ride home. He denied
having any sexual contact with the complainant in the parking garage.
[11]
The
appellant was charged with five counts:
Count 1 Sexual Assault (oral sex in car);
Count 2 Sexual Interference (oral sex in car);
Count 3 Sexual Assault (vaginal sex in stairwell);
Count 4 Sexual Interference (vaginal sex in stairwell);
and
Count 5 Party to a Sexual
Assault with Another Person (being a party to a sexual assault by the
co-accused, Bobby Joe)
[12]
The
parties agreed that consent was not in issue in the case. The issue was whether
the incidents alleged to have occurred took place.
[13]
The
jury found the appellant not guilty on counts 1 and 5 but guilty on all other
counts. Count 3, a charge of sexual assault relating to the stairwell, was
stayed pursuant to the principles in
R. v. Kienapple
, [1975] 1 S.C.R.
729
.
ISSUES ON APPEAL
[14]
The
appellant does not challenge his conviction on count 4 (the stairwell sexual interference).
He argues that the verdicts on counts 1 and 2 are inconsistent, and therefore
unreasonable, because the facts of the two counts arise from the same sexual
touching alleged to have taken place in the car. Given that the only issue at
trial was whether the Crown had proven whether the sexual contact described by
the complainant occurred, there was no legitimate basis for finding him guilty of
sexual interference while acquitting on sexual assault, an outcome that he
characterizes as an unjust compromise verdict.
[15]
The
appellant submits, further, that the Crown cannot address the legal error on
the sexual assault count because it did not cross-appeal from his acquittal.
DISCUSSION
The absence of a cross appeal is
irrelevant
[16]
The
appellant argues that the Crown cannot address legal error leading to apparently
inconsistent verdicts unless it appeals the acquittal. The appellant notes that
the Crown was vocal in objecting during the case, even going so far as to raise
a concern about inconsistent verdicts concerning count 5 and appearing to suggest
a similar concern with counts 1 and 2 during sentencing submissions. Yet, the
Crown chose not to appeal his sexual assault acquittal.
[17]
In
R. v. Plein
, 2018 ONCA 748, 365 C.C.C. (3d) 437, this court held that the
Crown need not appeal an acquittal in order to resist an appeal of an
apparently inconsistent conviction, but it did so in the context of a
judge-alone trial rather than a jury trial. Justice Paciocco stated that the
Crown would be well advised to cross-appeal if it wants to call an acquittal
into question, and a majority of this court endorsed his observation in
R.
v. R.V.
, 2019 ONCA 664, 147 O.R. (3d) 657, at para. 144. The majority went
on, however, to state that a Crown appeal is not necessary in all cases in
order for an appellate court to conduct an inconsistent verdict analysis: at
para. 145.
[18]
This
courts decision in
R. v. R.V.
was overturned by the Supreme
Court. Writing for the majority, Justice Moldaver specifically left open the
question whether a Crown appeal was necessary, at paras 46-48:
The parties disagree about what happens when the Crown has not
cross‑appealed but nonetheless asserts that a legal error reconciles
apparently inconsistent verdicts.
Here, as indicated, the Crown cross‑appealed R.V.s
acquittal on the sexual assault charge.
Accordingly, the issue of whether the Crown must cross‑appeal where it
seeks to reconcile apparently inconsistent verdicts on the basis of erroneous
jury instructions is not before us. Nor indeed has that issue ever been
squarely before this Court.
Having regard to the bedrock principle of our adversarial
system that where an accused makes an argument, the Crown is entitled to rebut
it, there is a viable argument that the Crown need not cross‑appeal to
rebut an inconsistent verdict allegation raised by an accused. That said, I
recognize that there are tenable arguments to the contrary, relating to the
integrity of the legal process and the legitimacy of verdicts. In the end, I
consider it prudent to leave the issue outstanding until it comes squarely
before us.
[19]
Thus,
the question remains open, and counsel did not argue otherwise.
[20]
In
my view, permitting the Crown to respond to an inconsistent verdict argument
without having appealed from acquittal does not undermine the integrity of the
legal process or the legitimacy of verdicts. That is so because, as this court
noted in
Plein
, by appealing
on the basis that
the verdicts are inconsistent the appellant necessarily puts the reasons for
that inconsistency in issue.
The integrity of the legal
process and the legitimacy of the appellants conviction would be undermined if
the Crown were
precluded
from responding
to the appellants appeal because
it chose not to appeal his acquittal.
[21]
If
the court concludes that the appellants acquittal is the product of legal
error, it must take that error into account in deciding whether to either grant
the relief the appellant requests or dismiss the appeal pursuant to its power in
s. 686(1)(b)(ii) of the
Criminal Code
, R.S.C. 1985, c. C-46. It
would undermine the integrity of the legal process if a legally proper
conviction were overturned because of a legally problematic acquittal on
another count.
[22]
Important
policy considerations also militate against a requirement that the Crown appeal
from an acquittal in order to respond to an appeal from conviction.
[23]
The
decision whether to appeal from an acquittal is a matter of prosecutorial
prerogative a discretionary decision that the Crown does not have to justify
to the court. Assuming that the Crown is entitled to appeal from an acquittal
pursuant to s. 676(1)(a), the decision whether to do so is for the Crown to
make. The Crown may decide not to appeal for any number of reasons.
[24]
For
example, the Crown may consider that it is not possible to run a new trial in
the event of a successful appeal. Or it may conclude that it is not in the
public interest to put a complainant, family, or witnesses through a new trial even
assuming a new trial were possible. Alternatively, the Crown may consider that
it is not worthwhile or efficient to appeal an acquittal because a successful re-trial
would have little or no impact on sentence, whether because of the application
of the
Kienapple
principle or the likelihood that a concurrent
sentence would be imposed.
[25]
As
Justice Moldaver noted in
R.V.
, it is fundamental to the fairness and
the efficacy of the adversarial system that the Crown is permitted to make
submissions to rebut an appellants argument. The Crown should not be required
to bring an appeal it would otherwise choose not to bring in order to do so.
[26]
Finally,
although
Plein
and
R. v. Horner
, 2018 ONCA 971, 370 C.C.C.
(3d) 383 arise in the context of judge-alone trials, there is no question that
the Crown is entitled to defend apparently inconsistent verdicts resulting from
jury trials as well as judge-alone trials, as it did in
R.V.
Of
course, it is more difficult to assess claims of inconsistency in the absence
of the reasons that accompany a judge-alone trial, but that simply goes to the Crowns
burden in reconciling the verdicts.
The
R.V.
framework for reconciling apparent
inconsistency
[27]
Justice
Moldaver set out the following approach in
R.V.
at paras. 33-34:
Where the Crown attempts to rebut an apparent inconsistency on
the basis of a legal error, the burden shifts from the accused to the Crown.
That burden is heavy. The Crown must satisfy the court to a high degree of
certainty that there was a legal error in the jury instructions and that the
error:
(1)
had a
material bearing on the acquittal;
(2)
was
immaterial to the conviction; and
(3)
reconciles the inconsistency by showing that the jury did not
find the accused both guilty and not guilty of the same conduct.
If the court can find that these elements are satisfied with a
high degree of certainty, the verdicts are not actually inconsistent. Instead,
the legal error caused the jury to convict the accused either on different
evidence or a different element than it believed was necessary for the charge
on which it acquitted the accused. Any apparent inconsistency in the verdicts
is thus reconciled, as the jury did not find the accused both guilty and not
guilty of the same conduct. It follows that the jury did not act unreasonably
in rendering their verdicts.
[28]
In
short, the Crown bears the burden of establishing legal error in the instructions
error that was both material to the acquittal and immaterial to the
conviction. The burden is a heavy one, but the Crown succeeds in reconciling
apparently inconsistent verdicts if it establishes that the jury did not find
the appellant both guilty and not guilty of the same conduct.
[29]
Justice
Moldaver emphasized, at para. 35, that the court is not to engage in improper
speculation about the jurys decision:
The appellate court must be able to retrace the reasoning of
the jury with a sufficiently high degree of certainty to exclude all other
reasonable explanations for how the jury rendered its verdicts. If it can, any
concern about speculation falls away.
The verdicts are not inconsistent
[30]
I
conclude that the Crown meets the heavy burden established by the
R.V.
framework.
[31]
In
this case, as in
R.V.
, the appellant was convicted of sexual
interference but acquitted of sexual assault based on the same evidence. And in
this case, as in
R.V.
, the Crown argued that the apparently
inconsistent verdicts could be explained by erroneous instructions given by the
trial judge concerning the law of sexual assault. In
R.V.
, Justice
Moldaver concluded that the trial judge left the jury with the mistaken
impression that the element of force required for sexual assault was
different than the element of touching required for sexual interference. As
he explained at para. 52:
The word force is commonly understood to mean physical
strength, violence, compulsion, or constraint exerted upon or against a person.
However, as a legal term of art, the element of force has been interpreted to
include
any form of touching
.
Put simply,
although the words touch or touching and
force are distinct, in some circumstances, including those that apply here,
they mean the same thing in law.
[Emphasis added; citations omitted.]
[32]
Thus,
Justice Moldaver concluded that it was incumbent on the trial judge to instruct
the jury that the force required for sexual assault was the same as the
touching required for sexual interference. The failure to so instruct the jury
constituted non-direction amounting to misdirection.
[33]
The
same failure occurred in this case.
[34]
The
trial judge did not have the benefit of
R.V.
He instructed the jury
for purposes of the sexual assault counts that the Crown had to prove that the
appellant intentionally applied force to the complainant and that the force
took place in circumstances of a sexual nature. In defining force, the trial
judge told the jury:
The application of force may be direct, for example, by the
accused person using a part of his body, such as a hand, finger, foot, or penis
or indirect, for example, by the accused person using an object. The force
applied may be violent, or even gentle. Force includes any physical contact
with another person, even a gentle touch. To be an assault, however, the
accused person must apply the force intentionally. An accidental touching is
not an intentional application of force.
[35]
The
trial judge instructed the jury that on the sexual interference counts, the
Crown was required to prove that the complainant was under 16 years of age at
the time; that the appellant touched her; and that the touching was for a
sexual purpose. He then defined touching for the jury as follows:
Touching involves intentional physical contact with any part of
[the complainants] body. The contact may be direct, for example, touching with
a hand or other part of the body, or indirect, for example, touching with an
object. Force is not required but an accidental touching is not enough.
[36]
These
instructions failed to achieve what Justice Moldaver said in
R.V.
was
required: they failed to make clear that the force required for sexual assault
was the same as the touching required for sexual interference. Instead, the instructions
caused confusion by suggesting that force and touching were different concepts.
[37]
The
jurys confusion is evident in questions it asked of the judge:
[W]e would like some clarification with regards to the
definition of sexual assault, specifically, with regards to the intentional
application of force
Can words and/or circumstance, such as location and duress be
considered this sort of force? For example, can we consider a command to
perform a sexual act,
force
? [Emphasis in original.]
[38]
The
trial judge answered the question No and repeated what he had said earlier in
his charge about the meaning of force.
[39]
A
second question from the jury, this one concerning the linkage between several
counts on the decision tree, further demonstrated the jurys confusion of the
concepts of touching and force. The jury asked:
Why, in the decision tree, does count five [alleging the
appellant to be a party to a sexual assault committed by the co-accused] depend
on count six [alleging a sexual assault by the co-accused], but not on seven [alleging
sexual interference by the co-accused].
[40]
Crown
counsel told the trial judge that the jury needs to be told that the
application of force in a sexual assault is the same thing as the touching in
the sexual interference. Crown counsel reminded the trial judge of her submission
that it would be inconsistent for them to find that theres a sexual
interference, but for them not to find that theres a sexual assault. She specifically
requested that the jury be told that the application of force in counts 1,1,
[sic] 3 and 6 is the same as the touching in count 2, 4 and 7. The trial judge
declined to do so and answered the jurys question by clarifying which counts
referred to which alleged offences and the parties involved in them.
[41]
I
agree with the Crowns submission that the trial judges instructions left the
jury with the impression that sexual assault required force beyond mere
touching, but sexual interference did not. This explains why the jury acquitted
the appellant of sexual assault while finding him guilty of sexual interference
on the same set of facts: the jury was not satisfied that the appellant applied
force to the complainant in the car but was satisfied that he had engaged in
sexual touching. And as the Crown points out, this explanation appears to have
been acknowledged by the trial judge. In the context of his sentencing reasons,
he stated that he did not regard the jurys verdicts on counts 1 and 2 to be inconsistent
because the instructions he gave for sexual assault and sexual interference
were different.
[42]
The
failure to direct the jury that the force required for sexual assault was the
same as the touching required for sexual interference constitutes non-direction
amounting to misdirection, as in
R.V.
In all the circumstances, it
cannot be said that the jury found the appellant both guilty and not guilty of
the same conduct. The impact of the error was limited to the acquittal on the
sexual assault count an error that inures to the appellants benefit. The
apparently inconsistent verdicts are, therefore, explained to the high degree
of certainty
R.V.
requires.
CONCLUSION
[43]
I
would dismiss the appeal.
Released: April 13, 2022 M.T.
Grant Huscroft J.A.
I agree. M. Tulloch
J.A.
I agree. B.W. Miller
J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Hornepayne
First Nation v. Ontario First Nations (2008) Limited Partnership, 2022 ONCA 299
DATE: 20220412
DOCKET: M52995 (C70022)
MacPherson, Paciocco and George JJ.A.
BETWEEN
Hornepayne First Nation
Applicant
(Appellant/Responding Party)
and
Ontario First Nations (2008) Limited Partnership
Respondent
(Respondent/Moving Party)
David Outerbridge, for the moving party
Chief Ron B. Kocsis, acting in person for the responding
party
Heard and released orally: April 8, 2022
REASONS FOR DECISION
[1]
Pursuant to section 49 of the
Arbitration Act, 1991
, S.O. 1991, c. 17,
an appeal from the
judgment of Fitzpatrick J. of the Superior Court of Justice requires leave. By
virtue of rule 61.03.1(3) of the
Rules of Civil Procedure
, R.R.O.
Reg. 194, leave must be sought within 15 days of the decision to be appealed.
The appellant has not complied with these provisions. The appeal is quashed.
[2]
The moving party is entitled to its costs of the motion fixed at $7,500
inclusive of disbursements and HST.
J.C. MacPherson J.A.
David M. Paciocco
J.A.
J. George J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Faichney (Re), 2022 ONCA 300
DATE: 20220414
DOCKET: C69694
Fairburn A.C.J.O., Gillese
and Paciocco JJ.A.
IN THE MATTER OF: James
Faichney
AN APPEAL UNDER PART
XX.1 OF THE
CODE
Suzan E. Fraser, for the appellant
Dena Bonnet, for the respondent, Attorney General of
Ontario
Michele Warner, for the respondent, Person in Charge of the
Centre for Addiction and Mental Health
Heard: February 11, 2022 by video conference
On appeal from the disposition of the Ontario Review
Board, dated June 15, 2021, with reasons dated July 7, 2021.
Paciocco J.A.:
OVERVIEW
[1]
James Faichney is a 52-year-old Indigenous man. On September 16, 1999,
while transient and homeless, he attended a church looking for food. There, he
assaulted an 84-year-old night supervisor, injuring him. It was a serious
attack and led to a charge of assault causing bodily harm contrary to the
Criminal
Code of Canada
, R.S.C. 1985, c. C-46. On November 9, 1999, he was found not
criminally responsible on account of mental disorder (NCR). He has been under
the jurisdiction of the Ontario Review Board (ORB) since that time.
[2]
In the decade following the NCR verdict, Mr. Faichney was detained at a series
of forensic psychiatric institutions before being moved to the Centre for
Addiction and Mental Health (CAMH) in March 2011. Since that time, CAMH has
been Mr. Faichneys care provider. Although Mr. Faichney was subject to
detention orders until 2019, CAMH has been supervising Mr. Faichney in the
community since March 2015. In 2019, Mr. Faichney was granted a conditional
discharge with conditions including minimum weekly reporting and residence at a
supervised boarding house.
[3]
During the June 9, 2021 annual review hearing, CAMH and the Attorney
General of Ontario (AGO) sought a continuation of the existing order on the
basis that Mr. Faichney continued to present a serious threat to public safety
but did not require a detention order. Mr. Faichney sought an absolute
discharge, arguing that he no longer posed a significant threat to the safety of
the public.
[4]
On June 15, 2021, the ORB ordered a continuation of the conditional discharge
that had been in place. The ORB released its Reasons for Disposition on July 7,
2021.
[5]
This is an appeal by Mr. Faichney of that June 15, 2021 disposition
order. He argues that the ORB erred by failing to consider a 2011 report filed on
his behalf in accordance with
R. v.
Gladue
, [1999] 1 S.C.R.
688, and that the ORB failed to refer to the
Gladue
principles, which
are summarized at para. 93 of the
Gladue
decision. He also argues that
the ORBs determination that he posed a significant threat to the safety of the
public is unreasonable.
[6]
I would dismiss Mr. Faichneys appeal. As I will explain below, I do not
accept that the ORB failed to consider the 2011
Gladue
report, nor do
I accept that the ORB failed to respect relevant
Gladue
factors. I also
conclude that there was ample evidence justifying the ORBs determination that
Mr. Faichney posed a significant threat to the safety of the public.
BACKGROUND FACTS
[7]
Mr. Faichney is currently 52 years old. He is Anishinaabe with Shawnee
and Pottawatomi heritage. As the result of an adoption placement, Mr. Faichney
was raised in a non-Indigenous home. He is a tragic casualty of the Sixties
Scoop, which saw many Indigenous children being separated from their families
and denied their heritage.
[8]
At the age of 17, Mr. Faichney left his adoptive home. He ultimately
reconnected with his Indigenous family, but sadly, his hardships continued. In June
1996, Mr. Faichney began to receive psychiatric care after displaying psychosis,
paranoia and suicidal thoughts. He has struggled with major mental illness since
that time. His current diagnoses are schizophrenia, clinically significant
trauma history, substance use disorder (in full remission), and personality
disorder not otherwise specified.
[9]
When not under control, Mr. Faichneys mental illness can cause him to
become paranoid and to have grandiose delusions and command hallucinations. He
was experiencing such symptoms when he committed the 1999 assault that
initially brought him under ORB jurisdiction. On March 28, 2006, while still
under the jurisdiction of the ORB, Mr. Faichney was again found to be NCR in
connection with another serious assault that he committed in 2005, this time on
a co-resident at a mental health facility. Again, this 2005 assault occurred
when Mr. Faichney was manifesting paranoia and grandiose delusions. In 2007,
while under the delusion that staff members were framing him for murder, Mr.
Faichney committed yet another assault, this time on a male staff member,
punching and kicking him to the point that he required hospital treatment. To
his considerable credit, although since 2007 Mr. Faichney has frequently reported
being threatened or offended while under CAMHs care, and has been in
situations of conflict, he has not engaged in violence since the 2007 assault,
a period now approaching fifteen years.
[10]
There is no indication in the record that attention was paid to Mr.
Faichneys Indigeneity in the early years after he fell under the ORBs
jurisdiction. However, by 2011, hospital records show that Mr. Faichney began
to demonstrate interest in receiving culturally appropriate care and there is
periodic reference in those records to his attendance at Indigenous community counselling,
faith healing sessions and meetings with CAMH Aboriginal Services. Those
hospital reports also record a number of instances in which Mr. Faichney reported
experiencing racism within the institution from co-patients and his treatment
team.
[11]
By the time Mr. Faichney was living in the community, Indigenous
agencies were playing a significant part in his life, providing him with support
services relating to both his housing and his health. Most significantly, Anishnawbe
Health Toronto (AHT) was assisting him and continues to assist him. A letter
from an AHT social worker, placed into evidence at the June 9, 2021 annual
review hearing, confirms that Mr. Faichney has been receiving weekly, if not
biweekly support from the AHT social worker for the last three years, and has
access to traditional healing services and psychiatric support.
[12]
By February 2020, after Mr. Faichney had experienced a long period of
stability in the community, the CAMH clinical team began to explore a treatment
plan that would provide for his gradual progression to civil psychiatric care
in the community, with psychiatric follow-up through AHT. As a result, Mr.
Faichneys reporting hours at CAMH were reduced and in May 2020 he was
permitted to take more control over the administration of his medication at his
residence. The Reasons for Disposition of the ORB relating to the July 8, 2020
conditional discharge disposition affirmed the objective of withdrawing some of
Mr. Faichneys current levels of support and giving priority to eventually
moving his care to AHT while he is under ORB jurisdiction.
[13]
During the June 9, 2021 annual review hearing that led to the order that
is the subject of this appeal, Mr. Faichney argued that he no longer represents
a significant threat to the safety of the public. He maintained that AHT is
better able to attend to his mental health needs than CAMH, given the
culturally appropriate care provided by AHT, CAMHs acknowledged legacy as a colonial
institution [operating as] part of a system tainted with racism and oppression,
and the racism he has personally experienced within CAMH. Simply put, it was Mr.
Faichneys position before the ORB that the time has arrived to remove CAMHs
support so that his care could be moved to the AHT.
[14]
The AGO, with the support of Mr. Faichneys CAMH treatment team, took
the position that this change was premature. Supported by the opinion of Dr. Meng,
Mr. Faichneys treating physician at CAMH, the AGO argued that Mr. Faichney
continued to pose a significant threat to the safety of the public that could
not be ameliorated by anything less than a continuation of the conditional
discharge disposition on the terms then in place.
[15]
During the hearing, the parties did not join issue on the suitability of
those terms, but only on whether Mr. Faichney continued to pose a danger to the
public.
[16]
I will address the material evidence relied upon by each of the parties
below when addressing Mr. Faichneys grounds of appeal, but there is one point
that warrants immediate mention. In correspondence between Dr. Khan, an AHT
psychiatrist, and Mr. Faichneys Transitional Care Manager at CAMH in January
2021, Dr. Khan said:
We are happy to follow [Mr. Faichney] here regularly once his
review board is complete. I dont want the client to get confused about who is
providing psychiatric care for him at this time. Im happy to check in with him
once every 3-4 months until he is fully discharged to us. I last saw him in
Late Oct, so maybe in late Feb we can check in again.
[17]
As indicated, on June 15, 2021, the ORB issued a disposition order imposing
a conditional discharge on the same terms as the July 8, 2020 order. In the
Reasons for Disposition relating to the June 15, 2021 disposition order, the
ORB listed the documentary evidence before it, including the 2011
Gladue
Report,
but the ORB did not otherwise reference the
Gladue
Report in its reasons,
nor did it advert specifically to
Gladue
principles. However, as I
will explain, the ORB did describe efforts that CAMH had taken to assist Mr.
Faichney in receiving culturally appropriate care.
THE ISSUES
[18]
Mr. Faichney appeals the June 15, 2021 ORB disposition. He raises several
objections to the ORBs decision, but his grounds of appeal fairly resolve into
two, which can be expressed as follows:
A.
Did the ORB err by failing to consider and refer to the 2011
Gladue
report and the
Gladue
principles when concluding that Mr. Faichney
remains a significant threat to the safety of the public within the meaning of
s. 672.54?
B.
Was the significant threat finding unreasonable?
[19]
As indicated, I would not give effect to either of these grounds of
appeal.
ANALYSIS
A.
Did the orb err by failing to consider and refer to the 2011
gladue
report and the
gladue
principles when concluding that Mr. Faichney
remains a significant threat to the safety of the public within the meaning of
s. 672.54?
[20]
The appellant submits that the Board
erred in law when it determined that he was a significant threat to the safety
of the public without referring to the
Gladue
Report and principles. He contends that the Board did
not address his special circumstances arising from his Indigeneity and that
individualized assessment is required by s. 672.54.
[21]
The respondent AGO submits that
Gladue
factors are not pertinent to the threshold
question of significant threat, the only live issue during the disposition
hearing. The AGO relies on
Re Sim
(2005), 78 O.R. (3d) 183
for this
proposition.
[22]
If the AGOs submission is correct, there
is no need to closely consider the ORB decision in resolving this ground of
appeal, so it is convenient to address the AGOs submission at the outset. I do
not agree that
Gladue
principles
are not pertinent to the threshold question of significant threat. In
Sim
, Sharpe J.A., writing on behalf of this court, affirmed
the importance of the
Gladue
principles
to ORB dispositions. He explained how the
Gladue
principles are to be integrated with the analysis set
out in
Winko v. British Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625 relating to whether someone
poses a significant threat to the safety of the public and, if so, what the
least onerous and least restrictive disposition is, now described under the
legislation as the necessary and appropriate disposition.
[23]
Specifically, the Supreme Court of Canada
affirmed in
Winko
that a review
board must take into account the four statutory criteria set out in s. 672.54
of the
Criminal Code
: (1) the
need to protect the public from dangerous persons; (2) the mental condition of
the accused; (3) the reintegration of the accused into society; and (4) the
other needs of the accused: at para. 55.
In
Sim
, at paras. 18
and 19, Sharpe J.A. described the impact that the
Gladue
principles would
have on each of these four criteria:
When assessing the dangerousness [statutory factor one] or
mental condition [statutory factor two] of the accused, it would no doubt be
helpful for the ORB to have as full a record as possible. A full record would
contain information pertaining to the accused person's background, including
aboriginality.
However, so far as I am aware, aboriginal status would
ordinarily have little direct bearing upon the dangerousness [statutory factor one]
or the mental condition [statutory factor two] of the accused. An individual
will not be more or less dangerous, nor will an individual be more or less
mentally ill, because of his or her aboriginal status.
On the other hand, proper consideration of appropriate
placement of the accused, reintegration into society [statutory factor three]
and the other needs of the accused [statutory factor four] will call, where the
circumstances warrant, for the ORB to advert to the unique circumstances and
background of aboriginal NCR accused. Accordingly, the
Gladue
principles
should be applied to compliment the analysis that s. 672.54 requires. [Emphasis
added.]
[24]
It is the emphasized part of para. 18 on
which the AGO rests its submissions. However, when the emphasized words are
read in context, it is apparent that Sharpe J.A. was not suggesting that
Gladue
principles are not relevant to the question
of significant threat. Rather, he was making clear that, when determining
whether the NCR accused is a significant threat and, if so, what disposition
should be imposed, the mere fact of Indigeneity will not make the person more
or less dangerous or more or less mentally ill. Of course, that is as true
today as it was when
Sim
was
written. To hold otherwise would open the door to dangerous, offensive and
manifestly incorrect stereotypes. Therefore, he was not saying that Indigeneity
can never be relevant to the significant threat analysis. Rather,
Sim
provides that:
1)
Gladue
principles should be applied to compliment the analysis
that s. 672.54 requires: at para. 19;
2)
That analysis requires the ORB to look at four factors when determining
the question of significant risk and least onerous and least restrictive
disposition; and
3)
While
Gladue
factors may have less impact on statutory factors
one and two (dangerousness and mental condition), and more commonly inform
statutory factors three and four (reintegration into society and the other
needs of the accused), it would no doubt be helpful for the ORB to have as
full a record as possible when dealing with these issues: at para. 18.
[25]
Accordingly, I do not accept the AGOs
contention that
Sim
held that
Gladue
principles do not apply to the threshold question of
whether a person remains a significant threat.
[26]
Nor do I accept Mr. Faichneys submission that the ORB erred in law
when it determined that the appellant was a
significant threat to the safety of the public without referring to the
Gladue
Report and principles
.
[27]
As a preliminary matter, it must be borne in mind that the
ORBs reasons must be read contextually. That context
includes the evidence before the ORB that I refer to above confirming that CAMH
has done much in the last several years to support the appellants Indigeneity.
His forensic care team has encouraged and facilitated AHTs provision of
services to him and CAMH has proposed a shared model of care while the
appellant transitions to AHT. As I will explain, the Reasons for Disposition
reveal that the ORB was fully alive to this, and to the barriers that remained
in fully transitioning Mr. Faichney to culturally appropriate care.
[28]
Moreover, as the AGO correctly pointed out, the sufficiency of the
direct attention the ORB gave to Mr. Faichneys Indigeneity and to the
Gladue
principles cannot be assessed without close attention to what was at issue
during the disposition hearing. Quite simply, given the live issues at the
disposition hearing, extensive explicit reference to the
Gladue
principles
was not required.
[29]
Specifically, no issue was taken before the ORB relating to the
conditions that would be included in the disposition, nor were there live issues
relating to how best to achieve rehabilitation or restorative justice through a
disposition. There was therefore no need for the ORB to address the impact that
Gladue
principles would have on Mr. Faichneys rehabilitation or
prospects for restorative justice, since those questions were not in issue. Nor
was the suggestion made that systemic discrimination or Mr. Faichneys
background experiences as an Indigenous person would have had any relevance in
identifying the nature and intensity of his mental condition. The only live issue
at the hearing was whether Mr. Faichney continued to pose a significant threat
to public safety. The relevance his Indigeneity had before the ORB at the June
9, 2021 annual review was therefore confined to its impact on whether he posed
a danger to the public.
[30]
In that regard Mr. Faichney argued, in effect, that his relationship
with AHT, with its culturally appropriate treatment, was an important
consideration in deciding whether he would pose a threat to the safety of the
public. His position was that his access to this culturally appropriate
treatment at AHT reduced the risk that he would fall away from treatment in the
community, including medication, which is required to stabilize his condition
and prevent the kind of deterioration that could create a danger to public
safety.
[31]
Although the ORB did not reference the 2011
Gladue
report or
expressly identify
Gladue
principles when addressing this point, it is
clear that the ORB fully appreciated and addressed this submission, finding, as
a fact, that AHT is not able to provide the level of the psychiatric care and
case management support currently required by Mr. Faichney. The psychiatrist on
staff is only available a few hours per week and provides services to a number
of clients. This finding is a complete answer to the submission that Mr.
Faichney could maintain his mental health in the community by taking advantage
of the culturally appropriate care provided by AHT.
[32]
This dispositive finding is amply supported by the evidence before the
ORB. Initially, Mr. Faichney consulted with Dr. Khan, a part-time psychiatrist
who was assisting AHT at the time. In her January 7, 2021 correspondence, Dr.
Khan explained a five-week delay in responding to Mr. Faichneys CAMH
Transitional Care Managers request for information on the basis that she [hadnt]
been in the office since late November. She then offered to hold a meeting
with Mr. Faichney in late February. Mr. Faichney did not manage to meet with an
AHT psychiatrist until March 24, 2021, when he met with Dr. Hunter, who had
replaced Dr. Khan. Dr. Hunter also worked at AHT part-time and attended the
clinic only once weekly, with a large roster of patients waiting to be seen.
[33]
As illustrated below, there was also evidence before the ORB that Mr. Faichney
was prone to discontinuing his medication, leading to deterioration in his
condition, and that there were issues with his insight into his mental health
and his need for community support.
[34]
In my view, the Reasons for Disposition relating to the disposition of
June 15, 2021 amply explain why the
Gladue
arguments advanced on Mr.
Faichneys behalf did not provide meaningful support for an absolute discharge.
[35]
Thus, I reject this ground of appeal.
B.
Was the significant threat finding unreasonable?
[36]
Although it was not abandoned, this ground of appeal was not pressed in
oral argument. There was good reason for the tactical decision not to press this
ground of appeal before us. In my view, it is patent that when a somewhat
probing examination is undertaken, the reasoning process and the outcome arrived
at by the ORB reflects a coherent and rational chain of analysis that is fully
justified in relation to the constellation of law and facts that is relevant to
its decision.
[37]
During the reporting period, Mr. Faichney had less stability than in the
prior year, when his treatment team developed the plan to reduce his level of
support and to transition him to community care through AHT. Significantly, CAMH
attempted to move towards that plan, but that effort failed. In her testimony,
Dr. Meng stated:
I think in this year in particular, there are two main
challenges. One is that because he was discussing this idea of potentially
living more independently, we did try to back off on the level of supervision
of his medications earlier in the year and the destabilization that that
conferred never really fully stabilized until hes since been subject to daily
medication supervision by a clinical team. The other aspect is that over this
last year his medical health has significantly worsened.
[38]
There was clear evidence before the ORB supporting these observations.
After Mr. Faichney was given more control over his medication, the levels of
Clozapine in his system diminished, at times to the point where the drug, which
should have been observed, was undetectable. Those levels fluctuated, despite
arrangements made by CAMH to enable him to obtain his injections at a local
pharmacy. Dr. Meng concluded that the fluctuation in levels could only be explained
by Mr. Faichneys decision not to take the medication.
[39]
There was also evidence that Mr. Faichney was not contacting his
treatment providers when not taking his medication, he was unreliable with his
self-reporting relating to his health, and his willingness to seek care was linked
to the fact that he is under external oversight.
[40]
There was also clear evidence that when Mr. Faichneys Clozapine levels
were low, the symptoms of his mental illness became aggravated. Supported by
contemporaneous observations contained in the hospital reports, Dr. Meng
testified that there have been times where he has presented as more paranoid,
more vague and less coherent in his thought process and more guarded and more
dismissive.
[41]
Dr. Meng expressed the view that, in these circumstances, [a]ny course
towards more independent living would require a very gradual transition and a
lot more support and assessments around that. Yet there was evidence that, during
the reporting period, Mr. Faichney resisted referrals to community care,
stating that he did not need higher levels of support, and that on four
occasions he refused inpatient hospital admission to stabilize his mental
condition.
[42]
Dr. Meng also expressed the opinion that Mr. Faichneys expectations
about what he could accomplish in his own community are unrealistic. He told
his treatment team that he did not want a further relationship with CAMH once
discharged and that he exclusively wanted his care to be provided by a program
from his culture.
[43]
Dr. Meng expressed the opinion that, although Mr. Faichney would likely
continue to see the AHT team when he felt it necessary, he would continue to
have difficulties with medical compliance and stress. She then offered the
opinion:
That combination of factors is anticipated to lead to him having
more of the kind of symptoms he has historically exhibited over and over again
when hes been unwell, mainly becoming quite paranoid, quite somatically
preoccupied, which then worsens his paranoia by worsening his medication
compliance and experiencing both persecutory as well as referential delusions
and hallucinations, which have led him to feel extremely persecuted, extremely
unsafe and has on multiple occasions in the past, led him to behave in a
violent manner.
[44]
In concluding based on this evidence that Mr. Faichney continues to
represent a significant threat to the safety of the public, the ORB recognized
that Mr. Faichney has not acted with serious aggression for many years but
attributed his restraint to the effective treatment plan that has been in
place. The ORB observed that these psychotic symptoms and the attending
aggressive behaviour identified in the evidence are similar to the symptoms he
displayed in the past, and to the index offences.
[45]
Citing some of the evidence just recounted, the ORB also accepted Dr. Mengs
opinion that, absent the support of the treatment team, Mr. Faichney would
likely fall away from treatment. On this basis, the ORB concluded that a
conditional discharge was a necessary and appropriate disposition.
[46]
I would dismiss this ground of appeal.
CONCLUSION
[47]
I would therefore dismiss Mr. Faichneys appeal.
Released: April 14, 2022 J.M.F.
David M. Paciocco
J.A.
I agree. Fairburn
A.C.J.O.
I agree. E.E.
Gillese J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Bondfield Construction Company Limited, 2022
ONCA 302
DATE: 20220414
DOCKET: C68507
Feldman, van Rensburg and Coroza JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Bondfield Construction
Company Limited, J.M.R. Electric Ltd.,
and
Toromont Industries Ltd.
Respondents
Daniel Kleiman and Alessandra Hollands, for the
appellant
Robert E. Hutton and Ciara L. Pittam, for the respondent
J.M.R. Electric Ltd.
Susan L. Crawford, for the respondent Toromont
Industries Ltd.
No one appearing for the respondent Bondfield
Construction Company Limited
Heard: November 2, 2021 by video conference
On appeal from the judgment of Justice Christine E.J. Malott of the
Ontario Court of Justice, dated December 2, 2019, allowing an appeal from the
convictions entered by Justice of the Peace Maureen Ryan-Brode, dated May 5,
2017.
van Rensburg J.A.:
A.
OVERVIEW
[1]
This
is an appeal by Her Majesty the Queen in Right of Ontario
(the Crown), with leave, from a judgment allowing appeals from convictions of
offences under the
Occupational Health and Safety Act
,
R.S.O.
1990, c. O.1 (the OHSA), that were prosecuted by the Ministry of Labour.
[2]
The charges arose after a field service technician on a construction
project was severely burned by an arc flash while cleaning an energized part of
a switchgear cabinet using a paintbrush with a metal band. After having worked
on de-energized cabinets, on returning from his lunch break, the worker
inadvertently opened the wrong cabinet to clean, causing his paint brush to
come into contact with live input stabs
[1]
at the rear of the cabinet. The work was being performed in a high-voltage
electrical room to which the door had, at times, been propped open, permitting access
by various tradespeople.
[3]
The appeal engages the interpretation of certain provisions of the
regulation
Construction Projects
, O. Reg. 213/91, enacted under the
OHSA, dealing with Electrical Hazards. The central issue is the meaning of
energized exposed parts of electrical equipment in two regulatory provisions:
s. 184(1), which provides that only authorized persons shall enter or be
permitted to enter a room containing exposed energized electrical parts, and s.
190(4), which requires that the power supply to electrical equipment be
disconnected, locked out of service, and tagged if work is to be done on or
near energized exposed parts.
[4]
The justice of the peace (the trial justice) convicted the three
respondents of offences under the OHSA in relation to breaches of ss. 184(1)
and 190(4) of O. Reg. 213/91, and also convicted the respondent Toromont
Industries Ltd. (Toromont) of an offence relating to s. 187 of the regulation
(respecting the use by its employee of a tool capable of conducting electricity
so close to energized electrical equipment that it could make electrical
contact). The trial justice acquitted the three respondents of offences
relating to s. 182(1) of the regulation (respecting the professional
qualifications required to connect, maintain or modify electrical equipment or
installations).
[5]
On appeal, a judge of the Ontario Court of Justice (the appeal judge)
overturned the convictions and entered acquittals on the offences related to
ss. 184(1) and 190(4), after concluding the
actus reus
of these
offences had not been established. She directed a new trial of the offence
related to Toromonts breach of s. 187, after finding that the trial justice failed
to consider the reasonable belief in a state of facts that, if true, would
have rendered the act or omission innocent aspect of its due diligence
defence. The appeal judge concluded that it was unnecessary to consider the
other grounds for the conviction appeals, in particular other challenges to the
trial justices assessment of the due diligence defences, and the sentence
appeals.
[6]
I would allow the Crowns appeal in part. I have concluded that the
appeal judge erred in her interpretation of s. 190(4), when, after concluding
that this provision applies to energized electrical equipment that is not
concealed or covered, and observing that the electrical parts were behind circuit
breakers with covers, she found that the
actus reus
for the s. 190(4) offences
was not made out. Although the appeal judge applied the same erroneous
interpretation to the word exposed in s. 184(1), I would not interfere with
her conclusion that the Crown failed to establish the
actus reus
of
this offence. I would, however, not adopt all aspects of the trial justices
interpretation of these provisions. I will explain why I agree with her
conclusion that the
actus reus
for the s. 190(4) offence was
established, and why, in respect of s. 184(1), I would conclude that the
actus
reus
of that offence was not established.
[7]
As for s. 187, contrary to the appeal judges conclusion, and as
conceded by Toromont, the trial justice did not fail to address the reasonable
mistake of fact aspect of Toromonts due diligence defence to that charge. Because
of her conclusion on this issue, the appeal judge declined to address the other
errors alleged by Toromont in respect of its due diligence defence and sentence
for the s. 187 offence.
[8]
I would accordingly set aside the acquittals for the offences in
relation to s. 190(4), and uphold the acquittals for the offences in
relation to s. 184(1). I would remit the issues not determined by the appeal
judge in relation to the ss. 190(4) and 187 offences, namely, the
respondents due diligence defences and sentence appeals, to another appeal
judge of the Ontario Court of Justice for determination.
B.
BACKGROUND FACTS
[9]
On May 28, 2013, Stephane Audet, a field service technician, was injured
during the construction of the Southwest Detention Centre (the SWDC) in
Windsor, when the conductive tool he was using to clean a switchgear cabinet
made contact with an energized part at the back of the cabinet. The respondent
Bondfield Construction Company Limited (Bondfield)
[2]
was in charge of the project and
had contracted the respondent J.M.R. Electric Ltd. (J.M.R.) for electrical
installations. J.M.R., in turn, had contracted Toromont to supply a custom
switchgear and two emergency generators for the project, and to commission,
test and train workers on the equipment. Audet was employed by Toromont.
[10]
The switchgear involved in the incident was the electric power system
for the SWDC, which had the ability to distribute power to the entire building
or to isolate the power in certain areas. The equipment was located in two
adjacent rooms on the upper level of the project: an electrical room, housing
the switchgear and two transformers, and a generator room, housing the two
generators. The electrical room was accessed from a main corridor through a
double door and the generator room was, in turn, accessed through the
electrical room.
[11]
J.M.R. was responsible for controlling access to the electrical room by
restricting entry to authorized persons. J.M.R. posted warning signs on the
doorway and entrance to the electrical room, and installed a lock on the double
doors. Two of J.M.R.s master electricians and the Bondfield site
superintendent had keys for the door. The J.M.R. master electricians visited
the electrical room several times each day. Multiple trades entered and passed
through the room, which was also occasionally used for storage. There was
evidence, accepted by the trial justice, that the door was occasionally propped
open, leaving no controls on entry into the electrical room.
[12]
The switchgear assembly measured approximately 40 feet in length and 9
feet in height. It had an A side and a B side, that could be joined or separated
by a middle section to operate concurrently or independently. The switchgear
was completely enclosed on all sides and the top with sheet metal, except for
ventilation openings and inspection windows. Doors and removable covers
provided access to the interior, which contained various electrical devices
including circuit breakers electrical switches designed to open and close
electrical circuits to control and direct the distribution of energy. The
circuit breakers were housed in modular cabinets accessed by loosening and
removing thumb screws on the cabinets door and then opening the door. The
circuit breakers could be moved in and out of their cabinets on a drawer slide.
[13]
Once the switchgear and generators were installed, Toromont sent field
service technicians to the project to commission and test the generators, which
involved verifying their installation according to the manufacturers
specifications and testing the functionality of different components, including
the interconnections between the generators and the switchgear.
[14]
Audet and a second field service technician were assigned to commission
and test the two emergency generators at the SWDC. They were authorized by J.M.R.
to enter the electrical and generator rooms for this purpose. While both were
experienced technicians, neither was a licensed electrician or electrician
apprentice.
[15]
In the second week at the project, commencing on May 27, 2013, the two
technicians started to run troubleshooting tests on the equipment. In the
course of this testing, a number of false alarms activated in the electrical
room. It was determined that the false alarms were caused by metal filings in
the switchgear cabinets that had been produced when electricians drilled holes
to install the conduits for the communication wiring connecting the switchgear
and generators. On May 28, the technicians agreed that Audet would clean the
affected switchgear cabinets in order to remove the metal filings.
[16]
Before Audet began working on the switchgear cabinets, the circuit
breakers had been racked out to prevent the transmission of energy, and locked
so that they could not be reconnected to the power supply.
[3]
The power had been shut down on the A side and middle section of the
switchgear, while the B side remained energized. This meant that the stabs at
the rear of some of the cabinets (not the ones Audet was supposed to enter)
were still energized. However, all of the cabinets were racked out, locked and
tagged in the same manner. The markers did not identify whether a cabinet was
energized, only that it had the potential to be energized and was not to be
racked back in. To determine which cabinets he was authorized to enter, Audet referred
to a schematic diagram.
[17]
In the morning, Audet, while wearing proper personal protective
equipment (PPE), conducted a voltage test on the cabinets he was intending to
clean to confirm that they were in fact de-energized. He then removed most of the
PPE and proceeded to clean the cabinets, using a vacuum and a paintbrush with a
metal band. When he resumed work after his lunch break, Audet intended to clean
one of the de-energized cabinets, but inadvertently entered an energized
cabinet. As Audet reached to the rear of the cabinet to clean the metal
filings, the conductive metal band on his paint brush made contact with an energized
input stab, causing an electrical fault within the cabinet and throughout the
switchgear. The result was an arc flash, that is, an electrical explosion,
producing a large ball of fire that erupted from the cabinet, inflicting severe
burns on Audet and causing extensive damage to the switchgear.
[18]
Following an investigation by the Ministry of Labour, the three
respondents were charged with offences under ss. 23(1)(a) and 25(1)(c) of the
OHSA. The charges related to their alleged failures, as an employer in the case
of Toromont and J.M.R., and as a constructor in the case of Bondfield, to ensure
that certain measures and procedures prescribed by O. Reg. 213/91 were carried
out at the worksite. These included the measures and procedures prescribed by
ss. 184(1) and 190(4) of the regulation, and in the case of Toromont, s. 187.
C.
RELEVANT STATUTORY AND REGULATORY PROVISIONS
[19]
Sections 23(1)(a) and 25(1)(c) of the OHSA prescribe the statutory
duties of constructors and employers:
23
(1) A constructor shall ensure, on a
project undertaken by the constructor that,
(a) the measures and
procedures prescribed by this Act and the regulations are carried out on the
project;
25
(1) An employer shall ensure that,
(c) the measures and
procedures prescribed are carried out in the workplace
[20]
The relevant provisions of O. Reg 213/91 are found under the title
Electrical Hazards, a part that comprises ss. 181 to 195.3 of the regulation.
All three respondents were charged with having failed to comply with ss. 184(1)
and 190(4). In particular, it was alleged that, contrary to s. 184(1), they had
permitted unauthorized persons to enter a room with exposed energized
electrical parts, and that, contrary to s. 190(4), they had not ensured that
the power supply was disconnected before work was to be done on or near exposed
energized electrical parts.
[21]
Sections 184 and 190 provide as follows (I include these sections in
their entirety to provide necessary context):
184.
(1)
No
person, other than a person authorized to do so by the supervisor in charge of
the project, shall enter or be permitted to enter a roo
m or other enclosure
containing
exposed
energized electrical parts.
(2)
The entrance to a room or other enclosure containing
exposed energized electrical parts shall be marked by conspicuous warning signs
stating that entry by unauthorized persons is prohibited.
190.
(1) This section applies
if work is
to be done
on or near energized
exposed
parts of electrical
equipment or of an electrical installation or conductor.
(2) An employer
shall,
(a) establish
and implement written measures and procedures for complying with this section
to ensure that workers are adequately protected from electrical shock and burn;
and
(b) make a copy
of the written measures and procedures available to every worker on the
project. O. Reg. 627/05, s. 7.
(3) The worker shall
follow the written measures and procedures.
(4) Subject to
subsection (9),
the power supply to the electrical equipment, installation
or conductor shall be disconnected, locked out of service and tagged
in
accordance with subsection (6)
before the work begins, and kept
disconnected, locked out of service and tagged while the work continues.
(5) Hazardous stored
electrical energy shall be adequately discharged or contained before the work
begins and shall be kept discharged or contained while the work continues.
(6) The following
rules apply to the tagging of the power supply under subsection (4):
1. The tag shall
be made of non-conducting material and shall be installed so as not to become
energized.
2. The tag shall
be placed in a conspicuous location and shall be secured to prevent its
inadvertent removal.
3. The tag shall
indicate,
i. why the
equipment, installation or conductor is disconnected,
ii. the name of
the person who disconnected the equipment, installation or conductor,
iii. the name of
the persons employer, and
iv. the date on
which the equipment, installation or conductor was disconnected.
4. The tag shall
not be removed unless it is safe to do so.
(7) A worker, before
beginning work to which this section applies, shall verify that subsections (4)
and (5) have been complied with.
(8) If more than one
worker is involved in work to which this section applies, a means shall be
provided to communicate the purpose and status of,
(a) the
disconnecting, locking out and tagging of the electrical equipment,
installation or conductor; and
(b) the
discharging and containment of any hazardous stored electrical energy.
(9) Locking out is not
required under subsection (4) if,
(a) in the case
of a conductor, it is adequately grounded with a visible grounding mechanism;
(b) in the case
of equipment or an installation,
(i) the power
supply is less than 300 volts, the equipment or installation was not
manufactured with provision for a locking device for the circuit breakers or
fuses, and a written procedure has been implemented that is adequate to ensure
that the circuit is not inadvertently energized, or
(ii) the power
supply is 300 or more volts but not more than 600 volts, the equipment or
installation was not manufactured with provision for a locking device for the
circuit breakers or fuses, a written procedure as to how work is to be done has
been implemented and the work is supervised by a competent worker to ensure
that the circuit is not inadvertently energized. [Emphasis added.]
[22]
Section 187 of the regulation, which applies to an offence of which
Toromont was convicted at first instance, is as follows:
187.
Tools, ladders, scaffolding and other
equipment or materials capable of conducting electricity shall not be stored or
used so close to energized electrical equipment, installations or conductors
that they can make electrical contact.
D.
TRIAL DECISION
[23]
The trial justice convicted the respondents under ss. 23(1)(a) (in the
case of Bondfield) and 25(1)(c) (in the case of Toromont and J.M.R.) of failing
to ensure that the measures and procedures under ss. 184(1) and 190(4) were
carried out. She also convicted Toromont of failing to ensure that the measures
and procedures under s. 187 were carried out. In the course of her reasons, she
concluded that the
actus reus
for each of these offences was made out.
What follows is a brief summary of her reasons on this point. I will not address
the trial justices treatment of the due diligence defences, which are not
pertinent to this appeal, except briefly in relation to s. 187.
(1)
The offences under s. 190(4)
[24]
Section 190(4) requires that before the work begins, and while it
continues, the power supply to the electrical equipment shall be disconnected,
locked out, and tagged. The defence argued that s. 190(1) sets out necessary
preconditions for s. 190(4), and that these preconditions did not exist in this
case. First, they submitted that, contrary to s. 190(1), work was not to be
done on or near energized exposed electrical parts because the part Audet
contacted, which was located behind fastened cabinet doors, was not exposed.
[25]
In rejecting this argument, the trial justice stated that the word
exposed in s. 190, in the context of a dangerous high-voltage electrical room,
means easily accessible to an unauthorized person, and that to hold otherwise
would be to deprive any such person of the protection contemplated by the OHSA.
She concluded, I find that an energized part of electrical equipment in a
cabinet that is fastened by two thumb screws and easily accessible is exposed within
the meaning of the section: at para. 28.
[26]
The defences second argument was that the language if work is to be
done refers to where work is
intended
to be done, and that because
Audet knew he was not to work on energized parts, s. 190(4) did not apply. The
trial justice rejected this argument. She held that such an interpretation would
restrict the application of the section to instances where workers
intentionally work on energized equipment and remove from its ambit those who
inadvertently work on energized equipment. Instead, she viewed the phrase if
work is to be done as importing a temporal component, which is consistent
with section 190(4) which requires that the power supply to the electrical
equipment be disconnected, locked out and tagged before the work begins: at
para. 31.
[27]
The trial justice found as a fact that on May 28, 2013, Audet was
assigned to work
near
energized equipment and as a result inadvertently
worked
on
energized equipment: at para. 32. She found that the
equipment was easily accessible by simply undoing two screws and therefore
exposed to untrained people in the vicinity: at para. 32. Since work was to
be done on or near energized exposed parts of electrical equipment and the
power supply to the equipment had not been disconnected, locked out and tagged,
the
actus reus
of the s. 190(4) offence was established.
(2)
The offences under s. 184(1)
[28]
Section 184(1) of the regulation mandates that only authorized persons
may enter or be permitted to enter a room or other enclosure containing
energized electrical parts. The trial justice found that this section applied
to the electrical room where the accident took place because, based on her
interpretation of exposed in s. 190, the room contained exposed energized
electrical parts.
[29]
The trial justice held that s. 184(1) requires that the Crown establish
that a defendant failed to take measures and procedures to ensure that
unauthorized persons did not enter the electrical room: at para. 60. She
rejected the defence argument that evidence of the presence of an unauthorized
person in the electrical room at the time of the specific offence is required in
order to establish the
actus reus
of the offence.
[30]
The evidence was that the electrical room was used as a hallway to the
generator room and as a storage area for equipment, and that the room was very
busy with many tradespeople coming and going: at para. 53. The trial justice
was satisfied on the evidence that at times on or about May 28, 2013, the door
to the electrical room was propped open, leaving no controls on entry into the
room: at para. 63. She therefore concluded that the
actus reus
of the s.
184(1) offences had been established: at paras. 63-64.
(3)
The offence under s. 187
[31]
The trial justice found that, contrary to s. 187 of the regulation, Toromont
allowed its employee to use tools capable of conducting electricity so close to
energized electrical equipment that they could make electrical contact. This
finding was specifically in respect of the paintbrush with a metal band that
Audet had been using. The Crown thus made out the
actus reus
of this
offence as well.
(4)
The due diligence defences
[32]
For the purpose of this appeal, it is sufficient to note that, after
considering the evidence and arguments of the parties, the trial justice
concluded that none of the respondents had established a due diligence defence
in respect of ss. 184(1) and 190(4), and that Toromont had not established such
a defence in respect of s. 187.
(5)
The sentences
[33]
The trial justice sentenced Bondfield to a fine of $150,000 for the
offence in relation to s. 190(4) and $25,000 for the offence in relation to s.
184(1); J.M.R. to a fine of $50,000 in relation to the s. 190(4) offence and
$25,000 for the s. 184(1) offence; and Toromont to a global penalty of
$210,000, allocating $170,000 to the s. 190(4) offence, $10,000 to the s.
184(1) offence, and $30,000 to the s. 187 offence.
E.
APPEAL DECISION
[34]
The respondents appealed their convictions and sentences on a number of
grounds. Among other things, they argued that the trial justice erred in her
finding that the Crown had proved beyond a reasonable doubt that the electrical
parts were exposed, as required to prove the
actus reus
of the
offences in relation to ss. 184(1) and 190(4). The appeal judge accepted their
arguments on this point. She concluded that the trial justices interpretation
of the word exposed in the context of a dangerous high-voltage electrical room
as meaning accessible to an unauthorized person was wrong. Instead, the
appeal judge accepted the respondents argument that, in accordance with the
ordinary plain meaning of the word, exposed means not concealed or covered.
[35]
Applying this definition of exposed, and based on the evidence, the
appeal judge concluded that the equipment had not been exposed at the
relevant time. Further, even accepting the trial justices definition of
exposed, the appeal judge reasoned that the equipment was not exposed because
it was not easily accessible to unauthorized persons. The appeal judge rejected
the argument that the energized parts (the input stabs at the rear of the
cabinet) were in fact exposed at the time of the incident, as Audet had taken
active steps to defeat all precautions in place and expose the area himself,
despite not being scheduled to work there, not conducting a voltage test, not wearing
his protective equipment and using a conductive tool: at p. 11.
[36]
The appeal judge concluded that the preconditions for ss. 184(1) and 190(4)
were not met, and as such the Crown had not proved the
actus reus
of
the offences beyond a reasonable doubt. In light of this conclusion, she set
aside the convictions and entered acquittals for all of the respondents in
relation to ss. 184(1) and 190(4). She noted that it was unnecessary to
consider the other grounds of appeal argued by the respondents, including with
respect to due diligence and their sentence appeals.
[37]
The appeal judge, apparently accepting an argument raised by Bondfield,
[4]
set aside Toromonts conviction in relation to s. 187 on the basis that the
trial justice erred in not considering one of the branches of due diligence
articulated in
R. v. Sault Ste. Marie
, [1978] 2 S.C.R. 1299, in
particular, whether Toromont reasonably believed in a mistaken set of facts,
which, if true, would render the act or omission innocent. She ordered a new
trial on the s. 187 charge. It was therefore unnecessary to consider the other
grounds of appeal raised by Toromont, including its sentence appeal.
F.
ISSUES ON APPEAL TO THIS COURT
[38]
The Crown moved for leave to appeal to this court pursuant to s. 131 of
the
Provincial Offences Act
, R.S.O. 1990, c. P.33. In granting leave, Juriansz
J.A. framed the first issue on appeal as follows: Did the appeal court err by
holding that the Crown failed to prove the
actus reus
of the offences
related to ss. 184(1) and 190(4) of O. Reg. 213/91? The interpretation of
these provisions, including their use of the word exposed, is central to this
issue.
[39]
Juriansz J.A. found that a number of the grounds of appeal that the
appeal judge determined were unnecessary to consider are closely related to
this central issue, namely: (a) whether proof of the presence of an
unauthorized person is an essential element of the
actus reus
in s.
184(1); (b) whether the phrase if work is to be done in s. 190(1) creates a precondition
before there is a requirement to disconnect, lock out of service, and tag the
power supply to the electrical equipment, installation or conductor; and (c)
the impact of worker error, if any, in determining whether the
actus reus
of the offence related to s. 190(4) has been proven. He directed that the
respondents might advance these related arguments on the appeal to this court.
[40]
The second issue on appeal, as identified by Juriansz J.A., was whether
the appeal judge erred in holding that the trial justice failed to analyze
whether Toromont reasonably believed in a mistaken set of facts which, if true,
would render its contravention of s. 187 innocent.
[41]
At the hearing of the appeal before this court, Toromont conceded the
second issue. Toromont accepts the Crowns position that the appeal judge erred
in law in overturning its conviction under s. 187 of O. Reg. 213/91 on the
basis that the trial justice had not addressed this aspect of the due diligence
defence. I agree. When her reasons are read as a whole, it is clear that the
trial justice, as she stated she had done, addressed and dismissed both parts
of Toromonts due diligence defence. I would accordingly allow the Crowns
appeal on the second ground.
[42]
Only the first issue remains to be determined on its merits in this
appeal: whether the appeal judge erred by holding that the Crown failed to
prove the
actus reus
of the offences related to ss. 184(1) and 190(4)
of O. Reg. 213/91, because of the meaning she attributed to the word exposed.
In relation to s. 184(1), the respondents also renew their argument, advanced
at first instance, that proof of the presence of an unauthorized person is an
essential element of the
actus reus
in s. 184(1).
[43]
The parties agree that, if the Crown is successful in its appeal, the
remaining issues that the appeal judge did not address in respect of the
respondents due diligence defences and sentence appeals should be remitted
to another appeal judge of the Ontario Court of Justice for determination.
G.
POSITIONS OF THE PARTIES
[44]
The central issue on this appeal is the proper interpretation of ss. 190
and 184 of O. Reg. 213/91. This is a question of law, which is subject to
review on a correctness standard. Findings of fact are reversible only where a
palpable and overriding error has been established:
Housen v. Nikolaisen
,
2002 SCC 3, [2002] 2 S.C.R. 235, at paras. 8, 10.
[45]
Dealing first with s. 190(4), the Crown submits that the trial justices
finding that Audet was assigned to work
near
exposed energized
equipment relied on a purposive interpretation to the word exposed as meaning
easily accessible in the specific context of a dangerous high voltage
electrical room, and is correct. The Crown contends that the appeal judges
interpretation of exposed as not concealed or covered would render the
provision virtually meaningless, as electrical work almost always involves some
effort by a worker to expose potentially energized parts of electrical
equipment, an installation or a conductor, which are usually covered or
concealed during regular use. The Crown submits that the appeal judge unduly
restricted the application of s. 190 to situations where work is to be
performed on energized electrical equipment that is already exposed,
independent of a workers actions.
[46]
The Crown relies on the purpose of the OHSA, which is designed to
protect workers from injury resulting from both advertent and inadvertent acts
in the workplace, and submits that the intent of s. 190(4) is to require that
the power supply to exposed energized equipment be disconnected, locked out of
service, and tagged before the work begins, regardless of how the energized
equipment may be or become exposed.
[47]
In the alternative, the Crown submits that, if exposed means not
concealed or covered (the meaning given by the appeal judge), there is no
question that Audet was working
on
exposed, energized equipment at the
time he was injured.
[48]
The Crown submits that, once it is accepted that the parts Audet was
working on or near in the electrical room were exposed, and the power source
had not been disconnected, the
actus reus
of the s. 190(4) offence was
made out.
[49]
As for the s. 184(1) offences, the Crown acknowledged in oral argument
that the conclusion that the
actus reus
was made out depends on the
acceptance by this court of the trial justices definition of exposed in this
section as easily accessible. The Crown also asserts that the trial justice
did not err in concluding that s. 184(1) does not require evidence of the
presence of an unauthorized person in the electrical room, and that there was
no error in the trial justices finding that the door to the electrical room
was propped open, such that the
actus reus
of the s. 184(1) offence
was made out.
[50]
The respondents seek to uphold the appeal judges definition of
exposed as not concealed or covered. They assert that this definition is
consistent with the purposes of the OHSA, which include the prohibition of
access to dangerous electrical equipment. They argue that the trial justices
interpretation of the term exposed at one point in her reasons as not easily
accessible
to unauthorized persons
(a narrower definition than the one
the Crown seeks to uphold) cannot be correct as it is often difficult to
determine who is an unauthorized person on a construction project.
[51]
In the alternative, the respondents submit that the court may have
regard to the technical definition of exposed in relation to live parts in
the
Ontario
Electrical Safety Code
, 27th ed. (Toronto:
Electrical Safety Authority and CSA Group, 2018), as live parts that can be inadvertently
touched or approached nearer than a safe distance by a person.
[5]
On this definition, the energized parts were not exposed because they could
not be inadvertently touched when they were located in an electrical room, at
the back of enclosed cabinets with warning labels, and accessible only through
the deliberate act of undoing two thumb screws, removing the cabinet door, and
reaching back into the cabinet.
[52]
With respect to the requirement in s. 190(1) that
work is to be done
on or near energized exposed electrical equipment, the respondents renew the
argument made to the trial justice that it is a precondition for the application
of s. 190(4) that the worker must have
intended
to work on energized,
exposed electrical parts. Section 190 applies only to work that was assigned or
planned to be performed on energized exposed parts. The work that was to be
done by Audet was on de-energized equipment, and, as the appeal judge observed,
he had taken active steps to defeat all precautions in place, including
exposing the area himself.
[53]
Toromont further submits that accepting the Crowns proposed
interpretation of the term exposed as easily accessible for the purposes of
ss. 184(1) and 190(4) would lead to an absurd result for the construction
industry. Toromont argues that requiring a projects entire electrical power
system to be disconnected each time the electrical room is accessed by
authorized personnel, which occurs multiple times per day, is plainly absurd
and cannot reflect the intent of the legislators.
[54]
As for s. 184(1), while the appeal judge allowed the appeal of the
convictions in respect of this section based on her definition of exposed, the
respondents submit that the trial justice also erred in finding that the Crown
had established the
actus reus
of the charge under s. 184(1) when she
held that the proof of the presence of an unauthorized person in the room
containing exposed energized electrical parts was not an essential element of
the
actus reus
. Since there was no evidence that an unauthorized
person was in the electrical room when the offence was alleged to have been
committed, this alone ought to have led to acquittals for all of the
respondents under s. 184(1).
H.
DISCUSSION
[55]
The central issue is whether the Crown established the
actus reus
of
the offences in ss. 190(4) and 184(1) of the regulation, which depends on how
each section is interpreted, and in particular the meaning of the word
exposed in relation to energized electrical equipment as used in each
section. I will begin with a brief summary of the principles of interpretation.
Then I will turn to interpreting the two regulatory provisions, and explain why
the
actus reus
was made out for the offences under s. 190(4), but not made
out for the offences under s. 184(1).
(1)
The Principles of Interpretation
[56]
The proper approach to the interpretation of legislation is well-known
and summarized in
Rizzo & Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R.
27, at para. 21: the words of the 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. This
approach applies to any question of statutory or regulatory interpretation,
including in respect of the OHSA and its regulations: see, e.g.,
R. v.
Dofasco Inc.
, 2007 ONCA 769, 87 O.R. (3d) 161, at para. 12, leave to
appeal refused, [2008] S.C.C.A. No. 24;
Blue Mountain Resorts Ltd. v.
Ontario (Labour)
, 2013 ONCA 75, 114 O.R. (3d) 321, at para. 45. However,
these interpretive factors need not be canvassed separately in every case, and
in any event are closely related and interdependent:
Bell ExpressVu
Limited Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 31.
[57]
Although all of the interpretive principles must be kept in mind when
approaching the interpretive exercise, the starting point for analyzing
questions of statutory interpretation is to examine the words of the provision
in their grammatical and ordinary sense:
R. v. Conception
, 2014 SCC
60, [2014] 3 S.C.R. 82, at para. 14. Sources for the meaning of particular
terms may include both dictionary and judicially constructed definitions: see
R.
v. C.D.; R. v. C.D.K.
, 2005 SCC 78, [2005] 3 S.C.R. 668, at para. 28.
[58]
The purpose of the legislation is also central to the interpretive
exercise. The OHSA is public welfare legislation intended to guarantee a
minimum level of protection for the health and safety of workers:
Dofasco
,
at para. 16. As such, provisions of the OHSA and its regulations must be
interpreted generously and [n]arrow or technical interpretations that would
interfere with or frustrate the attainment of the legislatures public welfare
objectives are to be avoided:
Ontario (Ministry of Labour) v. Hamilton
(City)
(2002), 58 O.R. (3d) 37 (C.A.), at para. 16, leave to appeal
refused, [2002] S.C.C.A. No. 146; see also
Ontario (Labour) v. Quinton
Steel (Wellington) Limited
, 2017 ONCA 1006, at para. 19.
[59]
A generous interpretation, however, should not be confused with a
limitless one:
Blue Mountain Resorts Ltd.
, at para. 26. While the OHSA
aims to protect workers from both deliberate and inadvertent conduct, including
accidents that result when workers make mistakes or are careless or reckless,
it is important to remember that the OHSA seeks to achieve a
reasonable
level of worker protection, not an entirely risk-free work environment:
Dofasco
,
at paras. 24-26;
Ontario (Ministry of Labour) v. Sheehans Truck Centre Inc.
,
2011 ONCA 645, 107 O.R. (3d) 763, at para. 30.
(2)
Section 190(4)
[60]
Section 190 sets out a number of measures that must be taken to ensure
worker safety. These apply, pursuant to s. 190(1), if work is to be done on or
near energized exposed parts of electrical equipment or of an electrical
installation or conductor. One of the measures is prescribed under s. 190(4): the
power supply to the electrical equipment
shall be disconnected, locked out of
service and tagged [in the prescribed manner] before the work begins, and kept
disconnected, locked out of service and tagged while the work continues.
[61]
I begin by referring to the submission, made by the Crown in oral
argument on this appeal, that the meaning of this section is that no work is to
be done on live electrical equipment. I disagree. There is no general
prohibition against such work. As Toromont points out, provisions such as s.
182 restrict work connecting, maintaining or modifying electrical equipment or
installations to persons qualified as electricians or otherwise permitted to do
so. In addition, s. 191 of the regulation sets out the precautionary measures
to be taken when it is not reasonably possible to disconnect the equipment
from the power supply before working on or near energized exposed parts, anticipating
that there will be occasions where work is performed on live electrical parts. As
such, it is not sufficient that Audet was working on live electrical parts at
the time of the accident. Meaning must be given to the wording of the section,
which engages the competing definitions of the word exposed in the context of
s. 190.
[62]
There is no definition in the regulation, or for that matter in the OHSA,
for the term exposed, whether in relation to energized electrical parts or at
all. The parties refer to a range of dictionary definitions, including the
definition accepted by the appeal judge (not concealed or covered) and the
dictionary definition accepted by the court in
R. v. Proboard Ltd.
, 1990
CarswellOnt 4324 (Ct. J. (Prov. Div.)), in determining whether a machine had an
exposed moving part pursuant to another OHSA regulation (laid open; rendered
accessible or liable to action).
[6]
They also point to the technical definitions of exposed in the
Electrical
Safety Code
. They advance arguments about the purpose of the regulation
and the OHSA, and they argue for and against broad and narrow meanings to be
given to the term. Essentially, the Crowns position is that an exposed
electrical part is any part that is easily accessible, irrespective of how it
is exposed, while the respondents assert that electrical parts must already have
been exposed, in the sense of uncovered or capable of being inadvertently
touched, before the section can apply.
[63]
It is sometimes helpful to consider dictionary definitions of a term, but
in this case, such definitions shed little light on the meaning of the term
exposed in context. I agree, however, that because exposed is used here in
the technical context of electrical hazards and safety measures, it is helpful
to consider the technical definitions of the term in the
Electrical Safety
Code
.
The
Electrical Safety
Code
is a technical document that
describes safety standards for the installation and maintenance of electrical
equipment. It offers two definitions that depend on
whether exposed
is used in relation to wiring methods or live parts. Exposed in relation
to wiring methods means not concealed; whereas exposed live parts (which is
the same as energized parts) are live parts that can be inadvertently
touched or approached nearer than a safe distance by a person, and the term is
applied to parts not suitably guarded, isolated, or insulated.
[64]
As the
Electrical Safety Code
definitions illustrate, the
meaning of the term exposed in relation to electrical parts depends on the
context in which it is used. One cannot lose sight of the fact that the issue
in this case is not the interpretation of a single word in isolation, but the
interpretation of two regulatory provisions, both of which are contained within
a regulation that addresses Electrical Hazards, under a statute whose purpose
is to protect worker health and safety.
[65]
Accordingly, the point of departure is to examine the full text of s.
190, in order to understand the purpose of the provision and the context in
which the obligation under s. 190(4) arises. In my view, it is an error to
interpret the term exposed in isolation, without looking at the context in
which the term is used.
[66]
Section 190(1) states that the section applies if work is to be done on
or near energized exposed parts of electrical equipment. It goes on in the following
subsections to prescribe various measures for worker safety. These include the obligation
of an employer to establish and implement measures and procedures for complying
with the section to ensure that workers are adequately protected from
electrical shock and burn, and to make a copy available to every worker on the
project: s. 190(2); the requirement that workers follow the written measures
and procedures: s. 190(3); the requirement, subject to certain exceptions, that
before the work begins and while it continues, the power supply to the
equipment be disconnected, locked out of service and tagged: s. 190(4); and the
requirement, before the work begins and while it continues, to adequately
discharge or contain hazardous stored electrical energy: s. 190(5).
[67]
I pause here to address a point made in argument in relation to
Toromonts submission that for work to be done on or near energized
electrical equipment, a worker must have been directed or authorized to work on
energized equipment. I agree with the trial justice that, if the measures
under s. 190 applied only to work intentionally done on energized electrical
equipment, the section would be deprived of its meaning. Rather, I agree with
her that if work is to be done imports a temporal requirement, in the sense
that it prescribes various preventive measures that must be in place before
work begins on energized electrical equipment, and while it continues. Among
other things, s. 190(4) requires that, before the work is performed, the power
supply will have been disconnected, locked out and tagged, and that it will
remain that way while the work continues.
[68]
In other words, the section contemplates that, where work is planned on
or near exposed parts that are ordinarily energized, while the work is underway
the electrical parts will not be energized.
[69]
When considered in the context of s. 190 and what it requires, as well
as its purpose, it is not difficult to attribute meaning to the term exposed.
The intention is to protect workers who are working on or near exposed electrical
parts from the risk of shock or burn. The only reasonable interpretation of
this section, which is faithful to its wording, is that the prescribed measures
must be taken whether the electrical parts are already exposed before the work
begins, or whether the parts will be exposed in the ordinary course of the
work, that is, as the work is to be done. In addition, the on or near
wording in s. 190(1) makes it clear that the prescribed preventive measures are
to be taken to prevent a workers inadvertent exposure to electrical hazards,
including by coming too close to live parts that are near where work is to be
done, even if the work was not to be done on such parts.
[70]
When looked at this way, it is clear that the appeal judges definition
of the term exposed in s. 190(1) is incorrect. In using a dictionary
definition of exposed as not concealed or covered, she ignored the context
of s. 190. Her interpretation would mean that the measures prescribed by s. 190
would only be required in respect of electrical parts that were already uncovered
when the work began. Indeed, adopting this definition, s. 190 would not have applied
to the work Audet was assigned to perform, notwithstanding that in order to
carry out the work, he had to reach inside the cabinets and clean the area of
the input stabs, which were ordinarily energized.
[71]
There can be no question that work was to be done by Audet on (and near)
energized exposed electrical parts, such that the power supply to the cabinets
he was assigned to access, as well as those nearby, had to be disconnected
before the work began and while the work continued. Instead, while all of the
circuit breaker cabinets were identically racked out (i.e., disconnected from
the input stabs at the back of the cabinet) and tagged, the power supply to the
input stabs was disconnected only for the circuit breaker cabinets on which Audet
was assigned to work, and not for those nearby.
[72]
In my view, in order to give this section its intended meaning, which is
consistent with its goal of protecting workers from electrical hazards, where a
worker will be working on or near live electrical parts, and in the course of this
work live parts will be exposed to the worker, whether because the parts are already
exposed or because the work itself entails exposing electrical parts, s. 190(4)
requires that the electrical power supply be disconnected before the work
begins and while it continues. Where it is not reasonably possible to
disconnect the equipment from the power supply, s. 191 of the regulation
prescribes different and additional precautionary measures that must be in
place, including that the worker possess the qualifications prescribed by s.
182(1).
[73]
The appeal justice was wrong to treat the removal of the cover on the
front of the circuit breaker cabinets as Audet having taken active steps to
defeat all precautions in place and expose the area himself. In order to
clean inside the circuit breaker cabinets, Audet had to remove the cabinet
covers. The removal of a cover by loosening thumb screws was not, as the
respondents suggest, akin to removing a guard from a piece of equipment. The
cover did not act as protection against accidental exposure during the course
of the workers work. It simply enclosed the live electrical parts within the
circuit breaker cabinet. The parts were exposed to workers who had been
assigned to work inside the circuit breaker cabinets, because their work entailed
the removal of the cabinet covers.
[74]
It follows that it is an error to focus only on the circuit breaker
cabinet that Audet unintentionally entered. Rather, what must be considered is
the work that was to be done by Audet that day. He was to work on electrical
parts that were ordinarily energized and that would be exposed during the course
of his work. While doing this work, he would be vulnerable to the hazards of
electrical shock and burn that the preventive measures in s. 190 are meant to
address.
[75]
A number of the measures prescribed by s. 190 were in place to prevent
electrical shock and burns to workers before the work began. The circuit
breaker cabinets had been racked out (that is, disconnected from the power
source), locked in place, and tagged. The work required Audet to reach into the
cabinet, which housed parts that were ordinarily energized. As the trial
justice observed, the tagging and locking out did not serve as a warning to Audet,
because all of the cabinets were tagged and locked out in the same way, whether
or not the power supply to the cabinets had been shut down. While the measures
that were taken protected Audet from electrical shock or burn if he only worked
on the de-energized cabinets, he was not protected from inadvertent injury from
electrical parts that remained energized near where he was to work.
[76]
For these reasons, I am satisfied that the
actus reus
of s.
190(4) was made out on the facts of this case. Before Audet began his work, it
was clear that work was to be done by him both on and near exposed energized
parts of electrical equipment, such that the precautionary measures set out in
s. 190 were required. The circuit breaker cabinets were racked out, locked and
tagged, but the power supply to only some of the cabinets was disconnected. While
working on the de‑energized cabinets, Audet was working near
energized cabinets. He inadvertently entered the wrong cabinet, which remained
connected to the power supply, not by removing a lock or guard, but by simply removing
the thumb screws.
(3)
Section 184(1)
[77]
Section 184(1) provides that no person, other than a person authorized
to do so by the supervisor in charge of the project, shall enter or be
permitted to enter a room or other enclosure containing exposed energized
electrical parts. Section 184(2) requires the entrance to such a room or
enclosure to be marked by conspicuous warning signs stating that entry by
unauthorized persons is prohibited.
[78]
The trial justice relied on her interpretation of exposed in relation
to s. 190 (easily accessible to unauthorized persons) to conclude that
the high voltage electrical room where the circuit breaker cabinets were
located contained exposed energized electrical parts. She found that, at times
on or about the date of the accident, the door to the electrical room had been
propped open, leaving no controls on entry. As such, she concluded that the
actus
reus
of the s. 184(1) offences was made out. Invoking a different
interpretation of the term (not concealed or covered), the appeal judge
concluded that the parts were not exposed because they were concealed behind
cabinet doors, and the parts Audet accessed accidentally were still not
exposed because he had taken active steps to defeat all precautions in place
and expose the area himself. Because the room did not contain any exposed
energized electrical parts, the
actus reus
of the offences was not
made out.
[79]
There are two issues here. First, did the appeal judge err in concluding
that the
actus reus
of the offence had not been made out because the electrical
room did not contain exposed energized electrical parts? Second, does the
Crown have to prove that there was an unauthorized person in the room in order
to make out the offence, or is it sufficient, as the trial justice found, that
access was permitted because the door was propped open?
[80]
As discussed earlier in these reasons, the OHSA and its regulations must
be interpreted generously so as not to interfere with the attainment of the
legislatures public welfare objectives:
Hamilton (City)
, at para. 16.
Whereas s. 190 has, as its focus, the protection of a worker whose work is to
be done on or near exposed energized electrical parts, the focus of s. 184 is
on
unauthorized
workers who may be in the vicinity. The purpose of this
provision is to protect workers, but particularly unauthorized workers, from
the hazards of exposed energized electrical parts, both by restricting their
access to the room or enclosure in which the exposed electrical parts are
contained and by requiring that warning signs be posted at the entrance to such
a room or enclosure.
[81]
It must be remembered that this provision is contained in a regulation
that applies to construction projects. In this case, multiple trades, whose
work was entirely unrelated to exposed energized parts, were required to
perform tasks in the vicinity of the electrical room. The trial justice noted
that the vice-president of J.M.R. testified that this was progressive
construction and that it was not an ideal situation to have an up and running
electrical room when other tasks needed to be completed in that room: at para.
51. Indeed, the trial justice noted that while Audet was cleaning the
switchgear cabinet, he was frequently interrupted by electricians or painters
who required access to the same area to perform their work: at para. 62.
[82]
The appeal judge erred in her conclusion that the high voltage
electrical room did not contain exposed energized parts, such that the
actus
reus
of s. 184(1) could not be established. As I explained in the context
of s. 190, Audet worked on or near exposed energized parts when he performed
his work on the day of the accident. Without restricting the application of s.
184, it is clear that at the very least, on these facts, the high voltage
electrical room contained exposed energized parts when Audet worked on or near
such parts, and that s. 184 required that only authorized persons enter or be
permitted to enter the electrical room at that time.
[83]
On the appeal, counsel for Toromont explained its position that there were
no exposed energized parts in the electrical room at the time of the accident,
on the basis of its proposed interpretation of exposed, but acknowledged that
there may be circumstances where there
are
exposed energized parts in
the room. On this appeal, it is not necessary to decide the full range of
circumstances in which this electrical room, or any room or other enclosure,
might contain exposed energized parts. In this case, it is sufficient that
Audet worked on or near exposed energized parts on the day of the accident and,
at least at the time that he was performing this work, s. 184 required that
access to the electrical room be controlled.
[84]
The trial justice rejected the respondents argument that the
actus
reus
of s. 184(1) requires evidence of unauthorized persons having
been in the room at the time of the alleged offence, which, according to the
charges listed in the Information, was on or about the 28th day of May, 2013.
I agree. The plain language of s. 184(1) states that unauthorized persons may
not enter or be permitted to enter. The interpretation urged by the
respondents deprives this language of its meaning. The legislature, having used
the disjunctive or, must have intended for the phrase be permitted to enter
to have a different meaning than enter. I find that to establish the
actus
reus
, it will suffice that the entrance to the room or enclosure is not
controlled to restrict access by unauthorized persons, thus permitting
unauthorized persons to enter, irrespective of whether an unauthorized person
in fact enters the room. In other words, evidence of actual entry by
unauthorized persons into the room or enclosure that contains exposed energized
parts is a sufficient, but not a necessary, element of the
actus reus
of the offence.
[85]
The essential elements of the
actus reus
of the s. 184(1)
offence are therefore: (1) a person, other than a person authorized to do so by
the supervisor in charge of the project, enters
or
is permitted to enter
a room or other enclosure; and (2) the room or other enclosure contains exposed
energized electrical parts.
The issue respecting the
actus reus
in
this case is whether the Crown established that both of these essential
elements were present at the time of the alleged offence. In other words, the
factual issue is whether any unauthorized persons were permitted to enter the
electrical room at the time Audet was doing his work on exposed energized
electrical parts.
[7]
Following the trial justices reasoning, was the door to the electrical room
propped open at that time?
[86]
Although the trial justice found as fact that the door to the electrical
room had been left open at times on or about the date of the accident, the
Crown did not lead any evidence to establish that the twin elements of the
actus
reus
converged: first, that the room contained exposed energized
electrical parts and, second, that
while
it contained such parts, the
respondents failed to prohibit unauthorized persons from the room. Although the
door to the electrical room had been propped open at times, leaving no controls
on entry into the room, the Crown failed to establish that this ever occurred
while
the room contained exposed energized parts that is, while Audet was
performing his cleaning work on or near exposed energized parts. Further, the
Crown led no evidence that there were any exposed energized parts in the room
at any time other than when Audet performed his work that day. Therefore, on
this record, the temporal link between the two essential elements has not been
established, and the
actus reus
has not been made out.
[87]
In oral argument, the Crown acknowledged that for the
actus reus
of
the offences under s. 184(1) to have been proven on the evidence before the
court, it would be necessary to accept a broad definition of exposed as
easily accessible. In other words, the Crowns position is that the
electrical room contained exposed energized electrical parts because the live
parts could be easily accessed by removing the front covers from the circuit
breaker cabinets. Therefore, the room always contained exposed energized
parts and any lapse in the prohibition of unauthorized persons from the room
would have contravened s. 184(1). The Crown noted in oral argument that
this was the basis on which it argued the s. 184(1) offences at first instance,
and acknowledged that it had not asserted that s. 184 was contravened only at
the moment that the circuit breaker cabinets were accessed by Audet. According
to the Crown, its main concern was for the s. 190 offences, and the s. 184
offences were peripheral charges that were not causally connected to what
happened to Audet that day.
[88]
I note that, arguably, the respondents acted as though s. 184(1) applied
to the high voltage electrical room at all times. According to the trial
justices reasons, the electrical room was locked, and efforts were made to
control unauthorized access. The site superintendent for Bondfield gave
evidence that access was controlled by J.M.R. The trial justice recounted that [h]e
testified that the electrical room was high voltage and therefore dangerous and
access needed to be restricted: at para. 50. J.M.R.s representative gave
evidence that he came by the electrical room a few times a day to check that
the door was locked, and that no one would be in the electrical room unless
authorized: at para. 51. A J.M.R. electrician confirmed that access to the room
was via a key, and that if a J.M.R. foreman saw the door ajar, they would lock
it: at para. 54. This was a high-voltage electrical room that was effectively treated
as being out of bounds for unauthorized persons.
[89]
Nevertheless, the onus is on the Crown to prove beyond a reasonable
doubt the
actus reus
of the offence under s. 184(1), including that,
on or about May 28, 2013, while there were exposed electrical parts in the
electrical room, the respondents failed to ensure that measures and procedures
were in place to limit access to that room to persons authorized by the
supervisor in charge of the project. The Crown failed to establish that while
Audet performed his work on the switchgear that day, access to the room was not
controlled. It also failed to establish that the room contained exposed
electrical parts at any time other than when Audet performed his work.
Therefore, I am not satisfied that the
actus reus
was made out by the
Crown, and I would dismiss the Crowns appeal in relation to the s. 184(1)
offences.
I.
DISPOSITION
[90]
For these reasons, I would allow the appeal in part. I would set aside
the acquittals for the offences in relation to s. 190(4) of O. Reg. 213/91. I
would uphold the acquittals for the offences in relation to s. 184(1) of the
regulation. I would remit the issues not determined by the appeal judge in
relation to the ss. 190(4) and 187 offences, namely, the respondents due
diligence defences and sentence appeals, to another appeal judge of the Ontario
Court of Justice for determination.
Released: April 14, 2022 K.F.
K. van Rensburg
J.A.
I agree. K. Feldman
J.A.
I agree. Coroza
J.A.
[1]
A stab is a thick, conductive, metal bar located at the back of the switchgear cabinet.
Input stabs transmit energy into the breaker, and output stabs transmit energy
from the breaker into the building.
[2]
Bondfield
did not participate in the appeal to this court. The court was advised by
Bondfields in-house counsel that as a result of the ongoing
Companies Creditors Arrangement Act
proceedings and the terms of the Amended and Restated Initial Order dated April
3, 2019, Bondfield [would] not be participating in the appeal.
[3]
When racked in, conductive spring-loaded fingers on the breakers connect to
stabs at the rear of the cabinet, allowing for the transmission of energy,
while racking out ensures that the fingers are separated from the stabs at
the rear of the cabinet, preventing the transmission of energy.
[4]
The appeal judge suggested this was an argument made by Toromont. However,
Toromonts counsel on appeal to this court advised that the argument had in
fact been raised by Bondfields counsel.
[5]
The
Ontario Electrical Safety Code is the
Canadian Electrical Code, Part I (CSA C22.1-18)
, as amended by the
Ontario Amendments to the Canadian Electrical
Code Part I, C22.1-18
: see
Electricity
Safety Code
, O. Reg. 164/99, s. 1.
[6]
In
Proboard
, the court determined
whether a machine had an exposed moving part pursuant to s. 28 of
Industrial Establishments Regulation
,
R.R.O. 1980, Reg. 692 (now s. 24 of
Industrial
Establishments
, R.R.O. 1990, Reg. 851, enacted under the OHSA).
[7]
Although Audet said there were various people in the
electrical room when he was working on the switchgear cabinets, there was no
evidence that any of these people were not authorized by the supervisor in
charge of the project.
|
COURT OF APPEAL FOR ONTARIO
CITATION: 202135 Ontario Inc. v. Northbridge
General Insurance Corporation, 2022 ONCA 304
DATE: 20220419
DOCKET: C69643
Feldman, Pepall and Favreau JJ.A.
BETWEEN
202135
Ontario Inc. cob Helping Hands Daycare,
841986 Ontario Limited and
2433845 Ontario Inc.
Applicants (Respondents)
and
Northbridge General Insurance
Corporation
Respondent (Appellant)
Andrew A. Evangelista, Jennifer L. Kent
and Nikki Dehnashi, for the appellant
Danielle Muise, for the respondents
Heard: March 16, 2022 by video conference
On appeal from the order of Justice Susan
Vella of the Superior Court of Justice, dated June 14, 2021.
Feldman J.A.:
Overview
[1]
The respondents operate seven daycare centres
called Helping Hands outside the Toronto area. Their business at the seven
locations was insured through a Business Choice Policy from the appellant
Northbridge from February 2020 to February 2021. The policy included a special
endorsement to cover business losses arising from a pandemic. As the seven
locations were closed as a result of the COVID-19 pandemic from March 17, 2020
to June 22, 2020, the respondents made a claim for business losses under the
pandemic coverage provision.
[2]
The issue on the application and on this appeal
is the proper interpretation of the $50,000 per policy period limit of
liability clause in the endorsement, and whether it applies as a global total
for the seven locations, or whether it means $50,000 per location, for a total
exposure of $350,000.
[3]
The application judge found the limit of
liability clause to be ambiguous, but determined that the ambiguity was
resolved when read in the context of the policy as a whole. Properly
interpreted, she concluded that the limit of liability clause provides coverage
of $50,000 on a per location basis. In my view, the limit of liability clause
is not ambiguous. However, I agree with the application judges conclusion
regarding its meaning. Therefore, based on the analysis set out in the
following reasons, I would dismiss the appeal.
Facts
[4]
The respondents seven daycare centre locations
in the region around Toronto were insured for property and business losses under
a policy from the appellant Northbridge for the period from February 3, 2020 to
February 3, 2021.
[5]
The business loss portion of the original
insuring agreement is contained in Part II of the policy, and originally did
not include coverage in the case of a pandemic. That coverage was added by a
special endorsement titled the A.D.C.O. Program Endorsement, which amended the
Part I Property Insured, Part II Business Income, and Part III Commercial
General Liability coverages.
[6]
The indemnity agreement in the original policy
provides:
1. INDEMNITY AGREEMENT
We will pay for your loss of business
income, your incurred necessary extra expense, or loss of rental value
during the Period of Indemnity resulting from covered direct physical loss
subject to the provisions and limitations as applicable to the coverage specified
on the schedule in this Part. The covered direct physical loss must occur
at a scheduled risk location that has a limit specified on the schedule.
[7]
The limit of liability provision in the original
policy had been revised in previous policy years and read as follows during the
relevant year:
1.
Part II Section 2. Limit of Liability is deleted and replaced with
the following:
The most we will pay under this Part is your
Actual Loss Sustained of business income.
[1]
[8]
The schedule that is referred to in the
indemnity agreement is attached to the declaration page of the policy. It is
called the Part I & II Coverage Schedule. There is a separate schedule page
for each of the respondents seven locations. Each schedule page lists each of
the types of coverage that are contained in the policy, together with the
aggregate liability limit for each head of coverage, the deductible for
each one, and the annual premium for each one. An example for the daycare
centre location at 743 Kingston Road in Pickering is reproduced below:
Coverage
Aggregate Liability Limit
Deductible
Annual Premium
Business Personal Property
Breakdown of Business Personal
Property:
Equipment
$23,390
Office Contents
$327,500
Tenants/Owners Improvements $25,000
$375,890
$1,000
Included
Equipment Breakdown
$375,890
$1,000
Included
Business Income Actual Loss
Sustained
Period of Indemnity: 12 Months
Included
Outdoor trees, shrubs, plants
$25,000
$1,000
Included
Debris Removal
$100,000
$1,000
Included
Professional Fees
$50,000
$1,000
Included
Sewer Backup
$2,500
Included
Outdoor Property
$100,000
$1,000
Included
Master Key
$25,000
$1,000
Included
Cyber Event Expense
$30,000
$1,000
Included
EDP Equipment, Data and Media
Breakdown
$50,000
$1,000
Included
CBC 100 Earthquake
3% $100,000
Included
CBC 101 Flood
$10,000
Included
CBC 106 Stated Amount Co-Insurance
Clause
Expiry February 3, 2021
$375,890
Included
BI-Off Premises Heat, Power, Gas,
Water
Waiting period: 24 Hours
$100,000
Included
CBC 215 Actual Loss Sustained
Included
[9]
The
A.D.C.O.
Program Endorsement deletes certain sections of the Part II Business Income
section of the policy that excluded coverage for a pandemic. The endorsement
adds that coverage as part of an extension of coverage for Outbreak &
Negative Publicity. The relevant portion of the endorsement, including the
limit of liability clause, provides:
1. DELETED EXTENSIONS OF COVERAGE
Part II Section 6. Extensions of Coverage
(j) Negative Publicity
and
(k) Outbreak Extra
Expense
are deleted in their entirety.
2. ADDITIONAL
EXTENSIONS OF COVERAGE
The following Extensions of Coverage are added
to
Part II Section 6. EXTENSIONS OF COVERAGE:
(l) Outbreak & Negative Publicity
(i) Indemnity Agreement:
We agree to extend
the insurance provided by
Part II Business Income
to apply to your
loss of business income including incurred necessary extra expense
resulting from interruption of or interference to your business operations at
your scheduled risk location directly as a result of:
(1) A pandemic
outbreak declared by Civil Authority or public health authority;
(iv) Limit of Liability:
The most that we will pay under this Extension
of Coverage in any one policy period is $25,000 or as otherwise indicated on
the schedule
.
[10]
The parties agree that the stated limit of
$25,000 is an error and that the actual limit of liability was $50,000.
[11]
Due to the COVID-19 pandemic, all seven of the
respondents locations were closed from March 17, 2020 to June 22, 2020. The
respondents claimed coverage of $50,000 for the pandemic business loss coverage
for each of their seven insured locations, for a total of $350,000. The
appellant insurer responded that the limit of liability was $50,000 in
aggregate for all insured locations. The respondents therefore commenced the
application under appeal for a determination of the proper interpretation of
the limit of liability clause for the extended coverage for pandemic business
income loss.
The Findings of the Application Judge
[12]
The application judge first summarized the
principles of insurance contract interpretation articulated by the Supreme
Court of Canada in its decisions in
Ledcor Construction Ltd. v. Northbridge
Indemnity Insurance Co.
, 2016 SCC 37, [2016] 2 S.C.R. 23,
Consolidated-Bathurst
v. Mutual Boiler
, [1980] 1 S.C.R. 888,
Reid Crowther & Partners
Ltd. v. Simcoe & Erie General Insurance Co.
, [1993] 1 S.C.R. 252, and
Progressive
Homes Ltd. v. Lombard General Insurance Co. of Canada
, 2010 SCC 33, [2010]
2 S.C.R. 245. She then turned to the provisions of the policy and determined
that the limit of liability clause under the extended coverage for pandemic
loss is ambiguous, and could apply either to each location separately, or as an
aggregate for all locations. Reading the contract as a whole and referring to
other clauses in the contract, the application judge resolved the ambiguity in
favour of the respondent insured. She also added that if she was incorrect, then
the
contra proferentem
rule should be applied against the appellant insurer.
In the result, she found that the $50,000 limit of liability for pandemic
business losses applied to each business location separately.
Standard of Review on Appeal
[13]
The parties both submit that the standard of
review is correctness, on the basis that the insurance policy is a standard
form policy:
Ledcor
, at para. 4. To clarify, the insurance policy under
review is clearly a bespoke policy that includes and excludes defined coverages
for specified amounts in respect of each of the respondents seven business
locations. However, what is urged upon the court is that the clauses within the
policy are standard, unmodified clauses that are also offered to similar
businesses. In that way, they are in a standard form, and their interpretation
will apply to the same clauses as they may appear in other policies and have
precedential value. In addition, there is no meaningful factual matrix that is
specific to the parties to assist the interpretation process. On this basis, I
accept that it is appropriate to apply the correctness standard of review.
Issue on Appeal
[14]
The issue on this appeal is whether the
application judge erred in law in her interpretation of the limit of liability
clause contained in the Outbreak & Negative Publicity coverage extension
for business losses suffered during a pandemic.
Analysis
[15]
The appellant acknowledges that the application
judge identified and applied the correct legal principles of insurance contract
interpretation from the case law.
[16]
The application judge summarized the rules of
interpretation of insurance policies from the case law in the following way:
a)
The court must first determine whether the language of the insurance
policy is unambiguous, within the contract as a whole. If there is no
ambiguity, effect must be given to that clear language.
b)
However, if the policy language at issue is ambiguous, the court
must apply the general principles of contractual interpretation to resolve that
ambiguity. This framework includes the principles that: the interpretation
should be consistent with the reasonable expectations of the parties so long as
that interpretation is supported by the language of the policy; the
interpretation should not give rise to results that are unrealistic or that the
parties would not have contemplated in the commercial atmosphere in which the
insurance policy was entered into; and the interpretation should be consistent
with the interpretation of similar insurance policies;
c)
If the ambiguity is unresolved after the application of the general principles
of contractual interpretation, then the court should apply the doctrine of
contra
proferentem
to construe the policy against the insurer. This is a course
of last resort. The corollary of this rule is that coverage provisions in
insurance policies are to be interpreted broadly, whereas exclusion or limiting
clauses are to be interpreted narrowly.
[17]
She also added that: 1) the interpretive
principles should not be used to create an ambiguity; 2) some imprecise
language does not necessarily mean there is ambiguity when the contract is read
as a whole; and 3) an ambiguity requires two reasonable meanings that each make
sense within the policy read as a whole:
Progressive Homes
, at paras.
22-23;
Surespan Structures Ltd. v. Lloyds Underwriters
, 2021 BCCA 65,
at para. 88;
Sabean v. Portage La Prairie Mutual Insurance Co.
, 2017
SCC 7, [2017] 1 S.C.R. 121, at para. 42.
[18]
The appellant submits that the application judge
erred in law by finding that the limit of liability clause is ambiguous and by
resolving that ambiguity in favour of the respondents. Its further position is
that the limit of liability clause is clear and unambiguous when read on its
own, and that it means that the total maximum coverage is $50,000 per policy
period in aggregate for all seven locations.
[19]
The respondents agree that the clause is
unambiguous when read in the context of the policy as a whole, but they say that
it unambiguously provides that the limit of liability is $50,000 per location. In
the alternative, if it is ambiguous, when read in the context of the policy as
a whole, the ambiguity is resolved in favour of the respondent insureds
interpretation. In the further alternative, if the clause is ambiguous, it
should be read
contra proferentem
against
the insurer.
[20]
I agree with both parties that the limit of
liability clause is not ambiguous when read in the context of the policy as a
whole. I set out again the indemnity and limit of liability provisions of the pandemic
coverage extension contained in the A.D.C.O. Program Endorsement:
2. ADDITIONAL EXTENSIONS OF COVERAGE
The following Extensions of Coverage are added
to
Part II Section 6. EXTENSIONS OF COVERAGE:
(l) Outbreak & Negative Publicity
(i) Indemnity Agreement:
We agree to extend
the insurance provided by
Part II Business Income
to apply to your
loss of business income including incurred necessary extra expense
resulting from interruption of or interference to your business operations at
your scheduled risk location directly as a result of:
(1) A pandemic
outbreak declared by Civil Authority or public health authority;
(iv) Limit of Liability:
The most that we will
pay under this Extension of Coverage in any one policy period is [$50,000] or
as otherwise indicated on the schedule
.
(1)
The internal wording of the limit of liability
clause is unambiguous
[21]
First, looking only at the words of the limit of
liability clause itself, the maximum amount is stated to be or as otherwise
indicated on the schedule. As in this policy there are seven separate
schedules, one for each scheduled risk location, the reference to the schedule
can only mean to each individual schedule for each risk location.
[22]
As a result, the maximum limit amount can be
altered in each schedule separately. More significantly, the clause
contemplates an individual maximum that could be referenced in each schedule.
[23]
As set out in para. 8 above, the only reference
in the schedules to a limit of liability for business losses is the Actual
Loss Sustained, which applies to the business losses not referred to in the
extended endorsement.
[2]
[24]
Thus, the internal wording of the limit of
liability clause does not support the meaning suggested by the appellant
insurer, that the maximum liability amount of $50,000 in the policy period is
an aggregate amount for all locations. The appellant is effectively asking the
court to read out or ignore the words or as otherwise indicated on the
schedule that follow $25,000 (or $50,000, as the parties agree the clause
should state), in order to substantiate its submission on the meaning of the
clause.
(2)
The wording of the indemnity provision that the
limit of liability clause applies to provides further support
[25]
The respondent insureds interpretation is
reinforced by the language of the indemnity agreement for pandemic loss coverage
in the A.D.C.O. Program Endorsement. In accordance with the interpretive
principles from the governing case law, as both the indemnity agreement and the
limit of liability clause are subclauses of the Outbreak & Negative
Publicity extension of coverage, they are to be read together. While said in
the context of an exclusion clause, Rothstein J.s statement in
Progressive
Homes
, at para. 27 is relevant here: Exclusions do not create coverage
they preclude coverage when the claim otherwise falls within the initial grant
of coverage. Exclusions, however, should be read in light of their initial
grant of coverage.
The appellant submitted the opposite: that the
clauses must be read separately. However, counsel provided no case law to
support that proposition.
[26]
The indemnity agreement provides coverage for
loss of business income as a result of a pandemic outbreak at your scheduled
risk location. The respondents submit that because the indemnity agreement
refers to scheduled risk location in the singular rather than the plural, it is
referring to each single scheduled risk location (i.e., each of the seven
daycare centres). Therefore, the limit of liability, which refers to and
imposes a limit on the indemnity obligation, also applies to each single scheduled
risk location. Had the policy used the plural, scheduled risk locations, then
it would be arguable that the limit of liability could be interpreted to apply
to all risk locations in the aggregate.
[27]
In response to this argument, the appellant relies
on the definition of scheduled risk location in the Definitions section of
the Policy, and specifically s. 16(x), which provides: Scheduled risk
location means: risk location(s) specified on the schedule.
[28]
The appellant submits that the definition
defines the singular to include the plural, that they are therefore
interchangeable, and that accordingly, no significance can be attributed to the
use of the singular in the indemnity agreement policy language.
[29]
I would not accept this submission or the appellants
interpretation of the definition. The definition merely explains that one looks
to the schedule to find the scheduled risk location or locations, whichever may
be applicable. It does not mean that the singular and plural forms of
scheduled risk location are to be interpreted interchangeably when used in
the policy and related endorsements.
(3)
This interpretation does not require the
inclusion of the word each
[30]
The appellant also argues that the court is
reading the word each into the reference to business losses at your
scheduled risk location, and that without reading in the extra word, the
singular reference cannot be given that meaning.
[31]
I would reject this submission. There is no
ambiguity in the language used. The singular reference to scheduled risk
location indicates that the indemnity is for losses at the location listed on
the schedule. In this case, there are seven separate schedules, one for each
risk location. It is not necessary to read in the word each because the use
of the singular performs the same function.
[32]
Similarly, the appellant noted two coverage
extensions that do use the word each in the limit of liability wording. It
submits that this language is what is required to extend coverage to each risk
location on an individual basis. The limit of liability clauses in the two
extensions state as follows:
(c) Personal Effects (including Volunteers)
amended limit:
The most that we will pay under this Extension
of Coverage in respect of any one officer, director, partner, employee or
volunteer workers is $10,000 for any one occurrence.
The most that we will pay under this Extension
of Coverage at each scheduled risk location in any one policy period is
$25,000, or as otherwise indicated on the schedule.
(z) Property of Tenants or Registered
Guests of a Hotel or Apartment or Members, Guests and Residents of Health Care
Facilities
The most that we will pay under this Extension
of Coverage at each scheduled risk location per covered tenant, guest, member
or resident is as specified on the Coverage Summary, or as otherwise indicated
on the schedule for any one occurrence.
The most that we will pay under this Extension
of Coverage at each scheduled risk location in any one policy period is as
specified on the Coverage Summary, or as otherwise indicated on the schedule.
[33]
The appellant suggests that these limits clearly
apply on a per scheduled risk location basis and that, in contrast, the limit
of liability for pandemic business loss lacks clear language to the same
effect. I disagree. While the use of the word each is consistent with a limit
that applies on a per location basis, as noted above, it is not a necessary
word. The clause could have said at a scheduled risk location or at the
scheduled risk location or otherwise indicated the singular, and it would
have had the same meaning: that it applies on an individual basis.
(4)
This interpretation is consistent with the
policy read as a whole
[34]
These indemnity and limit of liability provisions
are consistent with the structure of the entire policy, which insures each
location for its losses, as defined precisely in the separate schedules.
[35]
For example, part of the A.D.C.O. Program
Endorsement deals with extensions of coverage under Part I of the policy, which
deals with insurance of property, as distinguished from insurance of business
losses in Part II. Under Part I Property Insured, there is an automatic
blanket limit clause which provides:
Automatic Blanket Limit Clause
The most that we will pay under any one or a
combination of the following
Part I Property Insured 8. Extensions of
Coverage
is $600,000 for any one occurrence in any one policy period. The
Automatic Blanket Limit applies separately to each scheduled risk location.
[36]
As it indicates, the limit of liability of
$600,000 in a policy period applies to each scheduled risk location. The word
each is used in this provision, but it is in the limit of liability wording
rather than in the indemnity wording. In my view, the use of the word each here
is consistent with the operation of the policy which effectively insures the
risk locations as separate businesses.
(5)
There are no other provisions that support the
appellants interpretation
[37]
While the appellant pointed to other provisions
of the policy to try to assist in interpreting the limit of liability clause at
issue, counsel did not identify another one in the policy with identical
wording or effect that would assist in the interpretation of the limitation of
liability clause in issue on this appeal.
[38]
For example, the appellant notes that there are
only two other extensions of coverage for business losses that contain a limit
of liability clause per policy period, and that both of them provide a limit
per occurrence. These provisions that apply per occurrence are not
comparable and do not assist the appellant in the interpretation of the pandemic
limit of liability clause. The first, for Emergency Vacating Expenses, uses
the same language in the limit of liability as the clause in question apart
from the per occurrence limitation. It provides: The most that we will pay
under this Extension of Coverage is $50,000, or as otherwise indicated on the
schedule for any one occurrence. Just like the clause in question, this
limit of liability uses the singular form of the schedule and supports the
finding that the limit applies per location. The second extension, for Tenant
Lease Cancellation Expense, does not address scheduled risk locations at all.
[39]
The appellant also identified some extensions of
coverage under Part I Property Insured that contain identical or near
identical language to the subject clause. However, there is no indication in
those clauses that they are intended to apply on an aggregate basis. For
example, the coverage extension for Pollutant Cleanup and Removal provides
that [t]he most that we will pay under this Extension of Coverage in any one
policy period is as specified on the Coverage Summary, or as otherwise
indicated on the schedule. Again, the singular is used.
[40]
Another extension, for Furs, Fur Garments,
Jewels, and Jewellery, uses the same language in the limit of liability clause
but refers to any scheduled risk location in the coverage extension language
that precedes it:
We agree to extend the insurance provided by
Part
I Section 2. Insured Property (b) Business Personal Property
to apply to
loss of or damage by an insured peril to furs, fur garments, jewels, jewellery,
costume jewellery, watches, pearls, precious and semi-precious stones while
such property is at any scheduled risk location.
The most that we will pay under this Extension
of Coverage in any one policy period is as specified on the Coverage Summary,
or as otherwise indicated on the schedule.
[41]
The appellant submits that this coverage
extension applies on an aggregate basis because of the use of the word any in
the coverage language. I disagree. Read in context, the above clauses provide
that the most that the insurer will pay is as specified on the summary or
schedule, as long as the loss or damage occurred while the property was at one
of the scheduled risk locations. The language of the limit of liability clause is
as indicated on the schedule, i.e., the same as in the pandemic loss limit of
liability: on a per location basis. The use of the word any in the coverage
portion of the clause does not modify this unambiguous language.
[42]
In oral argument, the appellant also pointed to
the coverage extension for Professional Misconduct Legal Expense, under Part
III Commercial General Liability, as an example of a type of coverage with a
limit of liability that applies on an aggregate basis. The limit of liability
clause under this section states:
We will reimburse you for legal expenses up
to a maximum of $100,000 in respect to any single hearing or defence of
action covered by this extension, or $100,000 in the aggregate in respect of
all hearings or defences of action instituted during the period of this
extension.
[43]
However, the indemnity provision of this
coverage is not location specific. Instead, it applies to expenses arising
from any hearing or in defence of any action. In addition, it uses the words
in the aggregate. Again, this provision does not assist the appellant in
interpreting the pandemic business loss clause.
[44]
In sum, the appellant has not pointed this court
to any provisions of the insurance agreement or the applicable endorsements
that provide coverage based on losses or damage at a scheduled risk location
where the limit of liability for such coverage applies to all locations on an
aggregate basis, rather than on a per location basis.
[45]
As a result, the plain language of the limit of
liability clause, as reinforced by the coverage extension and the structure of
the policy as a whole, makes clear that the pandemic business loss coverage
limit applies to each of the respondents seven daycare locations separately.
(6)
The premium allocation bolsters the per location
interpretation
[46]
Finally, the respondents also rely on the fact
that the premium they paid for the extended coverage was based on and divided
among the seven risk locations in different amounts. I agree that this further
supports the interpretation that it was the intention of the parties that the
limit of liability would apply to each of the seven locations separately.
Conclusion
[47]
In my view, the limit of liability for the
coverage extension for pandemic business losses is unambiguous when read in the
context of the indemnity agreement and the policy as a whole, and applies to
each scheduled risk location. As a result of my conclusion, there is no need to
apply the
contra proferentem
rule of interpretation. While the
application judge found ambiguity which she resolved in favour of the insured, my
conclusion regarding the proper meaning of the clause is the same.
[48]
For these reasons, I would allow the fresh
evidence and dismiss the appeal, with costs fixed in the agreed amount of $15,000,
inclusive of disbursements and H.S.T.
Released: April 19, 2022 K.F.
K.
Feldman J.A.
I
agree. S.E. Pepall J.A.
I agree. L. Favreau J.A.
[1]
On
appeal, the appellant brought a motion to file fresh evidence regarding which
limit of liability provision was in effect during the relevant period. The respondents
do not object to the fresh evidence being admitted. I accept that the relevant
limit of liability provision was as stated in para. 7.
[2]
The
parties did not argue that the words Actual Loss Sustained in the schedules
should be read to modify the stated limit of liability of $50,000, as set out
in the limit of liability clause which, again, states: The most that we will
pay under this Extension of Coverage in any one policy period is [$50,000]
or
as otherwise indicated on the schedule
(emphasis added).
|
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 complainants 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.W., 2022 ONCA 306
DATE: 20220421
DOCKET: C68966
Lauwers, Pardu and Sossin JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
J.W.
Appellant
Bryan Badali, for the appellant
Amy Alyea, for the respondent
Heard: March 10, 2022 by video
conference
On appeal from the conviction entered on
February 20, 2018 by Justice Sylvia Corthorn of the Superior Court of
Justice, sitting without a jury.
Lauwers J.A.:
A.
Overview
[1]
The trial judge convicted the appellant of four counts:
invitation to sexual touching (x2), sexual interference, and exposing his
genitals. This was a re-trial. In 2015, the appellant was convicted of the same
offences but this court allowed the appeal and ordered a new trial (2016 ONCA
965). I would allow the appeal on the basis that the trial judge incorrectly admitted
evidence of the appellants discreditable conduct several years after the date
of the charged offences.
B.
The Background Facts
[2]
In May 2013, the appellant operated a daycare
for young children out of his home. One of the children, D.B., (a girl, then three
and a half years old) alleged that the appellant engaged in sexually
inappropriate behaviour with her during nap time. On May 15, 2013, D.B. told
her mother on the drive home from daycare that during naptime the appellant
put his penis in my hand and another time he had put it in my mouth. That
evening, D.B. told her parents in a matter-of-fact tone that there was touching
and licking and demonstrated putting something in her mouth. On May 16, 2013, the
police interviewed D.B. She had trouble identifying true and false statements
but said that the appellant put his penis in her mouth, and she had licked and
rubbed it. On April 30, 2014, the police interviewed D.B. again, but she was
unable to recall going to the daycare. At the retrial, D.B. was shown the video
of her May 16 statement, but did not remember it.
[3]
A second child, A.M., (a girl, then five years
old) subsequently made a similar allegation. On May 17, 2013, as the result of
D.B.s complaint, the police interviewed A.M. She did not disclose anything
improper. The police advised A.M.s parents of the nature of D.B.s complaint.
On May 18, 2013, while using the washroom with her mother, A.M. described the
appellants penis. Her mother asked if the appellant had ever asked her to
touch his penis. A.M. told her mother that he had, but she had said no, no,
no, no, no and that this happened on movie days during nap time when the
other children were asleep. On May 19, 2013, the police again interviewed A.M.,
who said she observed the appellant rub his penis and asked her to touch it,
but that she refused. At trial, she did not remember attending the daycare or
the police statements.
[4]
On October 17, 18 and 19, 2016, the appellant
was observed by two neighbours. He was visibly naked and masturbating in his
living room. They took photographs and a video and reported it to the police. The
trial judge noted that the appellant was charged, tried, and convicted of
public nudity and breach of his conditions
of release in January 2018, and presumably sentenced, though the sentencing
details are not in the record.
C.
The Decision Under Appeal
[5]
The trial judge granted the Crowns application
to admit the complainants allegations on the basis of count-to-count similar
fact evidence.
She
drew the inference requested by the Crown that the appellant had a specific
propensity to exploit his status as a daycare provider by engaging in
inappropriate sexual behaviour with very young girls in his care during nap,
quiet or movie time. This ruling allowed the trial judge to consider the two
charges as mutually reinforcing. The appellant does not challenge this ruling.
[6]
The trial judge also granted the Crowns
application to admit the discreditable conduct evidence about the appellants
public nudity charge in October 2016, in part, only in relation to the reliability
of A.M.s evidence.
(1)
The Discreditable Conduct Ruling
[7]
The trial judge cited this courts decision in
R.
v. B.(L.)
, [1997] O.J.
No. 3042, at para. 10, 35 O.R. (3d) 35 (C.A.), at p. 36, as the legal basis for
her ruling. She
found that the appellants conduct in
October 2016 manifested his propensity to masturbate, while naked, during
daytime hours, with a towel, and in his living room. She considered this
conduct to be relevant and material to the events described by A.M., in view of
similarities she found in his October 2016 conduct and his conduct as described
in A.M.s testimony.
[8]
The trial judge admitted the discreditable
conduct evidence and from it drew the three inferences proposed by the Crown:
1) A.M. described events she witnessed rather than events she imagined; 2) A.M.
was not mistaken in her description of the appellant as the man rubbing his
penis with one hand; 3) A.M. was not mistaken as to the nature of the act she
described (masturbating, including with a towel).
[9]
The trial judge found the probative value of the
evidence to exceed its prejudicial effect. The probative value was high because
it was capable of supporting the three requested inferences and was therefore
relevant and material to A.M.s testimony. She found the prejudicial effect to
be low because: the conduct was less discreditable than the conduct described
by A.M.; it was a judge-alone trial; and the appellant could testify in
response. However, the trial judge declined to admit the evidence in relation
to the charges involving D.B., who had described events in a childs bedroom.
She found the evidence of discreditable conduct was not relevant or material to
the events described by D.B.
(2)
Credibility and Reliability Findings
[10]
The trial judge applied the
W.(D.)
[1]
framework. She found
the appellant not to be credible and rejected his denial of the events, finding
that his evidence did not leave her with a reasonable doubt as to his guilt.
She found that he provided minute details on collateral matters in a deliberate
effort to present himself as credible and reliable, a responsible caretaker,
and the proprietor of a well-run daycare. In contrast, he said he had no memory
of the October 2016 events, with no reasonable explanation. The trial judge
also found internal inconsistencies in his testimony about nap time and in D.B.s
testimony about the number of occasions on which the described events occurred.
[11]
Considering the count-to-count similar fact
evidence and the other discreditable conduct, the trial judge convicted the
appellant because she found D.B. and A.M.s evidence to be both credible and
reliable (subject to a finding that D.B. was unreliable as to how often the
abusive conduct happened).
D.
Issue
[12]
The appellant challenges the trial judges
ruling admitting the evidence about his 2016 discreditable conduct.
E.
Analysis
[13]
I consider the principles that govern the
admissibility of discreditable conduct evidence and then apply the principles
to this case.
(1)
The Governing Principles on the Admissibility of Discreditable
Conduct Evidence
[14]
This appeal requires this court to make another
foray into what Dean Wigmore called, in 1940, a vast morass of authority that
was hopeless to reconcile on the admissibility of discreditable conduct
evidence.
[2]
The morass is vaster today.
(a)
Defining Discreditable Conduct Evidence
[15]
Discreditable conduct evidence is evidence that:
(a)
tends to show that the accused has committed an
offence that is not the subject matter of the charge or charges before the
court; or
(b)
tends to show behaviour on the part of the
accused, either through prior or subsequent acts, records, statements or
possessions,
(c)
and which, in the opinion of the court, would be
viewed with disapproval by a reasonable person.
[3]
[16]
This definition is apt because the discreditable
conduct in this case public nudity relates to a charge that was not the
subject matter of the charges before the court and that a reasonable person
would view with disapproval.
(b)
The Exclusionary Rule
[17]
The rule is most simply expressed by McLachlin
J. (as she then was):
[E]vidence which is adduced solely to show
that the accused is the sort of person likely to have committed an offence is,
as a rule, inadmissible. Whether the evidence in question constitutes an exception
to this general rule depends on whether the probative value of the proposed
evidence outweighs its prejudicial effect.
[4]
In other words, there is a general
exclusionary rule against the admission of evidence going merely to
disposition.
[5]
The Supreme Court repeated this language in
Handy
, which continues to
be the seminal decision and governing precedent.
[6]
[18]
The rule exists, said Binnie J. in
Handy
,
because: [t]he evidence, if believed, shows that an accused has discreditable
tendencies, so that the trier of fact might convict on that basis alone, with
the prospect that [i]n the end, the verdict may be based on prejudice rather
than proof, thereby undermining the presumption of innocence. This would be
wrong: [t]he forbidden chain of reasoning is to infer guilt from general
disposition or propensity.
[7]
[19]
In order to overcome the presumption of
inadmissibility, the Crown has to establish, on the balance of probabilities,
that the probative value of the proposed evidence outweighs its prejudicial
effect.
(c)
Methodology
[20]
An orderly methodology can be extracted from the
cases and should guide trial judges in their assessment of the admissibility of
discreditable conduct evidence.
[8]
(i)
Defining the Issue
[21]
The first step is to define with specificity the
issue to which the evidence is asserted to be relevant because [p]robative
value cannot be assessed in the abstract.
[9]
Binnie J. noted in
Handy
that: [t]he utility of the evidence lies
precisely in its ability to advance or refute a live issue pending before the
trier of fact.
[10]
(ii)
Identifying the Probative Value of the
Discreditable Conduct
[22]
The second step is to assess the probative value
of the evidence. When evidence disclosing the accuseds discreditable conduct
is offered, it is said to be probative because it exhibits similarity to the
conduct underlying the charges faced by the accused. That is the way that the
trial judge in this case approached the evidence of discreditable conduct, as
will be discussed in more detail below. While the usual form of discreditable
conduct evidence is similar fact evidence or similar act evidence as seen,
for example in the cross-count application in this case, the principles laid
out in
Handy
are applicable to discreditable conduct evidence beyond
similar fact evidence.
[11]
[23]
The assessment of probative value will vary from
case to case. Identity cases are different from cases concerning motive, for
example. The two critical elements are connectedness and similarity, as noted
by
Zarnett J.A. in
R. v. Tsigirlash
[12]
. There must be a:
logical
nexus
established between
the evidence of similar acts and the offence that the evidence is offered to
prove:
MacCormack
, at para. 49. Where the logical nexus depends on
the similarity of the similar acts to the act charged, the probative value of
the evidence will increase with the degree of similarity, because the
probability that the similarity is a result of coincidence will decrease. The
court must be satisfied that the objective improbability of coincidence has
been established:
R. v. Arp
, [1998] 3 S.C.R. 339, at para.
48. This analysis cannot be done in the abstract, but only on the basis of
specifically-identified similar acts.
[13]
[24]
However, the Supreme Court has cautioned that:
The judges task is not to add up similarities
and dissimilarities and then, like an accountant, derive a net balance. At
microscopic levels of detail, dissimilarities can always be exaggerated and
multiplied. This may result in distortion. At an excessively macroscopic level
of generality, on the other hand, the drawing of similarities may be too facile.
[14]
[25]
The similarities can be circumstantial. This
court held in
R. v. S.C.
[15]
,
that in sexual assault cases, similar circumstances are often more compelling
than similarities or dissimilarities in conduct. The circumstantial evidence
showed that the accused had a situation-specific propensity to seek out young
females connected by family relationships
[16]
,
which provided the evidence with sufficient probative value to be admitted.
Watt J.A. stated in
R. v. J.M.
[17]
:
Where the evidence of similar acts is summoned
in support of proof of the
actus reus
, it is not an invariable
requirement that there be a strong peculiarity or unusual distinctiveness
underlying the events being compared:
Handy
at para. 81. The cogency
of evidence of similar acts may arise from the repetitive and predictable
nature of an accused's conduct in closely defined circumstances.
(iii)
Identifying the Prejudicial Effects of the
Discreditable Conduct
[26]
The third step is to assess the prejudicial effect
of the discreditable conduct evidence. Evidence showing the accused has
committed an offence that is not the subject matter of the charge before the
court can give rise to two forms of prejudice on the part of the trier of fact:
moral prejudice and reasoning prejudice.
[27]
On the one hand, moral prejudice identifies
the risk of convicting the accused because he is a bad person rather than
based on proof that he committed this offence for which he is being tried.
[18]
On the other hand, reasoning
prejudice specifies the risk that a trier of fact will be distracted from a
proper focus on the charge itself aggravated by the consumption of time in
dealing with allegations of multiple incidents
in divergent circumstances
rather than the single offence charged.
[19]
[28]
Binnie J. stated in
Handy
that
distraction as part of reasoning prejudice can take different forms. One form
is emotional: the similar facts may raise in the minds of the jury sentiments
of revulsion and condemnation which might well deflect them from the rational,
dispassionate analysis upon which the criminal process should rest.
[20]
(In my view a similar dynamic
applies to a judge acting as a trier of fact.) Binnie J. noted that: [t]he
accused has a limited opportunity to respond and is not allowed to counter
evidence of discreditable conduct with similar fact evidence in support of his
or her credibility.
[21]
This can give rise to a trial fairness problem. Binnie J. observed that the
practical realities of the trial process reinforce the prejudice inherent in
the poisonous nature of the propensity evidence itself.
[22]
[29]
Another form of reasoning prejudice is when the
trial focuses on the discreditable conduct itself, as a kind of trial within a
trial, which can lengthen and complicate the trial, and distract the trier of
fact from the issues on which liability turns.
[23]
[30]
In light of the rule and the dangers that the
admission of discreditable conduct evidence pose, trial judges should assess
the prejudicial effect from three perspectives: moral prejudice, reasoning
prejudice, and the presence of any factors that might reduce the impact of
prejudice in the specific circumstances of the case.
[31]
The first perspective of moral prejudice requires
the trial judge in a judge-alone trial to self-instruct against the tendency to
infer guilt based upon what
Handy
called the forbidden chain of
reasoning
from general disposition or propensity.
[24]
However, Paciocco et al. observe
that self-instruction by judges can reduce, but will not eliminate, the risk
of moral prejudice.
[25]
They add that: [s]ince the extent to which restricted admissibility doctrines
can prevent moral prejudice is limited, courts must maintain a high awareness
of the potential prejudicial effect of admitting similar fact evidence,
particularly where the similar fact conduct is reprehensible.
[26]
[32]
There is less moral prejudice when the similar
acts in question are other counts on the indictment, and therefore, more moral
prejudice where the discreditable conduct is outside of the facts in the case:
R.
v. J.M.
,
per
Watt. J.A., at para. 87, and
R. v. J.H.
[27]
,
per
van Rensburg
J.A., at para. 24.
[33]
The second perspective to be assessed is the
reasoning prejudice posed in the specific circumstances of the case. This
focuses both on the emotional form of reasoning provoked by the discreditable
conduct, and also on the distraction from the facts in issue in the case that
trying the issue of discreditable conduct might encourage.
[34]
The third perspective is whether there are ways
in which the possible prejudicial effects can be mitigated in the circumstances
of the case. It has been said by this court that the risk of prejudice is
considerably reduced in judge-alone trials.
[28]
But Paciocco et al. note that: there is controversy over how much lower the
risk of prejudice is in judge-alone trials.
[29]
They add that: [e]ven judges can struggle to overcome the tainting effect of
discreditable information and may give it undue focus during a trial.
[30]
This observation is true to
experience. Judges can by training and experience steel themselves against
moral and reasoning prejudice, but only if they actively advert to the very
point in the moment of decision.
[35]
While the prospect that the accused might be
able to testify in order to allay the prejudicial effects has been suggested to
be a mitigating factor, this is doubtful, given what Binnie J. described in
Handy
as the poisonous nature of the evidence.
[31]
Further, admitting the discreditable conduct evidence might effectively force
the accused to testify in a case where doing so might be inadvisable for other
reasons.
(iv)
Weighing Probative Value Against Prejudicial
Effect
[36]
The fourth step in the methodology is to weigh
the probative value of the discreditable conduct evidence against its
prejudicial effects. Although this step is sometimes called a balancing, that
is not an apt metaphor because, as Binnie J. noted in
Handy
: [t]he
two variables do not operate on the same plane.
[32]
The two are actually
incommensurable. Nonetheless, as Binnie J. observed, even though probative
value and prejudice pull in opposite directions in addressing the
admissibility issue, their conflicting demands must be resolved.
[33]
Generally, the more highly
probative the evidence, the more likely it is that the interests of justice
will require it to be admitted because of societys interests in getting to the
truth of the charges. However, the interests of both society and the accused in
a fair trial process require that the dangers of propensity evidence be taken
extremely seriously; the criminal justice system should not (and does not)
take lightly the dangers of misapplied propensity evidence.
[34]
(2)
The Principles Applied
[37]
In this part of the reasons, I use the
methodology set out above as the analytical framework to explain why the
discreditable conduct evidence should not have been admitted. Although the
trial judge used this courts decision in
R. v. B.(L.)
(1997),
that methodology has evolved in the last 25 years.
[38]
At the first step, the trial judge did not define
with sufficient specificity the issue to which the
discreditable
conduct
was asserted to be relevant. The elements of the conduct on which
the trial judge relied are set out in the next paragraph. The Crowns argument
was that they increased the probability that the children were describing real,
not imagined events. The key question was whether the evidence could advance or
refute a live issue pending before the trial judge, to paraphrase
Handy
.
Did the appellants
discreditable conduct
in
masturbating naked in the front window of his house, with a towel, make it more
likely that he had sexually assaulted the children in the manner alleged by the
Crown?
As I note below, the Crown side-stepped this
question, as did the trial judge.
[39]
The second step requires the trial judge to
identify the probative value of the discreditable conduct evidence. I repeat
here the trial judges findings:
The similarities between J.W.s conduct in the
fall of 2016 and the events described by A.M. include location (the living
room), use of or proximity to a particular piece of furniture (one of two
couches in the living room), the act (masturbation with a hand), and ancillary
items (occasional use of a towel). As a result of these similarities, I find
that J.W.s modus operandi in the fall of 2016 constitutes an observed
pattern of propensity operating in a closely defined and circumscribed context.
I am satisfied, on a balance of probabilities
that the manifestation of J.W.s particular distinctive propensity to
masturbate, while naked, during daytime hours, and in the living room of the
family home has a sufficient connection with the issues raised by the Crown.
J.W.s conduct in the fall of 2016 is relevant and material to the events
described by A.M. (citations omitted).
[40]
In my view, the trial judge fell into the error cautioned
against by the Supreme Court in
Shearing
,
quoted earlier. Her
focus was almost entirely on similarities with no attention being paid to the dissimilarities,
in particular the fact that there were no children involved in the 2016 conduct
and that the appellants living room in 2016 was no longer a place of business
operating as a daycare.
[41]
The trial judge should not have adopted the
Crowns approach to the use of the discreditable conduct evidence. She noted
the submission of defence counsel with respect to a fundamental
difference between the proposed evidence and the events described by A.M. namely
the absence of any children inside the home when J.W. was observed in the
living room window in the fall of 2016. However, she answered this submission
by accepting the limited inferences the Crown asked her to draw only as to: the
timing, location, and nature of the act described by A.M. The trial judge
explained: I am not asked to draw an inference with respect to conduct in the
presence of a child.
But shorn of their link to
children, in the context of the charges, the similarities here are merely generic
and not material, and therefore risk giving undue weight to the discreditable
aspects of the conduct, as Paciocco et al. trenchantly observe:
Where the probative value of similar fact
evidence depends on similarities, care has to be taken not to act on generic
similarities or kinds of features likely to be present in many or most
instances of the same crime. Generic similarities do not yield appropriate
inferences. They also increase the risk that the improper inference from bad
character will be drawn, and they may mask important dissimilarities between
the similar fact evidence and the crime charged.
[35]
[42]
At the third step, the trial judge is required
to identify the prejudicial effects of the discreditable conduct. She did not
do that. Instead, she dispatched the prejudicial effects of the 2016 conduct in
two paragraphs, finding that the risk of either moral prejudice or reasoning
prejudice is low because the public nudity conduct was less discreditable than
the conduct for which the appellant was charged and because it was a
judge-alone trial. She added that the appellant has the opportunity, if he
chooses to exercise his right to testify, to respond to the evidence as to his misconduct
in 2016.
[43]
In my view, the trial judge did not implicitly
or explicitly identify the elements of both moral prejudice and reasoning
prejudice. The problem is especially acute for reasoning prejudice. It would be
no comfort to the appellant that he would have an opportunity to testify. This
is a case where the observation by Binnie J. in
Handy
, that the
practical realities of the trial process reinforce the prejudice inherent in
the poisonous nature of the propensity evidence itself is apposite.
[44]
As it transpired, the dynamic of this trial
revolved around the discreditable conduct evidence and, in particular, around the
appellants inability to explain in terms that the trial judge would accept why
he engaged in public nudity in the front window of his house. She contrasted
this unfavourably with his excellent recollection of how he ran the daycare and
used the contrast to impugn his credibility. In the absence of the application
to admit evidence of the discreditable conduct, the appellant might have chosen
not to testify, denying the Crown the opportunity to use the discreditable
conduct to impugn his credibility.
[45]
Once the evidence was admitted and the appellant
testified, the dynamic of the trial was dramatically altered. The trial judge criticized
the appellant for not providing a plausible explanation for his inability to recall
the 2016 events. She found him to be evasive when posed questions in
cross-examination, the response to which required him to consider the events of
October 2016. She further found that [h]e avoided responding directly to
questions in cross-examination even when presented with the photographic
evidence about his conduct on those dates. However, the appellants testimony
on the 2016 events was neither unexplained nor implausible. He said:
I was out on bail pending appeal at the time.
And I was just its very frustrating, I was very depressed, very angry. You
know, September came around September 2016 and you know, the people I had
been talking to all summer long had to, you know, go back to work or, you know,
move along with their lives. My wife went back to work. My kids went back to
school. And it just was like you know just a hit like wow, this has
really gone on another year. Thats thats like a very telling part, that, you
know, geez, the kids are going to another like my son
started at another
school, he went to junior high, its a school Ive never seen. My kids are
going to, you know, another year of school that Im missing. Im not I used
to be involved with the school quite a bit
I was really isolated. You know,
its three and a half years where I hadnt been able to play hockey, or play
softball, because I have conditions. I couldnt work because of the bail
conditions I was on. I was just alone and I I went crazy, I dont know how
else to explain it.
even with the appeal, the best case scenario
for me was I was going to go back to the starting point with a retrial, which
would just be you know the last three years and a half would be nothing.
And thats pretty much what happens, and you know thats supposed to be a
good thing, and its it wasnt. And its I dont even feel now it is. Its
its just tough, its really hard and and I dont I cant explain what I
did. I cant condone it either, but it happened, and I you know Im Im
embarrassed of it, Im ashamed. Im going to have to at some point figure out
how to explain that to my wife, my kids.
[46]
At the fourth step of the methodology, the trial
judge was required to weigh the probative value of the discreditable conduct
evidence against its prejudicial effects. Her finding that the probative value
of the proposed evidence exceeded its prejudicial effect was based on a
conclusory statement that she had weighed the factors for and against
admissibility of the proposed evidence. The trial judge did not carry out this
analysis in light of the basic premise that discreditable conduct evidence is
to be presumptively excluded, and that this final step is meant to concretely analyze
how the probative value of the evidence weighs against its prejudicial effects
in the context of the trial as a whole.
[47]
On appeal, the Crown argued that even if it was an
error to admit the discreditable conduct evidence, no harm was done in light of
the following statement by the trial judge at the end of her judgment:
I pause to note that in the absence of the
evidence of [the appellants] conduct in the fall of 2016, I would still have
found A.M.s evidence is reliable. My findings of the charges, as summarized at
para. 114 below, would not have changed in the absence of the evidence of other
discreditable conduct
.
[48]
This statement downplays the significance of the
role that the discreditable conduct evidence played in the trial dynamic. It
became the Crowns rhetorical platform in cross-examination and in argument,
and was used as the underpinning for the trial judges credibility analysis. However,
in this case, the discreditable conduct evidence could do no more than raise
the forbidden inference, inferring guilt from general propensity.
[49]
Handy
noted
that: A trial judge has no discretion to admit similar fact evidence whose prejudicial
effect outweighs probative value.
[36]
A trial judge similarly has no discretion to admit discreditable conduct
evidence whose prejudicial effect outweighs its probative value. The
discreditable conduct evidence should not have been admitted, and its admission
rendered the verdict unsafe.
F.
Disposition
[50]
I would allow the appeal, set aside the
convictions and order a new trial.
Released: April 21, 2022 P.L.
P.
Lauwers J.A.
I
agree. G. Pardu J.A.
I
agree. Sossin J.A.
[1]
R. v. W.(D.)
, [1991] 1
S.C.R. 742.
[2]
S. Casey Hill, David M. Tanovich, Louis P. Strezos
,
McWilliams Canadian Criminal Evidence
, loose-leaf,
5th ed. (Toronto: Thomson Reuters Canada, 2022), at para. 10-1.
[3]
I adopt with a slight variation the definition proposed in
McWilliams Canadian Criminal Evidence
, at
para. 10:29.
[4]
R. v. B. (C.R.)
, [1990]
1 S.C.R. 717, at p. 735.
[5]
B. (C.R.)
, at pp. 734-735.
[6]
R. v. Handy
, 2002 SCC
56, [2002] 2 S.C.R. 908,
per
Binnie J.
[7]
Handy
, at para. 139.
[8]
I draw on but do not strictly follow the thinking laid out
in
David M. Paciocco, Palma Paciocco & Lee Stuesser,
The
Law of Evidence
, 8th ed. (Toronto: Irwin Law, 2020) [Paciocco et al.].
[9]
Handy
, at para.
73.
[10]
Handy
, at para. 73.
[11]
See for example
,
R. v. Luciano
,
2011 ONCA 89, 267 C.C.C. (3d) 16, at paras. 21722.
[12]
R. v. Tsigirlash
,
2019 ONCA 650.
[13]
Tsigirlash
, at para. 29.
[14]
R. v. Shearing
, 2002
SCC 58, [2002] 3 S.C.R. 33, at para. 60 (citations omitted).
[15]
2018 ONCA 454, 361 C.C.C. (3d) 419, at para. 23.
[16]
R. v. S.C.
, at para. 14.
[17]
2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 91.
[18]
Paciocco et al., at p. 93.
[19]
Handy
, at para. 144.
[20]
R. v. D.(L.E.)
(1987),
20 B.C.L.R. (2d) 384 (C.A.), at p. 399, revd [1989] 2 S.C.R. 111,
per
McLachlin J.A. (as she then was)
dissenting and being cited with approval on appeal at p. 128.
[21]
Handy
, at para. 146.
[22]
Handy
, at para. 146.
[23]
R. v. McDonald
(2000), 135 O.A.C. 365, at para. 33.
[24]
Handy
, at para.
139.
[25]
Paciocco et al., at p. 93.
[26]
Paciocco et al., at p. 93.
[27]
2018 ONCA 245.
[28]
R. v. J.W.
, 2013 ONCA
89, 302 O.A.C. 205
, at para. 57, leave to appeal refused, [2013]
S.C.C.A. No. 288.
[29]
Paciocco et al., at p. 95.
[30]
Paciocco et al., at p. 95.
[31]
Handy
, at para. 146.
[32]
Handy
, at para.
148.
[33]
Handy
, at para.
149.
[34]
Handy
, at para.
150.
[35]
Paciocco et al., at p. 85.
[36]
Handy
, at para. 153.
|
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 complainants 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.S., 2022 ONCA 305
DATE: 20220421
DOCKET: C68062
Feldman, MacPherson and Thorburn
JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
S.S.
Appellant
Jeff Marshman, for the appellant
Michael S. Dunn, for the respondent
Heard: January 17, 2022 by video conference
On appeal from the conviction entered by
Justice Douglas K. Gray of the Superior Court of Justice on June 27, 2017, with
reasons reported at 2017 ONSC 5459.
Feldman J.A.:
A.
Introduction
[1]
The appellant was convicted of two offences perpetrated
on his niece when she was between six and eight years old, sexual assault and
sexual interference. The convictions were based on the complainants unsworn,
videotaped police statement, which the trial judge admitted into evidence by
application of the principled exception to the hearsay rule, based on the requirements
of necessity and threshold reliability.
[2]
At the preliminary hearing, less than two years after
the police statement was taken, the complainant testified that she did not
remember giving the police statement or anything about what she described in it.
[3]
In order to determine whether the complainant would
be able to testify at the trial, the Crown arranged for a child psychologist to
meet with her. The psychologist concluded that the complainant could not
testify at the trial because it would be too traumatizing for her. The
complainant was afraid that if she testified, she would be apprehended by the Childrens
Aid Society (CAS) and taken from her mothers care, which is what happened
after she gave the police statement. She told the psychologist that was why she
testified at the preliminary hearing that she did not remember anything. The
psychologist also gave her opinion that the police interview of the complainant
was done in accordance with proper protocol, which is meant to ensure that the
information provided by the child is as complete as possible and is not
contaminated by the interviewers suggestions.
[4]
The Crown applied to have the hearsay video
statement admitted into evidence at the trial on the basis that the complainant
could not testify and the police statement had threshold reliability. The trial
judge accepted the psychologists opinion that the complainant could not
testify at the trial without being traumatized and that, if called, she would
only repeat what she said at the preliminary hearing. He therefore ruled that the
necessity requirement was met and that the complainant would not be called as a
witness at the trial.
[5]
The trial judge also found that the statement
should be admitted based on threshold reliability. He accepted the
psychologists opinion that the police interview was conducted using the well-established
interview protocol and also found that the complainant had no motive to
fabricate the allegations. Having admitted the statement, he applied the test
from
R. v. W.(D.)
, [1991] 1 S.C.R. 742, to all of the evidence, and
concluded that the appellants guilt was established beyond a reasonable doubt.
[6]
The appellant does not challenge the necessity
finding. He submits, first, that the trial judge erred in law by admitting the complainants
police statement based on finding threshold reliability. Second, he submits
that the trial judge misapprehended the evidence regarding motive to fabricate,
and therefore erred by finding that the complainant had no motive to fabricate.
The second error affected both his threshold and ultimate reliability findings.
[7]
I agree that the trial judge erred by finding
threshold reliability, and in his positive finding that the complainant had no
motive to fabricate. As a result, he erred by admitting the complainants
police statement. I would therefore allow the appeal.
B.
Facts
[8]
The appellant lived with his sister, L.S., the
mother of the complainant, E.B., and with E.B., who was between 6 and 8 years
old during the relevant time period. The appellant was on probation. In March
2015, L.S. called the appellants probation officer because she had some
concerns about her brothers state of mind, his demeaning conduct toward E.B.,
his anger, hoarding, and adult conflict in the house. The probation officer called
the CAS, which was already involved with the family, and reported these
concerns.
[9]
As a result of this communication, a CAS worker,
Ms. T.S., went to E.B.s school and met with her on March 31, 2015. During that
interview, E.B. told Ms. T.S. that the appellant had pulled down his zipper
and she used a hand motion to demonstrate that he had masturbated. She said
that she had touched his penis and seen white stuff. E.B. also told Ms. T.S.
that the appellant called her a little bitch, that there was a lot of yelling
in the home, and that she didnt really like the appellant. She said that she
did not want to live with him anymore. She also told Ms. T.S. that she had seen
a pornographic movie with the appellant in which a woman took off her clothes
and the man was undoing his pants
and taking his penis in his hand and
masturbating, which E.B. demonstrated by hand movements.
[10]
Ms. T.S. immediately called the local police and
took E.B. to a station where she was interviewed by Officer Cunnington in a
videotaped statement. The officer testified that he talked to Ms. T.S. first.
She told him that E.B. had disclosed some alleged sexual touching by the
appellant and that she did not want to live with him anymore. Ms. T.S. reported
to the officer some specifics of what E.B. had told her.
[11]
The video interview took approximately 50
minutes. Officer Cunnington explained to E.B. the purpose of the interview and
that it was being recorded on video. He emphasized the importance of telling
the truth and asked her if she understood the difference between the truth and
a lie. He asked open-ended questions, but also would remind E.B. of things she
had said to Ms. T.S. in order to jog her memory. E.B. told the officer that she
was afraid of her uncle and that she had already told her mother and Ms. T.S.
what had happened with her uncle.
[12]
The video interview was played in court and the
trial judge summarized what E.B. disclosed in it. Early in the interview, she
said that her uncle would unzip his pants and touch her right here, which she
indicated by pointing to her vagina area. He told her to take off her pants and
underwear. He also took off his pants. E.B. demonstrated with hand motions how
he masturbated. She said she didnt like it but that she felt she had to say
that she did. When her mother was returning home, her uncle pulled up his
pants, zipped them and put on his belt, and she put on her underwear, pants and
everything.
[13]
E.B. used the words penis, cock, and her private
stuff without those words being suggested to her. She said that her uncle
placed his cock in her private stuff. The officer asked E.B. what happened
when her uncle did something with her private parts and she said that he put
his penis in here, indicating her vagina, that she didnt like it, and that
it felt gross. Officer Cunnington mentioned to E.B. that she had told Ms. T.S.
about white stuff. E.B. at first responded that she didnt know about white
stuff and did not remember anything about it, but later referred to it.
[14]
After the sexual contact, her uncle would tell
her to watch a movie on TV. When the officer asked what kinds of movies she
watched, E.B. said she watched Barbie, Harry and the Hendersons, and similar
movies. The officer asked whether she ever watched any adult movies or any
movies with [her] uncle. E.B. did not mention any pornographic movies in her
response.
[15]
E.B. described how her uncle stopped when her
mother came home and knocked on the door, which was locked with two locks. They
would put on their clothes then open the door. Her uncle told her not to tell
her mother. She told the officer that she had told her mother about it in the
car when her uncle wasnt there.
[16]
When the officer left E.B. alone in the room for
a few minutes, she sang to herself the following:
Some day I want day I wanna live with my
mom but not my uncle.
Its just I just wanna
live. I wanna just live. I wanna sleep. So watching you where Im where, and
I where am I? I am in a police officers. Yeah, yeah. Mm, mm. I
was born in British Columbia. Its the truth. I am not lying. And so you
go I, I, I how many minutes is a (inaudible)? [Emphasis added.]
[17]
After consulting further with Ms. T.S., the
officer returned and asked E.B. again to tell me a bit more about
your
uncles penis and your vagina. She responded that he came from his room, told
her to take off her clothes, then he stood in front of her and touched her
vagina with his hands and it felt just nasty. She also said her uncle was playing
with his penis, and that theres a little hole
in the middle and it comes
out milk. It looked like plain gross milk, and it went on her stomach. He
also asked her to describe how her vagina felt when her uncles penis was in
there, and she said it felt just nasty but did not hurt.
[18]
The officer asked E.B. how she felt about the
appellant. She responded: I feel nasty with uncle. The officer also
asked E.B. how she feels about living with the appellant and she answered, I
feel not even good.
[19]
Following this interview with E.B., the officer
interviewed E.B.s mother, L.S., then briefed Ms. T.S. Ms. T.S. told him that
as a result of the two interviews, she was apprehending E.B. and placing her in
foster care. On the ride to the foster home, Ms. T.S. told E.B. that the reason
the CAS was removing her was because her mother had not protected her from her
uncle. E.B. told Ms. T.S. that she was worried about her mother but she was
glad she would not be living with her uncle anymore. E.B. remained in foster
care for almost one and one-half years, and was returned to her mother at the
end of August 2016. However, CAS remained involved with E.B. and L.S. Ms. T.S.
checked on E.B. at school once a month and had further interactions with L.S.
[20]
The preliminary inquiry was held in November
2016. By this time, E.B. was nine years old. Officer Cunnington testified that he
saw E.B. in the Crowns office before the preliminary inquiry, but she did not
recognize him. E.B. testified under child-friendly conditions. After promising
to tell the truth, she viewed her entire video statement, then testified that
she did not remember the officer, the interview, or the events that she
described in it, and maintained that position under cross‑examination by
the appellants trial counsel.
[21]
Prior to trial, in the spring of 2017, the complainant
was interviewed twice at the request of the Crown by Dr. Louise Sas, a
registered psychologist, who was qualified to give expert opinion evidence at
the trial. She discussed with E.B. the issue of her testifying in court. E.B. made
it clear that she did not want to go to a trial about her uncle; that she was
upset that after giving her statement, she was apprehended by the CAS and taken
away from her mother; and that she was afraid that would happen again if she
testified. Dr. Sas testified that E.B. admitted to her that at the preliminary
inquiry, she had said she had forgotten everything, but in reality she had
remembered, but she was too afraid to tell because she would be taken away
again.
[22]
Dr. Sas prepared a report that was made an
exhibit at trial, and testified as well on the
voir dire
.
[1]
The trial judge noted that her
firm opinion was that to force E.B. to testify would unduly further traumatize
her. On cross-examination by the appellants trial counsel, Dr. Sas
acknowledged that a possible cause of trauma was the prospect of lying again,
that is, if E.B. had lied in her statement, she would not want to lie again at
the trial.
[23]
L.S., E.B.s mother, testified as a defence
witness. As part of the child protection proceeding that allowed E.B. to be
returned to her mother, L.S. had signed an Agreed Statement of Facts on April
12, 2016. In that agreed statement, L.S. acknowledged that her daughter had
been sexually abused by the appellant and that she, L.S., made a mistake by
leaving E.B. in the appellants care, contrary to the CASs direction. At
trial, L.S. took the position that she had only signed the statement because it
was a condition of getting her daughter back. She said that E.B. loved her
uncle. She also testified about school friends of E.B. who had told her about sexual
body parts and white stuff coming out of a penis.
C.
Findings by the Trial Judge
[24]
There were two issues before the trial judge.
The first was whether E.B.s videotaped police statement should be admitted into
evidence under the principled exception to the hearsay rule based on the
requirements of necessity and threshold reliability. If not, an acquittal would
follow. If the statement was admitted, the second issue was, based on all the
evidence, whether the Crown had proved the charges beyond a reasonable doubt.
[25]
The trial judge initially gave brief oral
reasons for admitting the video statement based on the principled exception to
the hearsay rule, then later gave written reasons. I will refer to the relevant
aspects of the oral ruling in the analysis portion of these reasons.
[26]
In the written decision, on the first issue, the
admissibility of the videotaped statement, the trial judge referred to the rule
that hearsay is presumptively inadmissible for valid policy reasons, and in
particular because the right to cross‑examine the declarant has been
considered an essential component of an accused persons ability to make full
answer and defence. However, following the Supreme Court of Canadas decision
in
R. v. Khan
, [1990] 2 S.C.R. 531, and subsequent decisions, a
hearsay statement can be admitted if there are sufficient indicia of reliability
to overcome the dangers posed by the absence of contemporaneous cross-examination.
The trial judge expressed the view that the absence of cross-examination was
more important when the trier of fact is determining whether the case has been proved
beyond a reasonable doubt than at the admissibility stage of the analysis.
[27]
The trial judge first found that the necessity
criterion had been met in this case. From E.B.s testimony at the preliminary
inquiry, it was clear that she was unable or unwilling to give any meaningful
evidence as she purported to remember nothing about the interview or its
substance. He also accepted the opinion of Dr. Sas that if called, E.B. would
repeat what she said at the preliminary inquiry and would suffer significant
trauma.
[28]
The trial judge then found that the threshold
reliability requirement was also satisfied. He did so on two bases. First, he again
accepted the evidence of Dr. Sas that Officer Cunnington had conducted the
interview in accordance with the recognized protocol, using mostly open-ended
questions posed in a relaxed atmosphere. The child understood the difference
between the truth and a lie, she provided detailed information with physical
descriptions, and there was some corroboration, if only on peripheral matters
such as the layout of the apartment.
[29]
The second basis for finding threshold
reliability, which the trial judge described as [o]f significance, was that
he was satisfied that E.B. had no motive or reason to fabricate the allegations
against her uncle.
[30]
The trial judge rejected the suggestion that the
fact that E.B. might have discussed sexual matters with classmates may have
influenced her description of what occurred and therefore undermined the
reliability of her statement.
[31]
Having concluded that both necessity and
threshold reliability were made out in this case, the trial judge admitted
E.B.s statement into evidence.
[32]
The trial judge then turned to determine whether,
based on all the evidence, the Crown had proved the charges beyond a reasonable
doubt. The appellant did not testify in his defence. The trial judge first
found that the evidence of L.S., who was called as a defence witness, did not
add a great deal, and doubted her credibility. He then assessed E.B.s police
statement. He found that it was necessary for him to make allowances for her
age, relying on
R. v. W. (R.)
, [1992] 2 S.C.R. 122, at p. 133, where
the court said that deficiencies in the evidence of a child are not as
significant as they would be for the evidence of an adult. He used, as an
example, E.B.s failure to mention to Officer Cunnington what she had told Ms.
T.S. about watching a pornographic movie. He found that omission to be not
overly significant.
[33]
The trial judge found that E.B.s description of
the events should be accepted, relying on features similar to the indicia of
reliability that he considered at the admissibility stage: that the statement
was given to a person in authority within a reasonable time after the incidents
described, that the proper protocol for interviewing children was followed, and
that there was corroboration of some peripheral details.
[34]
Dealing with his finding that E.B. had no motive
to lie, the trial judge stated that at this stage it had some significance
but was not determinative. The trial judge viewed it only as one factor in the
equation that, along with the other indicia of reliability that he found,
supported his conclusion that the Crown had proved the case beyond a reasonable
doubt.
[35]
Finally, the trial judge observed that the court
was being asked to make a finding of guilt notwithstanding the fact that the
accused had been deprived of the right to cross-examine his accuser. Although
he noted that cross-examination is an important, if not essential, feature of
a criminal trial, he found that the denial of the right to cross-examine was
not fatal to conviction. He was satisfied that the evidence as a whole and
particularly the hearsay statement of E.B. was sufficient to prove the
appellants guilt beyond a reasonable doubt.
D.
Issues
[36]
The appellant raises three issues on this
appeal:
1)
Did the trial judge err in law in his analysis of
threshold reliability and by admitting the hearsay statement into evidence?
2)
Did the trial judge err by misapprehending the
evidence and finding that E.B. had no motive to lie? This was relevant to both
threshold reliability and ultimate reliability, although this appeal turns on
the finding of threshold reliability.
3)
On a proper analysis, could the statement meet
the high standard for threshold reliability and be admitted into evidence?
E.
Analysis
(1)
Issue 1: Did the trial judge err in law in his
analysis of threshold reliability and by admitting the hearsay statement into
evidence?
a)
General Principles: Admitting hearsay statements based on necessity
and threshold reliability
[37]
Normally, evidence is presented at a criminal
trial by witnesses who give their evidence in court before the trier of fact, the
judge or the jury, and are available to be cross-examined on behalf of the
accused. This process is in accordance with ensuring that the accused can make
full answer and defence.
[38]
In general, where a witness who is called to
testify has given a statement to police, that statement will not be admitted
into evidence to prove the truth of its contents, because it is hearsay, a
report of a previous statement:
R. v.
Khelawon
, 2006 SCC 57,
[2006] 2 S.C.R. 787, at paras. 34-36. However, it can be used in some
circumstances to refresh the memory of the witness, and to challenge the
witness in cross-examination where there are alleged inconsistencies between
the earlier statement and the witnesss in-court testimony.
[39]
Section 715.1 of the
Criminal Code
, R.S.C.
1985, c. C-46, applies specifically to victims and witnesses under 18 who have
given a video statement within a reasonable time after an alleged offence. Unless
the judge is of the opinion that admission of the video statement in evidence
would interfere with the proper administration of justice, the recording is
admissible in evidence as part of the childs testimony in chief if, while
testifying, the child adopts the contents of the video recording.
(1)
The Principled Exception: Necessity and
Threshold Reliability
[40]
There are circumstances where relevant hearsay
statements can be admitted under the principled exception to the hearsay rule, based
on the two criteria of necessity and threshold reliability. If the statement is
admitted, its ultimate reliability will be determined by the trier of fact as
part of the analysis of proof beyond a reasonable doubt.
[41]
Sometimes the necessity criterion may be
satisfied because the declarant of the statement has died or, for another
reason, is unavailable to give the evidence in court:
R. v. Bradshaw
, 2017
SCC 35, [2017] 1 S.C.R. 865, at para. 25. In those cases, the declarant will
not be able to be cross-examined regarding the contents of the statement. There
are other cases, however, where the necessity criterion is satisfied because
the declarant has recanted the statement, such as in
R. v. B. (K.G.)
, [1993]
1 S.C.R. 740, or has forgotten the statement. In those cases, depending on the
circumstances, the veracity and accuracy of the contents of the statement may
be able to be tested by cross-examining the declarant in court.
[42]
Despite necessity, no statement will be admitted
unless the trial judge determines that the statement is sufficiently reliable to
overcome the dangers associated with the trier of fact considering hearsay
evidence. In the most recent Supreme Court discussion of the rule,
Bradshaw
,
Karakatsanis J., writing for the majority, explained the threshold reliability
standard and set out the four hearsay dangers at para. 26:
Threshold reliability is established when the
hearsay is sufficiently reliable to overcome the dangers arising from the
difficulty of testing it.
These dangers arise notably due to the absence of
contemporaneous cross-examination of the hearsay declarant before the trier of
fact.
In assessing threshold reliability, the trial judge must identify the
specific hearsay dangers presented by the statement and consider any means of
overcoming them.
The dangers relate to the difficulties of assessing the
declarants perception, memory, narration, or sincerity,
and should be
defined with precision to permit a realistic evaluation of whether they have
been overcome. [Emphasis added; citations omitted.]
(2)
Approaches to Threshold Reliability: Procedural
Reliability and Substantive Reliability
[43]
In
Bradshaw
, the court identified two bases
upon which threshold reliability can be established, procedural reliability and
substantive reliability: at para. 27; see also
Khelawon
, at paras.
61-63;
R. v. Youvarajah
, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 30.
These approaches may work in tandem and are not mutually exclusive. However,
the threshold reliability standard always remains high:
Bradshaw
, at
para. 32.
[44]
Procedural reliability addresses whether there
are adequate substitutes for testing the truth and accuracy of the evidence, considering
that it was not given in court, under oath, and under the scrutiny of
contemporaneous cross-examination. The court identified the following
substitutes: a video recording of the statement (for accuracy), the presence of
an oath (for veracity), and a warning about the consequences of lying (for
veracity). Importantly, the court emphasized that, in addition, for procedural
reliability, some form of cross-examination of the declarant, such as
preliminary inquiry testimony or cross-examination of a recanting witness at
trial, is usually required:
Bradshaw
, at para. 28 (citations omitted).
[45]
Substantive reliability refers to indicia that the
statement is inherently trustworthy, including the circumstances in which it
was made as well as evidence that either corroborates or conflicts with the
statement. Karakatsanis J. explained the substantive reliability standard in
Bradshaw
,
at para. 31, by summarizing and endorsing the courts previous articulations:
While the standard for substantive reliability
is high, guarantee as the word is used in the phrase circumstantial guarantee
of trustworthiness, does not require that reliability be established with
absolute certainty (
Smith
,
at p. 930). Rather, the trial judge
must be satisfied that the statement is so reliable that contemporaneous
cross-examination of the declarant would add little if anything to the process
(
Khelawon
, at para. 49). The level of certainty required has been
articulated in different ways throughout this Courts jurisprudence.
Substantive reliability is established when the statement is made under
circumstances which substantially negate the possibility that the declarant was
untruthful or mistaken (
Smith
, at p. 933); under such circumstances
that even a sceptical caution would look upon it as trustworthy (
Khelawon
,
at para. 62, citing Wigmore, at p. 154); when the statement is so reliable that
it is unlikely to change under cross-examination (
Khelawon
, at para.
107;
Smith
, at p. 937); when there is no real concern about whether
the statement is true or not because of the circumstances in which it came
about (
Khelawon
, at para. 62); when the only likely explanation is
that the statement is true
(U. (F.J.)
, at para. 40).
[46]
The seminal case of
Khan
is an example
of the type of circumstances that indicate that the statement is substantively
reliable. In that case, a three and one‑half year old girl emerged from
the doctors office with a semen stain on her clothing and immediately told her
mother what the doctor had done to her. The child was too young to testify in
court. McLachlin J. summarized the circumstances that suggested that the
childs statement was reliable and addressed the concerns that would have been
tested by cross-examination at p. 548:
I conclude that the mothers statement in the
case at bar should have been received. It was necessary, the childs viva voce
evidence having been rejected. It was also reliable. The child had no motive to
falsify her story, which emerged naturally and without prompting. Moreover, the
fact that she could not be expected to have knowledge of such sexual acts
imbues her statement with its own peculiar stamp of reliability. Finally, her
statement was corroborated by real evidence.
[47]
Consequently, the court could be satisfied that in-court
cross-examination to test the childs statement was not needed as a substitute
for contemporaneous cross-examination, because the issues that may have caused
concern about the reliability of the statement were effectively answered by the
circumstances themselves.
[48]
In
Bradshaw
, at para. 40, Karakatsanis
J. explained that in assessing threshold reliability, the trial judges role is
focused on whether in-court cross‑examination of the declarant would add
anything to the trial process:
At the threshold stage, the trial judge must
decide on the
availability
of competing explanations (substantive
reliability) and whether the trier of fact will be in a position to choose
between them by means of adequate substitutes for contemporaneous
cross-examination (procedural reliability). [Emphasis in original.]
b)
Application to E.B.s police statement
[49]
The appellant submits that the trial judge erred
in law by failing to apply the analysis required by the Supreme Courts case
law to determining whether E.B.s statement met the high standard of threshold
reliability. He argues that the trial judge erred in his determination that the
absence of cross-examination was of limited relevance to the threshold reliability
analysis. As a result, the trial judge failed to consider several case-specific
hearsay dangers that would arise from admitting the statement without any
opportunity for cross-examination, and whether there were sufficient substitutes
to overcome those dangers.
[50]
I agree with the appellant that the trial judge improperly
downplayed the importance of cross-examination in the threshold reliability
assessment process.
[51]
In his brief oral reasons for admitting the
statement, the trial judge stated that while the ability to cross-examine the
child is a factor when deciding the case, it is not of particular relevance at
this point. He reiterated that view in his written reasons, where he stated
that lack of cross-examination was a feature of the analysis at both stages,
but more important when considering proof beyond a reasonable doubt than at the
threshold reliability stage.
[52]
In this case, the two most important of the four
hearsay dangers identified by the Supreme Court in
Bradshaw
were perception
and sincerity: whether the complainant accurately perceived what happened to
her, and whether she was telling the truth. Despite the Supreme Courts
direction that the scope of the inquiry must be tailored to the particular
dangers presented by the evidence, the trial judge did not advert to these
dangers:
Khelawon
, at para. 4. He did not consider the case-specific
dangers that would result from admitting the statement without any opportunity
for cross-examination.
[53]
By discounting the purpose and the value of
cross-examination as a tool that could challenge the accuracy or veracity of
the statement, the trial judge lowered the high bar for threshold reliability
that the case law requires before hearsay statements can be admitted.
(1)
Case-Specific Hearsay Danger: Perception
[54]
In his reasons for finding that threshold
reliability had been satisfied, the trial judge relied primarily on his
acceptance of Dr. Sass opinion that Officer Cunningtons approach to the
interview followed the well-recognized protocol where the child was made to
feel comfortable, mostly open-ended questions were asked, she understood the
difference between the truth and a lie, the information she provided was
detailed and accompanied by physical descriptions, and there was some
corroboration, but of peripheral details such as the layout of the apartment.
[55]
This protocol, however, does not assist in
overcoming either of the hearsay dangers respecting the childs perception or
truthfulness. As Dr. Sas explained in her evidence, the purpose of the
interview protocol for alleged sexual abuse of a child is to ensure that the
information the child provides is as complete as possible, and not contaminated
by what she described as suggestibility factors. Therefore, the use of the
protocol will give comfort that the child is not being led to say something by
leading questions, suggestions, or reactions by the interviewer. However, that
does not ensure that the child has not been influenced in her perception by
something that occurred prior to the interview, or that she is telling the
truth.
[56]
On the issue of E.B.s perception of what
occurred, there was evidence from the CAS worker, Ms. T.S., that E.B. had told
her that her uncle had shown her a pornographic movie where a woman took off
her clothes, a man undid his pants, took his penis in his hand and masturbated.
There was also evidence from L.S. that E.B. had friends at school who told her
about body parts, nude adults interacting on television, ejaculation, how
babies are made, and what a man does during sex. This is the type of
information that can have the potential to influence a childs perception of
what happened to her or her description of what happened, and would ordinarily be
the subject of cross-examination to explore that possibility.
[57]
In his oral reasons for admitting the statement,
the trial judge referred to two main areas where one might question the
reliability of the statement. One area concerned discrepancies in the stories
that E.B. told different people. The trial judge gave the example of the
pornographic movie. He noted that E.B. told the CAS worker that she had watched
a pornographic movie with her uncle and described its contents, but she did not
mention it to the officer, even when he asked her pointed questions about
whether she had watched any adult movies. He concluded that such discrepancies
in her evidence are not fatal at this stage of the inquiry, but would be more
relevant when deciding whether the statement can be relied on to prove guilt
beyond a reasonable doubt.
[58]
Then in his written reasons, the trial judge made
no further reference to the issue of the pornographic movie at all. He did,
however, comment on the possibility that the complainant may have discussed
sexual matters with classmates, saying that that would not detract from the
reliability of her recorded statement regarding sexual abuse.
[59]
It is clear from these comments that the trial
judge discounted the hearsay danger regarding the complainants perception of
what occurred, and therefore failed to turn his mind: first, to how the hearsay
danger that the complainants perception and description of what occurred with
her uncle may have been influenced by seeing the pornographic movie; and second,
to how that danger, and the danger from things she may have been told about sex
by classmates, could be overcome without cross-examination, in order to satisfy
threshold reliability.
(2)
Case-Specific Hearsay Danger: Sincerity
[60]
The other hearsay danger that arises with any
statement is whether the declarant is being truthful or sincere. The trial
judge considered that issue in two ways. The first was by noting that in the
statement, the officer determined that the complainant knew the difference
between the truth and a lie. The second was by finding that there was simply
no motive or reason for the child to fabricate her allegations. I will address
this second point in more detail later in these reasons.
[61]
The trial judge could not have been satisfied on
this record that the difficulty of assessing the complainants sincerity in her
police statement could be overcome. There were two serious issues with E.B.s
sincerity.
[62]
The first was that having found necessity based in
large part on the complainants testimony at the preliminary inquiry that she
did not remember anything, the trial judge then failed to consider the relevance
of what occurred at the preliminary inquiry and after it in assessing the
threshold reliability of the complainants police statement. Specifically, the
trial judge erred by failing to take into account that although she promised to
tell the truth at the preliminary inquiry, the complainant disclosed to Dr. Sas
that in fact she had not.
[2]
Therefore, the trial judge erred by failing to take into account that the
complainant admitted to lying in court in these proceedings and by failing to
consider how that would affect the threshold reliability analysis.
[63]
Second, the trial judge also did not advert to
Dr. Sass acknowledgement that testifying in court could traumatize E.B. if she
had lied in her police statement and did not want to lie again. Neither of
these serious issues regarding the analysis of E.B.s sincerity could be
followed up without cross-examination.
[64]
In addition, procedurally, while not exactly a
recantation of her police statement, E.B.s preliminary inquiry testimony
amounted to a repudiation of that statement. In
B. (K.G.)
, the Supreme
Court was prepared to find that the threshold reliability of police statements that
witnesses had recanted at trial could be established only because the witnesses
were available at trial for cross‑examination, so that the court process
for testing reliability would be in place. In this case, where the complainant
was not available to be cross-examined in court, the trial judge was left to
determine whether E.B.s police statement, which she later repudiated, was
sufficiently reliable to overcome the dangers arising from the difficulty in
testing it without any cross-examination:
Khelawon
, at para. 49.
However, the trial judge did not address this issue.
[65]
Without in-court cross-examination, there was no
substitute that could assist the court to address these serious issues
regarding E.B.s sincerity. The fact that the police statement was taken using
the proper protocol does not provide a circumstantial guarantee of veracity or
a substitute for cross-examination, nor does the fact that the complainant was
able to demonstrate she knew the difference between the truth and a lie when
she gave her police statement, particularly when she had repudiated that
statement under a promise to tell the truth at the preliminary inquiry.
(2)
Issue 2: Did the trial judge err by
misapprehending the evidence and finding that E.B. had no motive to lie?
[66]
The second way that the trial judge addressed
the hearsay danger that the declarant was not being sincere or truthful was by
making the finding that the complainant had no motive to lie. This brings in the
second ground of appeal raised by the appellant.
[67]
In his oral reasons for admitting the statement,
the trial judge included in the indicia of reliability his conclusion that the
complainant had no apparent motive to fabricate, stressing the word apparent.
In his written reasons for admitting the statement, he put the point much more
strongly, saying: Of significance, I am satisfied that there was simply no
motive or reason for the child to fabricate her allegations against her uncle.
[68]
The problem with this finding is that the trial
judge either misapprehended or ignored evidence that belied the conclusion that
E.B. had no motive to fabricate the allegations. For example, E.B. made
numerous statements to different people to the effect that she did not want to
live with her uncle and wanted to live only with her mother. E.B. said this to
Ms. T.S., the CAS worker; she said it to Dr. Sas; she said it in her police
statement; and she sang it in the police interview room when the officer left
her alone for a moment. She also told Ms. T.S. that she didnt really like
her uncle, that he had called her a little bitch, that she did not like the
conflict he caused at home, and that her mother and uncle were always fighting.
[3]
[69]
The trial judge did not address this evidence,
and gave no explanation for his finding, in the face of this evidence, that E.B.
had no motive to fabricate. This evidence could reasonably lead to the
inference that E.B. might have told the story of sexual abuse and assault in
order to have her uncle removed from the home. Without any cross-examination,
that inference could not be discounted. By finding that the complainant had no
motive to fabricate, the trial judge had to have ignored or discounted all of
that evidence.
[70]
The Crown argues that the evidence on this point
was mixed because L.S. testified that E.B. had a good relationship with the
appellant and that E.B. loved her uncle. However, the trial judge had
significant doubts about L.S.s credibility and noted that her natural
inclination was to support her brother. If this evidence had formed any role in
the trial judges finding of no motive to fabricate, in light of his rejection
of L.S.s credibility, he certainly would have provided an explanation for
relying on it.
(3)
Conclusion on Issues 1 and 2
[71]
In deciding that E.B.s statement satisfied the
requirement of threshold reliability, the trial judge erred in law by failing
to identify the specific hearsay dangers associated with the statement, based
on the evidence of what the complainant disclosed to the CAS worker and to Dr.
Sas, testified to at the preliminary hearing, and said in the statement itself.
He further erred by failing to tailor his threshold reliability analysis to the
specific hearsay dangers at play. As a result, he failed to determine whether
there were procedural or substantive substitutes for contemporaneous
cross-examination that could overcome those dangers, in a case where there
would be no in-court cross-examination of the declarant.
[4]
[72]
In addition, he erred by making a positive
finding that the complainant had no motive to fabricate, without explaining how
that finding was available given the significant potentially contrary evidence
in the record regarding her animus toward the appellant, and used that finding
to support the reliability of the statement.
[73]
In coming to the conclusion that the trial judge
erred by admitting the police statement, I am acutely aware of the challenges
involved in eliciting evidence from children and the importance of ensuring
that vulnerable children are adequately protected in circumstances where
testifying may result in serious psychological harm. I am also mindful that the
right to cross examine is a critically important feature of a criminal trial.
In this case, given the serious concerns about the threshold reliability of the
police statement, it was an error to admit it where the child was not available
to be cross-examined on it.
(4)
Issue 3: On a proper analysis, could the
statement meet the high standard for threshold reliability and be admitted into
evidence?
[74]
In this case, there were no substitutes for
contemporaneous cross‑examination on the police statement because E.B.
was not able to testify at the trial and be cross-examined. However, there were
significant procedural reliability and substantive reliability concerns at
play. There was evidence that the complainants perception could have been
influenced by what she heard from other children and from watching a
pornographic movie. Further, there was evidence that could be seen to support a
motive to lie. Finally, the complainant had made inconsistent statements about
whether she remembered what had happened to her and whether she had told the
truth when testifying on a promise to tell the truth at the preliminary
inquiry.
[75]
The major circumstance that made the statement
reliable in the eyes of the trial judge was that the officer who interviewed
E.B. did so in the appropriate manner so that the statement was not tainted by
any suggestions made by the officer. The trial judge also relied on some
corroboration, but correctly noted that it was only on peripheral matters such
as the layout of the apartment.
[76]
Using
Khan
as a comparison: the
statement in the case at bar was not made immediately following the event; it
was not made as a spontaneous disclosure by the complainant but came about as a
result of the CAS worker questioning her about her uncle; the language and
description of the event that the child used could have been influenced by what
she had heard from other children and from watching a pornographic movie; the
complainant had repudiated her statement under a promise to tell the truth at
the preliminary inquiry; and the complainant had a possible motive to fabricate
in order to have her uncle removed from the home as she wanted to live alone
with her mother.
[77]
I conclude that without an adequate substitute
for contemporaneous cross‑examination, the normal one being
cross-examination at the trial, none of these concerns with reliability could
be addressed and potentially overcome. The fact that the officer conducted a
proper, non-suggestive interview is not a sufficient indication of substantive
reliability to overcome the other reliability problems with the statement. As
in
Khelawon
, it simply cannot be said that E.B.s evidence was unlikely
to change under cross examination, such that cross examination would add
little or nothing to the process: at para. 107; see also
Bradshaw
, at
para. 31.
[78]
Consequently, had the trial judge undertaken the
proper analysis, he would not have had the basis to admit the statement into
evidence based on threshold reliability. As the Crown conceded at trial that
the conviction was dependent on the admission of the statement, the appellant
would have been acquitted.
F.
Disposition
[79]
I would therefore allow the appeal, set aside
the conviction and enter an acquittal.
K.
Feldman J.A.
I
agree. Thorburn J.A.
MacPherson J.A. (dissenting):
[80]
I have read the draft reasons prepared by my
colleague in this appeal. She concludes that the appeal must be allowed for two
reasons:
[T]he trial judge erred by finding threshold
reliability, and in his positive finding that the complainant had no motive to
fabricate. As a result, he erred by admitting the complainants police
statement.
[81]
With respect, I do not agree with these
conclusions and the reasons supporting them.
(1)
The threshold reliability issue
[82]
On this issue, my colleague concludes:
I agree with the appellant that the trial
judge improperly downplayed the importance of cross-examination in the
threshold reliability assessment process.
By discounting the purpose and value of
cross-examination as a tool that could challenge the accuracy or veracity of
the statement, the trial judge lowered the high bar for threshold reliability
that the case law requires before hearsay statements can be admitted.
[83]
I do not agree with this analysis and
conclusion.
[84]
I begin with a brief recitation of the crucial
facts that led to a police investigation, criminal charge, preliminary inquiry
and trial. On March 31, 2015, a Childrens Aid Society worker came to the
complainants school and interviewed the seven (almost eight) year-old
complainant. Immediately following this interview, the worker drove the
complainant to the police station.
[85]
At the police station, the CAS worker told
Officer Cunnington that she had brought the complainant to the police station
based on what she had been told by the complainant at school. Officer
Cunnington proceeded to arrange to interview the complainant. The interview
lasted about 50 minutes and was recorded. Two crucial points should be made
about the interview.
[86]
First, the location and conduct of the interview
were exemplary. The interview took place in a small private room with a
comfortable couch and chairs. Only Officer Cunnington and the complainant were
in the room. Officer Cunnington was friendly and polite. He asked simple,
non-leading questions and there was nothing even remotely concerning or
threatening about his demeanour, voice or language.
[87]
At the trial, Dr. Louise Sas was qualified to
testify as an expert in child behavioural and clinical psychology, child
memory, behaviours of victims of child sexual abuse, and child witnesses. She
estimated that she had been qualified as an expert in Ontario courts about two
hundred times.
[88]
Based on Dr. Sass expert report and trial
testimony, the trial judge concluded:
[T]he interview was done in accordance with a
protocol that was discussed in some detail by Dr. Sas, at page six of her
report and in her evidence before me. I will not review those points except to
note that there are nine separate points. It was Dr. Sass opinion that the
interview was conducted in accordance with the protocol and the nine points that
are listed in her report, and about which she testified were adequately
established.
[89]
To this I would simply add, having viewed the
interview, that this conclusion is entirely reasonable. In the context of an
interview of a seven year-old girl about possible criminal sexual activity by a
close relative, Officer Cunningtons structure and conduct of the interview
were very impressive indeed.
[90]
Second, the performance of the seven year-old
complainant throughout a 50-minute interview with a strange man in a strange
room, and about an awkward subject matter, was also impressive. It needs to be
recalled that at this juncture the complainant was answering questions about
the same matter she had discussed with the CAS worker earlier in the day. She
had not been taken into CAS custody (that happened after the interview), she
did not know that her mother might be very unhappy about what she was saying,
and she certainly did not know that she would not live with her mother for the
next 17 months. Without all of this knowledge about the future that would flow
from what she was saying (and which obviously had a role in what later happened
at the preliminary inquiry and the trial), her answers to the police officers
questions were clear, thoughtful and, I say again, impressive.
[91]
Against this backdrop, I turn to a consideration
of my colleagues conclusion that the trial judge improperly downplayed the
importance of cross-examination in the threshold reliability assessment
process and thus lowered the high bar for threshold reliability by failing
to address the significant procedural reliability and substantive reliability
concerns at play.
[92]
I do not agree with this conclusion. While the
trial judge considered cross-examination to be more important to ultimate
reliability, he was alive to its role in the threshold reliability analysis. In
his written reasons, he said that hearsay remains presumptively inadmissible,
for valid policy reasons. Foremost of these is the lack of ability to
cross-examine. He went on to remark that hearsay can be admitted only where
there are sufficient indicia of reliability to persuade the judge that the lack
of right to cross-examine can be overcome.
[93]
Further, the trial judges reasons show that the
statement and its context convincingly address procedural and substantive
reliability. Procedural reliability centres on whether the trier of fact will
be in a position to rationally evaluate the evidence:
R. v. Khelawon
,
2006 SCC 57, at para. 76. The trial judge noted several factors enabling a
rational evaluation, including:
As observed by Dr. Sas, the interview was
conducted in accordance with a well-recognized protocol. It was conducted
in a relaxed atmosphere. The interviewee displayed no symptoms of concern
at being interviewed. For the most part, open-ended questions were used.
[94]
Moreover, at the beginning of the interview the
complainant promised to tell the truth. Section 16.1(6) of the
Canada
Evidence Act
, R.S.C. 1985, c. C-5, requires that a person under fourteen
make such a promise instead of an oath before giving evidence. The complainant
was seven years-old at the time of her police statement.
[95]
Officer Cunnington also told the complainant to
correct him if he made a mistake. Dr. Sass report says she did so on three
occasions. Most notably, when describing the assault, the complainant said she
was lying down and the appellant was standing. The officer repeated that the
appellant was standing on the bed, but the complainant corrected him to say he
was standing on the floor.
[96]
In my view, all these indicia contribute to put
the trier of fact in a position to rationally evaluate the evidence. The
absence of contemporaneous cross-examination is serious, but the fact that the
statement was video recorded, that the complainant promised to tell the truth,
and that she corrected the officer on significant details all buttress the
statements procedural reliability.
[97]
Substantive reliability describes a statement so
reliable that it is unlikely to change under cross-examination:
R. v.
Bradshaw
, 2017 SCC 35, at para. 31, or where the only likely explanation
is that the statement is true:
R. v. U. (F.J.)
, [1995] 3 S.C.R. 764,
at para. 40.
[98]
Here, the inherent trustworthiness of the
statement emerges from the fact that its truth explains how the complainant was
able to give such detailed descriptions of these acts. The same was true in
R.
v. Khan
, [1990] 2 S.C.R. 531, where McLachlin J. (as she then was) relied
on necessity and reliability to find that the trial judge could receive a three
year-olds statement to her mother that she had been sexually assaulted by her
doctor. Citing this courts decision in
Khan
, she noted that young
children
are unlikely to use their reflective powers to concoct a
deliberate untruth, and particularly one about a sexual act
which in all probability is beyond their ken.
As such, the evidence of a
child of tender years on such matters may bear its own special stamp of
reliability: at p. 542.
[99]
In this case, the complainant gave a detailed
description of sexual acts well beyond her development stage. She described her
uncle masturbating (she called it playing with himself), she showed the
officer how long the appellants penis was using her hands, she demonstrated
how he pushed his fingers on her vagina, and described her uncle ejaculating
onto her stomach: Dr. Sass Report, at p. 9. In my view, the inherent
trustworthiness of her statement is the only likely explanation for her vivid
descriptions.
[100]
I turn to a second component of my colleagues reasons on this
issue, one she labels Case-Specific Hearsay Dangers Perception and Sincerity.
I will deal with these in turn.
(a)
Perception
[101]
My colleague finds that the protocol used to conduct the
complainants interview did not ensure that the child has not been influenced
in her perception by something that occurred prior to the interview, or that
she is telling the truth. She points to evidence on the record that the
complainant may have seen a pornographic movie where a man undid his pants,
took his penis in his hands, and masturbated. Similarly, the complainant may
have had schoolyard conversations about ejaculation, how babies are made, and
what a man does during sex. This evidence, my colleague concludes, offers
alternate hypotheses for the detail in her allegations, and injects doubt into
its reliability.
[102]
I do not agree. These alternate hypotheses could certainly explain
some of the detail in her allegations, like her description of the appellant
masturbating or her unprompted use of the word cock. However, this evidence
does not subsume all details. For example, the complainants approximation of
the length of the appellants penis or that the ejaculate smelled gross are
untouched by the pornographic video or schoolyard discussions with her friends.
[103]
In addition, the complainant said I cant say no, I have to say
yes when asked what she responded to her uncle asking her if she liked the
assault. Her answer to this question is hard to reconcile with her conversation
with friends, and nearly impossible to relate to the pornographic videos.
[104]
Consequently, I do not believe the trial judge erred in finding that
other evidence, particularly that of the complainants mother, did not cas[t]
sufficient doubt on the statement so as to render it inadmissible. As the
alternate hypotheses leave some details unexplained, the only likely
explanation is that the statement is true.
(b)
Sincerity
[105]
My colleague finds that the statement and its context do not dispel
the possibility that the complainant is being untruthful. Her conclusion here
is two-fold: first, the complainant admitted to lying at the preliminary
inquiry; second, the record evidenced a motive to lie. Therefore, [t]he trial
judge could not have been satisfied on this record that the difficulty of
assessing the complainants sincerity in her police statement could be
overcome.
[106]
I do not agree with either finding. In my view, my colleague takes
too narrow a view of the evidence going to sincerity. Viewed as a whole, the
concerns relating to the complainants truthfulness are minor, and do not
detract from the statements reliability.
[107]
My colleague finds that the complainant could have been insincere in
her statement because she promised to tell the truth at the preliminary
inquiry, but later admitted to Dr. Sas that she had lied.
[108]
With respect, this reasoning ignores what happened to the
complainant immediately after her police interview. Basically, her life turned
upside down. When the interview ended, the CAS immediately apprehended the
complainant and placed her in a foster home. She stayed there for 17 months.
Only then did she return to her mothers care.
[109]
In addition, by the time Dr. Sas became involved with the
complainant, she was extremely guarded, disclosing only the information
permitted by her mother. It is worth remembering that the complainants mother
testified on her brothers behalf at his trial. Accordingly, while the complainant
admitted to Dr. Sas that she had lied at the preliminary inquiry (by saying she
could not remember the earlier events), I am not convinced that this has an
impact on the sincerity of her police statement. During the police interview,
there was no spectre of CAS detention, foster care, her mothers anger and
support for the appellant, and long-term separation from her family.
(2)
The motive to lie issue
[110]
In his oral reasons on the threshold admissibility issue, the trial
judge said, referring to the complainant: There is no apparent motive on her
part to fabricate the allegations.
[111]
In his written judgment at the conclusion of the trial, the trial
judge said: Of significance, I am satisfied that there was simply no motive or
reason for a child to fabricate her allegations against her uncle.
[112]
My colleague disagrees:
The problem with this finding is that the
trial judge either misapprehended or ignored evidence that belied the
conclusion that [the complainant] had no motive to fabricate the allegation.
For example, [the complainant] made numerous statements to different people to
the effect that she did not want to live with her uncle and wanted to live only
with her mother.
She also told [the CAS worker] that she didnt really like
her uncle, that he had called her a little bitch, that she did not like the
conflict he caused at home, and that her mother and uncle were always fighting.
All of this leads my colleague to
conclude: The trial judge did not address this evidence, and gave no
explanation for the finding, in the face of this evidence, that [the
complainant] had no motive to fabricate.
[113]
With respect, I do not agree with this conclusion. In my view, the
evidence is less categorical than that set out by my colleague. The complainant
said that the sexual activity with her uncle made her feel nasty and
repeatedly described her allegations using the word gross. Thus the evidence
shows that the complainant could have disliked the appellant
because
of the sexual assaults. Accordingly,
the trial judge was entitled to conclude that the complainants police
statement was not a deliberate untruth
about a sexual act which in all
probability is beyond their ken:
Khan
, at p. 542.
[114]
In any event, the complainants motive to lie is but one factor in
the analysis:
R. v. Blackman
, 2008 SCC 37, at para. 42. Whatever
acrimony exists between the complainant and the appellant does not undermine
the reliability established by the procedural guarantees and the statements
substance.
Disposition
[115]
I would dismiss the appeal.
Released: April 21, 2022 K.F.
J.C.
MacPherson J.A.
[1]
By agreement, the
voir dire
evidence was admitted as the trial evidence.
[2]
Like
all the evidence of what the complainant told anyone, Dr. Sass evidence that
E.B. told her she had lied at the preliminary inquiry was hearsay and not
available for the truth of its contents (i.e., that E.B. actually lied).
However, the trial judge was obliged to consider it, as he was for example with
what she told Ms. T.S., for the non-hearsay purpose that E.B. said this to Dr.
Sas.
[3]
I
note again that some of these statements were available only for a non-hearsay
purpose, and not for the truth of their contents. Nevertheless, in order to conduct
the threshold reliability analysis, the trial judge was obliged to consider this
evidence for its non-
hearsay
purpose, that is, for the
fact that E.B. told various people that she disliked her uncle or did not want
to live with him.
[4]
Although it was not argued on the appeal, in my view, the
trial judge erred in law by admitting the police statement without also
admitting the preliminary inquiry evidence of the complainant. This procedure
was contemplated by the Supreme Court in
Bradshaw
, at paras. 28, 109;
Khelawon
, at
paras. 75-79;
R. v.
Hawkins
, [1996] 3 S.C.R. 1043, at para. 84; and
B. (K.G.)
, at pp.
786-87. In
B. (K.G.)
,
Lamer C.J.C. observed that [t]he reliability concern is sharpened in the case
of prior inconsistent statements because the trier of fact is asked to choose
between two statements from the same witness: at pp. 786-87, quoted in
Khelawon
, at
para. 78. In
Hawkins
,
a witness testified twice at the preliminary inquiry, first implicating the
accused and later recanting most of her initial testimony. On the appeal to
this court, Arbour J.A. noted that [t]he Crown concedes that if [the
witnesss] evidence is to be read in at trial, it will have to be put to the
jury in its entirety:
R.
v. Hawkins
(1995), 22 O.R. (3d) 193 (C.A.), at para. 23, affd
[1996] 3 S.C.R. 1043. In the case at bar, by admitting only one statement, when
the declarant made another recanting or repudiating statement under oath, the
trial judge created an unbalanced and skewed record for the trier of fact (this
case was tried by a judge alone, but in another case, the trier of fact could
be a jury). See
R. v.
Fisher
, 2003 SKCA 90, 238 Sask. R. 91, at paras. 70-77, leave to
appeal refused, [2004] 3 S.C.R. viii (note); and
R. v. Ansary
,
2004 BCCA 109, 184 C.C.C. (3d) 185, at paras. 5-19. In my view, had both
statements been admitted at trial, with no further ability to cross-examine the
child, it would have been clear that the trier of fact could not be satisfied
of the appellants guilt beyond a reasonable doubt.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Olufeko, 2022 ONCA 308
DATE: 20220419
DOCKET: C66026 & C66759
van Rensburg, Nordheimer and
George JJ.A.
Docket:
C66026
BETWEEN
Her Majesty the Queen
Respondent
and
Saidi Sanni Olufeko
Appellant
Docket:
C66759
AND BETWEEN
Her Majesty the Queen
Respondent
and
Tajudeen Fanikayode
Appellant
Angela Ruffo and Joanne Collins, for
the appellant Saidi Sanni Olufeko
Jeffery Couse, for the appellant
Tajudeen Fanikayode
James Clark, for the respondent
Heard: February 3, 2022, by
video conference
On appeal from the convictions entered
on January 11, 2018, and the sentence imposed on March 27, 2018, by Justice E. Ria
Tzimas of the Superior Court of Justice, sitting with a jury, with reasons for sentence
reported at 2018 ONSC 2010.
George J.A.:
overview
[1]
On June 14, 2014, Canada Border Services Agency
officers intercepted a shipment at Pearson International Airport. The shipment
contained carpets, some of which had heroin secreted inside. All told, approximately
eight kilograms of heroin was seized. Once officers from the Royal Canadian
Mounted Police (RCMP) became involved, a general warrant to carry out a
controlled delivery of the shipment was obtained, as well as wiretap
authorizations for two phone numbers.
[2]
The appellants Saidi Olufeko (Olufeko) and
Tajudeen Fanikayode (Fanikayode) together with co-accused Akeem Onaola
(Onaola) and Peter Ajiri (Ajiri) were charged with importation of heroin,
conspiracy to import heroin, possession of heroin for the purpose of
trafficking, and conspiracy to possess heroin for the purpose of trafficking.
[3]
Onaola pleaded guilty to importation and
possession for the purpose of trafficking. The other three accused proceeded to
trial, where Ajiri was acquitted. Olufeko was found guilty on all counts.
Fanikayode was found guilty of conspiracy to possess heroin for the purpose of
trafficking and possession for the purpose of trafficking. Both appeal against
their convictions. Olufeko also appeals against his sentence, which was 16
years in the penitentiary reduced by the time spent in pre-trial custody.
[4]
The appellants advance various grounds of
appeal. Olufeko argues that the trial judge,
i)
erred in allowing the Crown to elicit a police
officers in-court identification, or, alternatively, by failing to provide a
strong accompanying caution;
ii)
failed to give an adequate
W.(D.)
[1]
instruction in relation to exculpatory evidence;
iii)
improperly criticized his counsels closing to
the jury; and
iv)
in respect of sentence, erred in finding that
there were no mitigating factors, which led to the disparate treatment of
immigration consequences as between himself and Fanikayode, who received a
12-year sentence.
[5]
Fanikayode argues,
i)
that the trial judge delivered an unbalanced
jury charge, which favoured Ajiri and deprived him of a fair trial;
ii)
that the trial judge improperly admitted opinion evidence on
counter-surveillance techniques, or, in the alternative, erred by not providing
a limiting instruction about its use; and
iii)
that the verdict is unreasonable.
evidence at trial
[6]
Onaola testified on behalf of the defence. He said
that he was the only one of the four involved in the importation scheme and
that Olufeko, Fanikayode, and Ajiri knew nothing about it.
[7]
He advised that in 2004, while working in New
York City, he became acquainted with a man named Joseph Goldstein. He testified
that Mr. Goldstein hired him to ship carpets from Pakistan to Toronto on his
behalf. Onaola testified that, in January 2014, he agreed to ship carpets that
contained heroin to Canada. To that end, a fake company (with a Hamilton
address) was set up and listed as the consignee. Onaola advised that, in
addition to a $50,000 payment, he was told he could take possession of some of
the carpets to do with as he wished. In respect of this shipment, it was his
understanding that heroin would be concealed in three of the carpets and that
the others would be his. Onaola testified that he was going to gift one of these
extra carpets to each of his friends Fanikayode and Olufeko, and to Olufekos
friend, Ajiri.
[8]
The intercepts obtained through the wiretap
authorization do not capture anything from either Olufeko or Fanikayode. They
do, however, capture Onaola impersonating Mr. Goldstein attempting to
coordinate the shipment on a device seized from Onaola upon his arrest. Onaola
explained that this phone was given to him by Mr. Goldstein.
[9]
As it relates to the movement of the carpets
from the airport to its final destination (a Public Storage facility), the
evidence at trial revealed that,
i)
the Hamilton consignee business that Onaola
spoke of, did not exist;
ii)
at the Public Storage facility, Onaola had
rented locker A016 under the name Dave Brewer; and
iii)
RCMP officers, with assistance from the Toronto
Police Service, set up surveillance at both the airport and Public Storage
facility.
[10]
According to officer testimony, their
surveillance yielded these results:
i)
At about 1:30 p.m. on June 19, 2014,
Fanikayodes Chrysler 300 vehicle was observed in the storage facilitys
parking lot. Of note, Fanikayode and Onaola both testified that Onaola had
directed Fanikayode to meet him there so that he could give him a carpet.
ii)
Fanikayode drove around the parking lot presumably looking for
Onaola for approximately 10 minutes, before departing.
iii)
During the time Fanikayode is seen driving on
the storage facilitys premises, phone records show a 10 second call to
Olufeko.
iv)
After departing the storage facility, Fanikayode
attended at a Costco across the street.
v)
Shortly after Fanikayodes departure, a cargo
truck arrived at the airport to retrieve the carpets.
vi)
Police observed Onaola follow this truck in a
silver Honda sedan. The cargo truck arrived at the storage facility around 3:20
p.m.
vii)
Fanikayode and Onaola parked near one another in
the Costco lot, both facing the Public Storage area.
viii)
Onaola walked to the storage facility, allowed the cargo truck
driver into the secured area, and unloaded the carpets into his rented unit. At
the same time, Fanikayode was walking in the Costco lot speaking on his phone.
During this time 2:14 p.m. to 4:35 p.m. Fanikayodes phone records show
that he received and/or made 23 calls, including two with Onaola and 7 with
Olufeko.
[11]
Toronto Police Constable Doug McCutcheon
testified that, at around 4:33 p.m. on the 19th, he observed a black male in
his 30s, wearing a teal-coloured t-shirt and sunglasses, in the Costco parking
lot speaking on his phone and looking into other parked vehicles. Officer
McCutcheon said that this man initially came from the Costco Gas Bar. He took
photographs of this person, which were filed at trial. At some point he lost
sight of him. The officer said that he had him under observation for about 20
minutes. While the officer had not been able to identify this man as Olufeko
before, he did so at trial upon being presented with the photographs. When
Fanikayode was shown the same photographs, he denied that they were of Olufeko.
Fanikayode further testified that he had not seen Olufeko in the parking lot at
all that day.
[12]
Surveillance continued on June 20th. According
to Fanikayode, he was to meet with Onaola to get his carpet. Onaola did not
show. Onaola testified that they spoke to each other twice that afternoon and
that Fanikayode was quite angry over the missed meeting. Later, at some point
between 4:40 p.m. and 4:48 p.m., Olufeko attended at the storage area. He was
observed by the facilitys manager attempting to open the gate. As Olufeko did
not have a code he could not gain access on his own, but he followed, on foot,
another vehicle that could gain access. A short while later, the alarm to
Onaolas locker was triggered. The facility manager testified that if a unit is
accessed without the alarm being disabled, it will go off.
[13]
At this time, an RCMP officer was inside another
locker nearby. She testified that she received a radio transmission at 4:47 p.m.
alerting her to the fact that a man was approaching. She did not observe that
man attend inside of, or touch anything in, the locker. At about 4:50 p.m.,
Olufeko left the storage area and returned to his car, which was parked at the
Costco lot across the road. Phone records show that the device later seized
from his vehicle had made (or received) six short calls with Onaola, the last
one being at 5:24 p.m. and lasting for 15 seconds.
[14]
Onaola, along with Ajiri, arrived at the storage
facility around 5:10 p.m. Onaola had a keypad code and was able to enter the
secured area and the unit. Both Onaola and Ajiri went inside, retrieved two
carpets, and began to load them into their car. At 5:26 p.m. a mere two
minutes after the call between Onaola and Olufeko (who had just been where
Onaola then was) Onaola returned the carpets he had just retrieved back to
the locker. Onaola and Ajiri were then arrested.
[15]
At 5:31 p.m., while in his vehicle at the Costco
parking lot, Olufeko was arrested. In his glove compartment police located and
seized a cheque, a recent visitor parking permit for Fanikayodes address, the
vehicle registration, and a Blackberry. In the passenger side door, the police
found documents connected to the carpet shipment, including a printed email
from supcan@yahoo.com to solufeko@yahoo.com, an Etihad Airways Bill number
60710966690, and a handwritten note.
[16]
In his police statement, Olufeko denied that
these documents were his. He indicated that Onaola asked him to print off the
email because his printer was not working. When officers searched the address
on Olufekos drivers licence, they located personal items belonging to both
Olufeko and Fanikayode.
[17]
As mentioned, Onaola testified on behalf of the
defence. He acknowledged being a part of the importation scheme, at the behest
of Mr. Goldstein, but denied that the other accused were. To the extent any of
Ajiri, Olufeko, and Fanikayode were involved, they were to simply be given a
carpet as a gift. Ajiri and Fanikayode both testified. Fanikayodes testimony
closely aligned with Onaolas. Olufeko did not testify but the Crown introduced
his police statement for the truth of its contents. In it, Olufeko denied
knowing anything about the drugs or Mr. Goldstein. When confronted with the
shipment documents located in his car, he said they were not his. He
acknowledged that solufeko@yahoo.com was his email address. When asked about
his attendance at the storage facility, he said that he was just looking for
Ajiri.
issues
[18]
On this appeal, these issues arise:
i)
Did the trial judge err in allowing the Crown to
elicit Officer McCutcheons in-court identification of Olufeko, or,
alternatively, by failing to provide a strong caution about its use?
ii)
Did the trial judge fail to give an adequate
W.(D.)
instruction?
iii)
Did the trial judge improperly criticize the closing address by
Olufekos counsel?
iv)
In relation to Olufekos sentence, did the trial judge err by
finding that there were no mitigating factors and, as a consequence, did she treat
Olufeko and Fanikayode differently? In other words, did she fail to consider
and apply the parity principle?
v)
Did the trial judge deliver an unbalanced jury charge, which
favoured Ajiri and deprived Fanikayode of a fair trial?
vi)
Did the trial judge improperly admit opinion evidence on
counter-surveillance techniques, or err by failing to provide a limiting
instruction about its use?
vii)
As it relates to Fanikayode, was the verdict unreasonable?
[19]
I will address each in turn.
discussion
Did the trial judge err by
allowing the Crown to elicit Officer McCutcheons in-court identification of
Olufeko, or, alternatively, by failing to provide a strong caution about its
use?
[20]
The concerns that typically arise when you have
an in-dock identification which will almost always attract at least a strong
caution, if not be excluded altogether do not arise here. To start, the
photographs that Officer McCutcheon was asked to review were filed as exhibits
and in the hands of the jury during their deliberations. Jurors were specifically
told to review the photographs and determine for themselves whether Olufeko is
the person captured in them. This situation is markedly different than a
witness simply pointing at an accused in court and saying, it was them, which
is inherently unreliable especially when the witness and accused are otherwise
strangers. Here, the jury was told to consider whether the photographs were of
sufficient clarity and quality to identify the appellant beyond a reasonable
doubt. This instruction was in accordance with the principles set out in
R.
v. Nikolovski
, [1996] 3 S.C.R. 1197, and went far beyond what was required
in the circumstances of this case. It was also to Olufekos advantage. A
Nikolovski
instruction is provided in cases where photographic identification stands
alone, which was not the case here, but, with counsels approval, was given
nonetheless.
[21]
Remember that the purpose in cautioning a jury
in circumstances like these is to prevent wrongful convictions, made necessary
by the fact that witnesses often get it wrong. Sometimes they misidentify
people with no malice, genuinely and confidently believing they are correct.
Sometimes they lie. Regardless of a witnesss motivation, in-dock
identification, and eyewitness evidence generally, must be treated with skepticism.
As indicated, no such concerns arise here, as the jury did not have to rely
solely on what someone else said. Each juror could assess it for themselves,
and the trial judge directed them to do just that.
[22]
Moreover, Olufekos counsel did not object to
this line of questioning, and, while that is not always determinative, in this
case it was clearly a tactical decision made to preserve his clients right to
pursue a similar line with other witnesses in order to impeach them. What I
mean is, Olufekos counsel advanced the position that police officer
identification was not credible and by not objecting to the admission of this
evidence he was maintaining the ability to attack it as such. This comes into
sharp focus at the pre-charge conference when Olufekos counsel not only declined
to seek a limiting instruction but approved of the trial judges decision to
provide the
Nikolovski
instruction, which removes any possibility that
the lack of objection was merely an oversight. This was Olufeko getting the
very instruction he wanted and which, despite the ultimate result, was to his benefit.
[23]
I would reject this ground of appeal.
Did the trial judge fail to give
an
adequate W.(D.) instruction?
[24]
Olufeko contends that the trial judge erred in
her instruction about exculpatory evidence.
[25]
To focus solely on the text of the
W.(D.)
instruction provided, one could conclude that this ground has some merit, as the
trial judge does seem to relate it only to the testimony of Onaola, Ajiri and
Fanikayode, and not Olufekos police statement. While the heading of this
section in the written jury charge included Olufeko, and while the trial judge
did say that this instruction applies to all three accused, Olufeko argues
that the trial judge fell into error nonetheless by framing
W.(D.)
as
a special rule that applies either when an accused chooses to testify or
when a witness is called by the defence. In other words, this aspect of the
trial judges charge likely led the jury to exclude Olufekos statement from
the
W.(D.)
analysis.
[26]
That said, the trial judge did go on to address
Olufekos statement, instructing the jury as follows:
You can consider what Mr. Olufeko said [to
police] about his activities, his involvement, or his reasons for being at
Costco as that relates to your consideration of Mr. Olufekos innocence or
guilt. You cannot, however, use Mr. Olufekos evidence to draw conclusions
about the innocence or guilt of Mr. Ajiri, or Mr. Fanikayode.
[27]
This is somewhat problematic, not only because
it sets Olufekos statement apart from the testimony of the other accused, but
in the way it distills the analysis down to a question of guilt versus
innocence, and not whether the statement, even if disbelieved, could raise a
reasonable doubt.
[28]
However, despite any concerns, this was, in the
circumstances, an adequate instruction. I point out that Olufekos counsel
raised no objection, which, while not in itself determinative, is yet another
example of a tactical decision. I say that because to draw any more attention
to his statement, Olufeko would have then undermined the defence he raised at
trial, which was that he had not taken Ajiri to the Public Storage area, when
in his statement he said he had.
[29]
However, apart from any tactical decision, remember
that one of the purposes of a
W.(D.)
instruction is to convey to the
jury that a reasonable doubt applies even when exculpatory evidence is not
believed. And here, while not perfectly done, the charge, read as a whole,
sufficiently explains the burden of proof; who has it; and relates exculpatory
evidence to the reasonable doubt standard. Consider this passage from the
charge which, when read together with the just mentioned passages, achieves
that objective:
Unless you are satisfied that the accused did
not make the statements that are attributed to him
you must consider those
remarks that may help an accused along with all of the other evidence. If you
decide that an accused made a statement that may help him in his defence, or if
you cannot decide whether he made it, you will consider that statement along with
the rest of the evidence in deciding whether you have a reasonable doubt about
the accused guilt.
[30]
For these reasons, I would reject this ground of
appeal.
Did the trial judge
improperly
criticize the closing address by Olufekos counsel?
[31]
This complaint arises from the trial judges
comments to the jury about the closing address of Olufekos counsel. Olufeko
submits that what the trial judge said was unfair, denigrated his case, and
compromised his right to a fair trial.
[32]
After repeating various aspects of the closing,
this is what the trial judge said:
Before I turn to the Crowns closing
submissions, I want to make some observations with respect to this closing.
When you consider this closing, I make the following observations: I remind you
that it is for you to decide how Mr. Ajiri got to Public Storage. You have
heard three versions of this, you heard Peter Ajiri say that he went there with
Mr. Olufeko. You heard Mr. Onaola say that he brought Mr. Ajiri there, then you
have Mr. Olufekos statement. I ask that you review that statement very
carefully. When you go through it, you will see an evolution in Mr. Olufekos
explanation. Initially, he says he went to Costco on his own. Then he says he
went to a friends at 11:30 a.m., had breakfast, watched a movie, and then his
friend asked him to drive him to Lakeshore to meet another friend. He was going
to buy something. That friend was Peter. Then, at a later part of the
statement, Mr. Olufeko tells you that he did not meet anyone at Costco. It will
be for you to decide what you believe and what you take from Mr. Olufekos
statement. And I remind you, again, that the statement pertains, you can use
that statement in relation to Mr., your findings on Mr. Olufeko. Insofar as
counsel raised questions about Mr. Ajiris credibility to provide a full answer
and defence on Mr. Olufekos behalf, those submissions should be treated with
great care. Did Mr. Olufeko bring Mr. Ajiri to Costco, and did Mr. Olufeko give
Mr. Ajiri scissors, and the orange card? These are questions about which you
make the findings of fact. Insofar as the closing submissions went beyond to
question the credibility and sought to implicate Mr. Ajiri, I remind you that
it is only the Crown that is prosecuting the case against each of the accused.
Any personal opinions about anyones guilt by any of the counsel is to be
disregarded.
[33]
In this instance, an objection was raised.
Olufekos trial counsel said this:
In my closing I put Mr. Olufekos best foot
forward and that did not align with the evidence of Mr. Ajiri. Mr. Ajiri hit
the stand and implicated Mr. Olufeko, not the reverse. Counsel for Mr. Ajiri
knowingly and with purpose advanced the narrative against Mr. Olufeko, opening
up the door to cutthroat defences.
[34]
This objection highlights the dilemma Olufeko
found himself in, which I addressed earlier in these reasons. Also, as
mentioned, the position Olufeko was attempting to advance at trial was at odds
with what he had said in his police statement. The trial judge was aware of
this and chose to intervene. She was right to do so, not just because of the
inconsistency and risk that the jury would be misled, but because Onaola an unsavoury
witness had given evidence that undermined Ajiris testimony, which was
problematic given the cut-throat defence being advanced and the Crowns
position, which at that point in the trial, was to suggest that Ajiri should be
believed. What that means is, without the trial judges intervention, it was
Ajiris right to a fair trial that was placed at risk. In any case, at the end
of the day, the trial judge was better positioned than I am now to assess the
dynamics of the case, what interventions were required, and their timing. Here,
it was reasonably determined that an instruction was required to avoid
prejudice to Ajiri.
[35]
Again, Onaola was an unsavoury witness. As such,
the trial judge committed no error when she urged the jury to treat his
evidence with caution. This was appropriate in the circumstances. Furthermore,
instructing the jury to be especially cautious or extremely careful in
considering defence evidence [does not constitute] an error of law, especially
where that instruction is accompanied by an instruction that accords with [
W.(D).
]:
R. v. Wristen
(1999)
, 47
O.R. (3d) 66 (C.A.), at para. 45, leave to appeal refused, [2000] S.C.C.A. No.
419. When such a caution is provided, the question then becomes whether the
charge, considered as a whole, unfairly undermine[d] the defence position:
Wristen
,
at para. 45. This charge did no such thing.
[36]
I would, therefore, reject this ground of appeal.
Olufekos
Sentence
Appeal
[37]
I see no error in either the imposition of a
16-year sentence or in the analysis that led to it. To start, the sentence is
in the range of what Olufekos counsel sought, which was 15 to 16 years. 16
years is otherwise a fit sentence, given the nature of the substance, its
quantity, and the role Olufeko played in the importation scheme.
[38]
As for immigration consequences, it may well be
that Olufeko and Fanikayode were treated differently because each did face
the prospect of deportation but in the circumstances of this case it was of
no consequence. Olufeko received the sentence he sought, and the difference in
their respective sentences is explained by Olufeko being convicted of
importation, which is more serious and carries a higher degree of moral culpability
than possessing the same substance for the purpose of trafficking, which is
what Fanikayode was found guilty of doing. That being the case, parity as
between Olufeko and Fanikayode would not have been appropriate.
Did the trial
judge
deliver
an unbalanced jury charge, which favoured Ajiri and deprived Fanikayode of a
fair trial?
[39]
A jury charge does not need to be perfect, but
it does need to be fair:
R. v. Baltovich
(2004), 73 O.R. (3d) 481
(C.A.), at paras. 114-18. As the charge was fair, this ground of appeal must
fail.
[40]
For Fanikayode, the problem lies in the trial
judge telling the jury to be very cautious about Onaolas testimony, in
particular his description of the nature and extent of his engagement with the
three accused. The trial judge went on to tell the jury that they should
approach [their] findings of fact with particular care and caution, because it
is possible that Mr. Onaola may have been more concerned to distance Mr.
Olufeko, and to implicate Mr. Ajiri.
[41]
Earlier in these reasons, when discussing
Olufekos contention that Ajiris interests were protected (at his expense), I
alluded to the Crown shifting its position in respect of Ajiri as the trial
came to a close. What I failed to mention, but is critical when assessing this
ground of appeal, is the Crown ultimately withdrew the conspiracy count as
against Ajiri. This happened before the case was placed in the jurys hands,
and each juror would have been aware of this development. Given the change in
position which had to have emanated from the Crowns acceptance of much of
Ajiris testimony it was incumbent on the trial judge to weigh in so as to protect
Ajiris fair trial interests.
[42]
Doing this did not, however, create an
unfairness for Fanikayode. Consider what the trial judge said about the Crowns
change in position and submissions concerning Ajiri:
[The Crown] has told you that he is not sure
of Mr. Ajiris level of involvement. He has left the questions concerning Mr.
Ajiris knowledge and level of control up to you. It is significant that he has
asked you to rely on Mr. Ajiris evidence to make findings against Mr. Olufeko
and Mr. Fanikayode. If the Crown is asking you to find Mr. Ajiri credible on a
number of aspects of this case, I ask you, does it make sense to you that he
would, Mr. Ajiri would not be credible on his exchange with the police.
Did he know more than he let on, as [the?] Crown suggested, or did he not know?
You have to consider those questions very carefully, and they are your findings
to make.
[43]
The trial judge had to say something about this given
the Crowns changed position. There was no basis to say something similar about
Fanikayode, which does not give rise to an unfairness but is, rather, a reality
of a case where the evidence against each accused, and their respective
positions, was different. The trial judge was best positioned to gauge what was
required and to strike the right balance. I see no reason for this court to
interfere and would, therefore, reject this ground of appeal.
Did the trial judge err by improperly
admitting opinion evidence on counter-surveillance techniques or by failing to
provide a limiting instruction about its use?
[44]
I begin this issue by saying that I do not
necessarily accept the characterization of the evidence as opinion evidence. It
appears to me to be narrative evidence of the officers observations. However,
assuming that it is opinion evidence, I point out, again, that there was no
objection from trial counsel with respect to the officer being asked about, and
giving, this evidence. This is yet another example of an appellant raising
issues that were not raised by trial counsel. While it is ultimately the trial judges
responsibility to ensure only admissible evidence is presented to the jury and
that the proceeding is fair, at the same time, trial judges inevitably, and
quite properly, look to trial counsel for assistance and reasonably expect to
receive it. At one point, appellant counsel suggested that because this was a
lengthy, complex trial, with several accused and counsel, it could be that
counsel just got tired as it neared its conclusion, as a way to explain the
lack of diligence by trial counsel as a mere oversight. I do not accept that.
If anything, the nature of the proceeding would have elevated counsels level
of awareness and the need to preserve the record so that contentious issues
could be properly addressed on appeal.
[45]
In any case, I do not believe the trial judge
fell into error. I start by pointing out that police opinion about
counter-surveillance techniques was first raised by Fanikayode. Consider this
exchange between Fanikayodes counsel and Officer Willschick:
Q. Okay, so, when you guys went out, your team
went out, would it be fair to say that your mandate was to look for any
suspicious activity with regard to this controlled delivery?
A. Yes.
Q. Okay. And you said that you were nominated
the scribe for the surveillance report on the 19
th
?
A. Correct.
Q. Thats probably because of your handwriting
because I have no trouble reading it. And so, your job essentially was to take
down anything that wouldve been suspicious that was reported on the radio, is
that correct?
A. Yeah, when another member would make an
observation, I was to write it down.
Q. [If] someone were to say over the radio
that they saw something suspicious, thats something that you would write down,
correct?
A. I would think so, yes.
Q. You think so. So, if someone said, for
example, they saw one of the suspects doing counter-surveillance, looking for
police, you wouldve written that down, correct?
A. I believe I would have.
Q. And that would be important because thats
what you guys were looking for which is suspicious activity that day?
A. Correct.
Q. Okay. And you had a chance to review your
surveillance report from the 19
th
?
A. Yeah, I have it right here too.
[46]
The reason Fanikayode took the approach he did, is
clear. He wanted to blunt the apparent connection between him and the shipment,
and he could only do that by pursuing this line of questioning to, hopefully
(from his perspective), show that he was not conducting counter-surveillance.
Therefore, if Officer Willschick was able to give this testimony which is
what Fanikayodes counsel seems to have thought then why couldnt Officer
McCutcheon? Maybe both should have been permitted to do so. Maybe neither. In
any case, the trial judge was not asked by counsel to weigh in and provide
guidance, and she otherwise saw no need to intervene on her own initiative.
[47]
In the circumstances of this case, it was not an
error to permit the admission of the counter-surveillance conclusion. Nor was a
limiting instruction required, given its lack of importance and the trial
judges decision to not repeat, or otherwise highlight, the police evidence in
this respect. In fact, given how Fanikayode advanced his defence, if the trial
judge had referred to this evidence in her charge, he could have claimed that
she unnecessarily drew attention to it.
[48]
I would reject this ground of appeal.
As it relates to Fanikayode, was the
verdict unreasonable?
[49]
As there was ample evidence to support each verdict,
this ground of appeal must fail.
conclusion
[50]
For these reasons, I would dismiss the appeals
against conviction.
[51]
I would grant Olufeko leave to appeal his sentence,
but would dismiss the appeal.
Released: April 19, 2022 K.M.v.R.
J. George J.A.
I agree. K. van Rensburg J.A.
I agree. I.V.B. Nordheimer J.A.
[1]
R. v. W.(D.)
, [1991] 1 S.C.R. 742.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
R. v. Panchal, 2022 ONCA 309
DATE: 20220419
DOCKET: C67217
Tulloch, van Rensburg, and
Nordheimer JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Siddharth Panchal
Appellant
Myles Anevich, for the appellant
Andrew Cappell, for the respondent
Heard: September 7, 2021 by video conference
On appeal from the conviction entered on
April 8, 2019 and the sentence imposed on April 8, 2019 by Justice Frederic M.
Campling of the Ontario Court of Justice.
Tulloch J.A.:
[1]
The appellant was convicted of fraud over
$5,000. At trial, the only witnesses were the victim and a purported unwitting
accomplice; the appellant elected not to testify. The appellant appeals against
his conviction, arguing that the trial judges reasons do not permit meaningful
appellate review and that the verdict is unreasonable. In his notice of appeal,
the appellant sought leave to appeal against his sentence; however, neither the
appellants factum nor his oral submissions pursued this relief. Accordingly, I
have treated the application for leave to appeal the sentence as abandoned.
[2]
At the conclusion of the hearing, we dismissed
this appeal and indicated that reasons would follow. These are those reasons.
I. BACKGROUND FACTS
[3]
On May 26, 2015, a man identifying himself as
Thomas called the victim, Geeta Purohit, claiming to be a government official
investigating her immigration paperwork. Ms. Purohit had immigrated to Canada
from India in 2005 and became a Canadian citizen around 2010.
[4]
Thomas informed Ms. Purohit that unless she
paid a fee, he would come to [her] door and that if her paperwork was not in
order, she would be deported. Thomas instructed Ms. Purohit to make two bank
transfers totalling $15,000; he would retain a $2,000 processing fee to remedy
the issue with the paperwork, and the remainder would be returned to her via a
government cheque in the mail.
[5]
Thomas stayed on the phone with Ms. Purohit
while she attended at her local RBC branch and withdrew $15,000. Thomas then
directed her to attend a Scotiabank and deposit $3,000 into an account
belonging to Tarun Deep Singh Bal. Thomas then instructed her to attend a
CIBC branch and deposit $12,000 into an account belonging to Kalpesh Solanki.
Later that day, Thomas called Ms. Purohit again and instructed her to go
to a UPS store and email the deposit receipts to a specified email address, and
then to destroy the receipts.
[6]
Throughout that day and in the following days,
Thomas warned Ms. Purohit against telling anyone what she had done and
against going to the police. After several days had passed and Ms. Purohit
still had not received the government cheque promised to her by Thomas, she
confided in a friend, who encouraged her to report the incident to the police. Ms.
Purohit did so and was able to recover the $3,000 Scotiabank transfer.
II. DECISION BELOW
[7]
At the trial, the only witnesses were Ms.
Purohit and Mr. Kalpesh Solanki, the owner of the account in which Ms. Purohit
had deposited $12,000. It was not contested that Ms. Purohit was defrauded. The
central issue to be determined was whether the appellant had participated in
the fraud scheme.
[8]
The only evidence linking the appellant to the
alleged fraud was Mr. Solankis testimony. Mr. Solankis evidence was that
he and the appellant were friends. The appellant contacted him and asked to use
his bank account to make a transfer. The appellant had stated that his account
was seized by the police due to an outstanding criminal charge, and that he
needed Mr. Solankis assistance to receive money from someone in India for his
legal fees. Mr. Solanki provided the appellant with his CIBC account
information. Mr. Solanki testified that he agreed to do so because he and the
appellant are both from India.
[9]
Mr. Solanki further testified that on May 26,
2015, the appellant called him to confirm that the money had been deposited.
The appellant asked Mr. Solanki to withdraw the $12,000, which Mr. Solanki did
and gave to the appellant later that afternoon. Mr. Solanki did not receive
anything in return.
[10]
No evidence was tendered as to how or from whom
the $3,000 was recovered. There was also no evidence as to the ownership of the
email address to which Thomas asked Ms. Purohit to send the deposit receipts,
and no evidence as to the ownership of the phone number from which Thomas
called. The trial judge did not hear submissions from the Crown on these
issues.
[11]
The trial judge found Mr. Solanki to be a
credible and reliable witness. He found that Mr. Solanki testified calmly and
in a straightforward way, and that he was a very believable witness. The
trial judge treated Mr. Solankis evidence with special care, recognizing
that this evidence presumably had led to the withdrawal of charges against Mr.
Solanki. Having regard to all the evidence, the trial judge convicted the
appellant.
[12]
The appellant was sentenced to two years
incarceration less pre-trial custody credit at a 1.5 to 1 ratio. The trial
judge also made a restitution order in the amount of $12,000 in favour of Ms.
Purohit.
III. ISSUES
[13]
The appellant raises two issues on his
conviction appeal:
1.
Did the trial judge err by failing to provide
reasons that were sufficient to allow for meaningful appellate review?
2.
Did the trial judge err by failing to turn his
mind to other reasonable inferences aside from guilt and thereby rendering an
unreasonable verdict?
IV. ANALYSIS
(a)
Sufficiency of trial judges reasons
[14]
The appellants primary ground of appeal is the
insufficiency of the trial judges reasons, which the appellant argues do not
permit for meaningful appellate review. He contends that the trial judges
reasons failed to sufficiently articulate how credibility concerns of the
Crowns main witness, Mr. Solanki, were resolved, and why alternative
explanations inconsistent with guilt were rejected, which amounts to a
reversible error.
[15]
I disagree. A trial judges reasons must be read
as a whole. Do the reasons achieve their intended function, which is to explain
the result of the case? The reasons must justify and explain the results so
that the losing partyin this case, the appellantand just as importantly,
interested members of the public, can satisfy themselves that justice has been
done, or not, as the case may be:
R.
v. Sheppard
, 2002 SCC 26, [2002] 1
S.C.R. 869, at para. 24.
[16]
Viewed from a contextual perspective, reasons
must achieve the function of preserving and enhancing meaningful appellate
review of the correctness of the decision which factors in both errors of law
as well as palpable and overriding errors of fact. As the Supreme Court in
R.
v. Sheppard
noted, at para. 25:
If deficiencies in the reasons do not, in a
particular case, foreclose meaningful appellate review, but allow for its full
exercise, the deficiency will not justify intervention under s. 686 of the
Criminal Code. That provision limits the power of the appellate court to
intervene to situations where it is of the opinion that
(i) the verdict is unreasonable,
(ii) the judgment is vitiated by an error of
law and it cannot be said that no substantial wrong or miscarriage of justice
has occurred, or
(iii) on any ground where there has been a
miscarriage of justice.
(b)
Assessment of Mr. Solankis credibility
[17]
The appellant submits that because of the
brevity of the trial judges reasons, they failed to sufficiently articulate
how credibility concerns were resolved and why alternative explanations
inconsistent with guilt were rejected.
[18]
I disagree. The trial judges reasons adequately
addressed the live issues at trial. The trial judge recognized that Mr.
Solankis evidence was central to the Crowns case and that his credibility was
the main issue on which the evidence depended. The trial judge explained why he
found Mr. Solanki to be a credible witness. Moreover, he cautioned himself with
respect to his assessment of Mr. Solankis evidence, noting that Mr.
Solanki may very well have had a motive to minimize his own involvement in the
fraudulent scheme and thus cast the blame on others, such as the appellant.
After all, it was Mr. Solankis bank account in which the fraudulent deposit
was made, and he was the first person who was suspected by the police to have
participated in the commission of the offence.
[19]
The appellant further submits that there was no
analysis of how the trial judge reconciled discrepancies in Mr. Solankis
evidence or how he overcame evidence that on its face incriminated Mr. Solanki.
In addition, the appellant submits that the trial judge over-relied on
demeanour evidence in his credibility assessment and as well, failed to engage
in a meaningful
R. v. W.(D.)
, [1991] 1 S.C.R. 742, analysis. I
disagree.
[20]
The trial judge had the firsthand opportunity to
hear all the evidence and observe all the witnesses.
[21]
The appellant chose not to testify, as was his
right. While this was not a factor that could be considered by the trial judge,
it is a factor that can be considered on appeal. The trial judge ultimately
found Mr. Solankis evidence to be credible and articulated why he did. It is
not for this court to second-guess his credibility findings, unless it can be
shown that he committed an error of law or a palpable and overriding error of
fact. I am not satisfied that any such error was committed here. I agree with
the submissions of the respondent that, beyond the special care and scrutiny
that the trial judge was required to give to Mr. Solankis evidence, the
trial judge was not required to explicitly resolve or explain any other issue
pertaining to his credibility finding.
[22]
In
R. v. G.F
., 2021 SCC 20, 459 D.L.R.
(4th) 375, at paras. 81-82, the Supreme Court recently reiterated the
long-standing principle that appellate courts ought to defer to trial judges on
their credibility findings:
[81]
a trial judges findings of credibility
deserve particular deference. While the law requires some articulation of the
reasons for those findings, it also recognizes that in our system of justice
the trial judge is the fact finder and has the benefit of the intangible impact
of conducting the trial. Sometimes, credibility findings are made simpler by,
for example, objective, independent evidence.
Mindful of the presumption of
innocence and the Crowns burden to prove guilt beyond a reasonable doubt, a
trial judge strives to explain why a complainant is found to be credible, or
why the accused is found not to be credible, or why the evidence does not raise
a reasonable doubt.
[82] Credibility findings must also be
assessed in light of the presumption of the correct application of the law,
particularly regarding the relationship between reliability and credibility.
The jurisprudence often stresses the distinction between reliability and
credibility, equating reliability with the witness ability to observe, recall,
and recount events accurately, and referring to credibility as the witness
sincerity or honesty. However, under a functional and contextual reading of
trial reasons, appellate courts should consider not whether the trial judge
specifically used the words credibility and reliability but whether the
trial judge turned their mind to the relevant factors that go to the
believability of the evidence in the factual context of the case, including
truthfulness and accuracy concerns.
[Citations omitted.]
(c)
W.(D.)
analysis
[23]
I also would not give effect to the appellants
complaint about the trial judges
W.(D.)
analysis. I do not accept
that the trial judge arrived at his decision by choosing between two different
versions of evidence. As indicated by the respondent in its submissions, the
case before the trial judge was a very straightforward and uncomplicated case.
Given defence counsels concession at trial that the complainant had been the
victim of a fraud, the trial judge effectively had only one issue to determine,
which was whether he believed the evidence of the sole other witness, Mr.
Solanki, that he received the $12,000 that the complainant deposited in his
bank account at the behest and for the benefit of the appellant. The trial
judge found Mr. Solanki to be a credible witness and accepted his evidence
accordingly, he found the appellant guilty. As has been held by this court and
the Supreme Court of Canada, [t]he paramount question in a criminal case is
whether, on the whole of the evidence, the trier of fact is left with a reasonable
doubt about the guilt of the accused. [Citation omitted.] The order in which a
trial judge makes credibility findings of witnesses is inconsequential as long
as the principle of reasonable doubt remains the central consideration:
R. v. Vuradin
,
2013 SCC 38, [2013] 2 S.C.R. 639, at para. 21.
(d)
Demeanor evidence
[24]
I also do not accept that the trial judge
over-relied on the demeanour of Mr. Solanki in assessing his credibility.
As this court has recently stated, [t]he starting point is that although its
admission may be somewhat rare, there is no bar to the admission of demeanour
evidence:
R. v. Staples
, 2022 ONCA 266, at para. 38. It is settled
law that demeanour evidence is a factor that a trial judge is entitled to
consider, provided it is not the exclusive determinant of his or her
credibility assessment. As stated by this court in
R. v. A.A.
, 2015
ONCA 558, 327 C.C.C. (3d) 377, at paras. 131-32:
[
131
] It
is beyond dispute that demeanour is a factor the trier of fact is entitled to
consider in assessing the credibility of witnesses and the reliability of their
testimony.
[
132
] On
the other hand, it is equally well settled that a witnesss demeanour cannot
become the exclusive determinant of his or her credibility or of the
reliability of his or her evidence. [Citations omitted.]
[25]
While Mr. Solankis demeanour was one factor
that the trial judge considered in his credibility assessment, it was not the
only factor, nor was it the overriding factor. Mr. Solankis evidence was not
contradicted by any other evidence. As pointed out by the respondent, his
evidence was unshaken during cross-examination. As well, there was no internal
inconsistency in the way that he testified or in the substance of his evidence.
[26]
Furthermore, the trial judge found that Mr.
Solanki gave his evidence in a straightforward and consistent manner, which is
a factor that the trial judge was entitled to consider in his credibility
assessment.
(e)
Reference to Mr. Solankis police statement
[27]
The appellant also takes issue with the
following paragraphs in the trial judges reasons, suggesting that the trial
judge placed undue weight on the fact that parts of Mr. Solankis testimony
were consistent with his police statement.
[28]
In summarizing Mr. Solankis evidence for the
appellant, the trial judge stated:
His evidence is that, you asked him to allow
you to use his Bank of Commerce account as a conduit, to allow money to be
deposited there that he would withdraw and turn over to you.
When he gave that version of what transpired
to the Hamilton Police and provided them with a picture of you that was
available online, it led to your arrest and, presumably, to the withdrawal of
charges against Mr. Solanki.
[29]
The appellant argues that these paragraphs in
the trial judges reasons are evidence that the trial judge violated the rule
against reliance on prior consistent statements to bolster the witnesss
credibility.
[30]
While it is true that the trial judge referred
to Mr. Solankis statement to the police, these paragraphs must be read within
the overall context of the reasons and the live issues at trial, which include
the submissions of counsel. When read as a whole, I am satisfied that the judge
did not reference Mr. Solankis statement to suggest that Mr. Solanki was more
believable because he gave an earlier version of his story to the police which
was now consistent with his evidence at trial. Instead, the trial judge
referenced Mr. Solankis statement to explain how the narrative of the case
unfolded and how the charges came to be laid against the appellant and to be
withdrawn against Mr. Solanki. Again, I do not place any weight on this
argument.
(f)
Consideration of reasonable inferences other
than guilt
[31]
The appellant submits that the trial judge
failed to turn his mind to inferences inconsistent with guilt and therefore
contributed to an unreasonable verdict.
[32]
The applicable legal principle is set out by the
Supreme Court of Canada, in the case of
R. v. Villaroman
, 2016 SCC 33,
[2016] 1 S.C.R. 1000, at para. 55, where the court stated:
A verdict is reasonable if it is one that a
properly instructed jury acting judicially could reasonably have rendered.
Applying this standard requires the appellate court to re-examine and to some
extent reweigh and consider the effect of the evidence. This limited weighing
of the evidence on appeal must be done in light of the standard of proof in a
criminal case. Where the Crown's case depends on circumstantial evidence, the
question becomes 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. [Citations omitted.]
[33]
The appellant argues that the trial judge did
not consider reasonable inferences other than guilt that arose from the
evidence or lack thereof. I disagree.
[34]
While it is settled law that cases based
substantially on circumstantial evidence can only be proven if there are no
reasonable inferences other than guilt, this was not such a case. This case was
based neither wholly nor substantially upon circumstantial evidence. This was a
case in which the direct
viva voce
evidence of the appellants friend
implicated him as the perpetrator of the fraud. The appellant did not testify.
The case depended on the credibility and reliability of the evidence of Mr.
Solanki. The overriding issue in the case was the credibility of Mr. Solanki. I
agree with the Crowns submission that, having accepted Mr. Solankis
evidence, the only reasonable inference open to the trial judge was that the
appellant was guilty of fraud. The trial judge was entitled to find
Mr. Solankis evidence both credible and reliable, and having done so, the
inescapable conclusion was that the appellant was guilty of the offence.
[35]
Furthermore, as indicated above, an appellate
courts role in reviewing a trial decision involving circumstantial evidence is
circumscribed and limited to the principles outlined in
R. v. Villaroman
.
In the case of
R. v. Lights
, 2020 ONCA 128, 149 O.R. (3d) 273, at
paras. 39 and 71, this court reiterated this principle:
[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:
Villaroman
,
at para. 55. 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:
Villaroman
, at
para. 56.
[71] I approach our task in connection with
this ground of appeal mindful of basic principles. A verdict is reasonable if
it is one that a properly instructed trier of fact acting judicially could
reasonably have rendered. In our application of this standard, we are to
re-examine and, to some extent, within the limits of appellate disadvantage, to
reweigh and consider the cumulative effect of the evidence adduced at trial. In
this case, where the evidence on the controverted issue of knowledge is
entirely circumstantial, our task is to determine whether a trier of fact,
acting judicially, could reasonably have been satisfied that the appellant's
guilt was the only reasonable inference available on the evidence taken as a
whole. And we must also have in mind that it remains fundamentally for the
trier of fact to decide whether any proposed alternative way of looking at the
case is reasonable enough to raise a doubt.
[36]
In all the circumstances, I am not satisfied
that the appellant has established errors of law or palpable and overriding
errors of fact in the trial judges decision that warrant appellate
intervention. I am also satisfied that the trial judges reasons are sufficient
and adequately serve the important functions for which they are intended. They
attend to the dignity interest of the appellant by conveying to him why the
decision was made. They provide for public accountability as they are
discernible when placed in the context of the evidence, the submissions of
counsel, and the narrative of the evidence and how the case unfolded at trial.
Read as a whole, the reasons permit effective appellate review. As well, I am
satisfied that when the reasons are read as a whole, within the context of the
evidence and live issues at trial, the verdict is a reasonable one.
V. DISPOSITION
[37]
The appeal is dismissed.
Released: April 19, 2022 M.T.
M.
Tulloch J.A.
I
agree. K. van Rensburg J.A.
I
agree. I.V.B. Nordheimer J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Keshavarz, 2022 ONCA 312
DATE: 20220421
DOCKET: C67458
Fairburn A.C.J.O., Rouleau and
Huscroft JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Nujan Keshavarz
Appellant
Andrew Menchynski, for the
appellant
Andrew Hotke, for the
respondent
Heard: October 25, 2021 by
video conference
On appeal from the convictions entered
by Justice Vincenzo Rondinelli of the Ontario Court of Justice, dated August
12, 2019.
Fairburn A.C.J.O.:
A.
OVERVIEW
[1]
This is an appeal from two convictions for
trafficking in firearms.
[2]
On April 29, 2017, the police were conducting
surveillance on a man named Yama Ghousy. The police watched as the appellant
carried what they described as two weighted LCBO bags in his hands. He
entered Mr. Ghousys vehicle. A short time later, the appellant emerged from
the vehicle with nothing in his hands. Arrests for firearms trafficking ensued,
followed by searches incident to arrest. The two LCBO bags were found in the
back of Mr. Ghousys vehicle, each one containing a Glock.
[3]
Mr. Ghousy and the appellant were each informed
of their right to counsel but, owing to concerns over safety and the preservation
of evidence, that right was not facilitated until after the police had obtained
and executed three search warrants. One of those warrants was executed at the
appellants home, where the police uncovered another seven firearms.
[4]
Mr. Ghousy and the appellant were tried together
in the Ontario Court of Justice. The trial commenced with a blended
Charter
voir dire
. On his own, the appellant advanced numerous
Charter
applications, all of which were dismissed except one: a s. 8 application that
resulted in the s. 24(2) exclusion of the seven firearms that the police had
seized from his home.
[5]
The appellant and Mr. Ghousy also together advanced
a s. 10(b)
Charter
application, which was predicated on the delay that
accrued between the time when he and Mr. Ghousy were informed of their right to
counsel and the time when they were permitted access to a lawyer. That s. 10(b)
application was granted. It is the s. 24(2) application that followed upon the
finding of a s. 10(b) breach that lies at the apex of this appeal.
[6]
Mr. Ghousy succeeded on that s. 24(2)
application, with the two Glocks in the LCBO bags being excluded from the
prosecutions case against him. In contrast, the Glocks were not excluded from
the prosecutions case against the appellant because, as the trial judge found,
the appellant had abandoned his privacy interest in them when he left them
behind in Mr. Ghousys vehicle, and so he had no reasonable expectation of
privacy. Given this finding, the trial judge decline[d] to embark on any
Section 24(2) analysis.
[7]
The appellant contends that the trial judge
erred in law by allowing the legal concept of abandonment to bar exclusion of
the two Glocks under s. 24(2). He maintains that this court should set aside the
trial judges s. 24(2) conclusion, conduct a proper admissibility analysis, bring
the appellant into sync with what happened to Mr. Ghousy, exclude the firearms,
and enter acquittals.
[8]
For the reasons that follow, I would dismiss the
appeal.
B.
BACKGROUND FACTS
(1)
The Police Investigation and Arrests
[9]
Mr. Ghousy was at the centre of a criminal
investigation into firearms trafficking. That investigation involved
information that came from confidential informants. The police had Mr. Ghousy
under surveillance for some time, and the investigation had given rise to
numerous persons of interest to the police.
[10]
Two days before the arrests, police officers
conducting surveillance on Mr. Ghousy saw an unknown male, someone the police
would later come to know as the appellant, driving a Ford Explorer. The
appellant parked close to Mr. Ghousys vehicle and began interacting with Mr.
Ghousy. The appellant then passed Mr. Ghousy a weighted black bag, after which
Mr. Ghousy drove away.
[11]
On the day of the arrest, police officers saw
the appellant pull into a gas station parking lot while driving the same Ford
Explorer. He parked beside Mr. Ghousys vehicle, which was already in the
parking lot. The police watched as the appellant retrieved two weighted LCBO
bags from the rear hatch of his own vehicle, entered Mr. Ghousys vehicle, sat
for a while, and then exited with nothing in his hands.
[12]
Having regard to all the information learned
during the investigation, the police believed that they had just witnessed a
firearms transaction and that they had no choice but to immediately arrest the
appellant and Mr. Ghousy. Therefore, a high-risk takedown ensued, with the two men
being arrested at about 5:50 p.m. Searches incident to arrest resulted in the
discovery of: (1) the LCBO bags, each containing a Glock, on the back floor of Mr.
Ghousys vehicle; (2) fentanyl and two firearm trigger locks in the appellants
vehicle; and (3) a large sum of cash in the appellants pocket.
[13]
There is no dispute that: (1) upon arrest, just
after 5:50 p.m., both of the men were properly cautioned and informed of their
right to counsel; (2) the appellant said he would like to speak with counsel
and asked to retrieve his lawyers phone number from his cellphone; and (3) the
appellant was told that he would be permitted to get the phone number from his cellphone
at a later time.
(2)
The Police Rationale for Suspending the Right to Counsel
[14]
Detective Sergeant (Det. Sgt.) Harris was the
officer in charge of the investigation. Right after the arrests, he determined
that it was necessary to obtain and execute three search warrants for
residential addresses associated to Mr. Ghousy and the appellant. Those
warrants were aimed at locating and intercepting other firearms.
[15]
The police immediately set about preparing an
Information to Obtain the warrants. Ultimately, the warrants were issued by a
judge of the Ontario Court of Justice about four hours after the arrests, at around
10:00 p.m. Two of the warrants were for locations associated with Mr. Ghousy.
The third was for the appellants home, where the police seized ammunition,
magazines, and seven more firearms, comprised of five handguns, a shotgun, and
an AR-15 rifle.
[16]
Det. Sgt. Harris testified that he decided it
was necessary to suspend the right to speak with counsel until after the search
warrants had been obtained and executed. That decision was based upon the
officers view that permitting the appellant and Mr. Ghousy to make calls
before the searches were complete could create real risks for officer safety,
public safety, and the preservation of evidence.
[17]
I will later return to Det. Sgt. Harris
evidence on this point.
(3)
Implementing the Right to Counsel
[18]
The final search was completed around 12:45 a.m.
Sometime between 1:15 and 1:30 a.m., the searching officers returned to the
police Division where the appellant and Mr. Ghousy were detained. Det. Sgt. Harris
tasked Detective Constable (Det. Cst.) Johnston with the responsibility of
facilitating the appellants communication with counsel. The appellant was
permitted to retrieve a phone number from his cellphone. However, he chose not
to speak with counsel. Instead, he retrieved the number of a friend and called
that friend, speaking with him at 1:44 a.m.
[19]
Det. Cst. Johnston testified that, after that
call was complete, he asked the appellant again if he wished to speak with a
lawyer, but that the appellant said no, explaining that his friend was going to
arrange for him to speak with counsel. Det. Cst. Johnston testified that he
told the appellant that he could speak to duty counsel but that the appellant again
declined the offer.
[20]
The appellant testified differently. While he
originally said that he was never told that he could avail himself of duty
counsel, he later retracted that claim, acknowledging that he was probably
provided with a 1-800 number. On cross-examination, the appellant was asked why
he decided to call his friend instead of any of the several lawyers whose phone
numbers he said he had recorded in his cellphone. The appellant answered:
The reason for that is because I trust [my
friend]. Ive known him for an extensive period of time, and I know that hes going
to put me towards a lawyer I can trust.
In that situation, I cant really
trust anyone besides my best friend, which at that point I did.
[21]
In contrast to how things unfolded with the
appellant, at Mr. Ghousys request, Det. Cst. Johnston attempted to facilitate
contact with a specific lawyer. When it became clear that his preferred lawyer
was not available, Det. Cst. Johnston facilitated contact between Mr. Ghousy
and duty counsel. Det. Cst. Johnston testified that he would have done the same
thing for the appellant had he wished to speak to duty counsel.
C.
THE
CHARTER
RULING
[22]
The
Charter
ruling is somewhat dense,
not because of its length, but because of the ground it covers.
[23]
The appellant raised a s. 7
Charter
claim, arguing that the police used excessive force when arresting him. The
trial judge concluded that, contrary to the appellants evidence, the force
used in the arrest was proportional, reasonable and necessary. That claim was
dismissed.
[24]
The appellant raised a s. 9
Charter
claim, arguing that there were insufficient grounds to arrest him. That claim
was followed by a s. 8 claim, arguing that because the arrest was unlawful, the
search incident to arrest was unlawful. Both of those claims were dismissed.
[25]
The appellant also raised a s. 8
Charter
claim, arguing that there were insufficient grounds to support the warrant that
was issued to search his home. This constituted a facial validity challenge to
the search warrant. Accordingly, the test for review was whether, on the face
of the information disclosed to the issuing justice, that justice could have
issued the warrant: see
R. v. Araujo
,
2000 SCC 65, [2000] 2
S.C.R. 992, at para. 19;
R. v. Garofoli
, [1990] 2 S.C.R. 1421, at p.
1452.
[26]
The trial judge concluded that the issuing
justice also a judge of the Ontario Court of Justice could not have issued
the warrant based upon the information available to him because, in the trial
judges view, that information did not disclose an obvious nexus between [the
appellant], the offences under investigation and 5622 Whistler Crescent.
[27]
As the overall seriousness of the police conduct
in this case is a matter that informs the admissibility analysis undertaken
later in these reasons, I pause now to make the following observation. Respectfully,
the suggestion that there was not an obvious nexus between [the appellant],
the offences under investigation and 5622 Whistler Crescent cannot be
reconciled with the information that was available to the issuing judge. There
was in fact a significant body of evidence upon which the warrant could have
been issued. By way of example, there was information that: (1) the appellant
had been seen passing packages to Mr. Ghousy on at least two occasions; (2) on
the second occasion, the packages LCBO bags were confirmed to contain Glocks;
(3) the appellant had taken those bags out of the Ford Explorer; (4) the Ford
Explorer was registered to 5622 Whistler Crescent; (5) the appellants drivers
licence was registered to 5622 Whistler Crescent; and (6) the appellants firearms
licence was registered to 5622 Whistler Crescent.
[28]
That body of evidence alone reflects an
abundance of information upon which the issuing judge could have arrived at the
conclusion that he arrived at: that there existed a credibly-based probability
less than a balance of probabilities that evidence with respect to the
commission of the offence of firearms trafficking would be located at 5622
Whistler Crescent: see
Hunter v. Southam Inc.
, [1984] 2 S.C.R. 145, at
p. 167;
R. v. Sadikov
, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81.
[29]
Having found a s. 8 breach, the trial judge then
went on to exclude all the firearms seized from the appellants home. The
exclusionary ruling was based upon the conclusion that, despite having been issued
a search warrant, the police were not even close to the constitutional mark
and they were on nothing more than a fishing expedition. The exclusion of
those seven firearms led to acquittals on the counts arising from the seizures
from the appellants home.
[1]
[30]
Mr. Ghousy and the appellant joined suit in
advancing the final
Charter
claim. They argued that their s.
10(b)
Charter
rights had been breached as a result of the lengthy
delay that accrued between their arrests and when they were offered the
opportunity to speak with counsel.
[31]
The trial judge acknowledged that concerns over
public and police safety, as well as the preservation of evidence, can justify
a delay in implementing the right to counsel. He also accepted that Det. Sgt. Harris
concerns about those matters were genuine, stating: I do not have much
difficulty in accepting that Detective Harriss concerns were genuine.
[32]
Despite that conclusion, the trial judge found a
breach of s. 10(b) because, in his view, Det. Sgt. Harris had failed to provide
specifics to justify his genuinely held concerns. The two remaining Glocks were
then excluded from the prosecutions case against Mr. Ghousy, an exclusion that
resulted in Mr. Ghousys immediate acquittals and release from the trial.
[33]
As for the appellant, the trial judge announced
that, with reasons to follow, the fentanyl seized from the appellants car and
the cash seized from his person would be excluded from evidence. In contrast to
Mr. Ghousy, the trial judge also announced that he would not be excluding the two
remaining Glocks from the prosecutions case against the appellant because, in
the trial judges view, the appellant had abandoned all interest in those
Glocks when he left them behind in Mr. Ghousys vehicle.
[34]
Accordingly, at the conclusion of the
Charter
rulings, the prosecution was left to proceed only against the appellant and
only with respect to the two Glocks in the LCBO bags, found in the back of Mr. Ghousys
vehicle. As a result of those Glocks, the appellant was ultimately convicted of
two counts of trafficking in firearms.
D.
THE PARTIES POSITIONS ON APPEAL
[35]
The appellant contends that the trial judge
erred in law when he dismissed the s. 24(2)
Charter
application
on the basis that the appellant had abandoned his
Charter
interest
in the Glocks. In relying upon the doctrine of abandonment, the trial judge is said
to have erroneously imported a s. 8
Charter
concept into the s. 24(2)
analysis conducted in the wake of a s. 10(b)
Charter
breach.
[36]
Instead of focusing upon whether the appellant
had abandoned his privacy interest in the Glocks, as if he were dealing with a
question of standing under s. 8 of the
Charter
, the appellant says
that the trial judge should have concerned himself with whether the Glocks were
causally, contextually, or temporally connected to the s. 10(b) breach and, if
so, asked whether their admission into evidence at trial would bring the
administration of justice into disrepute. The appellant maintains that the
answer to both of those questions is a resounding yes.
[37]
The respondent agrees that the trial judge erred,
as suggested by the appellant, but parts company with the appellant respecting
the implications of that error.
[38]
In making this concession, the respondent emphasizes
that the fruits of a s. 8-compliant seizure can be excluded under s. 24(2) of
the
Charter
, provided that the fruits of that seizure are causally,
contextually, or temporally connected to another
Charter
breach: see
R.
v. Cuff
, 2018 ONCA 276, 359 C.C.C. (3d) 415, at para. 30
;
R. v.
Rover
,
2018 ONCA 745, 143 O.R. (3d) 135, at paras. 12-13, 35; and
R.
v. Griffith
, 2021 ONCA 302, 408 C.C.C. (3d) 244, at paras. 25, 33, 48, and
54. Therefore, the respondent agrees with the appellant that the trial judge
erred by relying upon his conclusion on abandonment to dismiss the s. 24(2)
inquiry.
[39]
In light of this concession, the respondent accepts
that this court must set aside the trial judges s. 24(2) finding and conduct its
own s. 24(2) analysis. The respondent also accepts that there is some
contextual and temporal connection between the s. 10(b) breach and the Glocks. Where
the respondent and appellant part company is on the question of whether the
Glocks should have been excluded. In all of the circumstances, the respondent
answers that question with a resounding no.
E.
ANALYSIS
(1)
Did the
Trial Judge Err in his Conclusion about the Impact of Abandonment on the s.
24(2) Analysis?
(a)
Overview
[40]
The focus in this section of the reasons is on
whether the trial judge erred when he held that the appellant could not lay
claim to a s. 24(2) remedy because, in his view, the appellant had abandoned
the Glocks.
[41]
The impugned passage from the ruling reads as follows:
I
decline to embark on
any Section 24(2) analysis
relating to the two firearms seized from the
LCBO bags in Mr. Ghousys vehicle since the totality of circumstances compels
the conclusion that
[
the appellant] did not have a
legitimate or reasonable expectation of privacy in the LCBO bags at the time
that they were searched. He had abandoned any interest in them
.
So, consequently, having
abandoned his interest in the LCBO bags
[the appellants] Charter rights are
not engaged with respect to the bags
. [Emphasis
added.]
[42]
In this court, the appellant does not take issue
with the fact that he was found to have abandoned the Glocks. Rather, with the
concurrence of the respondent, he takes issue with the use of the doctrine of
abandonment to dismiss his s. 24(2) application, particularly where it was
predicated upon a s. 10(b)
Charter
breach.
[43]
While I agree with the parties that the trial
judge erred in how he used the doctrine of abandonment to decline to embark
on a s. 24(2) analysis, the doctrine of abandonment is not irrelevant to a s.
24(2) analysis, even when arising from a breach other than under s. 8 of the
Charter
.
To explain this conclusion, I start with the legal underpinnings of the
doctrine of abandonment
.
(b)
Section 8: A Reasonable Expectation of
Privacy and the Doctrine of Abandonment
[44]
Section 8 of
the
Charter
the right to be secure against unreasonable search
or seizure is a personal right; one that protects people, not places: see
R. v. Edwards
, [1996] 1 S.C.R. 128,
at para. 45. Because s. 8 is a personal
right that protects personal privacy, an accused asserting a s. 8 claim must
first establish a reasonable expectation of privacy over the subject matter of
the search. This is frequently referred to as establishing standing to assert
a s. 8 claim.
[45]
To determine
the question of standing to assert a s. 8 claim, the court applies a test that
is both subjective and objective in nature: did the accused have a subjective
expectation of privacy over the subject matter of the search and was that
expectation objectively reasonable in all of the circumstances? See
Edwards
, at
para. 45;
R. v. Tessling
, 2004 SCC 67, [2004] 3 S.C.R. 432, at
paras. 19, 31-32;
R. v. Patrick
, 2009 SCC 17, [2009] 1 S.C.R. 579, at
paras. 26-27; and
R. v. Marakah
, 2017 SCC 59, [2017] 2 S.C.R. 608, at
paras. 10-11
.
[46]
Even where an
accused is found to have had, at one point, a reasonable expectation of privacy
in the subject matter of the search, abandonment marks the point in time at
which the accused ceased to have that expectation of privacy: see
R. v. Dyment
,
[1988] 2 S.C.R. 417,
at p. 435. Accordingly, a pre-existing reasonable expectation of
privacy will give way where, bearing in mind all of the circumstances, a person
acts in a way that would lead a reasonable and independent observer to
conclude that the person has ceased to assert any privacy interest in the
subject matter of the claim: see
Patrick
,
at paras. 20, 25. And, where the person is found to have ceased to
assert a privacy interest in the subject matter of the claim, that person is
without standing to raise a s. 8 claim.
[47]
But where
does that leave the concept of abandonment in relation to s. 24(2) of the
Charter
, specifically
in relation to a request to exclude evidence because of a s. 10(b)
Charter
breach?
In other words, where does that leave the concept of abandonment in relation to
the issue on appeal?
(c)
The Trial Judges Reasons and Abandonment
in the Context of a Section 24(2) Application
[48]
The
only way to read the trial judges reasons is that he used the
concept of abandonment in the same way that it is used to determine the
question of standing under s. 8 of the
Charter
; he used it to find a
lack of standing in relation to the Glocks and then used that lack of standing
to bar s. 24(2) relief. This approach is clear in the reasons, where the trial
judge explicitly decline[d] to embark on any Section 24(2) analysis because,
as he saw it, the appellant had abandoned his privacy interest in the Glocks
and, therefore, his
Charter
rights [were] not engaged with
respect to those bags.
[49]
The parties agree, as do I, that a lack of
standing in relation to evidence targeted for exclusion, while relevant for
purposes of a s. 8 claim, does not bar access to s. 24(2) relief in the wake of
a different
Charter
breach: see
Cuff
,
at para.
30;
R. v. Bzezi
,
2022 ONCA 184, at paras. 24-25. Abandonment of
evidence targeted for exclusion is a relevant consideration in the
admissibility analysis that ensues under a s. 24(2) application, but it does
not preclude that analysis from taking place. Accordingly, the trial judge
erred when he declin[ed] to embark on [a] Section 24(2) analysis merely
because he determined that the appellant had abandoned the two Glocks in the
LCBO bags.
[50]
Instead of using the fact of abandonment as
a bar to accessing s. 24(2) relief, the trial judge should have started the
analysis by asking the gateway question on all s. 24(2) applications: were the
Glocks obtained in a manner that infringed
or denied any rights or freedoms guaranteed by
this
Charter
? See
R.
v. Pino
, 2016 ONCA 389
, 130
O.R. (3d) 561, at para. 56;
R. v. Pileggi
,
2021 ONCA 4, 153 O.R. (3d) 561, at para. 101.
If the answer to this question was yes, then the
trial judge should have gone on to determine whether the admission of the
evidence into the proceedings would bring the administration of justice into
disrepute.
[51]
While most cases travel a straight path between
the breach and the evidence targeted for exclusion, meaning that the gateway
inquiry is passed with ease, some do not. Where that path is more circuitous,
like this case, trial judges must calibrate the strength of the connection
between the evidence sought to be excluded and the breach.
[52]
Over time, a framework has developed for
determining whether the s. 24(2) obtained in a manner language has been met.
That framework involves inquiring into whether there is a causal, temporal, or
contextual connection between the evidence and the breach: see
R. v.
Strachan
, [1988] 2 S.C.R. 980, at pp. 1002, 1005-6;
R. v. Tim
,
2022 SCC 12, at para. 78;
R. v. Mack
, 2014 SCC 58, [2014] 3 S.C.R.
3, at paras. 37-38;
R. v. Goldhart
, [1996] 2 S.C.R. 463, at paras. 32-47;
R. v. Wittwer
, 2008 SCC 33, [2008] 2 S.C.R. 235, at paras. 19, 21;
R.
v. Plaha
(2004), 188 C.C.C. (3d) 289 (Ont. C.A.), at paras. 45-46; and
Pino
, at para. 72.
[53]
This framework is built on an admittedly generous
approach:
Tim
,
at para. 80. However, that generosity is not
unbounded. Causal, temporal, or contextual connections must be real ones,
connections that are not too remote or too tenuous in nature:
Tim
,
at para. 78;
Mack
, at para.
38;
Goldhart
, at para. 40;
Wittwer
, at para. 21;
Plaha
,
at para. 45; and
Pino
, at para. 72. In other words, remote or tenuous
connections are no connections at all.
[54]
In my view, while the trial judge erred in using
abandonment as a definitive bar to s. 24(2) relief, the fact of abandonment was
not irrelevant to the question of whether the Glocks in the LCBO bags were
sufficiently connected to the s. 10(b) breach to meet the obtained in a
manner requirement. For instance, the fact of abandonment may dilute the
strength of a contextual connection between the underlying
Charter
breach
and the abandoned evidence targeted for exclusion. To use the framework
language, it may render that connection too tenuous or remote to satisfy
the obtained in a manner requirement.
[55]
In this case, though, the respondent
acknowledges that, while weak, there existed both a temporal and contextual
connection between the discovery of the Glocks in Mr. Ghousys vehicle and the
s. 10(b) breach that came later. The connection is indeed weak, given that the
discovery of the Glocks has no causative connection to the breach of the right
to counsel. However, given the respondents position, which I would accept for
the purposes of this appeal, the gateway test was met. This leaves the
following question: would the admission
of
the evidence into the proceedings bring the administration of justice into
disrepute?
[56]
This latter question requires a balancing of the
well-known factors from
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353,
at paras. 71-86: (1) the seriousness of the
Charter
-
infringing
state conduct; (2) the impact of the
Charter
breach on the
accuseds
Charter
-
protected interests; and (3) societys
interest in the adjudication of the case on the merits. Again, the fact of
abandonment can inform that analysis, specifically when calibrating the impact of
the
Charter
breach on the accuseds
Charter
-
protected
interests.
[57]
I will return to this concept of abandonment during
the
Grant
analysis at the end of these reasons. First, though,
I will address the actual extent of the s. 10(b)
Charter
breach.
(2)
The Extent of the s. 10(b) Breach
(a)
Overview
[58]
Where a trial judge erroneously fails to conduct
a s. 24(2) analysis, this court must conduct the admissibility analysis for the
first time on appeal: see
R. v. Boutros
, 2018 ONCA 375, 361 C.C.C.
(3d) 240, at para. 31. That will sometimes require the court to first consider
whether there was a breach and, if so, the extent of that breach. Only when
that question is answered can we properly calibrate the seriousness of the
Charter
-
infringing
state conduct for the purposes of the
Grant
analysis.
Accordingly, the question we are now dealing with is: when did the s. 10(b)
breach commence and when did it end?
[59]
There are two components to the right to
counsel: informational and implementational. The police must inform the
detainee of the right to speak to counsel without delay interpreted as
immediately and provide the detainee with a reasonable opportunity to
exercise that right without delay: see
R. v. Suberu
, 2009 SCC 33,
[2009] 2 S.C.R. 460,
at paras.
38-42;
R. v. Bartle
, [1994] 3 S.C.R. 173, at pp. 191-92; and
Rover
,
at para. 25.
[60]
In some circumstances, there will be a justified
delay in providing a detainee with access to counsel. Those circumstances will
often arise from concerns over police safety, public safety, or the
preservation of evidence: see
Rover
,
at para. 26. Even so,
until the reasonable opportunity to reach a lawyer has been provided, or until
the accused unequivocally waives the right to speak with a lawyer, the police
must suspend any attempts to elicit information from the detainee: see
Suberu
,
at para. 38.
[61]
This case has never been about the informational
component of s. 10(b). Everyone agrees that the appellant received the
necessary information to exercise his right to counsel. What this case has
always been about is that the police failed under the second prong of s. 10(b)
to implement the appellants contact with counsel in a timely way. Everyone
agrees there was a failure. The issue is the extent of that failure.
(b)
Parties Positions
[62]
While the respondent acknowledges that there was
in fact a s. 10(b) breach in this case, the respondent maintains that the
breach was much shorter and, therefore, much less serious than the trial
judge found. The appellant counters that submission, contending that while this
court can inquire into the extent of the breach, it must do so by showing
deference to the trial judges findings of fact. According to the appellant,
those findings of fact lead to only one conclusion in this case: the breach was
exactly as serious as the trial judge said.
[63]
I start with the two legal errors in the trial
judges s. 10(b) analysis alleged by the respondent.
(c)
The Errors in the Trial Judges Section
10(b) Analysis
(i)
The Breach Did Not Start at the Time of
Arrest
[64]
In the initial set of reasons, found in the
omnibus
Charter
ruling, the trial judge described the delay in the
implementational component of s. 10(b) as over seven hours in length,
constituting the time between the arrest and when the appellant was given the
opportunity to contact his friend. In the trial judges second set of reasons,
the ones dealing with the exclusion of the fentanyl found in the appellants
car and the cash on his person, he described the length of the breach as commencing
shortly after [the appellants] arrest and continu[ing] through the course of
his detention at the police station. On either version of the reasons, the
trial judge appears to have determined that the breach commenced at or just
around the time of arrest. That is not so.
[65]
The appellant was arrested at the scene of a
high-risk takedown, where the police had just seen the exchange of two
firearms. The arrest was in broad daylight in a public space, a gas station
parking lot, where the public was milling about. Two Glocks had been recovered.
And the police believed that there were other persons of interest to the
firearms trafficking investigation still at large.
[66]
Against that backdrop, the suggestion that the
implementational obligation of the s. 10(b) right commenced at the scene of the
arrest is without foundation. To the contrary, it was entirely reasonable for
the police to suspend any contact with counsel until, at a minimum, the safety
of the situation permitted that call: see
Pileggi
, at paras. 75-77.
Therefore, contrary to what was found in both iterations of the s. 10(b)
rulings, it was an error to find that the breach commenced at the time of
arrest.
[67]
Realistically, leaving all else aside for a
moment, the police were under no obligation to implement the right to counsel
until after the appellant was in a safe and secure location where a private
call with counsel could be facilitated. That was about two hours after his
arrest, after the booking procedure had been completed and his safety and the
safety of all was secured.
[68]
Of course, even with those two hours taken into
account, there was still a long time between when the appellant could have been
offered a phone and when he was offered a phone. I now turn to that period of
time.
(ii)
The
Rover
Error
[69]
While the trial judge accepted that the right to
counsel can be suspended in some circumstances involving concerns over safety
and lost evidence, he concluded that Det. Sgt. Harris did not even provide some
evidence to support his expression of concern. The trial judge said: There
simply was no specific evidence before me pertaining to [the appellants] case
to justify the delay in contacting counsel and the concerns were merely
generic in nature and could easily be said in many drug or firearm related
cases. The trial judge came to that conclusion despite his finding that he had
little difficulty accepting that Detective Harriss concerns were genuine.
[70]
This brings us to the second legal error as
alleged by the respondent: what I will refer to as the
Rover
error.
[71]
In
Rover
, this court recognized that in
specific circumstances the implementational component of the right to counsel
may be suspended. Those specific circumstances often involve concerns over
police or public safety or the preservation of evidence: see
Rover
,
at para. 26. See also
Suberu
,
at para. 42;
Griffith
,
at para. 38. Indeed, the suspension of the implementational component of
the right to counsel has been recognized in the context of needing to execute
search warrants, just like this case: see
Strachan
,
at pp. 998-99;
Rover
,
at para. 26;
R. v. Learning
,
2010 ONSC
3816, 258 C.C.C. (3d) 68, at paras. 71-75; and
Griffith
,
at
para. 38.
[72]
The difficulty with suspending the facilitation
of contact with counsel is that the seriousness of doing so cannot be gainsaid.
As noted by Doherty J.A. in
Rover
,
at para. 45, the right to
counsel is a lifeline for all those who are detained. The right to counsel
assists detainees with regaining their liberty and acts as a guard against the
risk of involuntary self-incrimination:
Suberu
, at para. 40. As well,
there is a recognized psychological value to providing access to counsel, a
value that should not be underestimated:
Rover
,
at para. 45.
[73]
At the same time, the critical importance of
protecting the safety of the public and law enforcement, as well as preserving
evidence particularly evidence such as deadly weapons that are illegal to
possess cannot be refuted.
[74]
To resolve the inherent tension that arises when
these laudable goals collide, the law permits a delay in the facilitation of
the right to counsel, but only where the police have turned their minds to the
specific circumstances of the case and concluded on some reasonable basis,
that police or public safety, or the need to preserve evidence, justifies some
delay in granting access to counsel:
Rover
,
at para. 27.
Doherty J.A. explained the test as follows in
Rover
,
at para.
33:
[T]o fall within the exception to the
requirement that an arrested person be allowed to speak to counsel without
delay, the police must actually turn their mind to the specific circumstances
of the case, and they must have reasonable grounds to justify the delay. The
justification may be premised on the risk of the destruction of evidence,
public safety, police safety, or some other urgent or dangerous circumstance.
[75]
Where those circumstances prevail, the police
must move as efficiently and reasonably as possible to minimize any ensuing
delay: see
Rover
, at para. 27;
Griffith
, at para. 38. They
must also suspend any questioning of the detainee until such time as the
implementational component of the right to counsel has been accommodated.
[76]
While the trial judge appears to have been aware
of the legal underpinnings for the doctrine permitting delay in the
facilitation of the right to counsel, making specific mention of
Rover
,
he erred in his application of that doctrine. Without explaining how he
arrived at the conclusion, and without adverting to Det. Sgt. Harris testimony
on the point, the trial judge concluded that the officer gave no specific
evidence
to justify the delay in contacting counsel. That is simply not so.
[77]
To use the terminology from
Rover
, Det.
Sgt. Harris turned his mind to the specific circumstance of the case and
provided reasonable grounds to justify the delay, grounds that were premised
on the risk of the destruction of evidence, public safety, [and] police
safety.
[78]
First, he explained his understanding of the law:
that any decision to suspend the right to counsel must be made on a
case-by-case basis and is entirely dependent upon the circumstances operative
at that moment in time.
[79]
Second, he explained that in this case, his
decision was based upon multiple factors, including that:
(1) the police had just witnessed a clear firearms transaction
involving two Glocks;
(2) while in a perfect world there would have been the luxury of
time to prepare search warrant applications in advance, given what the police
had witnessed in the gas station parking lot, they had no choice but to make
the arrests at that time;
(3) the appellants identity was only discovered as a result of his
arrest;
(4) warrants had to be obtained and then executed at three
locations;
(5) the primary items being looked for were deadly weapons; and
(6) based upon observations made during surveillance over a lengthy
period of time, and other evidence gleaned during the investigation, the police
believed that the firearms-trafficking ring was broad, and that there remained
a number of persons of interest to the investigation at large whose identities
were still unknown to the police.
[80]
Third, Det. Sgt. Harris explained, against that
backdrop, particularly with persons of interest to the firearms-trafficking
investigation still circulating freely in the community, that he had real
concerns for officer and public safety, as well as the preservation of
evidence. He testified that, while he had no concern about counsel impropriety
should the appellant and Mr. Ghousy have been permitted to speak with counsel,
in his experience, things as simple as counsel contacting potential sureties or
family members could inadvertently cause [the] loss of evidence. In this
case, he was concerned that the loss of evidence meant the loss of firearms,
something that was directly linked to his concerns over police and public safety.
[81]
In my view, that is precisely the kind of
case-specific evidence that
Rover
contemplates as justifying a delay
in the implementational component of the right to counsel. The decision to
suspend the right to counsel was not based on a routine practice or applied in
a rote fashion in this case. The evidence was clear that the concerns over
safety and over firearms going missing was rooted in the specifics of what the
police had learned over the course of the lengthy investigation, which involved
many moving parts. Yet, at no time did the trial judge deal with that evidence
and, importantly, he did not reject that evidence. Instead, he simply assigned
the term generic to what he found to be the officers genuine fears.
[82]
Therefore, reading the reasons in their entire
context and against the record in this case, I conclude that the trial judge
erred in either his understanding of what
Rover
demands or in his
understanding of Det. Sgt. Harris evidence. Either way, a proper application
of the law to the facts of this case should have led to a different conclusion.
[83]
In my view, just like this courts decision in
Griffith
,
the police evidence in this case justified the suspension of the right to
counsel for a period of time. The question is, how much time?
(d)
When did the Section 10(b) Breach Commence and When
did it end?
[84]
In the context of the second
Charter
ruling, given at the time of sentencing, the trial judge added a few
factual findings that had not been made at the time of the original, omnibus
ruling. One of those facts rests in the trial judges comment that the police
continuously sought to question [the appellant] knowing that he had not spoken
to a lawyer.
[85]
Based upon that finding of fact, the appellant
argues that, even if the trial judge erred in his
Rover
analysis,
there was still a s. 10(b) breach because the police did not respect the
command of
Rover
to cease all attempts to elicit information
while the right to counsel remained in a suspended state. The appellant argues
that this court must defer to that finding of fact.
[86]
I accept that in the context of a s. 24(2)
analysis, an appellate court must defer to a trial judges factual findings,
except to the extent that they are unreasonable or tainted by clear and
palpable error:
Boutros
, at para. 31;
R. v. Clark
, 2005 SCC
2, [2005] 1 S.C.R. 6, at para. 9. The difficulty with the finding of fact relied
on by the appellant that the police continuously sought to question [the
appellant] knowing he had not spoken to a lawyer is that the trial judge
gave no explanation (six months after the original ruling) as to why he came to
that conclusion. At a minimum, the record called for an explanation.
[87]
The appellant testified that he was interrogated
four to five times for between five and twenty minutes each time, by Det. Sgt.
Harris and Det. Cst. Johnston, before he was given access to his phone. The
police strongly denied that suggestion. The trial judge never performed a
credibility assessment. Had he done so, he may have arrived at exactly the
point where I have arrived: that the appellants evidence on the point could
not be true.
[88]
The officers who the appellant said repeatedly
interrogated him for lengthy periods before he was given access to a phone,
were in fact part of the search team. They did not even arrive back at the
police Division until, at most, 30 minutes before the appellant used the phone.
Therefore, the appellants evidence on this point cannot be reconciled with the
other evidence.
[89]
Accordingly, I do not accept that the police
breached the command of
Rover
to refrain from questioning the
detainee until the suspension of the right to counsel has been lifted.
[90]
When did the actual s. 10(b) breach commence? In
my view, it commenced when the police failed in their duty to implement the
right to counsel at the earliest possible opportunity: as soon as the searches
were complete. Until then, I see nothing to suggest that the police did not
move as efficiently and expeditiously as possible.
[91]
The police set about preparing applications for
search warrants immediately after the arrests were made. A judge then made
himself available to review those applications at night and the three search
warrants were issued at 10:00 p.m. That was about four hours after the arrests
had been made.
[92]
I understand that four hours may seem like a lot
of time to obtain three search warrants. But this had been a lengthy
investigation involving many moving parts, a lot of surveillance, confidential
informants, and unexpected, but necessary, arrests. Prior to the arrests, the
police did not even know the appellants identity. The preparation of the
Information to Obtain for the search warrants, requiring as it did, full, fair,
and frank disclosure, was something that would have required the consolidation
of a great deal of information, including sensitive information, arising from a
substantial police investigation. In these circumstances, four hours from
arrest to issuance was not a surprising amount of time.
[93]
Two teams of police officers then executed the
warrants, a process that was completed just under three hours later, at 12:45
a.m. At that point, the risks were alleviated because the police had cleared
all of the search scenes and, therefore, the justification for delaying the
implementational component of s. 10(b) had evaporated: see
Griffith
,
at paras. 34-35, 61.
[94]
Instead of contacting the police Division to
communicate that the appellant should be provided a call, which should have occurred,
the searching officers first travelled back to the Division where the appellant
and Mr. Ghousy were detained. They arrived somewhere between 1:15 and 1:27 a.m.
Det. Sgt. Harris then tasked Det. Cst. Johnston with facilitating the
appellants access to his phone. Det. Cst. Johnston retrieved the phone and
provided the appellant with a room where he could locate the number that he
wanted to call from his phone and make a private call. At 1:44 a.m., the
appellant chose to call a friend rather than a lawyer.
[95]
In the end, it took about an hour from the time
that the final search was completed to the time that the right to counsel was
facilitated. That was too long. The police should have promptly facilitated the
calls. The failure to do so triggered a s. 10(b) breach. Therefore, the s.
10(b) breach commenced at the point that the justification for the delay in
facilitating calls was no longer operative: the completion of the searches at
12:45 a.m.
[96]
This leaves the question as to when the breach
ended.
[97]
Despite having spoken with his friend at 1:44
a.m., the appellant maintains that the s. 10(b) violation continued until he
was taken to his bail hearing the following day. He bases this claim on the
suggestion that he was not offered the opportunity to speak with counsel or
offered the ability to contact duty counsel. Indeed, at points he went so far
as to suggest that he had not been informed about the existence of duty
counsel. He says that, had that opportunity for contact arisen, he would have
pursued it.
[98]
The appellant also points to the trial judges
finding of fact on this point, again a comment made by the trial judge at the
time of sentencing, that no police officers seemed to follow up with the
appellant, after he made contact with his friend, to inquire whether he had
been afforded his right to counsel or at the very least contact duty counsel.
Again, the trial judges bald statement is difficult to reconcile with the
evidence in this case.
[99]
The appellants evidence on this point was in
direct conflict with that of Det. Cst. Johnston, who testified that he offered
the appellant the right to speak with counsel and duty counsel, but that the
appellant did not wish to do so. The trial judge did not address the conflict
in the evidence or make any credibility findings that would have permitted a
proper resolution of the matter. It therefore falls to this court to do so.
[100]
While the appellant suggested that he wanted to contact counsel and
would have contacted duty counsel had he been given that opportunity, he also acknowledged
that: (1) he had the telephone numbers of numerous counsel in his phone, yet he
chose not to call them because he wanted a specific lawyer; (2) he called his
friend because he trusted him and he could not really trust anyone beside
[his] best friend, which [he] did at that point; and (3) he believed that his
friend was going to put [him] towards a lawyer that he could trust and, in
that situation, [he couldnt] really trust anyone besides [his] best friend.
As for his claim that he had not been told about the availability of free legal
advice, that evidence was contradicted in different ways, including by the fact
that the appellant was confronted in cross-examination with the recording of an
officer telling him (again) about his right to free legal advice.
[101]
In contrast, Det. Cst. Johnston testified that he asked the
appellant if he wanted to contact a lawyer and he declined. The officer also
offered him duty counsel, but the appellant declined, saying that his friend
was going to facilitate that for him. Importantly, Det. Cst. Johnstons
evidence was supported by the fact that, in relation to Mr. Ghousy, the officer
did exactly what the appellant said he did not do. In other words, when Mr.
Ghousy could not reach his counsel of choice, the officer offered him duty
counsel and facilitated that contact.
[102]
Quite simply, it makes no sense that the officer would facilitate
duty counsel for Mr. Ghousy but not for the appellant. Therefore, to the extent
that the officer and the appellants versions conflict as to what happened
after the appellant spoke with his friend, I would accept the officers
version.
[103]
Accordingly, the breach ended under the appellants own terms, at 1:44
a.m. when he called his friend and chose not to call counsel or duty counsel. The
time between when the right to counsel should have been facilitated and the
appellants call to his friend was one hour.
(3)
The
Grant
Analysis
(a)
Overview
[104]
Having determined the extent of the s. 10(b) breach, I can now engage
with the
Grant
analysis.
(b)
Seriousness of the
Charter
-Infringing
State Conduct
[105]
The first line of inquiry requires this court to assess the severity
of the s. 10(b) breach. The more severe and deliberate the state conduct, the
more serious the breach, and the more the court will be required to dissociate
itself from the state conduct by excluding the evidence linked to that conduct:
see
Grant
, at para. 72;
Tim
, at para. 82.
[106]
I start with the appellants argument that in determining the
seriousness of the state conduct, this court owes deference to the trial
judges findings of fact, including how the trial judge described the breach as
being clear and serious, the police as being disinterested in the
appellants s. 10(b) rights, and their facilitation of that right only as an afterthought.
The difficulty with these descriptors is that they are not factual findings,
but adjectives arising from a flawed s. 10(b) analysis. In these circumstances,
no deference is owed.
[107]
Importantly, there is no evidence of a systemic problem in this
case. Unlike cases such as
Rover
,
the police in this case
acknowledged the importance of the right to counsel, the extraordinary nature
of suspending that right, and the need to operate on case-specific information.
[108]
Nor was there a pattern of
Charter
misconduct in
this case. While the appellant points to the trial judges finding that the
search of the appellants home violated his s. 8
Charter
rights,
as I previously explained, that result cannot be reconciled with the
information that was available to the trial judge.
[109]
While that aspect of the trial judges
Charter
ruling
is not before this court on review, for purposes of this admissibility analysis
I do not accept the characterization of that search as demonstrating part of a
pattern of misconduct. To the contrary, the police acted responsibly, going so
far as to obtain a search warrant from a judge of concurrent jurisdiction to
the trial judge. The fact that the issuing judge concluded that there were
sufficient grounds to search surely lightens the blow of any pattern that could
be said to arise from that finding of a breach.
[110]
Even without a systemic problem or pattern of abusive police conduct
in this case, though, this was undoubtedly a serious breach. While the police
were justified in suspending the right to counsel during the execution of the
warrants, along with the authority to temporarily suspend the implementational
component of the right to counsel came the corresponding responsibility to
appreciate the enormity of the situation and the implications for the
appellant. He was entitled to be offered the opportunity to speak with counsel
at the earliest opportunity. The fact that he chose not to in the end, instead
choosing to speak to a friend, does not detract from the fact that he sat for
many hours without a call. The police should have been on high alert, ready to
facilitate the right to counsel at the earliest moment possible, which was when
the searches were complete, and the risks had cleared. The police failed in
that regard.
[111]
Accordingly, while the
Charter
-
infringing state
conduct could have been more serious, especially if it had been part of a
pattern of breaches or bad faith had been present, it was still serious indeed.
(c)
Impact of the Breach on the Appellants
Charter
-Protected
Interests
[112]
This prong of the admissibility inquiry calls upon the court to
evaluate the extent to which the
Charter
-
infringing conduct
undermined the interests protected by the right infringed. As noted by the
Grant
majority, It calls for an evaluation of the extent to which the breach
actually undermined the interests protected by the right infringed:
Grant
,
at para. 76;
Tim
, at para. 90. To make that determination, the
court looks to the interests that are engaged by the subject
Charter
right and then considers the degree to which the violation impacted those
interests:
Grant
,
at para. 77.
[113]
I do not see the actual impact of the breach on the appellants
Charter
-
protected
interests as being particularly serious.
[114]
It is important to remember here that the predicate
Charter
breach was rooted in the right to counsel. As previously discussed, that
right is directed at assisting detainees with regaining their liberty and
protecting them against the risk of involuntary self-incrimination: see
Suberu
,
at para. 40;
Bartle
, at p. 191; and
R. v. Brydges
,
[1990]
1 S.C.R. 190, at pp. 202-3. Yet at no point did the appellant incriminate
himself and there is no indication that his liberty would have been obtained
any earlier had the breach not occurred.
[115]
Also, there was no causal connection between the breach and the discovery
of the Glocks, which the trial judge found had been lawfully seized. Rather,
the Glocks were seized hours before the s. 10(b) breach even occurred. In other
words, not only were the Glocks discoverable without the breach, but they were actually
discovered without the breach. This lessened the impact of the breach on the
appellants
Charter
-
protected interests, making admission
more
likely: see
Grant
,
at paras. 122-25. See also
Pileggi
,
at para. 120;
Rover
, at para. 43; and
R. v. Miller
, 2018
ONCA 942, 368 C.C.C. (3d) 479, at para. 21. As in
R. v. Mian
, 2014 SCC
54, [2014] 2 S.C.R. 689, at para. 87, it is entirely appropriate to consider the
lack of a causal connection in calibrating seriousness under the second stage
of the
Grant
analysis.
[116]
Finally, the seriousness of the impact of the predicate s. 10(b)
Charter
breach on the interests protected by s. 10(b) was not compounded by interference
with any other
Charter
-protected interests: see
Mian
,
at
para. 87. This is yet another factor for consideration under the second prong
of the
Grant
analysis. Given the trial judges finding that the
appellant had abandoned any expectation of privacy in the Glocks, the appellant
had no remaining constitutional relationship with the Glocks at the point that
they were lawfully seized. Therefore, his privacy and dignity interests were
not impacted in any way, let alone by the subsequent s. 10(b) breach.
(d)
Societys Interest in Adjudication on the Merits
[117]
The Glocks found in Mr. Ghousys vehicle were reliable evidence that
was essential to the Crowns case. The fentanyl had been excluded. The cash had
been excluded. Seven firearms had been excluded. Exclusion of the two Glocks
would have erased what little was left of the Crowns case.
[118]
While there is no doubt that the public has a vital interest in a
justice system that is beyond reproach, particularly where the penal stakes for
the accused are high, the public also has a heightened interest in seeing a
determination on the merits where the offence charged is serious:
R. v.
Harrison
,
2009 SCC 34, [2009] 2 S.C.R. 494, at para. 34.
Trafficking in firearms is a very serious offence. The circumstances underlying
this case were particularly serious, including the broad daylight exchange of
two firearms in a public setting: a gas station parking lot.
[119]
The safety of the community hangs in the balance. Like in
Harrison
,
at para. 34, the third line of inquiry favours admission in this case
because, without that admission, there would be no case to be adjudicated.
(e)
Final Balance
[120]
The appellant held and continues to hold the onus of establishing
why exclusion should flow. In my view, while the first line of inquiry pushes
toward exclusion, the second is somewhat neutral at best, and third pushes
toward inclusion. I would not exclude the evidence.
[121]
It is important to recall that exclusion of evidence is never
automatic under s. 24(2). There are competing relevant factors and,
importantly, the balancing exercise is a qualitative one, not at all conducive
to mathematical precision:
Harrison
, at para. 36;
Tim
, at
para. 98. Exclusion does not follow from the length of the breach per se.
Indeed, there are cases where s. 10(b) breaches that are longer than the one
hour in this case have not led to s. 24(2) exclusion: see
R. v. Hobeika
,
2020 ONCA 750, 153 O.R. (3d) 350, at para. 90;
Griffith
,
at
para. 80; and
Pileggi
,
at paras. 4, 128.
[122]
Some may wonder about the result for Mr. Ghousy in this case: he was
acquitted because of a s. 24(2) exclusion and, therefore, shouldnt the
appellant receive the same benefit? No. Mr. Ghousy may well have been the lucky
recipient of a flawed constitutional analysis. There is no constitutional right
to having those flaws played forward.
[123]
In this case, considering all of the circumstances, as s. 24(2)
demands, I would not exclude the evidence. In my view, having regard to all of
the circumstances, exclusion of the two Glocks in the LCBO bags would not
vindicate the long-term repute of the criminal justice system but, rather, would
bring it into disrepute.
F.
CONCLUSION
[124]
I would dismiss the appeal.
Released: April
21, 2022 JMF
Fairburn A.C.J.O.
I agree Paul Rouleau J.A.
I agree Grant Huscroft J.A.
[1]
There is no Crown appeal from those acquittals.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Iqbal v. Mansoor, 2021 ONCA 927
DATE: 20211222
DOCKET: M52934 (C65591)
Tulloch J.A. (Motion Judge)
BETWEEN
Musharraf
Iqbal
Plaintiff
(Appellant/Moving
Party)
and
Sohail
Khawaja Mansoor and Gold International Inc.
Defendants
(Respondents/Responding
Parties)
Musharraf Iqbal, acting in person
No one appearing for the responding
parties
Heard: November 22, 2021 by video conference
REASONS
FOR DECISION
[1]
The applicant, Musharraf Iqbal, brings this
motion pursuant to r. 3.02(2) of the
Rules of Civil Procedure,
R.R.O
1990, Reg. 194. The applicant seeks an order for an extension of time to pursue
a motion to set aside the order of Coroza J.A., dated August 13, 2020, under s.
7(5) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43. In his
decision, Justice Coroza declined to grant the applicant an extension of time to
seek leave to appeal from two costs decisions, which were made in the Superior
Court of Justice in 2018.
[2]
Pursuant to r. 61.16 of the
Rules of Civil
Procedure
, the time to bring such a motion is within four days of the
order. The appellant submits that the delay in bringing this motion to set
aside the order of Coroza J.A. was mostly as a result of his ignorance of the
proper procedures to follow. He also submits that he mistakenly believed the
COVID-19 suspension was still in place, and that he tried to retain a lawyer
who was ultimately of no assistance.
[3]
The respondents have not submitted any responding
materials, nor has anyone appeared on their behalf to oppose the motion.
Background
[4]
The parties went through proceedings before an
arbitrator in which the applicant was successful. He was awarded costs of the
arbitration hearing but the arbitrator did not make a costs order for the
proceedings prior to the actual hearing. The total costs to the applicant for
the proceedings amounted to $109,817.
[5]
Following the arbitrators decision, the
respondents commenced an application in the Superior Court, in which they
sought an order granting them leave to appeal from the decision of the
arbitrator. In response, the applicant commenced a counter-application seeking
an order upholding the arbitrators decision. In February 2018, the application
judge dismissed the respondents application and granted the applicants
counter-application.
[6]
The applicant made costs submissions before the
application judge and asked for a total of $109,817 in costs for the
proceedings, indicating to the court that the arbitrator had not addressed the
issue of the costs of the proceedings, but had only awarded costs for the
actual hearing.
[7]
The application judge declined to award the
applicant his full arbitration costs in the amount of $109,817, finding that
the costs award he had been granted by the arbitrator covered the entire
proceeding. Upon obtaining confirmation from the arbitrators office that the
costs award was not in fact for the entire proceeding but only for the
arbitration hearing, the applicant brought a motion for the remaining $109,817
in costs. The application judge determined that the applicant sought to appeal
his earlier refusal of costs and that he therefore lacked jurisdiction; the
motion was dismissed.
[8]
The applicant then tried to appeal the
application judges decision to this court, but because he had not first
obtained leave, the court lacked jurisdiction. The panel noted that it was an
error for the application judge to find that he did not have jurisdiction to
hear the motion. The applicant then tried to seek leave from the Supreme Court
of Canada, which was dismissed. The applicant also tried to seek leave to
appeal in the Superior Court, but the application was dismissed for lack of
jurisdiction. The applicant subsequently brought a motion before this court for
an extension of time to bring a motion for leave to appeal the costs order,
which was heard before Coroza J.A. and dismissed.
Analysis
[9]
The overarching principle when considering a
motion for an extension of time is that an extension should be granted if the
justice of the case requires it:
Frey v. McDonald
(1989), 33 C.P.C.
(2d) 13 (Ont. C.A.).
[10]
The relevant factors were set out in
Kefeli
v. Centennial College of Applied Arts and Technology
, 2002 CanLII 45008 (ON
CA), at para. 14:
1.
The length of and explanation for the delay;
2.
Whether the respondent will suffer prejudice;
3.
The merits of the appeal; and
4.
Whether the justice of the case requires it.
[11]
As stated earlier, the applicant wanted to move
to set aside Coroza J.A.s decision but failed to do so within the prescribed
period because he mistakenly believed the COVID-19 suspension was still in
place. He also tried to retain a lawyer who was ultimately of no assistance.
[12]
The applicant argues that the proposed appeal
has merit, that the respondents will not suffer any prejudice, and that an
extension of time is in the interests of justice. On the merits, he argues that
the finding that the costs award he was granted covered the entire proceedings
was clearly wrong, in light of the confirmation from the arbitrators office.
With respect to the application judges finding that he did not have
jurisdiction to hear the motion after this information was discovered, our
court determined that this was also an error. There is no prejudice to the
respondents in the sense that witnesses cannot be called or evidence has been
destroyed. It is in the interests of justice to have the $109,817 costs issue
determined on its merits.
[13]
From the recent history of this litigation, I have
no doubt that the applicant had every intention to appeal the decision of Coroza
J.A. Unfortunately, it took over a year to do so. Accepting his explanation for
the delay, I still must consider whether the respondents will suffer any
prejudice, whether there is any merit to an appeal, and if so, whether the
justice of the case warrants granting the extension.
[14]
There is no doubt that if an extension was
granted, the respondents would suffer prejudice. The respondents are no longer
represented by counsel. A significant amount of time has elapsed since Justice
Corozas decision was rendered. Should an extension be granted, the respondents
would now have to turn their minds to responding again to the applicant, thus
incurring more costs.
[15]
When it comes to the merits of the appeal, this
is a case in which the parties elected to proceed by way of arbitration. During
the arbitration process, both parties were obliged to put their entire claim
before the arbitrator, including all the relevant costs. For whatever reasons,
the applicant neglected to do so, and instead claimed only for his damages,
without factoring in the entire costs of the proceedings. The decision of both
parties to opt out of the court process and to proceed before an arbitrator
entailed that the entire claim, including the costs of the proceedings, would
be placed before the arbitrator. Once an arbitrator decides the outcome, the
matter is no longer within the jurisdiction of the court, provided there was no
legal or procedural errors.
[16]
In all the circumstances, I am of the view that
even if an extension of time was granted, the applicants case lacks sufficient
justification to grant an extension of time. In my view, notwithstanding the
submissions of the applicant, the justice of the case does not warrant this
court exercising its discretion to grant the extension of time to serve the notice
of leave to appeal.
[17]
Accordingly, the motion is dismissed.
M.
Tulloch J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Girao v. Cunningham, 2021 ONCA 18
DATE: 20210108
DOCKET:
C63778
Fairburn
A.C.J.O., Lauwers and Zarnett JJ.A.
BETWEEN
Yolanda
Girao
Plaintiff
(Appellant)
and
Lynn
Cunningham
and Victor Mesta
Defendant
(
Respondent
)
Yolanda
Girao, acting in person
David Zuber
and Michael Best, for the respondent
Heard: in writing
On appeal
from the judgment of Justice Peter Cavanagh of the Superior Court of Justice,
sitting with a jury, dated March 3, 2017, from the order on the threshold
motion, dated April 20, 2017, with reasons reported at 2017 ONSC 2452, and from
the costs order, dated July 20, 2017, with reasons reported at 2017 ONSC 4102.
COSTS
ENDORSEMENT
[1]
The panel allowed the appeal in this matter with
reasons reported at 2020 ONCA 260. The appeal largely turned on the ways in
which the trial was unfair to Ms. Girao: see para. 176. She was awarded the
costs of the appeal and of the trial, including disbursements.
[2]
The trial context was described at para. 175 of
the appeal decision:
At trial, the appellant functioned as a
legally-untrained, self-represented, non-English speaking litigant in
testifying, examining and cross-examining through a Spanish interpreter. She
was faced with a phalanx of defence counsel, two representing Ms. Cunningham,
and two representing Allstate Insurance Company of Canada. The trial was 20
days long, involved many witnesses, and considered complex medical evidence.
[3]
The trial led Ms. Girao to expend funds that are
to be treated as costs thrown away because they were incurred for steps in the
proceeding which were reasonably necessary to proceed with the action but
which have been rendered useless by the other partys conduct in responding or
not responding to the action:
Royal Bank v. Blatt
, [1991] O.J. No.
688 (Ont. Gen. Div.).
[4]
Ms. Girao is therefore entitled to her trial
disbursements in the amount of $14,021.40, broken down as follows:
Expense
Total incl. GST/HST
Medical Legal Report Dr. Kryjshtalskyj
$2,260.00
Witness Tickets to Toronto (Bruno and
Giselle Mesta)
$296.48
Lodging for Witnesses (Bruno and Giselle
Mesta)
$39.96
Courier & Postal service
$44.13
Dr. Malickis attendance
$2,712.00
Dr. Manohars attendance
$2,712.00
Dr. Beckers attendance
$3,390.00
Mr. Wollachs attendance
$1,356.00
Ms. Mukherjees attendance
$1,210.83
[5]
Ms. Girao is also entitled to her appeal
disbursements in the amount of $6,491.39, broken down as follows:
Expense
Total incl. GST/HST
Trial transcripts
$5,623.33
Courier & Postal service
$868.06
[6]
Ms. Girao also seeks payment of the costs of
this action up to the trial including the amount of about $137,000 paid to
former counsel. In our view these costs, including pre-trial preparation, must
be left to the discretion of the trial judge who hears the re-trial.
[7]
In reserving costs of the action to the judge
presiding over the re-trial, we direct that if an award of costs is made to the
respondent, it shall not include any amount for or relating to the respondents
preparation for or conduct of the trial under appeal. We agree with the
approach of the British Columbia Court of Appeal in
Fullerton v. Matsqui
(District)
(1992), 14 B.C.A.C. 153, [1992] B.C.J. No. 2969 that the
appellant should not in any event be responsible for costs incurred in
responding to the actions of the respondents previous trial counsel criticized
in our appeal reasons.
[8]
Ms. Girao also seeks a fee allowance as a self-represented
person, for herself and her husband, in the amount of nearly $800,000,
calculated at $150 per hour, including their time in court at the trial and on
the hearing of the appeal.
[9]
The principles for awarding fee allowances to
self-represented litigants were set out by Rouleau J.A. in
Benarroch v.
Fred Tayar & Associates P.C.
, 2019 ONCA 228, following
Fong v.
Chan
(1999), 46 O.R. (3d) 330, [1999] O.J. No. 4600 (Ont. C.A.),
per
Sharpe J.A. At para. 26 of
Fong
, Sharpe J.A. set out two conditions
that must be met if a self-represented litigant is to be awarded a fee
allowance. Fees should only be awarded to those lay litigants who can
demonstrate that they:
a)
devoted time and effort to do the work
ordinarily done by a lawyer
retained to conduct the
litigation; and
b)
as a result, incurred an opportunity cost by
foregoing remunerative activity
.
[10]
There is no doubt that much of what Ms. Girao
and her husband did was work ordinarily done by a lawyer although, as noted in
Fong
and
Benarroch,
self-represented litigants should not be awarded a
fee allowance for time they would ordinarily be attending in court.
[11]
Another policy direction in
Fong
was that
costs should serve to dissuade misconduct in litigation. That is why an insurer
faced with an unrepresented litigant should expect to pay costs in some amount,
particularly where the insurers trial tactics merit sanction, as in this case.
In
Benarroch
, at para. 35, Rouleau J.A. stated that where there is
little evidence of lost opportunity costs, any award will likely be nominal.
There is no doubt that Ms. Girao and her husband would happily have been doing
something else during the many hours they spent preparing for and attending at
the trial and the appeal. We would grant a fee allowance that is, in the
context, nominal but that is also consistent with the policy direction in
Fong
to reflect disapproval of a partys inappropriate trial tactics.
[12]
As to method of calculation and quantum, Ms.
Girao claims for 5,261 hours including time for attendance at hearings and for
document compilation that is not compensable. On several days, her claimed
hours exceed 24 hours in the day. Her proposed hourly rate of $150 per hour
falls at the very high end of the range established by case law. There is no
doubt that Ms. Girao spent considerable time working on her case and her work
proved effective. However, her method of accounting for such time does not lend
itself to calculation based on hours worked.
[13]
We are mindful of the comments of Rouleau J.A.
in
Benarroch
, who noted that lump sum costs awards may be preferable
in order to avoid transforming costs hearings into complex proceedings where
the self-represented claimant is called upon to account for every minute of the
day and prove every penny of revenue: at para. 18.
[14]
Ms. Girao is entitled to a modest fee allowance
for the trial and the appeal, which we fix at $35,000, for an all-in costs
award of $55,512.79.
Fairburn
A.C.J.O.
P.
Lauwers J.A.
B.
Zarnett J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Goderich-Exeter Railway Company
Limited v. Shantz Station Terminal Ltd., 2021 ONCA 20
DATE: 20210112
DOCKET: C67132
Huscroft, Zarnett and Coroza
JJ.A.
BETWEEN
Goderich-Exeter Railway Company Limited
Plaintiff (Appellant)
and
Shantz Station Terminal Ltd. and
Parrish and Heimbecker Limited
Defendants (Respondents)
George Karayannides, for the appellant
Forrest Hume, Monika Gehlen and Robert
Reynolds, for the respondents
Heard: in writing
On
appeal from the judgment of Justice Catrina D. Braid of the Superior Court of
Justice, dated May 31, 2019 with reasons reported at 2019 ONSC 1914, and from a
costs order, dated September 9, 2019 with reasons reported at 2019 ONSC 5192.
COSTS ENDORSEMENT
[1]
The respondents are awarded their costs of the
appeal in the sum of $60,000, inclusive of disbursements and applicable taxes.
Grant
Huscroft J.A.
B. Zarnett J.A.
S. Coroza J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Theriault, 2021 ONCA 554
DATE: 20210730
DOCKET: M52670 (C68671)
Thorburn J.A. (Motion
Judge)
BETWEEN
Her Majesty the Queen
Respondent
and
Michael
Theriault
Applicant (Appellant)
Michael W. Lacy and Deepa Negandhi, for the applicant
Susan Reid, for the respondent
Heard: July 23, 2021, by
videoconference
ENDORSEMENT
OVERVIEW
[1]
The applicant, Michael Theriault, seeks bail pending the determination
of his application for leave to appeal to the Supreme Court of Canada. He seeks
leave to appeal both his conviction for assault and his sentence of nine
months imprisonment.
[2]
He claims he meets the test for granting bail as his appeal is not
frivolous, he will surrender when required, and the public interest favours
granting him bail pending determination of his application for leave to appeal
to the Supreme Court.
[3]
In seeking bail, the applicant focuses on three main grounds of appeal
raised in his leave application from this courts endorsement of the trial
judges decision:
1.
the trial judge erred in his use of social context and systemic racism
to inform credibility assessments and increase the range of sentence;
2.
the trial judge erred in his finding with respect to the way a door or
window was damaged; and,
3.
the trial judge erred in holding that simple assault is a lesser and
included offence of aggravated assault.
[4]
The Crown claims these grounds of appeal are frivolous and the
applicants continued detention is in the public interest and that he should therefore
remain in detention.
[5]
For the reasons that follow, the application for bail is denied.
THE EVIDENCE AT TRIAL
[6]
The circumstances giving rise to the charges before the trial judge are
as follows: The applicant is a Toronto police officer. While he was off duty,
he chased and struck the complainant Dafonte Miller, a young Black man
leaving him permanently blind in one eye.
[7]
The complainant testified that the applicant chased and struck him for
no reason.
[8]
The applicant testified that, after seeing the complainant and his
friends break into a vehicle on his parents property, he and his brother gave
chase. They caught the complainant and body checked him. He claimed that the
complainant then began to hit him with what he later learned was an aluminum
pipe. He, in turn, punched the complainant in the face to disarm him. The
applicant denied using the pipe to strike the complainant.
[9]
The trial judge rejected the complainants account that the applicant
chased and struck him for no reason, noting that the complainant attempted to
proffer a false version of events and perjured himself. He found his testimony
internally inconsistent and contradicted by physical evidence. Instead, the
trial judge accepted the applicants testimony that the complainant was
breaking into cars and fled to avoid being apprehended. He also accepted that
the complainants injury was likely caused by being punched and he had a
reasonable doubt as to whether the punch was in self-defence.
[10]
The
applicant was therefore acquitted of aggravated assault.
[11]
However,
the trial judge did not believe the applicants evidence that he did not hit
the complainant with the pipe. Instead, he concluded that, at the end of the
struggle, the applicant struck the complainant in the head with the pipe as he
sought assistance at a nearby house. The applicant could not have been acting
in self-defence at the time. He was therefore convicted of assault.
[12]
In
so doing, the trial judge held that the complainants evidence on this issue
could be relied on notwithstanding that he perjured himself, because his
evidence could be corroborated in several respects and, as a young Black man,
he might have reasons to distrust law enforcement.
THE TEST FOR BAIL PENDING LEAVE TO APPEAL TO THE SUPREME COURT
[13]
The
test for bail pending determination of an application for leave to appeal to
the Supreme Court is governed by s. 679(3)(a) to (c) of the
Criminal Code
,
R.S.C. 1985, c. C-46. The applicant must establish that: (a) the application
for leave is not frivolous, (b) the applicant will surrender into custody as
required, and (c) detention is not necessary in the public interest.
[14]
The
applicant bears the burden of establishing each of the three itemized release
considerations on a balance of probabilities before an interim judicial release
order may be made:
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at
para. 19.
[15]
In
an application for post-appeal bail pending leave such as this, the court not
only has the benefit of the first-instance decisionmakers reasons for
conviction and sentence but also the decision of the panel that rejected what
are presumably the applicants best arguments in seeking a further appeal
against that conviction and sentence. However, even in these circumstances,
reasonable measures should be taken to ensure the applicant is not deprived of
the benefits of a successful second appeal, particularly where he will have
served all or almost all of his sentence before the appeal is adjudicated:
R.
v. Manuel
, 2021
ABCA 187, at paras. 48-49.
[16]
There
is no concern about the applicant surrendering himself into custody as
required. He has therefore satisfied the criterion in s. 679(3)(b). The only
issues to be addressed therefore are (1) whether the application for leave is
frivolous and (2) whether detention is necessary in the public interest.
DISCUSSION
(1)
Is the application for leave to appeal not frivolous?
[17]
As
noted above, the applicant raises three issues in this bail application that he
says makes his application for leave not frivolous.
[18]
Before
addressing these issues, it is important to recall the principles governing the
consideration of the not frivolous criterion. There is no dispute that, as
the Supreme Court observed in
Oland
, at para. 20, the not frivolous
criterion sets a very low bar. The purpose of this criterion is to require
the applicant to demonstrate that the leave application has some merit such
that the appellate process is not abused by those attempting to forestall the
execution of a custodial sentence: see
R. v. T.S.D.
, 2020 ONCA 773, at
para. 24.
[19]
Although
the not frivolous criterion is not a high threshold, its consideration at
this stage of the proceedings must take account of the stringent requirements
for obtaining leave to appeal to the Supreme Court: see, e.g.,
R. v.
Boussoulas
, 2018 ONCA 326, at para. 14;
Manuel
, at para. 30; and
R.
v. Boima
, 2018 BCCA 498, at para. 18. The Supreme Court grants leave to
appeal sparingly:
R. v. Fundi
, 2012 ONCA 227, at para. 8. The
assessment of whether the application for leave to appeal is not frivolous is
informed by this context.
[20]
Bearing
these principles in mind, I consider each of the applicants three grounds of
appeal. The first is the trial judges use of social context in assessing the
complainants credibility and in sentencing the applicant.
(a)
Use of social context in assessing credibility and sentencing
[21]
In
reviewing the complainants evidence, the trial judge held that as a young
black man, Mr. Miller may well have had many reasons for denying any wrongdoing
including a distrust of law enforcement. He noted that the complainants
evidence should be assessed in a fair context and with a sensitivity to the
realities that racialized individuals face in society.
[22]
Further,
in deciding what an appropriate sentence would be, he held that a heightened
degree of denunciation was required because of increasing awareness of
anti-Black racism and that sentences must evolve in tandem with developing
societal values. He imposed a nine-month sentence for assault.
[23]
In
affirming the trial judges conviction, this court held that:
[I]t is incumbent on trial judges
to consider relevant social context, such as systemic discrimination, when
making credibility assessments.
[24]
In
affirming the sentence, this court held that:
As our society comes to grips with
disproportionate rates of police violence against Black people, it is integral
that the need for denunciation of crimes that are emblematic of these broader
social patterns develops accordingly.
[25]
The
applicant argues that this reasoning is flawed as it suggests that:
[I]t would amount to legal error for a trial judge to fail to
consider relevant social context, including systemic racism, when making
credibility assessments. What the decision does not unpack is how a trier of
fact is to do so? Does it mean that when a racialized person is testifying,
their evidence is to be assessed differently than non-racialized persons? Do
normal credibility indicators need to be abandoned, adapted or reconsidered?
What about standard jury instructions involving credibility assessments? What
are juries to be told?
The decision has the potential to
impact and affect credibility assessments not only for victims of violent crime
(as the Court concluded Mr. Miller was) but also any racialized accused person
alleged to have committed a crime who testifies. [Footnote omitted.]
[26]
The
applicant claims that the use of social context in assessing credibility and
determining an appropriate sentence is an issue of public importance that
transcends the circumstances of this case, given that this was not a racially
motivated crime. As such, there is a reasonable chance the applicant will be
granted leave to appeal to the Supreme Court on this issue.
[27]
I
disagree.
[28]
This
courts assertion that it is incumbent on trial judges to consider relevant
social context, such as systemic racism, when making credibility assessments
has been addressed by the Supreme Court in
R. v. Le
, 2019 SCC 34,
[2019] 2 S.C.R. 692. The issue is not a new one.
[29]
In
Le
, at para. 89, the court held that:
[I]nformation about race and
policing plays a crucial role and may also inform many issues, including fact
finding, credibility assessments, determining what evidence is accepted as
persuasive
.
[30]
Triers
of fact are routinely instructed to consider whether there is any explanation
for evidence proffered and whether it makes sense. The standard jury
instructions state that, in addition to factors such as honesty and a witness
interest in the case, other case-specific factors may be added.
[31]
The
trial judge considered social context but he did not invoke social context to
accept the complainants evidence and excuse any inconsistences because the
complainant was Black; he rejected significant aspects of the complainants
version of events and only relied on those aspects that were confirmed by
independent evidence.
[32]
As
noted by this court, the trial judge found that the complainants evidence as
to what happened during the assault was independently supported by several
pieces of evidence, including a scrape on the glass of the front door, the
complainants blood on the end of the pipe, and the applicants admission that he
brandished the pipe.
[33]
The
statement from this court was that it is incumbent on trial judges to consider
relevant
social context (emphasis added) when
making credibility assessments. This does not mean that credibility indicators
need to be abandoned, but merely reflects the existing obligation on triers of
fact to consider all relevant factors that may affect the credibility and/or
reliability of a witness testimony. This statement is entirely consistent with
the earlier statement of the Supreme Court in
Le
, set out above, that
social context plays a crucial role and may also inform many issues, including
fact finding, credibility assessments, [and] determining what evidence is
accepted as persuasive.
[34]
Turning
to the role of social context in sentencing, defence counsel conceded in his
sentencing submissions at trial that the court could take judicial notice of
the problematic issue of interactions between police and Black youth. The trial
judge concluded that the case called for a heightened degree of denunciation
given the social context and the importance of denunciation as a collective
statement of societal values, including increased awareness of anti-Black
racism. However, he also held that:
I remain mindful of the need to
maintain proportionality. While the sentence I impose must reflect the need
for denunciation, the sentence must ultimately remain proportionate to the
gravity of the offence and the offenders degree of moral responsibility. The
gravity of the offence must be assessed against the contextual backdrop,
however, the sentence imposed cannot be disproportionate in an attempt to right
past societal or systemic failings.
[35]
General
and specific denunciation and deterrence are two factors that must be taken
into account in sentencing in this case. The trial judge balanced the need for
denunciation and deterrence with the need to impose a sentence that was
proportionate to the offence and the offender. There is no clear range of
sentence that reflects these circumstances, the cases referred to by the
defence at trial are dated and distinguishable, and there is no reason to
conclude the sentence was unfit.
[36]
Lastly,
in assessing whether a ground of appeal raised in application for leave is not
frivolous, the court must consider the stringent requirements for leave to the
Supreme Court. Speaking extrajudicially, Sopinka J. observed that one
consideration in the determination of public importance is whether the question
is germane to the disposition of the case: see Henry S. Brown
et al.
,
Supreme Court of Canada Practice
(Toronto: Thomson Reuters Canada Ltd.,
2020), at s. 1.2 (WL), quoting John Sopinka, The Supreme Court of Canada
(April 10, 1997).
[37]
Important
issues such as social context must therefore be examined in the context of the
evidence adduced in a particular case. If there is little or no prospect that
the findings or the outcome will be altered in a given case, leave to appeal
may be denied regardless of the fact that issues of public importance are
addressed in the case.
[38]
For
these reasons, the applicant has not satisfied me that his ground of appeal
impugning the trial judges use of social context is not frivolous.
(b)
Misapprehension of evidence or finding corroboration where none exists
[39]
The
second ground of appeal the applicant raises is the claim that the trial judge
misapprehended the evidence and/or improperly found corroboration where none
existed.
[40]
The
applicant raises several issues in the trial judges findings, affirmed by this
court. For example, the applicant claims that the trial judge improperly
concluded that certain damage was caused by the aluminum pipe in the absence of
expert evidence or any witness having attested to the same.
[41]
This
court held that:
[I]t was within the trial judges discretion, as the trier of
fact, to reject defence counsels theory. The trial judge found that a hand or
fist would not have caused the gouge/scrape in the glass, whereas, it would
have been caused by contact with the edge of a metal pipe. While this finding
was neither supported by any expert evidence, nor expressed by any of the
witnesses, it nevertheless rested on common sense
. This non-technical matter
did not require expert evidence as it was within the knowledge and experience
of the ordinary person and trier of fact:
R. v. Mohan
, [1994] 2 S.C.R.
9, at pp. 23-25.
[42]
The
applicant properly acknowledges that this type of argument is not one that the
[Supreme] Court would normally grant leave on but claims that the supposed
misapprehensions are inextricably linked to the trial judges approach to the
credibility assessment generally.
[43]
In
my view, the factual arguments raised by the applicant add little to the
credibility-based ground of appeal, which I have already discussed.
[44]
This
ground of appeal also does not meet the not frivolous threshold and the
applicant has therefore not satisfied the requirement in s. 679(3)(a) on this
ground.
(c)
Whether assault is a lesser and included offence of aggravated assault
[45]
The
third issue raised by the applicant is whether assault is a lesser and included
offence of aggravated assault. The charge was that on or about
December
28, 2016, he did wound, maim and/or disfigure Dafonte Miller, thereby
committing an aggravated assault.
[46]
The
trial judge acquitted the applicant of aggravated assault because he concluded
that the injury to the complainants eye was caused by a punch not by being
struck by a pipe and that,
[W]hen I
consider the whole of the evidence, I am left with reasonable doubt about
whether Michael and Christian Theriault were acting in lawful self-defence
during this portion of the incident
. If Mr. Miller initially wielded the
pipe, Michael and Christian would have been entitled to act in self-defence by
repeatedly punching Mr. Miller to disarm him and thereafter to prevent him,
within reason, from engaging in any further assaultive conduct. [Emphasis
added.]
[47]
He
therefore acquitted the applicant of aggravated assault.
[48]
He
held, however, that he was satisfied beyond a reasonable doubt that later in
the transaction, the applicant was no longer acting in self-defence when he
struck the complainant with the pipe, although it caused no injury. He
therefore convicted the applicant of simple assault.
[49]
The
trial judge was later asked to reopen the case to address the issue of whether
the conviction for assault was a lesser and included offence of aggravated
assault:
R. v. Theriault
, 2020 ONSC 5725. In dismissing the
application, he rejected the applicants assertion that the assault was not a
lesser and included offence for the following reasons:
[Defence counsel] argues that once the defence admitted that
Mr. Millers injuries constituted wounding, maiming or disfiguring, the
only issue for the court to determine was whether those injuries were the
result of an assault committed without any justification or excuse. As such,
the simple assault that Michael Theriault was found guilty of committing later
in the altercation was not a lesser and included offence of the
specific
aggravated
assault that was charged and was the subject of the trial. Boiled down to its
essence, the argument is that Michael Theriault was found guilty of an offence
that fell outside the transaction contemplated by the indictment, the
procedural history and the admissions.
This argument is also without
merit.
The count in the indictment was not particularized
in any fashion. It simply alleged an aggravated assault. The transaction that
sat at the core of the Crowns case was a beating of Mr. Miller by Michael and
Christian Theriault. The beating was comprised of many individual blows
delivered by both accused. The beating started when Mr. Miller ran in-between
the homes and ended once police arrived and found Mr. Miller on the ground. The
issue the court had to determine was whether some, none or all of the blows
during this incident amounted to unlawful assaults and if so, whether it was
proven beyond a reasonable doubt that the injuries Mr. Miller suffered were
caused by these assaults.
[Italics in original; underlining added.]
[50]
This
court upheld the verdict on the basis that the assault was part of the same
transaction as the aggravated assault and therefore was a lesser and included
offence. This court has previously taken this approach in similar
circumstances: see
R. v. Rocchetta
, 2016 ONCA 577, 352 O.A.C. 130.
[51]
In
seeking leave to appeal, the applicant claims there is competing appellate
authority on the issue of what constitutes a lesser and included offence and
that the approach of the majority in
R. v. Taylor
(1991), 66 C.C.C.
(3d) 262 (N.S.S.C. App. Div.), should be preferred and would lead to his
acquittal for assault.
[52]
Relying
on
Taylor
, the applicant argues that his conviction for assault was
not part of the same transaction as the charge of aggravated assault and
therefore cannot be a lesser and included offence.
[53]
I
disagree.
[54]
Section
581(1) of the
Criminal Code
provides that each count in an indictment
applies to a single transaction.
[55]
Simple
assault is the intentional non-consensual application of force:
Criminal
Code
, s. 265(1)-(2);
Canadian Foundation for Children, Youth and the
Law v. Canada (Attorney General)
, 2004 SCC 4, [2004] 1 S.C.R. 76, at para.
1. Aggravated assault is the intentional non-consensual application of force
that wounds, maims, disfigures or endangers the life of the complainant:
Criminal
Code
, s. 268(1). The only distinguishing feature of aggravated assault is
the element of wounding, maiming, disfiguring, or endangering the life of
another person assaulted.
[56]
The
Taylor
decision is dated and has since been distinguished by this
court in
Rocchetta
, at paras. 49-50, for the following reasons:
The majority [in
Taylor
] in considering whether those
two events were part of the same transaction, framed the issue this way, at p.
269: The question is raised whether an accused can be convicted under s.
267(1)(b) of an assault not causally connected with the bodily harm. The
majority answered the question in the negative observing that the only assault
included in the allegation of assault bodily harm was the assault that was
alleged to have caused the bodily harm.
With
respect, the majoritys approach fails to distinguish between the acts to be
proved to establish the offence as charged and the transaction referred to in
the charge.
The latter describes an event or a series of events. The
former refers to the essential element of the charge. Proof of bodily harm was
an essential element of the full offence charged in
Taylor
.
The allegation of bodily harm did not, however, necessarily
limit the scope of the transaction referred to in the allegation to the assault
that caused the bodily harm
. The scope of the charge depended on the
wording of the charge and the evidence describing the circumstances of the
alleged offence. A single transaction alleging an assault causing bodily harm
can encompass the
actus reus
of more than one assault.
Liability for the included offence of common assault is
established if the Crown proves a common assault that occurred within the terms
of the transaction referred to in the charge
. [Emphasis added.]
[57]
This
definition of a single transaction is consistent with the observation in
R.
v. Manasseri
, 2016 ONCA 703, 344 C.C.C. (3d) 281, at para. 73, leave to
appeal refused, [2016] S.C.C.A. No. 513, that a single transaction can include
circumstances that are successive and cumulative and which comprise a series
of acts that are sufficiently connected. It has been followed by this court on
several occasions: see, e.g.,
R. v. Kenegarajah
, 2018 ONCA 121, at
paras. 30-32, leave to appeal refused, [2018] S.C.C.A. No. 472;
R. v.
Schoer
, 2019 ONCA 105, 371 C.C.C. (3d) 292, at para. 62. It has also been
followed by courts across Canada: see, e.g.,
Drouin c. R.
, 2020 QCCA
1378, at para. 219, leave to appeal refused, [2020] S.C.C.A. No. 465 (
Lafortune
),
and [2020] S.C.C.A. No. 468 (
Amato
);
R. v. James
, 2021 BCSC
1408, at para. 83.
[58]
By
contrast, the reasons of the majority in
Taylor
have not been followed
to any appreciable extent, despite being rendered twenty-five years prior to
Rocchetta
.
[59]
Moreover
and in any event, the majority in
Taylor
, accepted that [a]
transaction may and frequently does include a series of occurrences extending
over a length of time: at p. 270, quoting
R. v. Barnes
(1975), 26
C.C.C. (2d) 112 (N.S.S.C. App. Div.), at p. 119, quoting
R. v. Canavan and
Busby
, [1970] 5 C.C.C. 15 (Ont. C.A.), at p. 18, leave to appeal refused,
[1970] S.C.R. viii.
[60]
The
majority in
Taylor
, at p. 270, quoted with approval the reasons in
Barnes
,
at p. 125, where the same court held that:
In considering
the validity of a
charge whether it is or is not duplicitous or multifarious or
whether it does or does not apply to a single transaction
the wording, scope, and nature of the charge (and its particulars, if any) are
what must be tested
. Thus, so long as evidence is directed to the
continuing offence contained in the charge, the validity of that charge is not
affected by the fact, on the one hand, that two or more acts or occurrences
falling within the ambit of the charge are proved or, on the other hand, that
some of the acts or occurrences alleged are not proved. [Emphasis added.]
[61]
It
is clear that where assaults occur in the course of a single transaction, a
charge of aggravated assault can encompass the
actus reus
of more than
one instance of non-consensual application of force by the accused, including a
lesser and included offence of assault. I do not read
Taylor
to
suggest otherwise.
[62]
In
this case, the indictment is not particularized except by indicating that an aggravated
assault took place on the day in question.
[63]
The
transaction that sat at the core of the Crowns case was a beating of the
complainant on the day in question. The trial judge found as a fact that there
was a consistent and sustained attack on the complainant over a short period.
The Crown took the position from the outset that the attacks on the complainant
were connected and occurred in the course of a single transaction.
[64]
The
only issue at trial was whether some, all or none of the blows during this
transaction on the day in question amounted to unlawful assaults and if so,
whether it was proven beyond a reasonable doubt that the injuries the
complainant suffered were caused by these assaults.
[65]
In
my view therefore, there is no serious issue as to whether simple assault is a
lesser and included offence of aggravated assault in this charge, as the
assault is part of the same transaction.
[66]
For
these reasons, I find that, as with the first two grounds of appeal, this final
ground of appeal also does not meet the not frivolous threshold.
(2)
Is detention not necessary in the public interest?
[67]
The
applicant argues that his continued detention is not necessary in the public
interest, given the strong grounds of appeal raised in his application for
leave to appeal and the likelihood that he will serve a substantial portion of
his sentence prior to any determination of the application.
[68]
I
am not satisfied, however, that his detention is not necessary in the public
interest.
[69]
The
meaning of public interest in the context of post-conviction bail
applications was described by Arbour J.A., for a five-judge panel, in
R. v.
Farinacci
(1993), 109 D.L.R. (4th) 97 (Ont. C.A.), at p. 118:
The concerns reflecting public
interest, as expressed in the case-law, relate both to the protection and
safety of the public and to
the need to maintain a
balance between the competing dictates of enforceability and reviewability
.
It is the need to maintain that balance which is expressed by reference to the
public image of the criminal law, or the public confidence in the
administration of justice. [Emphasis added.]
[70]
The
parties agree that there is no public safety concern with releasing the
applicant, but dispute whether, in balancing the enforceability and
reviewability interests, the applicants release would undermine public
confidence in the administration of justice. The court in
Oland
, at
para. 29, underscored that [r]arely does [the public confidence] component
play a role, much less a central role, in the decision to grant or deny bail
pending appeal.
[71]
As
noted by Doherty J.A. in
R. v. Drabinsky
, 2011 ONCA 647, 276 C.C.C.
(3d) 277, at para. 11: At this stage of the proceedings [where conviction and
sentence have been affirmed without further right of appeal], the principle
that trial judgments should be enforced is very much in play while the
operation of the reviewability principle is contingent upon the granting of
leave to appeal: see also
Boussoulas
, at para. 22. The seriousness of
the offence and the strengths of the grounds of appeal are among the most
important factors in assessing reviewability and enforceability:
Oland
,
at paras. 37-46.
[72]
If
reviewability is not considered, a successful appeal could be rendered
fruitless. This is particularly true in cases such as this, where the custodial
sentence is nine months. Taking into account earned remission, the applicant
can reasonably be expected to be released from custody at the latest after
serving two thirds of his sentence, i.e. six months. Moreover, he will be
eligible for parole after serving just one third of the sentence, i.e. three
months. If his leave application is determined in three to six months, the
applicant may have served most of his time before the leave application is
determined.
[73]
On
the other hand, it is also important to consider the enforceability interest
and the finality principle especially after an accused person has been found
guilty and an appeal has been heard and dismissed, bearing in mind that leave
to appeal is granted sparingly.
[74]
In
my view, in the circumstances of this case, the applicant has not established
on balance that the reviewability interest outweighs the enforceability
interest.
[75]
First,
the grounds for the application for leave to appeal have little chance of
success. As the court noted in
Oland
, at para. 44, at the public
interest stage of the analysis, a more pointed assessment of the strength of
an appeal is required and the court will consider if the grounds of appeal
clearly surpass the minimal standard required to meet the not frivolous
criterion. For the reasons discussed above, the grounds of appeal raised in
the application for leave do not clearly surpass the not frivolous threshold.
[76]
Second,
the offence is serious. As the trial judge observed in his sentencing reasons,
the assault was gratuitous and violent. The applicant struck the acutely
vulnerable complainant with a metal pipe while he was seriously injured and
posed no threat. Moreover, the offence caused emotional suffering to the
complainant, his family and the community at large.
[77]
Finally,
while it is true that the applicant may serve much of his sentence before the
application for leave is determined, the public interest requires that the
enforceability principle be given paramountcy given the stage of this
proceeding; the fact that the applicant was an off-duty police officer and the
complainant was seriously injured by him while retreating; and the trial
judges finding that the applicant bears a high degree of moral responsibility,
such that the community has a strong interest in enforceability.
[78]
For
these reasons, I conclude that the applicant should be detained pending the
determination of his application for leave to appeal to the Supreme Court of
Canada.
[79]
If,
however, the applicant does receive leave to appeal, that changed circumstance
may well call for a reassessment of his bail status.
CONCLUSION
[80]
For
these reasons, the application for bail pending appeal is refused without
prejudice to a further application should leave to appeal to the Supreme Court
be granted.
J.A. Thorburn J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Ching v.
Pier 27 Toronto Inc., 2021 ONCA 551
DATE: 20210730
DOCKET: C67706
Pepall, Nordheimer and Thorburn JJ.A.
BETWEEN
Yong Kee
Ching a.k.a. Richard Yong
and
Margaret Ng Yu Xiu a.k.a. Margaret Ng
Plaintiffs (Appellants)
and
Pier 27 Toronto Inc.
Defendant (Respondent)
David N. Vaillancourt and Jacob Millar, for the
appellants
Glenn R. Solomon, for the respondent
Heard: February 18, 2021 by video conference
On appeal from the judgment of Justice Mario D. Faieta of
the Superior Court of Justice, dated October 18, 2019, with reasons reported at
2019 ONSC 6073, 13 R.P.R. (6th) 306, and from the costs order, dated December
9, 2019.
Pepall J.A.
:
A.
Introduction
[1]
The appellants appeal from a judgment dismissing their claim for damages
arising from the breach of an agreement of purchase and sale of a condominium
and their request for relief from forfeiture of their deposit. For the reasons
that follow, I would dismiss the appeal.
B.
Facts
[2]
The appellants, Yong Kee Ching a.k.a. Richard Yong, and his wife,
Margaret Ng Yu Xiu a.k.a. Margaret Ng, decided to move from Singapore to
Canada following their retirement. The appellants moved to Canada in March 2011,
having obtained permanent residency status in 2008. While still in Singapore,
they attended numerous workshops offered by a real estate agent and ultimately
bought 10 residential properties in British Columbia, Quebec, and Ontario. They
sold four, maintain four for investment purposes, live in one in B.C., and one
is in issue in these proceedings.
[3]
The agreement of purchase and sale (the Agreement) in this appeal was
dated April 23, 2008 and was for a presidential suite located at 39 Queens
Quay East in Toronto. The vendor was the respondent, Pier 27 Toronto Inc.
[1]
The appellants
bought the unit for $1,347,000 and also acquired a parking spot for $37,500 and
a locker for $4,500. The Agreement provided that time was of the essence. After
signing the Agreement, they provided the respondent with a deposit of $134,700
and subsequently paid additional sums for a total deposit of
$214,238.85.
[4]
The appellants obtained mortgage financing of $883,200 for the purchase
from the Canadian Imperial Bank of Commerce.
[5]
The proposed Occupancy Date, also described as the Tentative Occupancy
Date, as designated in the Agreement, was November 30, 2010, but it was not a
firm date and simply represented an estimated completion date for the first
unit in the Pier 27 project rather than the estimated occupancy date for all
units including that of the appellants.
[6]
On June 9, 2010, the respondents solicitors advised the appellants that
the respondent was extending the Tentative Occupancy Date for the appellants
unit to October 18, 2012, a delay just short of 24 months.
[7]
After the appellants moved to Canada on March 15, 2011, they then tried
to sell the unit or assign the Agreement and contacted a real estate agent for
that purpose. In their correspondence to the agent, they noted: We would
prefer to market it on assignment and before the interim or final closing where
we need not have to make further payments to the unit. They stated that the
final closing was scheduled for October 18, 2012 and that they had been told
that there would most likely be a postponement. They listed the unit for sale
for $1,699,000 on March 27, 2012.
[8]
In 2012, the appellants came to Toronto for the first time and visited
the Pier 27 Project sales office where they sought assistance in selling
the unit. They were told that the developer was not permitting assignments.
[9]
Meanwhile, the respondent established October 1, 2013 as the Confirmed Occupancy
Date. However, this date was to come and go and the respondent ultimately
extended the date on eight occasions to November 18, 2013, January 30,
2014, February 14, 2014, March 21, 2014, May 2, 2014, June 27, 2014,
July 30, 2014, and finally, to August 20, 2014. In the letters, the respondent
stated that in all other respects, the terms of the Agreement remained unchanged,
and time would remain of the essence. On each occasion, the respondent provided
a reason for the new date ranging from construction delays, strikes and extreme
weather. The appellants did not complain of any of the delays on receipt of the
notices of extension.
[10]
In
October 2013, the appellants came from Vancouver and met twice with the
respondents décor consultant and selected finishes and upgrades for the unit.
They signed an Order Form dated October 5, 2013 specifying their selections and
agreeing to pay about $4,200 for the upgrades. The Form included an
acknowledgement that January 30, 2014 was the Confirmed Occupancy Date subject
to such further extensions required by the respondent under the Agreement and
the
Ontario New Home Warranties Plan Act,
R.S.O. 1990, c. O.31
.
[11]
In
November 2013, CIBC advised the appellants that the cancellation date for their
mortgage approval was approaching and that updated information and the name of
their solicitor were required. On December 9, 2013, Mr. Yong confirmed to CIBC
that they had retained a lawyer, Boris Zayachkowski of the Minden Gross LLP firm,
for the closing of the unit. He also advised that the builder had extended the
scheduled Confirmed Occupancy Date a few times already and that provision
should be made for possible future extensions of the February 14, 2014
Occupancy Date. Mr. Yong testified that on December 23, 2013, CIBC cancelled
the mortgage approval. The appellants unsuccessfully applied to other banks for
mortgage financing.
[12]
Mr.
Yong testified that with each letter of postponement of the Confirmed Occupancy
Date, he nonetheless strongly believed that the deal was ongoing and that,
until they contacted the lawyers, Miller Thomson LLP, he and his wife had to
honour the Agreement. The last two letters of postponement dated May 16, 2014
and June 27, 2014 for Confirmed Occupancy Dates of July 30, 2014 and August 20,
2014, respectively, were sent to the appellants lawyer, Mr. Zayachkowski,
and to the appellants. Both letters stated that, other than the Confirmed Occupancy
Dates, in all other respects, the terms of the Agreement remained unchanged and
time would remain of the essence.
[13]
The
appellants continued to try and assign the Agreement by contacting many real
estate agents. On November 29, 2013, Mr. Yong contacted one realtor, another in
February 2014, another on June 25, 2014, and he would periodically contact
Shelley Shapiro about assignments. She was described by Ms. Florian, the
developers director of sales and marketing, as a sales agent who worked at the
site and sold Pier 27 units, and by Mr. Yong, as the developers appointed
realtor from Sothebys. The trial judge stated at para. 81 of his reasons that
Mr. Yong testified that the respondent permitted the assignment somewhere
near the closing date.
[2]
[14]
On
July 3, 2014, the appellants received an email from Ms. Shapiro asking when
they would be taking occupancy and advising that she had someone who she would
be talking to about their suite. According to Mr. Yong, Ms. Shapiro advised
that she might have two prospective purchasers, but they wished to view the
unit before making an offer. He told Ms. Shapiro to arrange a viewing with the
developer. The appellants offered to pay the respondents cleaning expenses
associated with such access. They sought and were refused permission by the
respondent for an inspection. Apparently, there were logistical and liability
issues associated with permitting purchasers to walk through a partially
completed 700-unit building.
[15]
On
August 7, 2014, the appellants new lawyer, Odysseas
Papadimitriou
of Miller Thomson LLP, wrote to the respondents lawyer, Sheldon Spring of
Goldman, Spring, Kichler & Sanders LLP, stating that he had been retained
to review and respond to Mr. Springs June 27, 2014 correspondence. He noted
the numerous extensions of the Confirmed Occupancy Date and that the
respondents repeated delays and extensions suggested that it had failed to act
in good faith and to set bona-fide closing date estimates. He asked the
respondent on a without prejudice basis to advise whether it was agreeable to
terminating the Agreement and returning all deposits. He stated that he
believed it was incumbent on the respondent to permit rescission of the
Agreement.
[16]
On
August 19, 2014, Mr.
Spring
responded saying that
the appellants did not have the right to terminate the Agreement.
[17]
The
appellants did not take possession of the unit on August 20, 2014, and the
transaction did not close. Mr. Yong said that without mortgage financing, he
had no funds to pay and thus had no intention of taking occupation of the unit.
As a result, he instructed Mr.
Zayachkowski
that he
would seek a litigation lawyer to approach the developer for a return of the
monies that they had paid to the respondent.
[18]
On
August 29, 2014, Mr. Papadimitriou again wrote to Mr. Spring asking the respondent
to reconsider their offer. In addition, he took the position that the
respondent did not have the right to unilaterally extend the Confirmed Occupancy
Date beyond the 24 months permitted by the Agreement, and that by failing to
provide occupancy by November 30, 2012, the respondent had breached the
Agreement thereby entitling the appellants to terminate the Agreement with a
return of deposits. Absent an amicable resolution, the appellants lawyer had
instructions to commence a claim against the respondent.
[19]
Mr.
Spring responded on September 3, 2014. He stated that the appellants were in
default of the Agreement as they had failed to complete the transaction on
August 20, 2014 but as a courtesy and without prejudice, the respondent would
permit the appellants to complete the transaction on September 8, 2014. He
confirmed that the unit was ready for occupancy on August 20, 2014.
[20]
The
appellants did not take possession on September 8, 2014. On September 9, Mr.
Spring wrote to Mr. Papadimitriou advising that the Agreement was terminated
due to the appellants failure to complete the transaction on August 20,
2014.
[21]
The
appellants did not tender on July 30, 2014, the date set in the May 16, 2014
notice, or on August 20, 2014, the new date set in the June 27, 2014 notice.
The respondent kept the deposit funds paid by the appellants.
[22]
The
appellants brought an action for breach of the Agreement and sought return of
their deposit of $214,238.85, the increase in value of the unit as of the date
the Agreement was terminated, and punitive damages of $100,000 for dishonest
performance of the Agreement. In the alternative, they sought relief from
forfeiture of their deposit.
[23]
The
respondent subsequently sold the unit in 2016. The parties agreed that $93,000
represented the increase in value of the unit as of August 7, 2014.
C.
Trial Judges Decision
[24]
The
trial judge found that the respondent breached the Agreement by extending the
Confirmed Occupancy Date pursuant to notices dated May 16, 2013, November 1,
2013, December 13, 2013, May 16, 2014 and June 27, 2014. The June 27, 2014
notice established August 20, 2014 as the Confirmed Occupancy Date. He reasoned
that there was nothing in the Agreement that permitted the respondent to
arbitrarily extend the Confirmed Occupancy Date absent certain defined
circumstances or a cause beyond the respondents control. Neither of these had
arisen and he rejected the respondents submission that the causes of the
extensions were beyond its control. The finding that the respondent breached
the Agreement by extending the Confirmed Occupancy Date is not in issue on this
appeal. He also found that the appellants terminated the Agreement on August 7, 2014.
The parties do not take issue with this finding either. Furthermore, it is
consistent with the parties agreement fixing the increase in value of the
condominium as of the date of termination, namely August 7, 2014.
[25]
The
trial judge concluded that the issue of whether the respondent was dishonest in
its performance of the Agreement was moot but addressed it nonetheless, finding
that the respondent had conducted itself honestly. He also made findings of
credibility against the appellants, describing them as often being
argumentative, overstated, and inconsistent.
[26]
The
trial judge then considered whether the appellants had accepted the
respondents repudiation of the Agreement. He set out the governing legal
principles as described in
Ali v. O-Two Medical Technologies Inc.
,
2013 ONCA 733, 118 O.R. (3d) 321,
at para. 24:
Once the counterparty shows its intention not
to be bound by the contract, the innocent party has a choice. The innocent
party may accept the breach and elect to sue immediately for damages in which
case, the innocent party must
clearly and
unequivocally accept the repudiation to terminate the contract
:
Brown
, at para. 45. Alternatively,
the innocent party may choose to treat the contract as subsisting, continue to
press for performance and bring the action only when the promised performance
fails to materialize; by choosing this option, however, the innocent party is
also bound to accept performance if the repudiating party decides to carry out
its obligations: S.M. Waddams,
The Law of Contracts
, 6th ed. (Toronto: Canada Law Book 2010), at para. 621.
[27]
He
recognized that in the face of the respondents breach, the appellants could
accept the breach and sue for damages, but
they had to
clearly and unequivocally accept the repudiation to terminate the Agreement
.
He found that they had not. Rather, they had continued to press for
performance. He stated at para. 104 of his reasons:
However, the [appellants] continued to press
for performance of the [Agreement] after
each
of the five extensions of
the Confirmed Occupancy Date. Rather than treat the [Agreement] as at an end,
the [appellants] attended the [respondent]s office to select finishes and
upgrades for the Pier 27 Unit in October, 2013. Further, the [appellants]
attempted to assign the Pier 27 Unit on many occasions through numerous real
estate agents from November, 2013 until July, 2014. In July, 2014 the
[appellants] sought and were refused permission by the [respondent] to have two
prospective purchasers inspect the Pier 27 Unit. [Emphasis added.]
[28]
The
trial judge was accordingly satisfied that the appellants had treated the
Agreement as subsisting. Exercising his discretion, and considering all of the
circumstances, he also declined to grant relief from forfeiture.
D.
Grounds of Appeal
[29]
The
appellants raise four grounds of appeal. They submit that the trial judge
erred:
(i)
in his repudiation analysis: (a) in considering irrelevant factors
to conclude that the appellants had affirmed the Agreement, and (b) in failing
to consider the appellants lack of knowledge of the facts and their legal
rights to terminate the Agreement;
(ii)
in his quantification of damages;
(iii)
by failing to grant relief from forfeiture of the deposit; and
(iv)
in his assessment of costs.
[30]
The
respondent contests the appellants submissions, arguing that it was only when
it became clear that they could not assign the unit at a profit and it would be
necessary to close the purchase that the appellants decided the respondent had
repudiated the Agreement.
E.
Analysis
(1)
No
Acceptance of Respondents Repudiation
(a)
General
Principles
[31]
In
considering the issue of repudiation, it is helpful to address the governing
principles.
[32]
As
noted by Cronk J.A. in
Brown v. Belleville (City)
,
2013
ONCA 148,
114 O.R. (3d) 561, at para. 42, a repudiatory breach does not,
in itself, terminate the contract. If the non-repudiating or innocent party
[3]
does not accept the
repudiation, then the repudiation has no legal effect. In his text,
The Law
of Contract in Canada
, 6th ed. (Toronto: Carswell, 2011), Professor Gerald
Fridman explains as follows, at p. 595:
From the time that this kind of termination was recognized, it
was accepted that there could be no such thing as
unilateral
repudiation. Just as the
making of a contract requires the joint participation of both parties, an
offeror and an acceptor, so the discharge of a contract, even where the
discharge is by repudiation, in advance of the time for performance, also
requires the conformity and acquiescence of
both
parties. [Emphasis in original.]
[33]
Accordingly,
the consequences of a repudiation are stated to depend on the election made by
the innocent party. If the innocent party accepts the repudiation, the contract
is terminated (sometimes referred to as disaffirmation). Alternatively, the
innocent party may treat the contract as subsisting (sometimes referred to as
affirmation). See
Guarantee Co. of North America v. Gordon Capital Corp.
,
[1999] 3 S.C.R. 423, at para. 40.
(i)
Disaffirmation (Acceptance of the Repudiation of a Contract)
[34]
In
Brown
, at para. 45, Cronk J.A. explained that:
[T]he election to disaffirm the contract must
be clearly and unequivocally communicated to the repudiating party within a
reasonable time. Communication of the election to disaffirm or terminate the
contract may be accomplished directly, by either oral or written words, or may
be inferred from the conduct of the innocent party in the particular
circumstances of the case. [Citation omitted.]
[35]
Thus,
the acceptance of the repudiation must be clearly and unequivocally communicated.
That communication must be within a reasonable time. And, the communication may
be express or inferred from conduct. The contract is terminated if the innocent
party accepts the repudiation.
(ii)
Affirmation (Treating the Contract as Subsisting)
[36]
A
failure to accept a repudiation does not necessarily mean that the innocent
party has affirmed the contract. As with disaffirmation, the affirmation may be
express or inferred from conduct. A party who presses for performance will be
found to have affirmed the contract:
Ali
, at para. 24
.
The test is an objective one what
would a repudiating party reasonably understand from the words or conduct of
the innocent party. For instance, in
Dosanjh v. Liang
, 2015 BCCA 18,
380 D.L.R. (4th) 137,
Mr. Dosanjhs lawyer sent a letter that
Mr. Dosanjh was ready, willing and able to complete the transaction on the
scheduled date. The British Columbia Court of Appeal noted that the letter was
not consistent with an acceptance of repudiation, and the court concluded that
Mr. Dosanjh had made an election to affirm the contract.
[37]
The
court in
Dosanjh
also stated that [a] court will not find that an
innocent party has affirmed a contract in the absence of
clear
evidence leading it to that
conclusion: at para. 35 (emphasis added). This is the flip side of the rule
that the election to disaffirm a contract must be clear and unequivocal.
However, what then does a court do if the innocent party does not clearly
disaffirm the contract and does not clearly affirm the contract? This question
is particularly vexing given that, as discussed, a repudiation does not
terminate the contract. In my view, rather than asking whether the evidence is
clear, the proper question to ask is whether, in the circumstances of the
case, a person in the shoes of the repudiating party reasonably would have
understood that the innocent party was electing to keep the contract alive
until the date of performance.
[38]
This
approach is also consistent with the Supreme Courts commentary in
Gordon
Capital
. In that case, the court suggests that something less than
actively pressing for performance may amount to affirmation of the contract.
At para. 40, the court notes that [i]f [the innocent party]
treats the contract as still being in full force and
effect
, the contract remains in being for the future on both
sides (emphasis added). I read this as saying that conduct consistent with
the contract still being in force may amount to affirmation, whether or not it
can be said that the innocent party actively pressed for performance.
(iii)
The Middle Way
[39]
An
innocent party need not make its election immediately and may be given a
reasonable period of time to decide whether to affirm the contract or accept
the repudiation:
Dosanjh,
at para. 37;
Abraham v. Coblenz Holdings
Ltd.
, 2013 BCCA 512, 53 B.C.L.R. (5th) 94, at para. 28; and
Canada Egg
Products Ltd. v. Canadian Doughnut Co. Ltd.
, [1955] S.C.R. 398, at p. 407.
As stated in
Dosanjh
, at para. 37, at least until that reasonable
period of time has elapsed, a court should be slow to treat equivocal
statements or acts as affirmations of the contract.
[40]
A leading text (Hugh Beale, ed.,
Chitty
on Contracts
, 33rd ed. (London, UK:
Sweet & Maxwell, 2018))
puts it this way, at para. 24-002:
There is a sense in which there is a middle way open to the
innocent party in that he is given a period of time in which to make up his
mind whether he is going to affirm the contract or terminate. This point was
well-expressed by Rix L.J. in
Stocznia Gdanska SA v. Latvian Shipping Co.
(No. 2)
when he stated: In my judgment, there is of course a middle
ground between acceptance of repudiation and affirmation of the contract, and
that is the period when the innocent party is making up his mind what to do. If
he does nothing for too long, there may come a time when the law will treat him
as having affirmed. If he maintains the contract in being for the moment, while
reserving his right to treat it as repudiated if his contract partner persists
in his repudiation, then he has not yet elected. As long as the contract
remains alive, the innocent party runs the risk that a merely anticipatory
repudiatory breach, a thing writ in water until acceptance, can be overtaken
by another event which prejudices the innocent partys rights under the
contractsuch as frustration or even his own breach. He also runs the risk, if
that is the right word, that the party in repudiation will resume performance
of the contract and thus end any continuing right in the innocent party to
elect to accept the former repudiation as terminating the contract. [Citations
omitted.]
[41]
Depending
on the circumstances, inaction may be read either as a failure to elect or
affirmation of the contract. For instance, in his text,
The Law of
Contracts,
2nd ed. (Toronto: Irwin Law, 2012), Professor John D. McCamus
states, at pp. 703-4:
[A] mere failure to communicate an election to disaffirm to the
repudiating party will not preclude a subsequent election to disaffirm unless
the passage of time has resulted in significant prejudice to the repudiating
party or, in the circumstances, the silence of the innocent party is reasonably
interpreted as evidence of a decision to affirm the agreement.
(b)
Application of Principles
[42]
As
mentioned, the trial judge found that the respondent breached the Agreement by
extending the Confirmed Occupancy Date. The last breach occurred on June 27,
2014, which had extended the Confirmed Occupancy Date from July 30, 2014
to August 20, 2014. He also found that the appellants treated the Agreement as
subsisting and terminated it on August 7, 2014. There is no suggestion that the
appellants accepted the repudiation at any time prior to August 7, 2014.
[43]
This
appeal turns on whether the trial judge erred in finding that the appellants
affirmed the Agreement, or put differently, treated it as subsisting.
[44]
At
the time of the breach by the respondent on June 27, 2014, the appellants had various
alternatives available to them including:
(i)
treating
the Agreement as subsisting and insisting on closing on July 30, 2014
or implicitly or expressly agreeing to close on the new closing date of August
20, 2014;
(ii)
accepting
the repudiation which would put the Agreement at an end and would release the
appellants from closing on July 30, 2014; or
(iii)
doing
nothing and taking a reasonable time to consider their options. However, as
stated in
Chitty,
if the innocent parties do nothing for too long, the
law may treat them as having affirmed the contract.
[45]
The
appellants submit that the trial judge erred in treating the individual
repudiations cumulatively rather than separately. As a result, he conflated the
appellants conduct to ascertain whether they had pressed for performance when
instead, he should have relied on evidence of their conduct following the last
repudiation by the respondent.
[46]
I
do not agree with this submission. It is the case that each time the respondent
committed an act that amounted to a repudiation, the appellants were entitled
to affirm the Agreement and treat it as subsisting or accept the repudiation.
Just because they had previously affirmed the Agreement following the
respondents acts of repudiation did not mean that they were disentitled from
accepting the latest repudiation on June 27, 2014: see
Dosanjh
, at
para. 42.
[47]
However,
the trial judges discussion of the appellants conduct before and after June
27, 2014 must be considered in context. Before the trial judge, the appellants
argued that the Agreement had been breached on each of the occasions that the
trial judge addressed, that is, with each notice of extension.
This was for the most part consistent with their fresh as
amended statement of claim.
He accordingly commenced his analysis of this
issue by asking whether any of the respondents extensions of the Confirmed Occupancy
Date constituted a breach of the Agreement. He then proceeded to discuss the
appellants conduct that succeeded each of the breaches. I see nothing wrong in
this approach and it explains why he addressed all of the notices of extension
and not just that of June 27, 2014.
[48]
Second,
he did not treat the repudiations cumulatively nor did he conflate the
appellants conduct. Rather, he addressed each of the repudiations and
culminated with a discussion of the final repudiation. This is evident from the
language he used at para. 104 of his reasons: the appellants continued to
press for performance of the [Agreement] after
each
of
the five extensions of the
Confirmed Occupancy Date (emphasis added). It is also evident from his
reliance on post-June 27, 2014 conduct to sustain his conclusion. This conduct
included attempting to assign the unit in July 2014 and seeking and being
refused permission from the respondent to have two prospective purchasers
inspect the unit. Although not relied upon by the trial judge, the appellants
also offered to pay for the cleaning of the unit following the inspection and
Mr. Yong testified that they were open to realtors at that time. Once affirmed,
there was no additional breach by the respondent that gave rise to an election,
and therefore the appellants were precluded from relying on their lawyers
August 7, 2014 letter as constituting clear and unequivocal communication of
acceptance of the respondents June 27, 2014 repudiation.
[49]
Third,
none of the appellants conduct is consistent with acceptance of the
respondents repudiation but is consistent with affirmation of the Agreement.
Certainly, there was no clear and unequivocal communication of termination
until at best, August 7, 2014. Even when the appellants counsel wrote the
August 7, 2014 letter, the language sought permission to rescind the
Agreement. Moreover, a disaffirmation of the Agreement must be communicated
within a reasonable time. The last notice of extension of the Confirmed Occupancy
Date was sent on June 27, 2014, but the correspondence from the
appellants lawyer terminating the Agreement was sent on August 7, 2014, a week
after the penultimate closing date of July 30, 2014. By August 7, 2014, the
appellants conduct was consistent with an affirmation and an agreement to close
on August 20, 2014. Quite apart from the affirmatory conduct relied upon
by the trial judge, additionally, the appellants did nothing for too long and
the trial judge legitimately treated them as having affirmed the Agreement.
[50]
It
was open to the trial judge to find that the appellants continued to press for
performance of the Agreement after the June 27, 2014 extension of the Confirmed
Occupancy Date. Based on the evidence before him, the trial judge made the
requisite finding of conduct post June 27, 2014 and it was open to him to look
to the appellants previous conduct to assist in interpreting their later
behaviour, recognizing as he did that each extension of the Confirmed Occupancy
Date required affirmation.
[51]
The
trial judge identified and applied the correct legal test and made no palpable
and overriding errors in finding that the appellants treated the Agreement as
subsisting notwithstanding the respondents repudiation of the Agreement. I
would dismiss this ground of appeal.
[52]
I
would also add that, though not argued by the parties, even if there was no
election to affirm and no election to disaffirm, by default, at law, there
would be no election. Accordingly, on the July 30, 2014, closing date, the
Agreement continued. Neither party was ready, willing or able to close on that
date. As such, the rule in
King v. Urban & Country Transport Ltd.
(1973), 1 O.R. (2d) 449 (C.A.) was applicable. This rule was explained in
Domicile
Developments Inc. v. MacTavish
(1999), 45 O.R. (3d) 302 (C.A.) as follows:
In
King v. Urban
the purchaser was not in a position
to close on the closing date; but the vendor was also in default and not
entitled to rely on the time of the essence provision in the contract. Arnup
J.A. resolved the stalemate by applying two propositions:
1. When time is of the essence and neither party is ready to
close on the agreed date the agreement remains in effect.
2. Either party may reinstate time of the essence by setting
a new date for closing and providing reasonable notice to the other party.
[Footnote omitted.]
[53]
In
the case under appeal, the respondent proposed August 20, 2014, as the new date
but despite reasonable notice, the appellants did not close. The appellants
attempt to terminate the Agreement on August 7, 2014 was ineffective because
there was no repudiation in play that could be accepted at that time. Thus,
even if there were no affirmation by the appellants, the result would be the
same.
[54]
In
conclusion, on any analysis, the first prong of the appellants ground of appeal
based on repudiation must fail.
(2)
Alleged Lack of Knowledge
[55]
The
appellants also submit that the trial judge erred in failing to consider that
the appellants had insufficient knowledge to make an election. They argue that for
an effective affirmation, the innocent party must have knowledge of both the
facts and the legal right to choose between affirmation and termination of an
agreement in the face of a repudiation. They submit that the appellants had
neither.
[56]
For
the following reasons, I would not give effect to this ground of appeal.
[57]
First,
I note that this issue was not referenced in the appellants pleading which may
explain why it was not expressly addressed by the trial judge.
[58]
Second,
and more substantively, there can be no question that the appellants had
knowledge of the underlying facts. All of the extension letters, which clearly described
the cause and effect of each of the extensions, were sent to the appellants.
Moreover, it is evident from the appellants evidence at trial that they were
familiar with the factual state of affairs. As the closing was quickly
approaching, they were attempting to assign the Agreement and were still open
to all realtors. Mr. Yong testified that he never told the appellants real
estate lawyer, Mr. Zayachkowski, how unhappy he was, to get him out, or to get
his money back. It bears repeating that the appellants were not ingenue real
estate purchasers. Unquestionably, the appellants had knowledge of the facts
giving rise to the breaches described in Mr. Papadimitrious letter of August
7, 2014.
[59]
The appellants also allege that they had no knowledge of
their legal rights and in support, particularly rely on
Peyman v. Lanjani
,
[1984] 3 All E.R. 703 (C.A.).
[60]
As
noted by this court in
Samson v. Lockwood
, [1998] O.J. No. 2471, the
facts of
Peyman
were unusual in that the plaintiffs lawyer was a party
to the misrepresentations that grounded the plaintiffs legal rights. In
addition, the court in
Peyman
relied on
Coastal Estates Pty Ltd.
v. Melevende
, [1965] V.R. 433 (Austl. (Vic.) (S.C.)), which involved a
case of fraudulent misrepresentation. In
Samson
, Rosenberg J.A. wrote,
at para. 51:
In many cases, especially cases of fraudulent
misrepresentation, it may be that proof of knowledge of the legal right to
rescind should be a prerequisite to affirmation. However, I cannot accept that
proof of knowledge of legal rights was necessary in the circumstances of this
case. By August 1989, Mr. Lockwood was aware of the facts that gave him
the right to rescind. He had access to any number of lawyers and his own real
estate agent. He chose not to seek their opinion or advice.
[61]
In
the case under appeal, the trial judge found that there was no basis in the
evidence for suggesting that the [respondent] did not conduct itself honestly
throughout this transaction, and he also found that the respondent believed
that its extensions of the Confirmed Occupancy Dates were made for reasons
permitted by the Agreement and the Act. As such, there is no room for the
appellants to assert any fraudulent misrepresentations.
[62]
Moreover,
the appellants had access to lawyers and indeed other real estate professionals
throughout the real estate transaction. By December 9, 2013, they had retained
Mr. Zayachkowski to act for them and his continued involvement is evident from
the letters sent to him by the respondent advising of the last two extensions
of the Confirmed Occupancy Date. Mr. Yong advised Mr. Zayachkowski that
they were going to seek the assistance of a litigation lawyer to approach the
developer for a return of the monies they had paid to the respondent and this
resulted in the August 7, 2014 letter from Mr. Papadimitriou. The appellants
did not call either lawyer as witnesses at trial.
[63]
As
in
Samson
, the appellants had the opportunity to ascertain their legal
rights from professional advisors but, to the extent they may not have had
knowledge of their legal rights, exhibited total recklessness and indifference
to the need to inquire into their legal rights. This is so particularly given
that they had access to their real estate lawyer, Mr. Zayachkowski. Although in
Samson
,
Rosenberg J.A. left open the issue of whether
affirmation by conduct and something less than recklessness would deprive a
party of a right to rescind, the principles he articulated are applicable to
the facts of this case.
[64]
I
conclude that the trial judge did not err in determining that the appellants
had affirmed the Agreement. The appellants had knowledge of the underlying
facts and their affirmation of the Agreement is not rendered ineffective as a
result of any other legal infirmity.
[65]
For
these reasons, I would dismiss this component of the appellants first ground
of appeal. It follows that it is unnecessary to address damages. However, the
appellants claim relief from forfeiture in the alternative to which I will now
turn.
(3)
Relief from Forfeiture
[66]
Under
s. 21 of the Agreement, the deposits paid by the appellants were forfeited to
the respondent. Among other things, s. 21 provided that the deposits were
expressly deemed to be deposit monies only and not partial payments.
[67]
In
Azzarello v. Shawqi
, 2019 ONCA 820, 439 D.L.R. (4th) 127, at para. 45,
leave to appeal refused, [2019] S.C.C.A. No. 521, Feldman J.A. briefly summarized
the law relating to repudiation and real estate deposits stating:
It is well-established by case law that when a purchaser
repudiates the agreement and fails to close the transaction, the deposit is
forfeited, without proof of any damage suffered by the vendor: see
Tang v.
Zhang
, 2013 BCCA 52, 359 D.L.R. (4th) 104, at para. 30, approved by this
court in
Redstone Enterprises Ltd., v. Simple Technology Inc.
, 2017
ONCA 282, 137 O.R. (3d) 374. Where the vendor suffers no loss, the vendor may
nevertheless retain the deposit, subject to relief from forfeiture.
[68]
Under
s. 98 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43, a court may
grant relief against penalties and forfeitures, on such terms as to
compensation or otherwise as are considered just.
[69]
In
his reasons, the trial judge described the factors to be considered for the
purposes of relief from forfeiture as: whether the conduct of the party seeking
relief from forfeiture was reasonable, whether the object of the right of
forfeiture was to secure the payment of money, and whether there was a
substantial disparity between the value of the property forfeited and the
damage caused by the breach. The property forfeited in this case is of course
the deposit.
[70]
In
describing the factors, the trial judge relied on
Scicluna v. Solstice Two
Limited
, 2018 ONCA 176, 421 D.L.R. (4th) 675, which drew on
Saskatchewan
River Bungalows Ltd. v. Maritime Life Assurance Co.
, [1994] 2 S.C.R. 490,
an insurance case.
[71]
Other
authorities that have examined relief from forfeiture in the context of real
estate deposits have applied an arguably different test. See for example:
Varajao
v. Azish
, 2015 ONCA 218;
Redstone Enterprises Ltd. v. Simple
Technology Inc.
, 2017 ONCA 282, 137 O.R. (3d) 374; and
Azzarello
.
This test for relief from forfeiture, which is based on the English Court of
Appeal decision of
Stockloser v. Johnson
, [1954] 1 Q.B. 476 (C.A.
(Eng.)), poses two questions: (i) is the forfeited deposit out of all
proportion to the damages suffered; and (ii) would it be unconscionable for the
vendor to retain the deposit?
[72]
In
Redstone
, this court examined both questions. Lauwers J.A., writing
for himself, Sharpe and Hourigan JJ.A., referred with approval to the
five-person panel in
Tang v. Zhang
, 2013 BCCA 52, 359 D.L.R. (4th) 104.
In
Tang
, the vendor had been able to resell a $2 million property for
more than the original purchase price and had suffered no loss. Citing the
principles that underlie a deposit, the British Columbia Court of Appeal
overturned the relief from forfeiture of the $100,000 deposit granted by the
trial judge. One such principle identified in
Tang
, and approved by
Lauwers J.A., was that:
A true deposit is an ancient invention of the law designed to
motivate contracting parties to carry through with their bargains. Consistent
with its purpose, a deposit is generally forfeited by a buyer who repudiates
the contract, and is not dependant on proof of damages by the other party. If
the contract is performed, the deposit is applied to the purchase price.
[73]
Following
upon that decision, and mindful of the recognition of the advantages of
allowing parties to define for themselves the consequences of breach and the
need for contractual certainty, in
Redstone
, Lauwers J.A. reasoned
that the fact that the vendor suffered no damages did not in itself render the
forfeiture of the entire deposit of $750,000 unconscionable. He stated at para.
25 that the finding of unconscionability must be an exceptional one, strongly
compelled by the facts of the case and noted, at para. 30, that the list of the
indicia of unconscionability is never closed. Ultimately, this court concluded
that the vendor was entitled to retain the full deposit paid by the purchaser
in the face of no evidence of any damages.
[74]
As
neither party to this appeal challenged the trial judges description of the
applicable test, it is unnecessary to determine which test applies. The
resolution of that issue is best left for another time and another case where
the subject is fully argued and briefed.
[75]
On
this appeal, the appellants make two submissions. First, they submit that the trial
judge failed to consider his own finding that the respondent repudiated the
Agreement on five separate occasions. I accept that the trial judge did not
expressly address his earlier finding in this regard. However, the trial judge
did describe the appellants argument to this effect and, that being so, I do
not see any reason to conclude that he did not take that finding into account
in reaching his conclusion on this issue. I also note that the trial judge did
say that he was considering all the circumstances in reaching his conclusion
and his summary of the appellants position preceded this statement by a mere
three paragraphs.
[76]
Second,
the appellants say that by improperly concluding that almost all of the amount
of the appellants deposit covered the damages suffered by the respondent, he
erred in not granting relief from forfeiture.
[77]
I
do not agree.
[78]
As the Supreme Court stated in
Saskatchewan River
, relief from
forfeiture is an equitable and discretionary remedy.
Absent a legal or
palpable and overriding error, it is not for this court to substitute its
discretion for that of the trial judge. Based on the record before him, he
reasonably concluded that the respondent incurred expenses of approximately
$227,544.24 consequent on the appellants breach.
[4]
The trial judge considered these expenses, the quantum of the deposit, and the
increased proceeds of disposition received by the respondent on the resale of
the property but chose not to exercise his discretion in favour of the
appellants. Relief from forfeiture is not simply a mathematical formula; it is
an exercise of discretion. Although the respondent ultimately may have gained
approximately $100,000 from the transaction, I am unable to conclude that the
trial judges refusal to grant relief from forfeiture of the appellants
deposit was infected with error.
[79]
I
would also add that the retention of the deposit by the respondent vendor in
this case is consistent with the objective of a deposit and the prospect of its
forfeiture as described in
Benedetto v. 2453912 Ontario Inc.
, 2019
ONCA 149, 86 B.L.R. (5th) 1, at para. 14: a forfeited deposit does not
constitute damages for breach of contract, but stands as security for the
performance of the contract. See also
Benedetto
, at paras. 6-7;
Tang
,
at paras. 20-24, 30.
[80]
However,
I would add two important caveats to my conclusion on the issue of relief from
forfeiture. First, it is of significance that the appellants did not challenge
the quantum of the damages that the respondent said arose from the appellants failure
to close the transaction nor did they challenge any of the constituent elements
of the respondents damages. In other words, the appellants did not argue that
any of these elements should not be considered as proper heads of damage in
light of the respondents prior breaches.
[81]
Second,
because the decision on relief from forfeiture is an inherently discretionary
one based on the specific facts of a particular case, developers who act in a
manner, such as the respondent did here, by which they do not honour their
contractual obligations, should not expect that such a favourable outcome will
necessarily be the result in future cases.
[82]
For
these reasons, I would not interfere with the trial judges refusal to grant
relief from forfeiture.
(4)
Costs
[83]
The
appellants argue that particularly if the respondent is permitted to retain the
deposit, the costs award of $68,713.62 inclusive of disbursements and tax in
favour of the respondent should be replaced with no order for costs. In their
submissions, the appellants rely upon this courts decision in
Payer v.
Peerless Plating Rack Co.
(1998), 37 O.R. (3d) 781 (C.A.) and argue that
the respondent obtained a windfall which should have been reflected in the
costs award.
[84]
Absent
an error in principle or an award that is plainly wrong, a trial judges
exercise of discretion in the award of costs is entitled to deference:
Hamilton
v. Open Window Bakery Ltd.
, 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.
[85]
The
oral costs reasons given by the trial judge were summary in nature and mainly focused
on the respondents request for substantial indemnity costs which he properly
dismissed. He touched upon
Payer
but considered it to be inapplicable
because in the context of his forfeiture analysis, he had found that the
respondent had not obtained a windfall.
[86]
Payer
involved claims by an estate against various parties. Due to an inadvertent
failure to cancel an insurance policy, the company in which the deceased had formerly
held an interest, but which had no insurable interest, received a windfall upon
the deceaseds death. Even though the company was successful on the appeal, this
court concluded that it would be inappropriate for it and the deceaseds former
business partner to recover any costs on the appeal or the trial because they
had received a windfall.
[87]
In
the case under appeal, the conclusion that the respondent did not receive a
windfall sufficient to invoke relief from forfeiture is not determinative of
the costs award, and the trial judge erred in principle in treating the finding
as such. Although not disproportionate or unconscionable for the purposes of
forfeiture, based on the
Payer
decision, the $100,000 ought not to
have been disregarded simply due to its characterization in the forfeiture
analysis. This was an error in principle.
[88]
Although
the respondent breached the Agreement on five occasions, the appellants lost
their mortgage approval as a result, and the respondent ultimately earned a net
profit of approximately $100,000, the respondent was successful in the action
and arguably should be entitled to its costs. That said, even though this court
is extremely reluctant to interfere with a trial judges award of costs, in the
unusual circumstances of this case where the respondent ultimately gained
approximately $100,000, it is fair and reasonable for the parties to bear their
own costs of both the trial and the appeal and I would so order.
F.
Disposition
[89]
For
these reasons, I would dismiss the appeal, grant leave to the appellants to
appeal the costs award, vacate the costs award of $68,713.62 in favour of the
respondent, and order the parties to bear their own costs of the trial and the
appeal.
Released: July 30, 2021 S.E.P.
S.E. Pepall J.A.
I agree. I.V.B. Nordheimer
J.A.
I agree. Thorburn J.A.
[1]
The developers were Cityzen Development Group and Fernbrook
Homes.
[2]
In fact, Mr. Yong testified that the developer granted the
assignment.
[3]
Rather than repeating the
non-repudiating or innocent party formulation, I will use the words innocent
party throughout.
[4]
The trial judge calculated the respondents costs as including occupancy fees
($82,686.35), a staging fee ($55,223.10), the listing commission ($12,594), and
the real estate commission on sale ($121,400). To avoid double counting, he
deducted a notional commission of $38,485.71 plus taxes, which was due to the
brokerage firm, and a listing commission of $5,873.50 to account for the
respondents expenses had the appellants closed in August 2014.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Fontaine v. Canada (Attorney General), 2021 ONCA
550
DATE: 20210729
DOCKET: M52692 (C68080)
Fairburn A.C.J.O., Roberts and Thorburn JJ.A.
BETWEEN
Larry
Philip Fontaine in his personal capacity and in his capacity as the Executor of
the estate of Agnes Mary Fontaine, deceased, Michelline Ammaq,
Percy Archie, Charles
Baxter Sr., Elijah Baxter, Evelyn Baxter, Donald Belcourt, Nora Bernard, John
Bosum, Janet Brewster, Rhonda Buffalo, Ernestine Caibaiosai-Gidmark, Michael
Carpan, Brenda Cyr, Deanna Cyr, Malcolm Dawson, Ann Dene, Benny Doctor, Lucy
Doctor, James Fontaine in his personal capacity and in his capacity as the
Executor of the estate of
Agnes Mary Fontaine,
deceased, Vincent Bradley Fontaine,
Dana Eva Marie
Francey, Peggy Good, Fred Kelly, Rosemarie Kuptana, Elizabeth Kusiak, Theresa
Larocque, Jane McCullum, Cornelius McComber, Veronica Marten, Stanley Thomas
Nepetaypo, Flora Northwest,
Norman
Pauchey, Camble Quatell, Alvin Barney Saulteaux, Christine Semple, Dennis
Smokeyday, Kenneth Sparvier, Edward Tapiatic, Helen Winderman and Adrian
Yellowknee
Plaintiffs
and
The
Attorney General of Canada
, The Presbyterian Church in Canada,
The General Synod of
the Anglican Church of Canada, The United Church of Canada, The Board of Home
Missions of the United Church of Canada,
The Womens
Missionary Society of the Presbyterian Church, The Baptist Church in Canada,
Board of Home Missions and Social Services of the Presbyterian Church in Bay,
The Canada Impact North Ministries of the Company for the Propagation of the
Gospel in New England (also known as The New England Company), The Diocese of
Saskatchewan, The Diocese of the Synod of Cariboo, The Foreign Mission of the
Presbyterian Church in Canada, The Incorporated Synod of the Diocese of Huron,
The Methodist Church of Canada, The Missionary Society of the Anglican Church
of Canada,
The Missionary
Society of the Methodist Church of Canada (also known as the Methodist
Missionary Society of Canada), The Incorporated Synod of the Diocese of Algoma,
The Synod of the Anglican Church of the Diocese of Quebec, The Synod of the
Diocese of Athabasca, The Synod of the Diocese of Brandon, The Anglican Synod
of the Diocese of British Columbia, The Synod of the Diocese of Calgary, The
Synod of the Diocese of Keewatin, The Synod of the Diocese of QuAppelle, The
Synod of the Diocese of New Westminster,
The
Synod of the Diocese of Yukon, The Trustee Board of the Presbyterian Church in
Canada, The Board of Home Missions and Social Service of the Presbyterian
Church of Canada, The Womens Missionary Society of the United Church of
Canada, Sisters of Charity, a Body Corporate also known as Sisters of Charity
of St. Vincent de Paul, Halifax, also known as Sisters of Charity Halifax,
Roman Catholic Episcopal Corporation of Halifax, Les Soeurs de Notre
Dame-Auxiliatrice, Les Soeurs de St. François dAssise, Institut des Soeurs du
Bon Conseil, Les Soeurs de Saint-Joseph de Saint-Hyacinthe, Les Soeurs de
Jésus-Marie, Les Soeurs de lAssomption de la Sainte Vierge, Les Soeurs de
lAssomption de la Sainte Vierge de lAlberta, Les Soeurs de la Charité de
St.-Hyacinthe, Les Oeuvres Oblates de lOntario, Les Résidences Oblates du
Québec, La Corporation Épiscopale Catholique Romaine de la Baie James (The
Roman Catholic Episcopal Corporation of James Bay), The Catholic Diocese of
Moosonee, Les Soeurs Grises de Montréal/Grey Nuns of Montreal, Sisters of
Charity (Grey Nuns) of Alberta, Les Soeurs de la Charité des T.N.O., Hotel-Dieu
de Nicolet, The Grey Nuns of Manitoba Inc. Les Soeurs Grises du Manitoba
Inc., La Corporation Épiscopale Catholique Romaine de la Baie dHudson The
Roman Catholic Episcopal Corporation of Hudsons Bay, Missionary Oblates
Grandin Province, Les Oblats de Marie Immaculée du Manitoba, The
Archiepiscopal Corporation of Regina, The Sisters of the Presentation, The
Sisters of St. Joseph of Sault St. Marie, Sisters of Charity of Ottawa, Oblates
of Mary Immaculate St. Peters Province, The Sisters of Saint Ann, Sisters of
Instruction of the Child Jesus, The Benedictine Sisters of Mt. Angel Oregon,
Les Pères Montfortains, The Roman Catholic Bishop of Kamloops Corporation Sole,
The Bishop of Victoria, Corporation Sole, The Roman Catholic Bishop of Nelson,
Corporation Sole, Order of the Oblates of Mary Immaculate in the Province of
British Columbia, The Sisters of Charity of Providence of Western Canada, La
Corporation Épiscopale Catholique Romaine de Grouard, Roman Catholic Episcopal
Corporation of Keewatin, La Corporation Archiépiscopale Catholique Romaine de
St. Boniface, Les Missionnaires Oblates Soeurs de St. Boniface The Missionary
Oblates Sisters of St. Boniface, Roman Catholic Archiepiscopal Corporation of
Winnipeg, La Corporation Épiscopale Catholique Romaine de Prince Albert, The
Roman Catholic Bishop of Thunder Bay, Immaculate Heart Community of Los Angeles
CA, Archdiocese of Vancouver The Roman Catholic Archbishop of Vancouver,
Roman Catholic Diocese of Whitehorse, The Catholic Episcopal Corporation of
Mackenzie-Fort Smith, The Roman Catholic Episcopal Corporation of Prince
Rupert, Episcopal Corporation of Saskatoon, OMI Lacombe Canada Inc. and Mt.
Angel Abbey Inc.
Defendants (
Respondent
)
Joanna Birenbaum, for the appellant National Centre for
Truth and Reconciliation
Catherine A. Coughlan and Brent Thompson, for
the respondent Attorney General of Canada
Stuart Wuttke and Jeremy Kolodziej, for the respondent
Assembly of First Nations
P. Jonathan Faulds, Q.C., for the respondent National Administration
Committee
Heard: in writing
On appeal from the order of
Justice Paul M. Perell of the Superior Court of Justice, dated January 20,
2020, with reasons reported at 2020 ONSC 366.
REASONS FOR DECISION
[1]
By reasons released on April
1, 2021, this court allowed in part the appeal by the National Centre for Truth
and Reconciliation (NCTR) of the January 20, 2020 order of the Eastern
Administrative Judge, Paul M. Perell J., regarding the disposition of proposed
statistical reports and records arising out of the Indian Residential Schools
Settlement Agreement (IRSSA) and the Independent Assessment Process (IAP). Specifically,
this court ordered that the proposed statistical reports (Static Reports) be
prepared by the Chief Adjudicator and produced under seal to Perell J. for the
purpose of addressing issues of confidentiality, reliability and archival
utility.
[2]
As set out in paragraph 86
of this courts reasons, given that the Chief Adjudicators mandate was
scheduled for completion on March 31, 2021, it was recognized that further
direction may be required concerning next steps:
Accordingly, we order that any proposed Static Reports be
produced in final form by the Chief Adjudicator, placed under seal, and
submitted to the Supervising Judge prior to the rehearing. If the Chief
Adjudicator is unable to produce the proposed Static Reports prior to the
closure of the Secretariat, the parties may seek direction from this court.
[3]
The Chief Adjudicator was
not able to prepare the Static Reports because of the completion of his
mandate. As a result, the NCTR brought a motion for directions to this court asking
that an independent third-party statistical expert be appointed to prepare the Static
Reports. Canada opposes the NCTRs motion; it takes the position that Canada
should prepare the Static Reports.
[4]
During case management of
the NCTRs motion for directions, a preliminary issue arose as to whether the
motion should be heard by this court or remitted to Perell J. for management
and determination. Written submissions on this preliminary issue were requested
and delivered.
[5]
The NCTR, supported by the
Assembly of First Nations (AFN) and the National Administration Committee
(NAC), submits that for reasons of efficiency, consistency with this courts
April 1 order, and judicial independence and integrity, this court should hear
the NCTRs motion for directions in order to give effect to its order that the Static
Reports be produced. The NCTR contends that the judge who will adjudicate on
the reports, once they are produced, should not also have been involved in
determining how the reports should be prepared.
[6]
Canada disagrees and
maintains that the motion for directions to determine who should prepare the Static
Reports is more properly brought before Perell J. who, as the Eastern
Administrative Judge, has jurisdiction to deal with IRSSA matters, has already dealt
with the other motions concerning the disposition of the records related to the
IRSSA and IAP, and to whom this court remitted the Static Reports issue by its
April 1, 2021 order. It would be inappropriate and inefficient for this court
to have an ongoing supervisory role over these issues.
[7]
There is nothing in
paragraph 86 of this courts reasons that seizes this court with determining
who should prepare the Static Reports. While the parties were invited to seek
directions from this court if the Chief Adjudicator was unable to produce the
Static Reports, that is precisely what the court is now engaged in, providing
directions on how to move forward. We agree with Canadas position.
[8]
It is not appropriate or
desirable that we determine this issue. It may have been a different matter if
the parties had come to an agreement regarding the appointment of the person
who will prepare the Static Reports and were simply seeking a consent order. However,
as Mr. Faulds quite rightly pointed out in his submissions for the NAC, the
proceedings concerning the Static Reports have been contentious. They continue
to be so. The adjudication of the issue of who should prepare the Static Reports
will require an exchange of affidavit and other materials and, possibly,
cross-examinations. It is therefore a more appropriate and expedient use of
judicial resources for the issue to be managed, litigated and determined in the
Superior Court of Justice.
[9]
We are also of the view that
the matter should be remitted to Perell J. In 2013, Perell J. was appointed the
Eastern Administrative Judge to implement and administer the IRSSA and make
directions regarding the disposition of the IAP documents. He has therefore
gained extensive knowledge and experience in dealing with all matters arising
out of the IRSSA and IAP for Ontario. Accordingly, Perell J. is well positioned
to determine this issue. This is particularly so given that this court has already
remitted to him the related issue of addressing the questions of the
confidentiality, reliability and archival utility of the Static Reports. Therefore,
he is best placed to determine the issue of who should prepare the Static Reports.
[10]
Accordingly, we order that
the NCTRs motion for directions be remitted to Perell J. for case management
and adjudication.
[11]
In the circumstances, we make
no order as to costs.
Fairburn A.C.J.O.
L.B. Roberts J.A.
J.A. Thorburn J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Hacopian-Armen Estate v. Mahmoud,
2021 ONCA 545
DATE: 20210729
DOCKET: C68655
Strathy C.J.O., Feldman and
Sossin JJ.A.
BETWEEN
Armen
Hacopian-Armen as Litigation Administrator for the Estate of Armineh
Hacopian-Armen, deceased, Armen Hacopian-Armen as Estate Trustee for the Estate
of Vrijouhi Casper, deceased and Armen Hacopian-Armen,
personally
Plaintiffs (Respondents)
and
Dr. Haidar Mahmoud
, Dr. Hassan Deif, Dr. Neil Isaac,
and North York General Hospital
Defendant (
Appellant
)
Kosta Kalogiros and Brittany Cerqua,
for the appellant
Christopher I.R. Morrison and Paul J.
Cahill, for the respondents
Heard: May 20, 2021 by video conference
On appeal from the judgment of Justice Carole
J. Brown of the Superior Court of Justice, dated August 19, 2020, with reasons
reported at 2020 ONSC 4946.
Strathy C.J.O.:
A.
BACKGROUND
[1]
This appeal raises issues of factual and legal
causation in the context of a medical negligence action.
[2]
Armineh died on August 24, 2011, as a result of Stage IV uterine leiomyosarcoma ("uLMS"), which had metastasized to her lungs. The respondents, members of her family, brought this action against the appellant, her gynecologist. They alleged that the appellant was negligent when he examined Ms. Hacopian-Armen on May 25, 2009, in failing to conduct an endometrial biopsy, a simple in-office procedure for the detection of uterine pathologies and abnormalities. The respondents claimed that this would probably have detected her cancer at an early stage, when treatment would likely have been effective.
[3]
The trial judge found that: the appellant
breached the applicable standard of care; Ms. Hacopian-Armen and family members
had suffered damages as a result; the damage was foreseeable; and the
appellants negligence was causative of the damages.
[4]
On appeal, the appellant does not challenge the
trial judges finding that he breached the standard of care by failing to
perform an endometrial biopsy. He alleges, however, that the trial judge erred
in concluding that his breach of duty caused Ms. Hacopian-Armens death.
B.
FACTS
[5]
To appreciate the issues in this appeal, it is
necessary to understand the nature and progress of Ms. Hacopian-Armens condition
and the course of treatment she received.
[6]
Ms. Hacopian-Armen was diagnosed with fibroids
in 1999. Fibroids, also called leiomyoma, are benign, non-cancerous growths
that develop in smooth muscle tissues. Uterine fibroids develop in the
myometrium, the smooth muscle of the uterus. Fibroids are common, but the
majority are asymptomatic they are frequently very small and cause no problems.
They can, however, grow to a significant size, and their size and location can
cause pain, heavy bleeding and other symptoms. Fibroids can be treated in
several ways, including a procedure known as uterine artery embolization, in
which the blood supply to the fibroid is restricted, causing it to shrink and
the symptoms to subside.
[7]
Counsel called uLMS the evil twin of fibroids.
It is a rare form of cancer that, like fibroids, also originates in the
myometrium. It has features similar to fibroids and cannot be distinguished
from fibroids on imaging. For that reason, it frequently goes undetected. It is
a very aggressive form of cancer and there is often a poor prognosis when it is
discovered.
[8]
The uterus has a hollow inner cavity. The
interior lining of the uterus is called the endometrium. It, in turn, is
surrounded by the muscular wall of the myometrium.
[9]
An endometrial biopsy was described by the
experts as a simple procedure that can be done in a gynecologists office and
takes only a minute or two. A narrow, straw-like instrument, called a cannula
or pipelle is inserted through the cervix into the uterine cavity. There, it
can be manipulated to suction out a small sample of tissue. The tissue sample can
then be tested to detect the presence of uterine malignancies or abnormalities,
including uterine and endometrial cancers. Depending on certain conditions,
discussed by the experts at trial, it may also detect uLMS.
[10]
In 2004, some five years after the diagnosis of
her fibroids, Ms. Hacopian-Armen began to experience heavy bleeding, with
clots, during her menstrual periods. This bleeding lasted approximately two
weeks each month. In 2009, her family physician referred her to the appellant for
treatment.
[11]
At her first appointment with the appellant on May
25, 2009, she presented with what the respondents experts described as several
risk factors for diseases of the uterus and intrauterine pathology: she was
over 40 years old (in fact, she was 47); she was experiencing abnormal uterine
bleeding (AUB); and she was nulliparous she had never given birth to a
child. The appellant took a vaginal swab but did not perform an endometrial
biopsy. He referred her to another physician to discuss the possibility of
treating her fibroids with uterine artery embolization.
[12]
A few months after her first appointment with
the appellant, Ms. Hacopian-Armen began to experience several health problems.
In August 2010, she visited the emergency room four times because she felt
weak, had heart palpitations, or was short of breath. These visits to the ER
led to a variety of tests, which revealed that she had deep vein thrombosis (DVT)
and pulmonary nodules.
[13]
In February 2011, two new lung nodules were
discovered during a CT scan. In March 2011, Ms. Hacopian-Armen met with a
specialist in respiratory and internal medicine at North York General Hospital.
The specialist noted that her recurrent DVT and the new lesions on her lungs
indicated that she possibly had cancer. The specialist sent a consultation
request to the appellant indicating that she needed a Pap test as soon as
possible.
[14]
On April 7, 2011, the appellant performed an
endometrial biopsy, which indicated that Ms. Hacopian-Armen had a high-grade
cancerous tumour in her uterus, likely uLMS. At this point, her cancer had
metastasized to Stage IV.
[15]
In May 2011, Ms. Hacopian-Armen had a
hysterectomy and began chemotherapy. Despite these treatments, the disease
progressed. Ultimately, she died on August 24, 2011.
C.
THE TRIAL JUDGES REASONS
(1)
Overview
[16]
There were three issues before the trial judge:
the standard of care, factual causation, and legal causation. The trial judge
concluded at para. 156 that: (i) the appellant breached the standard of care
that he owed to Ms. Hacopian-Armen by failing to perform an endometrial biopsy;
(ii) a biopsy performed at the first appointment on May 25, 2009 would have
detected the uLMS and thus significantly improved her prognosis; and (iii) the
harm that occurred was foreseeable and related to the appellants failure to
perform the biopsy.
[17]
I will explain the trial judges analysis and
conclusions on each of these three issues, but first I will explain the role of
expert evidence at the trial.
(2)
Expert Witnesses
[18]
The trial judges acceptance of the evidence of
the respondents experts, in preference to that of the appellants experts,
figured large in her findings of fact: at para. 90. The respondents experts
provided opinions on the standard of care, causation, and the identification of
metastatic disease. While the appellant contested the respondents submissions
on the standard of care, he led no evidence on this issue. His experts only
provided opinions on causation. I will identify the principal experts.
(a)
Respondents Experts
[19]
Dr. Allan Covens was a specialist in
gynecological oncology that is, the diagnosis and treatment of cancers of the
female reproductive system. He held the position of Chair of the Division of
Gynecologic Oncology in the Department of Obstetrics and Gynecology at the
University of Toronto. He was also the head of the Division of Gynecologic
Oncology at the Odette Cancer Centre at Sunnybrook Hospital in Toronto. He runs
a weekly gynecology-oncology clinic, which investigates AUB, among other things.
He was qualified to give evidence on the issues of standard of care and
causation.
[20]
Dr. Andrew Browning was an obstetrician and
gynecologist with some 27 years experience. He had served for two years as
Chief of Obstetrics and Gynecology at the Royal Victoria Hospital Regional
Health Centre in Barrie, Ontario. He had extensive experience treating fibroids
and AUB. He was qualified to give evidence on the issues of standard of care
and causation.
(b)
Appellants Experts
[21]
Dr. George Vilos was an obstetrician and
gynecologist with a primary appointment as a gynecologist in the Department of
Obstetrics and Gynecology at the London Health Sciences Centre. He was also a
professor in the Department of Obstetrics and Gynecology at the Schulich School
of Medicine at the University of Western Ontario. He gave evidence in relation
to causation and the likelihood of detecting uLMS with an endometrial biopsy.
[22]
Dr. Nicholas Leyland was a specialist in
gynecological oncology, focusing on general gynecology. His evidence was
confined to the likelihood of detecting uLMS with an endometrial biopsy.
[23]
Dr. Jason Dodge had been a gynecological
oncologist until August 2015 and, at the time of trial, had been practicing
gynecology in general practice. He was qualified to give evidence on causation.
(c)
The Trial Judges Assessment of the Expert Evidence
[24]
The trial judge specifically commented on the
credibility of the experts, all of whom were well qualified in their fields.
She found the evidence of the respondents experts, Dr. Browning and Dr. Covens,
to be forthright, impartial and consistent and found their testimony to be
credible.
[25]
In contrast, while the trial judge found the
appellants experts to be knowledgeable, she found their evidence in
cross-examination contradicted their evidence-in-chief, they were less than
forthright in cross-examination and were argumentative.
[26]
At para. 90 of her reasons, she explained that
she preferred the evidence of the respondents experts:
Based on the evidence, the medical records,
the agreed statements of fact, the reports and testimony of the experts, where
there is a discrepancy between the testimony of the plaintiffs experts and the
testimony of the defendants experts, I prefer the evidence of the plaintiffs
experts, unless I state otherwise.
[27]
As I will explain, in an appeal that is largely
fact-based, the trial judges assessment of the frequently conflicting evidence
of experts is entitled to deference in the absence of palpable and overriding
error.
[28]
Against this background, I turn to the trial
judges findings in relation to the issues before her.
(3)
Part I: The Standard of Care
[29]
The trial judge first considered whether the
appellant breached the applicable standard of care by failing to perform an
endometrial biopsy. At para. 104 of her reasons, she set out the standard of
care as that of a reasonable and prudent physician of the same experience and
standing, having regard to all the circumstances of the case.
[30]
The trial judge found that the appellant had
breached the standard of care by failing to consider and perform an endometrial
biopsy as recommended by the Guidelines of the Society of Obstetricians and
Gynecologists of Canada for the Management of AUB (the Guidelines). The
Guidelines recommended an endometrial biopsy for patients over 40 who
experienced AUB, in order to rule out abnormal pathologies. Ms. Hacopian-Armen presented
with both risk factors.
[31]
The appellant argued that he did not contravene
the Guidelines because Ms. Hacopian-Armen did not have AUB. Without this risk
factor, he contended, a biopsy was not required. The appellant submitted that she
did not have AUB because her menstrual period occurred regularly, every two
weeks, and the heavy bleeding was attributable to her fibroids. The trial judge
rejected this submission. Ms. Hacopian-Armens heavy bleeding began five years
after she was diagnosed with fibroids. The trial judge accepted the respondents
experts opinion that two weeks of heavy bleeding per month was highly abnormal:
at para. 115.
(4)
Part II: Factual Causation
[32]
The trial judges causation analysis turned on
three questions, set out at para. 96 of her reasons:
1.
Did Ms. Hacopian-Armen have uLMS at the time of
her first appointment with the appellant on May 25, 2009?
2.
If so, would an endometrial biopsy performed on
May 25, 2009 have detected abnormal pathology or uLMS?
3.
If so, would her prognosis likely have been
substantially improved as a result?
[33]
Both of the respondents experts opined that Ms.
Hacopian-Armen likely had Stage I uLMS on May 25, 2009: at para. 149.
[34]
Dr. Browning testified that her AUB in May 2009
was likely caused by the presence of cancerous cells in her uterus. Both Dr.
Browning and Dr. Covens testified that uLMS was likely present on May 25, 2009
because the cancer had reached Stage IV by April 2011. The trial judge accepted
this evidence: at para. 149.
[35]
The trial judge also accepted the respondents
experts opinions that an endometrial biopsy performed on May 25, 2009 would
have likely detected abnormal pathology or uLMS: at para. 146. The medical
literature explained that the sensitivity for the detection of uLMS is
increased in patients who are menopausal. Dr. Browning and Dr. Covens testified
that, in their opinion, women who are nulliparous have a much greater likelihood
of early menopause and Ms. Hacopian-Armen was probably close to menopause. The
trial judge accepted this evidence and found that Ms. Hacopian-Armen was
hormonally closer to post-menopause than pre-menopause given her age and the
fact that she was nulliparous: at para. 146.
[36]
The appellant relied on scientific studies to
argue that it was unlikely that an endometrial biopsy could have detected the uLMS
because imaging from 2009 showed that the uLMS had not yet broken through the
endometrium into the uterine cavity. The trial judge rejected this argument, accepting
the evidence of the respondents experts that it was likely that uLMS was in or
near the endometrium, causing AUB, which would further increase the likelihood
of detection.
[37]
Finally, the trial judge found that Ms.
Hacopian-Armens prognosis would have been substantially improved if the uLMS had
been found and treated in 2009: at para. 150. The trial judges conclusion was,
again, largely based on the evidence of the respondents experts. Dr. Browning
noted that early intervention would have likely included a hysterectomy, which
would have removed the cancer that had not yet metastasized to the rest of the
body. Dr. Covens testified that treatment for the Stage I uLMS in 2009 would have
effectively been a cure.
[38]
Having found that she likely had uLMS at her
first appointment with the appellant, that an endometrial biopsy would have
likely detected abnormal uterine pathology or uLMS, and that her prognosis
would have been substantially improved, the trial judge concluded that the
respondents had proved factual causation on a balance of probabilities. In
other words, but for the appellants failure to perform the biopsy in May 2009,
Ms. Hacopian-Armen would probably not have died of Stage IV uLMS.
(5)
Part III: Legal Causation
[39]
On the third and last issue of legal causation,
the trial judge considered whether Ms. Hacopian-Armens death was foreseeable
and sufficiently connected to the appellants failure to perform an endometrial
biopsy. She found that the risk of uLMS was real, and that it was not something
that a reasonable, skilled, specialist would have brushed aside as
far-fetched: at para. 155. She also concluded that it was foreseeable that the
presence of uLMS, if not treated, would likely result in serious injury or
death.
(6)
Part IV: Disposition and Damages
[40]
As a result of her findings, the trial judge
held, at para. 157, that the appellant was liable for his negligence. The
respondents were awarded $300,000 in damages.
D.
issues on appeal
[41]
The appellant does not challenge the trial
judges finding that he breached the standard of care by failing to perform an
endometrial biopsy. He does, however, allege several errors in the trial
judges analysis and conclusions on legal and factual causation.
(1)
Legal Causation
[42]
The appellant acknowledges that the trial judge
correctly identified the principles of legal causation set out at para. 155 of
her reasons. He submits, however, that her analysis was inconsistent with these
principles and that she erred by engaging in a retrospective approach to
causation. He asserts that the trial judge erred by asking whether it was
foreseeable that the presence of uLMS, if untreated, would lead to serious
injury or harm. According to the appellant, the correct question was whether
uLMS, specifically, was foreseeable in May 2009.
[43]
To answer this question, the appellant submits
that the trial judge should have asked whether it would occur to a reasonable
gynecologist that: (i) Ms. Hacopian-Armen had uLMS in May 2009; (ii) an
endometrial biopsy would have diagnosed uLMS; and (iii) not performing an
endometrial biopsy in May 2009 could lead to a delayed diagnosis of uLMS.
[44]
The appellant also submits that the trial
judges erroneous approach to legal causation would create a dangerous
precedent, resulting in an increase of retrospective claims and would overburden
the medical system by encouraging physicians to order unnecessary tests to
avoid the risk of missing an unforeseeable disease.
(2)
Factual Causation
[45]
The appellant submits that the trial judge
committed two reviewable errors in her analysis and conclusion on factual
causation. First, he alleges that the trial judge erred when she found that
uLMS was likely present in May 2009. According to the appellant, that error has
three components: (i) admitting Dr. Covenss testimony, despite the fact that his
expert report did not comply with Rule 53.03 of the
Rules of Civil Procedure
;
(ii) misapprehending Dr. Covenss and Dr. Brownings testimony on this issue
and concluding that uLMS was likely present, despite the fact that there was no
evidence to support that conclusion; and (iii) in stating, at para. 152, that
the defendants submit that there is
no proof
that
uLMS was present on May 25, 2009 (emphasis added), when this did not reflect
the appellants position. The appellants expert, Dr. Vilos, testified that the
evidence showed that it was
unlikely
that uLMS was
present in 2009, not that there was no proof. This misapprehension, the
appellant says, went to the core of the defence theory on the absence of uLMS.
[46]
Second, the appellant alleges that the trial
judge erred in finding that an endometrial biopsy would have likely detected
uLMS in 2009. He submits that a single paragraph of the trial judges reasons
contains five palpable and overriding errors. I will identify and discuss these
in the analysis section below.
[47]
Ultimately, the appellant argues that the trial
judges reasons were overwhelmed by these factual and analytical errors. The
appellant asks that the trial decision be set aside, and the claim dismissed or
that a new trial be ordered.
E.
ANALYSIS
[48]
While the
issues on this
appeal relate to the trial judges conclusion on factual and legal causation,
it is helpful to situate those issues in the context of the negligence
analysis.
[49]
A plaintiff asserting a claim in negligence must
establish four things: (a) that the defendant owed the plaintiff a duty of
care; (b) that the defendants conduct breached the applicable standard of
care; (c) that the plaintiff sustained damage; and (d) that the defendant
caused the damage in fact (factual causation) and in law (legal causation):
Mustapha v. Culligan of Canada Ltd.
,
2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3.
[50]
There was no dispute at the trial about the existence
of a duty of care, since Ms. Hacopian-Armen had been referred to the appellant
for treatment of her fibroids. Nor was it disputed that she and her family
members had suffered compensable damages, which were recoverable if negligence
were established. The applicable standard of care and whether it had been
breached, was very much in issue, as was causation.
[51]
The standard of care and its breach took up a
considerable amount of time at trial. Although the appellant did not adduce
expert evidence on these issues, he challenged the evidence of the respondents
experts, Dr. Covens and Dr. Browning. They testified that having regard to Ms.
Hacopian-Armens AUB heavy bleeding, with blood clots, for over 14 days each
month her age (47), and the fact that she was nulliparous, all of which
increased the risk of some form of uterine pathology, an endometrial biopsy should
have been performed to rule out uterine pathologies or other abnormalities that
could have been causing her AUB.
[52]
The appellants evidence was that he assumed that her bleeding
was attributable to her fibroids, did not consider that there could be other
potential causes of her bleeding and, on those assumptions, did not conduct an
endometrial biopsy.
[53]
The trial judge accepted the evidence of the
respondents expert witnesses and found that the standard of care required an
endometrial biopsy in such circumstances. She also found that the appellant had
breached that standard.
[54]
Although the evidence concerning Ms. Hacopian-Armens age,
nulliparous state and abnormal bleeding was relevant to standard of care, it
was also relevant to legal and factual causation because, in the opinion of Dr.
Browning and Dr. Covens, it meant that she was probably close to menopause,
making it more likely that an endometrial biopsy would detect her cancer.
(1)
First
ground
of appeal:
Did the trial judge err in finding legal causation?
[55]
The appellant does not dispute that the trial judge
identified the appropriate test for legal causation. Referring to
Mustapha
,
the trial judge
set out at para. 126 that the plaintiff must establish that the injuries
suffered were foreseeable or not too remote:
[I]t must be
determined whether the harm is too unrelated to the wrongful conduct to hold
the defendant fairly liable. The injury must have been a real risk which could
occur to the mind of a reasonable man in the position of the defendant
and
which he would not brush aside as far-fetched.
[56]
The trial judges findings on legal causation were
summarized at para. 155 of her reasons:
In this case, I am satisfied that having
failed to conduct an endometrial biopsy on the plaintiff at the first consultation
which would have detected whether there was LMS present, it was foreseeable
that the presence of LMS, if not treated, would likely result in serious injury
or death to the plaintiff, which indeed, it did. I do not find the risk to be
something that a reasonable, skilled, specialist would have brushed aside as
far-fetched. Accordingly, I am satisfied that legal causation has also been
established.
[57]
The appellant submits the trial judge asked herself
the wrong question and assessed causation with the benefit of hindsight,
improperly blending her factual findings with her legal analysis. He submits
that the question should have been whether it was foreseeable to a reasonable
gynecologist that (a) Ms. Hacopian-Armen had uLMS in May 2009; (b) an endometrial
biopsy would have diagnosed the uLMS; and (c) not performing an endometrial
biopsy could lead to a delayed diagnosis of uLMS. Relying on the observations
of Nash J. in
Tilley v. Man Roland Canada
, 1999 ABQB 364, affd
2002 ABCA 309, at para. 183, the appellant submits that [o]ne cannot now, in
hindsight, review the circumstances and conclude, based on the fact of the
accident, that it was reasonably foreseeable or ought to have been foreseeable.
The appellant submits that uLMS is a rare form of uterine cancer, it was not
foreseeable and the harm to Ms. Hacopian-Armen was too remote to fairly hold
him liable.
[58]
I accept the appellants submission that the trial
judge inappropriately blended into her foreseeability analysis her finding of
fact that an endometrial biopsy performed in May 2009 would have detected the
presence of uLMS. The foreseeability analysis ought to have focused on the
information reasonably available to the appellant in May 2009, when he failed
to conduct an endometrial biopsy. However, on the correct analysis, it did not
matter that the appellant was not aware that Ms. Hacopian-Armen had uLMS what
mattered was that the combination of her AUB, her age, and her nulliparous
state, not only required an endometrial biopsy, but also made it reasonably
foreseeable that the failure to conduct one would preclude detection of a
uterine pathology that would cause her serious harm if left untreated.
[59]
The appellants proposed foreseeability analysis is
flawed because in focusing on the presence of
uLMS
, he inappropriately narrows the scope of
the risk that he ought to have foreseen. The appellant was not required to
foresee the presence of uLMS or the precise concatenation of events:
R. v. Coté et al.
, [1976] 1 S.C.R. 595, at p. 604. It is
sufficient that the harm suffered must be of a kind, type or class that was
reasonably foreseeable as a result of the defendants negligence:
Frazer v. Haukioja
, 2010 ONCA 249, 101
O.R. (3d) 528, at para. 51.
In failing to conduct a test that would have detected
the presence of cancers of the same class or character as uLMS, including
uLMS, it was foreseeable that uLMS or other malignancies would go undetected,
with consequent injury to Ms. Hacopian-Armen:
Ter Neuzen v. Korn
, [1995] 3 S.C.R. 674, at para. 60.
[60]
Based on the evidence accepted by the trial judge as
to the circumstances that Ms. Hacopian-Armen presented with in May 2009, it was
foreseeable to a reasonable gynecologist of the same experience and standing
that the failure to perform an endometrial biopsy could preclude the detection
of a uterine pathology or abnormality, which could lead to serious injury or
death.
[61]
I reject the appellants submission that the trial
judges approach to foreseeability would require physicians to order
unnecessary tests. The evidence accepted by the trial judge was that in the
circumstances that presented themselves to the appellant on May 25, 2009, an
endometrial biopsy was a
necessary
test and one
that should have been performed by a competent gynecologist.
[62]
I would therefore reject the first ground of appeal.
(2)
Second ground of
appeal: Did the trial judge err in finding factual causation?
[63]
The appellant submits that the trial judge erred in
finding factual causation that is, on a balance of probabilities, but for
the defendants negligence, the injury would not have occurred:
Clements v. Clements
, 2012 SCC 32,
[2012] 2 S.C.R. 181, at para. 8.
[64]
There are two branches to the appellants submission.
The first branch, discussed in sub-section (a), below, asserts that the trial
judge erred in finding that uLMS was likely present in May 2009. This branch
has three parts, identified below. The second branch, discussed in sub-section
(b), is that the trial judge erred in finding that an endometrial biopsy would
have detected uLMS, had it been present.
[65]
To a considerable extent, these submissions challenge
the trial judges findings of fact or assert that the trial judge
misapprehended certain evidence. For that reason, I begin with the applicable
standard of review.
[66]
A trial judges findings of fact are entitled to
deference, particularly where those findings are based on findings of
credibility in relation to conflicting evidence. As the Supreme Court observed
in
Housen v. Nikolaison
, 2002 SCC 33,
[2002] 2 S.C.R. 235, at para. 36:
To summarize, a finding of negligence by a
trial judge involves applying a legal standard to a set of facts, and thus is a
question of mixed fact and law. Matters of mixed fact and law lie along a spectrum.
Where, for instance, an error with respect to a finding of negligence can be
attributed to the application of an incorrect standard, a failure to consider a
required element of a legal test, or similar error in principle, such an error
can be characterized as an error of law, subject to a standard of correctness. Appellate
courts must be cautious, however, in finding that a trial judge erred in law in
his or her determination of negligence, as it is often difficult to extricate
the legal questions from the factual. It is for this reason that these matters
are referred to as questions of mixed law and fact. Where the legal principle
is not readily extricable, then the matter is one of mixed law and fact and
is subject to a more stringent standard. The general rule is that, where the
issue on appeal involves the trial judges interpretation of the evidence as a
whole, it should not be overturned absent palpable and overriding error.
[Citations omitted.]
[67]
That principle applies where, as here, the trial judge
makes factual findings based on the assessment of the credibility of experts
called by one party and rejection of the evidence of the other partys experts:
Lapointe v. Hôpital Le Gardeur
, [1992] 1 S.C.R.
351, at paras. 16-23;
Waxman v. Waxman
, 2004 CanLII
39040 (Ont. C.A.), at paras. 300-1, leave to appeal refused, [2004] S.C.C.A.
No. 291. The trial judge explicitly found the evidence of the respondents
expert witnesses, notably Dr. Browning and Dr. Covens, to be more reliable than
the appellants witnesses and she gave reasons for her conclusions. Where there
was conflict between the experts evidence, she preferred the respondents
witnesses.
[68]
As this court emphasized in
Waxman
, at
paras. 291-92, referring to the majority reasons in
Housen
, there is
one, and only one, standard of review applicable to all factual conclusions
made by the trial judge and the palpable and overriding standard demands
strong appellate deference to findings of fact made at trial. Thus, as in
Waxman
,
a palpable error may not be overriding if the impugned finding is supported
by other evidence: at para. 297.
[69]
In
Waxman
, at paras. 296-97, this court
observed:
The palpable and overriding standard
addresses both the nature of the factual error and its impact on the result. A palpable
error is one that is obvious, plain to see or clear. Examples of palpable
factual errors include findings made in the complete absence of evidence,
findings made in conflict with accepted evidence, findings based on a
misapprehension of evidence and findings of fact drawn from primary facts that
are the result of speculation rather than inference.
An overriding error is an error that is
sufficiently significant to vitiate the challenged finding of fact.
Where the challenged finding of fact is based on a
constellation of findings, the conclusion that one of those findings is founded
on a palpable error does not automatically mean that the error is overriding.
The appellant must demonstrate that the error goes to the root of the
challenged finding of fact such that the fact cannot safely stand in the face
of that error
. [Emphasis added; citations omitted.]
[70]
In
Carmichael v. GlaxoSmithKline Inc.
,
2020 ONCA 447, 151 O.R. (3d) 609, at paras. 124-25, leave to appeal refused,
[2020] S.C.C.A. No. 409, this court explained when a trial judges
misapprehension of the evidence warrants appellate intervention:
In my view, therefore, the motion judge's
finding that he had "no trouble" concluding that several of the
Huang/Hengeveld
indicators of capacity
were not met reflects a misapprehension of the evidence. A misapprehension of
the evidence "may refer to a failure to consider evidence relevant to a
material issue, a mistake as to the substance of the evidence, or a failure to
give proper effect to the evidence". Here, the motion judge made a mistake
about the substance of the evidence and failed to give proper effect to the
evidence, by finding that the evidence showed that several of the
Huang/Hengeveld
indicators of capacity
were absent, when that was not so.
A misapprehension of
evidence justifies appellate intervention where it is palpable and overriding,
that is, where the misapprehension is obvious and goes to the very core of the
outcome of the case
. That is so here, because
the motion judge's misapprehension is obvious and was essential to his
conclusion that Mr. Carmichael was incapable of suing GSK until December 2,
2009, because of his psychological condition.
[Emphasis
added; citations omitted.]
[71]
In
Benhaim v. St. Germain
, 2016 SCC 48,
[2016] 2 S.C.R. 352, itself a medical malpractice case, the majority of the
Supreme Court emphasized that a trial judges findings of fact are entitled to
deference when they are based on her assessment of all the evidence, including
medical literature and the conflicting evidence of experts: at paras. 37, 72, 75
and 84. It cautioned, at para. 84, that [a]ppellate courts must be cognizant
of the risk of tunnel vision in reviewing medical evidence at trial for
palpable and overriding error.
[72]
Wagner J. (as he then was) concluded, at para.
86:
It could be said that it would have been open
to the trial judge to find in favour of the plaintiff, particularly if
individual components of the evidence had been examined in isolation. However,
the trial judge carefully weighed the evidence as a whole, including both the
statistical evidence and the evidence specific to Mr. Émond. Against that
backdrop, she considered and evaluated three expert opinions, all of which
necessarily involved some speculation. Her causation analysis was based on all
of this evidence. She made no palpable and overriding error in finding that the
plaintiff had failed to establish causation on a balance of probabilities, and
deference to her conclusion is in order.
[73]
In my respectful view, the Supreme Courts
caution against the risk of tunnel vision should be kept in mind when we are
invited to review a fact-laden decision under the rubric of misapprehension of
the evidence. The focus on individual misapprehensions or even individual
errors in the assessment of evidence may tend to exaggerate the significance of
the disputed finding of fact and divert attention from the trial judges
assessment of the entirety of the evidence. Bearing this in mind, I turn to the
appellants submissions concerning the alleged errors in the trial judges
analysis of factual causation.
(a)
First branch: Did the trial judge err in finding
uLMS was likely present in May 2009?
[74]
Dr. Browning and Dr. Covens testified that uLMS was
likely present on May 25, 2009 when the appellant first examined Ms.
Hacopian-Armen. Dr. Browning opined that the uLMS was likely in or near the
endometrium and was likely the cause of her AUB. He testified that because such
tumours do not grow overnight, and the fact that it was present and in Stage
IV when it was discovered in April 2011, made it reasonable to conclude that it
was present and in an early stage (Stage I) in May 2009. Dr. Covenss opinion
was similar.
[75]
The trial judge accepted this evidence, and concluded
[b]ased on all of the evidence before this court, I accept the evidence of the
plaintiffs experts that the LMS, which was found to have metastasized to Stage
IV by April 7, 2011, would have been at Stage I in and around May 25, 2009.
[76]
The appellants argument that the trial judge erred in
finding that uLMS was likely present in May 2009 rests on three foundations,
which I will address in turn, setting out my conclusion in the applicable
heading.
(i)
The trial judge did not err in admitting
the evidence of Dr. Covens on this issue and, having admitted his evidence, did
not misapprehend it
[77]
At trial, the appellant sought to limit Dr. Covenss
evidence regarding factual causation on the ground that he had failed to
provide the foundational basis for his opinion in his expert report, filed
pursuant to r. 53.03 of the
Rules of Civil
Procedure
, R.R.O. 1990, Reg. 194.
[78]
Rule 53.03 requires a party intending to call an
expert witness at trial to serve the experts report at least 90 days before
the pre-trial conference. The purpose of r. 53.03 is to avoid surprise at
trial, to enable counsel to prepare to challenge the opinion and to allow for
efficiency in preparation and trial.
[79]
The experts report is required to contain certain
information set out in r. 53.03(2.1), including the experts opinion concerning
each issue to which the report relates and the experts reasons for their opinion.
It must include the factual assumptions on which the opinion is based, any
research conducted by the expert and any documents relied on by the expert in
forming the opinion. It is well-settled that the report must not simply set out
the experts conclusions, but must also set out reasons for their opinion:
Marchand (Litigation guardian of) v. Public General Hospital Society
of Chatham
, 2000 CanLII 16946, at para. 38, leave
to appeal refused [2001] S.C.C.A. No. 66;
Hoang v. Vicentini
, 2012
ONSC 1358, affd 2016 ONCA 723, at para. 10.
[80]
The relevant portion of Dr. Covenss report was as
follows:
Ms. Hacopian-Armen was noted to have lung
metastases on CT scan in February 2011. It is impossible to be 100% certain
when this malignancy developed, but I do note that she developed a
de novo
DVT [deep vein thrombosis] in
her left calf on August 16, 2010 and a recurrence of it in February 2011, both
of which are very suspicious for an underlying malignancy (malignancy disposes
patients to DVTs). With no precipitating events (Danazol is not associated
with DVT and she took Ovral for only 2 days in August 2010), for her DVT and
the fact she was diagnosed with metastatic disease six months later, I am
fairly certain that she had her malignancy in August 2010.
Furthermore, I think it likely that it was
present prior to that, including at her first visit with Dr. Mahmoud in May
2009.
[Emphasis added.]
[81]
The appellant argued that the report was deficient,
because, although Dr. Covens explained why he believed the tumour was present
in August 2010, he failed to explain the basis for his opinion that uLMS was
present in May 2009. He argued that the first three sentences of the above
extract provided the foundational basis for Dr. Covenss opinion that the
malignancy was present in
2010
, but had nothing
to do with the separate issue of whether it had been present in May 2009.
[82]
The respondent, however, contended that the basis of that
opinion was set out in the report: reasoning backward from the fact that Ms.
Hacopian-Armen died in August 2011 from a metastatic cancer discovered in 2011,
and that she had symptoms of malignancy in August 2010, it was likely that she
had the disease in May 2009.
[83]
The trial judge accepted the respondents
interpretation of the report. The malignancy was probably present in May 2009
because of the presence of DVT in August 2010 and the fact that the cancer had
metastasized by February 2011. She found that if there was a different
interpretation, as advanced by the appellant, it would be for Dr. Covens to
explain on examination.
[84]
When Dr. Covens testified, he was clear that in his
opinion it would take a considerable time for the cancer to reach the point of
metastasizing. Extrapolating back from its condition in 2011, it was likely
present in May 2009. He observed that there has been little study of the growth
pattern of such tumours, because they are typically discovered after the uterus
has been surgically removed due to malignancy or abnormality.
[85]
I see no error in the trial judges decision to permit
Dr. Covens to testify on this issue. Her interpretation of the report was
reasonable and consistent with the opinion given in Dr. Covenss testimony. It
was obvious that the timing of the origin of the malignancy was a central issue
at trial and the appellant adduced expert evidence on that very question. As a
result, the appellant could not have been taken by surprise by Dr. Covenss
evidence. The appellant demonstrated no prejudice as a result of
misunderstanding Dr. Covenss report.
[86]
Nor do I accept the appellants submission that the
trial judge misapprehended Dr. Covenss evidence when she stated that it was
his opinion that it was highly likely that Ms. Hacopian-Armen had Stage I
uLMS in May 2009. That was in fact Dr. Covenss opinion, based on the facts set
out in his report and his experience with uterine cancers.
(ii)
The trial judge did not
misapprehend Dr. Brownings evidence
[87]
In his factum, the appellant asserted that the trial
judge misapprehended the evidence of Dr. Browning when she said that, [Dr.
Browning] stated that [uLMS] does not occur overnight and that in May 2009, it
was likely at Stage I, given the progression by April 2011 and that Ms.
Hacopian-Armen was likely suffering from a malignancy on May 25, 2009 which
caused the abnormal bleeding.
[88]
There was no misapprehension. Dr. Brownings testimony
was that there was a very good chance that her abnormal bleeding in 2009 was
due to the uLMS and that it was more likely than not that an endometrial
biopsy performed on May 25, 2009 would have detected uLMS.
[89]
The appellant did not pursue this issue in oral
argument. I would reject this ground of appeal.
(iii)
The trial judge did not misapprehend the evidence of
the defence expert, Dr. Vilos
[90]
The appellant submits that the trial judge
misapprehended Dr. Viloss evidence when she stated at para 152: The
defendants submit that there is no proof that [uLMS] was present on May 25,
2009 when an endometrial biopsy should have been performed. They, therefore,
argue that there is no evidence which would establish a link of causation
necessary for this case. The appellant says that this misstated his case. He
did not contend there was an absence of evidence. Instead, he contended that
there was affirmative evidence of Dr. Vilos, based on Ms. Hacopian-Armens clinical
history the absence of rapidly growing tumours and what he described as
bleeding that tracked her menstrual cycle which established that uLMS was not
present in May 2009. This misapprehension of Dr. Viloss evidence, he contends,
was a reversible error.
[91]
I do not agree that the trial judge misapprehended Dr.
Viloss evidence. She adverted, correctly, to his testimony that an endometrial
biopsy performed on May 25, 2009 would not have been positive because there is
no evidence that a leiomyosarcoma, in my opinion, was there at this time. She
also referred to his opinion that Ms. Hacopian-Armen had regular bleeding at
the time. In my view, the trial judges rejection of Dr. Viloss evidence was
not the result of a misapprehension of his evidence. It was simply the result
of her acceptance of the evidence of the respondents experts in preference to
that of Dr. Vilos.
[92]
Finally, although it is not raised as a discrete
ground of appeal, the appellant is critical of the trial judges reference to
the principle expressed in
Goodwin v.
Olupona
, 2013 ONCA 259, 305 O.A.C. 245.
At paras. 152-54,
the trial judge observed:
The defendants submit that there is no proof
that LMS was present on May 25, 2009 when an endometrial biopsy should have
been performed. They, therefore, argue that there is no evidence which would
establish a link of causation necessary for this case.
The reason that there is no evidence is
attributable to the fact that Dr. Mahmoud did not perform an endometrial biopsy
which would have provided the necessary evidence.
As stated above, where there is a gap in the
evidence as regards establishment of causation which is caused by the
defendant's own negligence, this cannot be used to shield the defendant from
any responsibility. The inability to prove the causal link between the
defendant's negligence and the plaintiff's damages, if a direct result of the
defendant's failure to act appropriately, cannot be used to shield the
defendant:
Goodwin (Litigation Guardian of) v. Olupona, supra, Ghiassi v.
Singh, supra, Adams v. Taylor, supra
.
[93]
I am not satisfied that the principle expressed in
Goodwin
, at paras. 72-74 and in
Ghiassi v. Sing
, 2018 ONCA 764, at para. 29
has any application to a case such as this, where both parties adduced
evidence on the issue of causation. I accept the respondents submission,
however, that the reference to this principle was unnecessary as the trial
judge independently accepted the evidence of the respondents expert witnesses
that Ms. Hacopian-Armens cancer was probably at Stage I in May 2009.
[94]
For these reasons, I would not give effect to this
ground of appeal.
(b)
Second branch: Did the trial judge err in
finding that an endometrial biopsy would likely have detected uLMS, had it been
present?
[95]
Before addressing this branch of the appellants
submissions, I observe that the appellant does
not
challenge the trial judges findings that (a) Dr. Mahmoud breached the standard
of care in failing to perform a routine biopsy that was capable of identifying
uterine malignancies, including uLMS; (b) the biopsy should have been performed
because Ms. Hacopian-Armen was at risk for uterine malignancies because of her
age, her AUB and her nulliparous state; and (c) had she been diagnosed with
uLMS on May 25, 2009, her outcome would have been substantially improved.
[96]
In coming to these conclusions, the trial judge
accepted the evidence of Dr. Covens and Dr. Browning, and rejected the evidence
of the appellants experts.
[97]
As I have rejected the first ground of appeal,
in which the appellant asserted that the trial judge erred in concluding that
the uLMS was present in May 2009, the remaining issue is the appellants
assertion that the trial judge erred in concluding that the endometrial biopsy
would probably have detected the uLMS. The appellant alleges that the trial
judge misapprehended the evidence, including aspects of the evidence of the
appellants experts. These submissions focus on one paragraph of the trial
judges reasons, para. 144, which I set out in full for reference:
It is the evidence of the defendant's experts
that the likelihood of having found LMS at the first consult in May 2009 is
purely speculative and unknowable. The defence argued that there was no
evidence of any LMS having broken through the myometrial/endometrial lining
into the uterine cavity based on all of the imaging. They contended throughout
that LMS could not be detected unless it were in the uterine cavity. The
plaintiff's experts refute this position. I note as well that the endometrial
biopsy finally undertaken on April 7, 2011 did detect the sarcoma, although the
LMS had not yet entered the uterine cavity. The defendant further maintained
that the plaintiff was clearly pre-menopausal such that sensitivity of
detection would be under 50%. While there were no fibroids seen in the uterine
cavity on imaging, this does not exclude the likelihood that LMS, was in or
near the endometrium, causing or contributing to the abnormal bleeding while it
was still undetectable by diagnostic imaging. The evidence at trial indicated
that the diagnostic imaging would not detect a LMS and that 95% of LMS
malignancies originate
de novo
and are not part of an existing
fibroid. It is of note that the endometrial biopsy conducted in April 2011 did
diagnose the presence of a LMS at a time when the plaintiff was still,
according to the defendants, pre-menopausal as opposed to peri-menopausal,
and at a time when the LMS was not in the uterine cavity. Further, there was no
evidence of uterine invasion of the LMS on any kind of diagnostic imaging at
that time. This is contrary to the defence theory of the case which suggests
that in the circumstances described, the biopsy should have been negative. I
should add that I do not find this fact determinative of whether there was LMS
present on May 25, 2009. In that regard, I have based my findings on other
evidence, without using a retrospective analysis.
[98]
With that background, I turn to the alleged
errors, again summarizing my conclusions in the applicable heading.
(i)
The trial judge did not misapprehend the
appellants experts evidence on the likelihood of detection of uLMS
[99]
The appellant submits that the trial judge
misapprehended the appellants experts position, when she stated that they testified
that the likelihood of having found LMS in May 2009 was purely speculative and
unknowable. The appellant submits that this was a misapprehension because the appellant
led affirmative evidence that even if uLMS was present in May 2009, it was
unlikely that an endometrial biopsy would have diagnosed it, given the poor
sensitivity of the test and the fact that the uLMS was not likely in a location
that was amenable to sampling.
[100]
I begin by
observing that the appellants expert, Dr. Vilos, testified that there was no
evidence that uLMS was present at the time and no evidence that the uLMS had
moved into the uterine cavity where, in his opinion, the cancer had to be
located in order to be detected by an endometrial biopsy. As the trial judge
correctly noted, it was Dr. Viloss evidence that the uLMS would have had to
have broken through the myometrium/endometrium and into the uterine cavity to
be detected.
[101]
The trial judge
did not overlook or misapprehend the appellants evidence. The appellant is
correct to point out that Dr. Viloss position on the likelihood of finding uLMS
in 2009 was not that it was purely speculative and unknowable, but rather
that it was
unlikely
to have been
detected. However, the trial judge correctly referred to Dr. Viloss evidence a
number of times, at paras. 48 and 52. The trial judges characterization of his
evidence, at para. 144, was not central to her conclusion. Again, she simply
accepted the evidence of the respondents experts, who disagreed with Dr. Viloss
evidence. They testified that Ms. Hacopian-Armen was closer to being menopausal
than pre-menopausal and that this status increased the sensitivity of the
endometrial biopsy and made detection of uLMS more likely than not. Further,
the trial judge found, at para. 70, that the studies relied on by the appellant
on the correlation between the location of the LMS and its detectability by a
biopsy were unreliable and inconclusive.
(ii)
The trial judge did not misapprehend the
appellants experts evidence on the location of uLMS
[102]
The appellant
submits that the trial judge misapprehended the evidence of the defence
experts, when she stated, at paras. 48, 53, and 58, that Dr. Vilos and Dr.
Leyland had testified that the uLMS had to be in the uterine cavity to be
detected by an endometrial biopsy. The appellant asserts that his experts
evidence throughout trial was that the cancer had to be in a location such as
the uterine cavity or just underneath the endometrium, so as to be amenable to
sampling by endometrial biopsy which, as the name suggests, is a sampling of
the endometrium.
[103]
I would not
accept this submission. On numerous occasions, the appellants experts testified
that the uLMS had to be in the uterine cavity to be detected. In his
examination-in-chief, Dr. Vilos was asked the following questions and gave the
following answers:
Q. And so I understand that's your view on
whether or not the cancer was present. I want you to assume for the time being
that the cancer was there in May 2009, and when I mean the cancer, I mean the
uterine leiomyosarcoma. Assuming the uterine leiomyosarcoma was present in May
2009, Dr. Vilos, would an endometrial biopsy have diagnosed it in any event?
A. No.
Q. And why not?
A. For the biopsy to pick up a leiomyosarcoma,
the leiomyosarcoma remember, its genesis is in the wall of the uterus.
For it to be picked up, it would have to move inside the
uterine cavity, and we have no evidence here that the the ultrasound, that it
had moved into the uterine cavity
. And the other evidence comes from the
literature, multiple papers where they say that the sensitivity of endometrial
biopsy, it's very low in the presence of leiomyosarcoma, picking up a leiomyosarcoma.
[Emphasis added].
[104]
And again, later
in his evidence:
Q. And what, if anything, is the significance
of this to your opinion?
A. It's pretty much what I said.
For the leiomyosarcoma to be picked up by
endometrial biopsy, it has to be sticken [sic] inside the uterine cavity.
Q. And based on the imaging we looked at all
the way to December 2009, were there any masses reported to be invading the
endometrium or uterine cavity?
A. Not according to any of the ultrasounds.
[Emphasis added].
[105]
Similarly, Dr. Leyland testified in
cross-examination:
Q.
But if I understood your evidence, you said that the tumour has to
be in the endometrial cavity in order for the biopsy to be successful. Is that
right?
A.
Yes.
Q. And if it's not in the, if it's not in the
uterine cavity the, the biopsy will not work.
A. Yes. [Emphasis added].
[106]
In contrast to this evidence, the respondents
expert, Dr. Covens, testified that the uLMS did
not
have to be in the uterine cavity
to be detected by an endometrial biopsy. He stated, however, in his evidence-in-chief
that obviously the closer [the tumour] is to the uterine cavity, the higher
the likelihood one is going to pick it up on a biopsy.
[107]
Dr. Covens also explained his disagreement with
Dr. Vilos in his examination-in-chief:
A. [H]ow does an endometrial biopsy identify a
leiomyosarcoma? Clearly, if there's invasion into the endometrial tissue that's
one possibility.
Q. Mm-hmm.
A. Second of all, if you've got a deep biopsy
that, biopsies not only in the endometrium but that tissue underlying the
endometrium, the myometrium, that can pick it up, as well. And thirdly, if
you've got a leiomyosarcoma that is what we call a submucosal where it starts
impinging, outgrowing towards the uterine cavity, which fibroids can do, as
well, that can denude the endometrial lining and you can just biopsy that mass.
So, so that's all the endometrial biopsy would indicate from a patient with a
leiomyosarcoma.
[108]
I am not satisfied that the trial judge
misapprehended the evidence of the appellants experts on this issue. There was
a clear conflict in the expert evidence as to whether an endometrial biopsy
could detect a cancer that was not in either the uterine cavity or the
endometrium. The trial judge was entitled to prefer the evidence of the
respondents experts on this issue.
[109]
As noted earlier, there was another aspect of
the evidence, hotly contested by the appellant at trial, as to whether Ms.
Hacopian-Armen was likely close to menopause, making it more likely that an
endometrial biopsy would detect her uLMS. The trial judge found:
While the defendants relied heavily on certain
studies which indicated,
inter alia
, that in pre-menopausal women, an
endometrial biopsy has a lower percentage likelihood of detection of LMS, Dr.
Browning testified that women who are nulliparous have a 13 times more likely
chance of having early menopause; that women 40 to 49 years of age have a greater
differentiation in their production of hormones in comparison with 20-29, and
30-39 age ranges and stated that there was evidence to suggest that the
plaintiff was beginning to have changes which would make her hormonally closer
to menopause than pre-menopause, or what he indicated as
"peri-menopausal". It was a laboratory report during that time which
indicated her to be "peri-menopausal" or "peri". Her FSH
levels were rising, which was also a sign that her body was hormonally moving
toward menopause. Therefore, even based on the studies relied on by the
defendant, there was a greater likelihood that LMS would have been detected in
the plaintiff.
[110]
In sum, I am not satisfied that the trial judge
misapprehended the evidence on this issue or made either a palpable or
overriding error in her assessment of the evidence. She simply preferred the
respondents experts evidence that Ms. Hacopian-Armens menopausal or peri-menopausal
status was a better indicator of whether an endometrial biopsy would have
detected uLMS in 2009 than the location of the LMS. I would not give effect to
this ground of appeal.
(iii)
The trial judge did not misapprehend the nature
and significance of the diagnostic imaging evidence
[111]
The appellant submits that the trial judge misapprehended
the evidence concerning the capabilities of diagnostic imaging. He asserts there
was no evidence to support the trial judges conclusion
that
uLMS could have been in or near the endometrium while it was still
undetectable by diagnostic imaging. Further, he submits the imaging from 2009
did not show any masses in or near the uterine cavity, which reduced the
likelihood of detection by endometrial biopsy.
[112]
I begin by setting out the relevant portion of
the reasons for judgment, reproduced in full earlier:
The defence argued that there was no evidence
of any LMS having broken through the myometrial/endometrial lining into the
uterine cavity based on all of the imaging.
While there were no fibroids seen
in the uterine cavity on imaging, this does not exclude the likelihood that
LMS, was in or near the endometrium, causing or contributing to the abnormal
bleeding while it was still undetectable by diagnostic imaging. The evidence at
trial indicated that the diagnostic imaging would not detect a LMS and that 95%
of LMS malignancies originate
de novo
and are not part of an existing
fibroid.
[113]
The appellant submits that [o]n the correct
evidence, there is no scenario in which uLMS would be in the uterine cavity or
submucosal (i.e. near the endometrium) but not appear on imaging. His position
at trial was that because uLMS did not show up on Ms. Hacopian-Armens ultrasounds
taken prior to and after May 2009, it was not present in the uterus and
obviously could not have been detected by an endometrial biopsy.
[114]
The problem with this submission is that it does
not accord with the evidence of Dr. Covens, which the trial judge accepted.
[115]
To begin with, it was common ground that it was
impossible to distinguish between fibroids and uLMS by imaging. Dr. Browning testified
that they could only be distinguished at the microscopic level. Dr. Covens opined
that she in all likelihood
did have her sarcoma in 2009, albeit small. He
testified that the cancer originates at the cellular level and grows from
there. However, Dr. Covens noted that even though it might grow to a mass, a
tumour, a bump that can be visualized, we dont have any really good
detection methods of separating fibroids from leiomyosarcoma. On
cross-examination, he agreed with the observation that in order to be visible
on imaging, the cancer has to grow to a size in which it can be observed on
radiology. He also stated that at an early stage, the tumour may have been
undetectable from an ultrasound point of view where it might have been
detectable by pathology [i.e., a biopsy].
[116]
Dr. Covens also noted that Ms. Hacopian-Armen had
declined to have a pelvic transvaginal ultrasound, which he described as the
gold standard test to interpret endometrial, myometrial pathology. When it
was put to Dr. Covens that up to December 2009 there was no imaging report of
any submucosal or intracavity fibroid, he responded, [y]es, but she didnt
have a transvaginal ultrasound so that might have been somewhat difficult to
identify.
[117]
I conclude that the trial judge did not
misapprehend the evidence on this issue. She simply accepted Dr. Covenss
evidence that the tumour was not visible on imaging because it was very small
or because it was only detectable by a pelvic transvaginal ultrasound and that
did not take place until April 2011, when her cancer was well advanced.
(iv)
The trial judge did not err in asserting that
the uLMS had not yet entered the uterine cavity in April 2011 and the trial
judge did not improperly rely on the April 2011 endometrial biopsy that
detected the uLMS
[118]
The appellants last two submissions on this
issue can be addressed together. First, the appellant submits that the trial
judge misapprehended the implications of the endometrial biopsy that diagnosed Ms.
Hacopian-Armens uLMS in April 2011. He submits the trial judge misapprehended
the evidence when she stated that the tumour had not invaded the uterine cavity
in April 2011 when the endometrial biopsy was performed, and subsequently used
her erroneous assessment of the evidence to reject the defence submission that
uLMS has to be in a location amenable to an endometrial biopsy for a diagnosis
to be made. The appellant submits that the 2011 biopsy supported the defence
theory that location of the tumour is critical to diagnostic sensitivity, and
that the absence of masses in or near the uterine cavity in 2009 made it
unlikely that an endometrial biopsy would have detected the cancer.
[119]
The appellants second submission is that the
trial judge erred in relying on the 2011 endometrial biopsy altogether because Ms.
Hacopian-Armen demonstrated a dramatically different clinical picture in 2011 as
opposed to 2009, and the results of the 2011 biopsy were of no value in
assessing her condition in 2009.
[120]
The appellants submissions on this issue omit
reference to the full scope of the trial judges reasoning, in which she made
it clear that the detection of uLMS by endometrial biopsy in 2011 was not
central to her findings about Ms. Hacopian-Armens condition in 2009. At para.
144, she said:
It is of note that the endometrial biopsy
conducted in April 2011 did diagnose the presence of a LMS at a time when the
plaintiff was still, according to the defendants, pre-menopausal as opposed
to peri-menopausal, and at a time when the LMS was not in the uterine cavity.
Further, there was no evidence of uterine invasion of the LMS on any kind of
diagnostic imaging at that time. This is contrary to the defence theory of the
case which suggests that in the circumstances described, the biopsy should have
been negative.
I should add that I do not find this fact
determinative of whether there was LMS present on May 25, 2009. In that regard,
I have based my findings on other evidence, without using a retrospective
analysis.
[Emphasis added.]
[121]
Further, the question of whether the uLMS had
invaded the uterine cavity by 2011 was contested at trial. It was open to the
trial judge to note that the defences theory was potentially undermined if the
uLMS was detected by an endometrial biopsy in spite of being outside the
uterine cavity. Ultimately, it did not matter, because the trial judge based
her findings on the respondents experts theory that Ms. Hacopian-Armens menopausal
status, among other things, would have made detection of the uLMS by
endometrial biopsy more likely than not.
[122]
I am not persuaded that the trial judge erred in
her assessment of the evidence in relation to the 2011 biopsy.
[123]
I would therefore reject this ground of appeal.
F.
DISPOSITION
[124]
For these reasons, I would dismiss the appeal.
[125]
The parties advised that they expected to agree
on costs. If they have been unable to do so, they may make written submissions.
The respondents shall serve and file their submissions within ten days of the
release of these reasons and the appellant shall have ten days within which to
serve and file responding submissions. The submissions shall not exceed three
pages, excluding costs outlines.
Released: July 29, 2021 G.R.S.
George
R. Strathy C.J.O.
I
agree. K. Feldman J.A.
I
agree. Sossin J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: McMaster-Pereira v. Pereira, 2021
ONCA 547
DATE: 20210729
DOCKET: C68444
Feldman, Harvison Young and
Thorburn JJ.A.
BETWEEN
Connie McMaster-Pereira
Applicant (Respondent)
and
Michael Pereira
Respondent (Appellant)
Gary S. Joseph and Julia McArthur, for
the appellant
Paul J. Daffern, for the respondent
Heard: April 16, 2021 by video conference
On appeal from the order of Justice
Peter A. Douglas of the Superior Court of Justice, dated June 12, 2020, and
from the costs order, dated August 21, 2020.
Harvison Young J.A.:
[1]
This is an appeal by the appellant father from
an order requiring him to pay child support and securing his child support
obligations against his interests in certain property and corporations and from
a related costs order. The central issues before the trial judge were the
determination of the fathers income from 2014 to 2019, and the effect of
changes in the residences of the children over that period on the support
amounts.
[2]
The trial judge found that the father had failed
to disclose his true income, and moreover, had taken various steps to conceal
his income. The trial judge imputed income, determined the quantum of ongoing
child support, awarded retroactive child support and, in light of the fathers
efforts to avoid paying support, imposed a charging order against his home and his
interests in companies of which he was a shareholder.
[3]
For the following reasons I would dismiss the
appeal.
A.
Facts and Decision Below
[4]
The parties were married in 2001, and they are
the parents of four children ranging in age from 9 to 20. They separated in
2011 and divorced in 2013. The father operated a trucking and related
businesses.
[5]
In May 2013, the parties executed minutes of
settlement which became the final order of Graham J. in July 2013 (the Graham
Order). The Graham Order dealt with issues of support, custody and access.
Salient provisions, for the purposes of this appeal, included the fathers
obligation to pay support in the amount of $3,000 per month based on the fathers
imputed income of $109,000 per annum and the mothers imputed income of $6,000
per annum, with a provision that the mother could not seek an increase in child
support unless she could show a positive material change in the fathers
income, or he failed to pay the $3000 per month. The minutes of settlement provided
that $637 per month was spousal support, but that the entire monthly amount of $3,000
would be characterized as child support. The Graham Order also provided that
the parties were to provide updated income disclosure to each other annually.
[6]
In July 2017, the mother commenced a motion to
change seeking a retroactive increase of the amount of child support paid by
the father from April 2014 onward. The father responded with his own motion to
change, dated September 2017, which requested not only a dismissal of the mothers
motion, but also a change to the parenting arrangements. The parties engaged in
alternative dispute resolution and as a result, the issues for trial were
identified as (1) the income of the father; (2) the amount of child support;
and (3) the parenting arrangements for their youngest child.
[7]
The central issue in this appeal is the trial
judges determination of the fathers income between 2014 and 2017. The
appellant also challenges the charging order and the costs order.
[8]
The trial judge found that the fathers income
for the years between 2014 and 2019 was $454,037, $322,940, $478,562, $442,337,
$345,848, and $457,631 respectively. For the purposes of calculating child
support, the trial judge used a three-year average to soften the dramatic
fluctuations in the fathers income. At the outset, the trial judge noted that
the mother was credible and reliable, but that he had concerns with the
fathers evidence, and accordingly ascribed more weight to the mothers
evidence unless there was reliable evidence to support the fathers position.
The father had not only failed to disclose his true income to the mother, but
he had gone to considerable lengths to conceal the true amount of the income
that he had that was actually available for the support purposes.
[9]
The trial judge determined the fathers income
by considering: documentary evidence; the evidence of an expert retained by the
father to prepare an analysis of his 2016 and 2017 income; the evidence of an
expert retained by the mother qualified in bookkeeping, tax preparation, and
identifying expenses; and evidence regarding his employment benefits (use of
vehicle and credit card), cash income, income-splitting with his girlfriend,
and lifestyle and assets. The mothers income for the years between 2014 and 2019
was $33,086, $33,359, $22,353, $30,409, $37,988, and $52,098 respectively. This
was based on her income tax returns and other employment documentation.
[10]
The trial judge determined that there had been
obvious changes in circumstances, both in respect of care and control of the
children and in respect of the parties respective incomes. As a result, there
were changes in circumstances within the meaning of s. 17(4) of the
Divorce
Act
, R.S.C. 1985, c. 3 (2nd Supp.) and s. 14 of the
Federal Child
Support Guidelines
, S.O.R./97-175 (CSG) that justified considering
changes to the Graham Order.
[11]
With respect to prospective child support, the
trial judge ordered that the father pay set-off support in the amount of $6,671
per month from July 2020 onward based on an income of $415,272, which was a
three-year average of the fathers 2017-2019 income. This amount included child
support for the eldest child, who despite being over 18 years of age, qualified
as a child of the marriage.
[12]
The trial judge also allowed the mothers claim
for retroactive child support. The father was required to pay retroactive child
support for the period from August 2016 to June 2020 in the amount of $222,484 at
the rate of at least $3,708 per month.
[13]
The trial judge ordered that the fathers child
support obligations be secured against the fathers house, as well as against any
interest in corporations of which he was a shareholder. He based this on his
conclusion that the father had demonstrated that he cannot be trusted to fulfill
his obligations to the children, as he has failed to pay child support
commensurate with his actual income and has concealed sources of income. Finally,
the trial judge ordered a parenting arrangement of equally shared parenting
time on a week-about schedule for the youngest child.
[14]
In a separate costs endorsement, the trial judge
ordered the father to pay $204,913.81 in costs to the mother.
B.
Discussion
[15]
The appellant father raises a number of issues
on this appeal:
1)
Did the trial judge err in his imputation of the
appellants income for the purposes of his ongoing child support obligations?
2)
Did the trial judge err in finding that support
arrears were payable, or did he err in the determination of the quantum?
3)
Did the trial judge act without jurisdiction in
making the charging order?
4)
If the appellant is unsuccessful on the appeal,
should he be granted leave to appeal the costs order on the basis that the
amount was not proportionate to the issues determined by the court?
(1)
Imputation of income for ongoing child support
[16]
While the appellant father acknowledges that
many of the trial judges conclusions are based on findings of fact and
credibility which are entitled to a high level of deference from this court, he
argues that the trial judge erred in law in imputing income to him for the
purposes of determining his ongoing or go-forward child support obligations
by declining to rely on his most current income information. The appellant
submits that he had given up his income from other sources and that his
$180,000 salary amount was the amount that should have determined his ongoing
income for child support purposes. The reason that this amount should have been
used, according to the appellant, is because s. 16 of the CSG should be read in
conjunction with s. 2(3) of the CSG which provides that where, for the purposes
of the CSG, any amount is determined on the basis of specified information, the
most current information must be used.
[17]
I do not accept this argument. The trial judge
did not accept the fathers evidence that a salary of $180,000 per year from
his new employment with Premier Concrete Pumping beginning in September 2019
accurately represented his current income and that he had no other sources of
income. His decision to reject this evidence must be viewed in the context of
the findings of fact that he made with respect to the fathers income, which
included that the father had refused to provide full disclosure or interfered
with others providing disclosure of his financial information, for example in
relation to his cash income, his work benefits, income-splitting with his
girlfriend, and his ownership of assets. While the father claimed that he left
his previous job and now earned an income of $180,000, the trial judge
determined that he had not offered a sufficient explanation for doing so. As he
stated at para. 210 of his reasons:
In his evidence [the
father] said he changed jobs to PCP because he wanted a T4 job. He says his
income is now $180,000 per year. He has not satisfactorily explained why he
would leave an employment/self-employment arrangement that was generating a
very generous income, in favour of one generating much reduced income.
[18]
Moreover, the trial judge did not believe the
fathers evidence that he no longer had any cash income after September 2019
and concluded that he likely still had cash income that remained undisclosed
and undeclared, given the fathers readiness to withhold full disclosure and
actively deceive the mother and the court.
[19]
In short, the trial judge only resorted to imputing
income to the father after rejecting the fathers evidence that a salary of $180,000
per year was a true representation of the fathers go-forward income. That was
a finding that was well grounded in the record and for that reason, the trial
judge was entitled to consider the fathers previous three-year average of his
income as the basis for the go-forward child support calculations. I see no
reversible error that could justify interfering with the trial judges
conclusions on this point.
[20]
Alternatively, the appellant father argues that
even if the trial judge appropriately imputed income, he misapprehended the
evidence in calculating the appellants go-forward income by inadvertently
grossing up certain amounts. Misapprehensions of evidence do not typically
involve questions of law:
R. v. Morrissey
(1995), 97 C.C.C. (3d) 193
(Ont. C.A.), at p. 218. Where a misapprehension of evidence is palpable, in
that it is obvious, plain to see, or clear, and overriding, in that the misapprehension
goes to the root of the challenged finding of fact or very core of the outcome
of the case, appellate intervention is justified:
Waxman v. Waxman
,
2004 CanLII 39040 (Ont. C.A.), at paras. 296-97, leave to appeal refused,
[2004] S.C.C.A. No. 291;
Carmichael v. GlaxoSmithKline Inc
., 2020 ONCA
447, 151 O.R. (3d) 609, at para. 125, leave to appeal refused, [2020] S.C.C.A.
No. 409.
[21]
In the DivorceMate calculations for 2019
attached to the trial judges reasons, an auto gross up was applied to the experts
calculation of the fathers spending for that year, his personal use of two work
trucks, his personal use of a work credit card, and his cash income, all
classified as other non-taxable income. An auto gross up was not applied to his
girlfriends income, classified as diverted income. The trial judge did not
err in determining which figures should be grossed up, and the application of auto
gross up was consistent with the trial judges determinations. There were no
palpable and overriding errors in the trial judges calculations and gross up
of these figures warranting appellate intervention.
(2)
Retroactive child support
[22]
After this appeal was heard, the Supreme Court
of Canada released
Colucci v. Colucci
, 2021 SCC 24. Although
Colucci
directly addressed a payors request that his arrears be rescinded and that
child support be retroactively decreased, the decision also set out a revised
approach for cases where a recipient applies to retroactively increase child
support. The parties were invited to and did make submissions on the relevance
of
Colucci
to this appeal, and I have considered them.
[23]
In summary, the revised approach in
Colucci
requires first that the recipient establish a past material change in
circumstances. Once that has been established, a presumption arises in favour
of retroactively increasing child support to the date the recipient gave the
payor effective notice of the request for an increase, up to three years before
formal notice of the application to vary. Effective notice requires only that
the recipient broached the subject of a potential increase with the payor. If
there was no effective notice, child support should generally be increased back
to the date of formal notice. Due to the presumption that is triggered by
establishing a past material change in circumstances, the factors in
D.B.S.
v. S.R.G.
, 2006 SCC 37, [2006] 2 S.C.R. 231 are no longer necessary in
determining whether child support should be retroactively increased. However,
they are still relevant in guiding the courts exercise of discretion to depart
from the presumptive date of retroactivity where the result would be otherwise
unfair. Finally, once the court has determined that support should be
retroactively increased to a particular date, the increase must be quantified
in accordance with the CSG:
Colucci
, at paras. 6, 71-73 and 114.
[24]
One of the principles underpinning this approach
to the variation of child support is adequate, accurate, and timely financial
disclosure:
Colucci
, at paras. 32, 48-54. The child support regime is
a system that creates informational asymmetry and is tied to the payors
income, and it would be unfair and contrary to the childs best interests to
require the recipient to police the payors ongoing compliance with their
obligations: at para. 49. As the court emphasized, at para. 50:
This is why frank
disclosure of income information by the payor lies at the foundation of the
child support regime. In
Roberts v. Roberts
, 2015 ONCA 450, 65 R.F.L.
(7th) 6, the Court of Appeal described the duty to disclose financial
information as [t]he most basic obligation in family law. A payors failure
to make timely, proactive and full disclosure undermines the policies
underlying the family law regime and the processes that have been carefully
designed to achieve those policy goals. Without proper disclosure, the system
simply cannot function and the objective of establishing a fair standard of
support for children that ensures they benefit from the means of both parents
will be out of reach. [Citations omitted.]
[25]
The appellant father submits that the trial
judge erred in law in finding that he owed retroactive child support to the
mother. He argues that there was no material change in circumstances.
Alternatively, even if retroactive support was appropriate, he submits that the
trial judge erred in his determination of the fathers past income and thereby
erred in calculating the quantum of retroactive support owed. He claims that
the trial judge made reviewable errors and misapprehended the evidence on his
income. He also asks this court to reduce his monthly retroactive support
payments to $1,000 per month, due to his high debt load.
[26]
I do not agree that the trial judge made any
error in granting a retroactive increase in child support or in determining the
quantum. While the trial judge did not have the benefit of the reasons in
Colucci
,
his conclusion was consistent with the revised approach to applications for
retroactive increases in child support.
[27]
First, after an extensive analysis, the trial
judge determined the fathers income for the period between 2014 and 2019, and he
found that there had been changes in circumstances that justified considering
changes to the Graham Order. He also noted that the Graham Order was predicated
on the fathers income of $109,000, but that even the father himself submitted
that his income was significantly higher for every year that followed. I would
not disturb these findings.
[28]
There was no misapprehension of evidence or
other reviewable error regarding the fathers past income. It is important to
note that the trial judge arrived at the amounts of the fathers income for the
years from 2014 to 2019 through an exhaustive and meticulous analysis of the
evidence before him. In the course of this analysis, he made numerous findings
that the father used an array of tactics to avoid disclosing his real income,
including income-splitting with his girlfriend, not taking formal ownership of
a vehicle to conceal the asset from the courts scrutiny, withholding
information about cash income, and failing to disclose personal benefits that
were obtained through the use of a vehicle and credit card associated with his
employment.
[29]
The fathers failure to disclose the benefits
received from his employment caused the fathers own expert, who was retained
to prepare an analysis of the fathers 2016 and 2017 income, to withdraw his
opinion. The trial judge made credibility findings against the father,
observing that in his testimony, the father was non-responsive, evasive,
contradictory, confused regarding his accounts, and ill-informed of his
personal finances. The trial judge concluded that he would treat the fathers
evidence with considerable caution and give it reduced weight in light of his
concerns. It was open to the trial judge to weigh and accept or reject the
evidence of the father and other witnesses, and to draw adverse inferences
against the father given his incomplete disclosure, to determine the fathers
income. The trial judge also noted that he was not confident that he had the
full picture as to the fathers asset holdings, stating that [w]ith his
demonstrated readiness to withhold evidence regarding his finances, it is more
likely than not that there are assets yet to be revealed. The trial judges
findings of fact were carefully grounded in the record before him, and the
assumptions he made and inferences he drew were reasonable.
[30]
Second, as a material change in circumstances is
established, the presumption to retroactively increase child support to the
date the recipient gave the payor effective notice is triggered. The mother
first made her request for financial disclosure in July 2016, which was within
three years of the mother giving formal notice of an application to vary in
July 2017. The trial judge concluded that the appropriate date of
retroactivity was August 1, 2016, the first day of the first month
following notice to the father. The appellant does not appeal the finding on
the appropriate date of retroactivity and agrees that this conclusion is supported
in light of
Colucci
.
[31]
Third, the trial judge proceeded to the issue of
quantum and found that the father owed $222,484, based on his detailed and
specific calculations of the fathers past income. The trial judge then turned
to consider the impact of the burden of this sum upon the father, concluding
that if stretched over a period of 5 years at an additional $3,708 per month,
the father could manage this with his significant income. As noted above, the
trial judge did not make any reviewable errors in his determination of the
fathers past income, and I see no errors in his calculation of the quantum of
retroactive support payable.
[32]
As the appellant points out,
Colucci
does
support the use of creative payment options in the context of a request for
rescission of arrears and proven payor hardship. The point, however, is that
payment over time is preferable to rescission, not that there is any automatic
entitlement to any particular terms of payment. I see no basis to justify
interfering with the trial judges discretion in setting the terms of payment
at $3,708 per month, especially in light of his findings that the fathers
claims of hardship lacked the support of credible and reliable evidence on his
financial circumstances and that the fathers income was consistent with a
payor of substantial means who could afford the payment terms as ordered.
[33]
In addition, relevant to both the first and
second grounds of appeal on determining the fathers current and past income,
the trial judge had invited the parties to address any errors in his
calculations in their costs submissions. The appellant had the opportunity at
that time to address any alleged errors relating to the determination of his
income, such as whether certain amounts should have been grossed up, and the
resulting quantum of retroactive child support. The appellant did not do so. In
sum, I see no errors in the trial judges determination that retroactive child
support was payable or in the quantum ordered.
(3)
Charging order
[34]
The appellant submits that the trial judge had
no jurisdiction to make a charging order to secure the appellants child
support obligations, in part, because the mother did not plead that security
for support should be made by way of charging order. The appellant further
argues that the criteria to be considered by the court in exercising discretion
to grant a charging order are limited to those cited in
Reid v. Catalano
,
2008 CanLII 9379 (Ont. S.C.), at para. 138, and that a charging order is not
justified in these circumstances. The factors listed in
Reid
are as
follows:
i)
where a party has a history of dissipation of
assets, that is, unable to handle money;
ii)
where the party is likely to leave the
jurisdiction and become, in effect, an absconding debtor;
iii)
where the party has, in the past, refused to
honour a support obligation, whether it came by court order or contract or has
refused to provide support at all;
iv)
where the party has a poor employment history,
or has indicated that he or she, will leave their employment.
[35]
There is no merit to this argument. In
accordance with s. 15.1(4) of the
Divorce Act
, the court may impose
terms, conditions or restrictions in connection with the [child support] order
or interim [child support] order as it thinks fit and just. Section 12 of the CSG
adds that the court may require that the amount payable under the child support
order be paid or secured, or paid and secured, in the manner specified in the
order.
[36]
In imposing a charging order, the trial judge
noted that s. 12 of the CSG permits me to require that the amount payable be
paid and secured in the manner specified in the order. He accurately observed
that considerable latitude is afforded to judges in crafting appropriate
security, and he stated that it was clear that the father had significant
undeclared cash income and other undisclosed sources of income and benefits. The
trial judge concluded that he had concerns regarding whether the father could
be trusted to fulfill his child support obligations, given the fathers
previous conduct, at paras. 309-10:
There are reasons to be concerned about the [father]s
intentions regarding satisfaction of the child support obligations I am
imposing upon him. He has demonstrated he cannot be trusted to ensure his
children receive the child support to which they are entitled. He did this by
failing to pay support at a level commensurate with his actual income. He
actively concealed sources of income by failing to disclose personal expenses
paid by his income sources. He concealed his beneficial ownership of the
Mercedes Benz vehicle. He encouraged Ms. Sciacca to withhold relevant
disclosure from his own lawyer.
In short, the [father]
cannot be trusted to fulfil his obligations to the children.
[37]
I see no error in the trial judges
determination that the circumstances of this case, including the fathers
conduct, justified the imposition of a charging order. There is a broad
discretion pursuant to s. 15.1(4) of the
Divorce Act
accorded to trial
judges to impose charging orders in appropriate cases, and s. 12 of the CSG
expressly provides a court with this authority: see
Katz v. Katz
, 2014
ONCA 606, 377 D.L.R. (4th) 264, at para. 71. Moreover, the factors that may be
considered are not limited to those set out in
Reid
.
[38]
The appellant father also initially argued that
the charging order was overbroad because it included corporations in which he
did not have an interest. However, in oral submissions before this court,
counsel indicated that this argument would not be pursued because it was clear
that the charging order only covered corporations in which the appellant was a
shareholder, which could be easily recognized.
(4)
Costs order
[39]
In the event that the appeal is not successful,
the appellant father also seeks leave to appeal the trial judges costs order.
He alleges that the trial judge erred in failing to apply the principles of
proportionality and reasonableness.
[40]
To succeed on an application for leave to appeal
a costs award, strong grounds on which this court could find that the trial
judge erred in exercising their discretion must be shown:
Hobbs v. Hobbs
,
2008 ONCA 598, 54 R.F.L. (6th) 1, at para. 32. A court should only set aside a
costs award on appeal 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.
[41]
I see no error in the trial judges exercise of discretion
in his disposition of costs. In ordering the father to pay around $205,000 in
costs, enforceable as support, the trial judge noted that the mother was
undoubtedly the successful party and presumably entitled to costs. He examined
her bill of costs, concluded that some portion of the mothers claim for costs
was duplicative and excessive, and reduced the amount significantly. While her
bill of costs appeared to be excessive, the trial judge observed that the
fathers conduct in relation to disclosure contributed significantly to the
time expended by the mothers counsel.
[42]
The trial judge determined that the appropriate
approach was to allow partial indemnity costs in a greater amount than
otherwise proportionate on a motion to change. The mother incurred additional
expense in having to pursue the truth about the fathers income, the trial was
11 days long and focused almost entirely on his income, and the unusually high
amount of costs was justified in light of the circumstances and the fathers
unreasonable conduct. He also again referred to his findings about the fathers
income suggesting a much greater ability to afford this burden than that which
he urges upon me in his submissions. The trial judge stated that:
Relieving him of
even some of this burden would be incompatible with the objectives of costs as
set out in
Serra v. Serra
, [2009] O.J. No.1905 (Ont. C.A.), a failure
to recognize the impact of [the father]s unreasonable conduct upon [the
mother] and an opportunity missed to discourage litigants from engaging in
conduct that drives litigation inexorably forward without apparent regard to
the consequences.
[43]
The costs award was proportionate and reasonable
in light of the issues at trial, the length of the trial, and the conduct of
the father. The trial judges findings of fact thoroughly document the fathers
conduct in not only failing to proactively disclose his income over the years,
but in actively attempting to mask or hide it. This greatly contributed to the
time expended by counsel. As the appellant father has failed to demonstrate
strong grounds, I would deny leave to appeal the costs award.
C.
Disposition
[44]
I would dismiss the appeal and deny leave to
appeal costs. As agreed by the parties, costs of the appeal in the amount of
$15,000, inclusive of disbursements and HST, will be payable to the successful
party, the respondent mother.
Released: July 29, 2021
K.F.
A. Harvison Young J.A.
I agree K. Feldman J.A.
I agree J.A. Thorburn J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Conseil Scolaire Catholique
Franco-Nord v. Nipissing
Ouest (Municipalité), 2021 ONCA 544
DATE: 20210728
DOCKET: C67949
Rouleau, Hoy and van Rensburg
JJ.A.
BETWEEN
Conseil
Scolaire Catholique Franco-Nord
Applicant (Appellant)
and
La Corporation de la Municipalité
de Nipissing Ouest
Respondent (Respondent)
Pierre Champagne and Andréane Lafrance,
for the appellant
Michael F. Sirdevan, for the respondent
Heard: May 31, 2021 by video conference
On appeal from the judgment of Justice David
R. Nadeau of the Superior Court of Justice, dated December 17, 2019, with
reasons reported at 2019 ONSC 6474.
Rouleau J.A.:
FACTS
[1]
The Conseil Scolaire Catholique Franco-Nord (the
school board) is a successor school board to the Nipissing District
Roman Catholic Separate School Board
. In 1988, the
Nipissing District Roman Catholic Separate School Board sold a property known
as the St. Jean Baptiste School to the Township of Caldwell (the Township). The
Municipality of West Nipissing
(the Municipality)
is
the successor to
the Township. In return for the school, the Township agreed
to provide snow and garbage removal services to one of the school boards other
schools located in the Township, the Ste. Marguerite dYouville School.
[2]
The evidence documenting the sale tendered by
the school board is straightforward. It consists of a March 10, 1988 letter
from the Township offering to buy the school and a school board resolution
accepting the offer subject only to the approval of the sale by the Ministry of
Education. The relevant parts of the Townships offer letter are as follows:
Further to our past discussions regarding the
above mentioned [school], please be advised that the Council of the Township of
Caldwell wishes to acquire the St. Jean Baptiste School for the sum of $1.00.
We have been approached by many interested
groups such as the Recreation Committee, lUnion Culturelle des Femmes Franco-Ontariennes
etc
for accommodations in this building.
The municipal library is presently in dire
need of additional space and is also located on a second storey being [a] very unsuitable
location
As you can tell, we have many plans for the
use of this building all being for the best of the community. Please note that
these organizations are all non-profit and are vital to the well-being of the
area residents.
However, the
municipality is agreeable to render certain services to the School Board such
as clearing of snow in school yard and garbage pick-up at Marguerite dYouville
School. I wish to point out that the school is already using our arena
facilities at no cost. We are also open to any other suggestions.
[3]
The school boards resolution accepting the
offer is dated April 13, 1988.
It reads as follows: Que
le C.E.C.L.F. accepte loffre dachat de lécole St-Jean-Baptiste soumise par
le canton de Caldwell le 10 mars 1988, sous réserve dautorisation du ministère
de léducation.
The Township began providing snow and
garbage removal services to the school board shortly thereafter. These services
would continue until 2017.
[4]
At the time of the sale, the disposition of
school board property required approval from the Ministry of Education in
accordance with the Ministrys 1979 Capital Grant Plan. On June 15, 1988 the
Ministry granted its approval for the transfer of the school:
It is noted that the requirements of the
Ministry have been met. Accordingly, this letter may be considered as approval
to dispose of this school building to the Township of Caldwell for community
use.
This approval does not absolve the board from
any other responsibility under the Education Act respecting the sale of
property. The Regional Office will confirm with you any reduction in recognized
extraordinary expenditure that may arise as a result of this transaction.
I should like to
thank the board for its co-operation in the disposal of this surplus asset in
accordance with section 12.3 of the Capital Grant Plan as amended.
[5]
On September 16, 1988 the school board received
a letter from its lawyers enclosing a copy of the signed transfer and a cheque
for $1 as payment in full of the purchase price.
[6]
The transfer included two clauses of relevance
to this appeal. First, the transfer granted the school board a vendors lien
over the transferred property in the following terms:
The within
conveyance is subject to a Vendors Lien in the amount of $27,300.00. In the
event that the Transferee grants, transfers or in any way conveys its interest
in the within described lands or any portion thereof, prior to the expiration
of ten (10) years from the date of registration herein, the Transferee shall
remit payment of the said sum of $27,300.00 to the Transferor. This Vendors
Lien shall expire ten (10) years from the date of registration of this
transfer.
[7]
Second, the transfer granted the school board a
right of first refusal if the Township intended to sell the school within 20
years of the initial transfer:
The Transferee
further grants to the Transferor the right of first refusal to purchase the
land described herein and any buildings and improvements thereto for the sum of
ONE ($1.00) DOLLAR. This first right of refusal shall run for a period of
twenty (20) years from the date of registration of the within transfer. The
Transferee agrees not to sell the real property described herein to another
party without first offering the Transferor the right to repurchase the lands
and buildings for the said sum of ONE ($1.00) DOLLAR.
[8]
Contrary to the application judges finding, the
school board submits that these clauses had nothing to do with the duration of
the Townships obligation to provide snow and garbage removal services in
payment of the purchase price. They were inserted to ensure that the Township
could not resell the property without first giving the school board the
opportunity to repurchase it, and to comply with s. 12.7.3 of the Ministrys
Capital Grant Plan, which provided:
When a complete
school property is sold to a preferred agency and the sale price is below the
total undepreciated value of the building, and the market value of the land, a
commitment in writing shall be obtained from the purchaser which will ensure
that the board recovers equity if the property is resold within a period of ten
years from the date of sale.
[9]
In 1999, all of the Townships obligations were
transferred to the Municipality. The Municipality continued to provide snow and
garbage removal services to the school board in the same manner as before.
[10]
In 2002, the Municipality advised the school
board that it intended to put an end to the snow removal service. Following discussions
between the school board and the Municipality, the Municipality agreed to continue
providing snow removal services. The school board confirmed that it would hold
the Municipality harmless for damage to school property.
[11]
In 2012, the Municipality again indicated an
intention to put an end to the snow and garbage removal services. Once again,
following discussions, the services were maintained.
[12]
Finally, in November 2017, the Municipality informed
the school board that it had, by resolution, decided to end the snow and
garbage removal services. The school board attempted to negotiate with the Municipality
over the summer of 2018 but the Municipality would not deviate from its
decision. During these discussions, the school board maintained that the 1988
agreement was intended to last in perpetuity.
[13]
On August 31, 2018 the school board filed its
notice of application in this matter, seeking, among other things, a
declaration that the 1988 contract remained in force and that the Municipality had
an obligation to continue providing snow and garbage removal free of charge.
[14]
In support of its application, the school board
filed affidavits of school board employees who were either employed by the
school board in 1988 or involved in the 1988 agreement with the Township. The
affiants stated that the contract did not provide for any expiry or term.
DECISION BELOW
[15]
The application judge found that the application
raised two separate issues as follows:
a.
Was the 1988 contract of perpetual duration?
b.
Could the Municipality terminate the contract unilaterally
as it had done in November 2017?
[16]
On the first issue, the application judge found
that the school board had not satisfied him that the agreement was perpetual in
duration.
[17]
When the application judge turned to the second
issue, he referenced the case of
1397868 Ontario Ltd. v. Nordic Gaming
Corporation (Fort Erie Race Track)
, 2010 ONCA 101, finding it to be instructive.
He also noted that, unlike the case of
Thunder Bay (City) v. Canadian
National Railway Co.
, 2017 ONSC 3560, revd 2018 ONCA 517, leave to appeal
refused [2018] S.C.C.A. No. 358, the word perpetual is nowhere mentioned in
the contract. He acknowledged that there was complete silence as to the
duration of this contract and that there had been continuous performance of
snow and garbage removal since 1988.
[18]
In attempting to characterize the relationship
between the parties, the application judge found that while the relationship
created by the 1988 contract is not one of employment or partnership, it
resembles in some fashion a personal services contract, adding that [t]hese
are the types of contracts into which Courts routinely imply terms of termination
on reasonable notice.
[19]
The application judge found that the surrounding
circumstances, including the vendors lien expiring after 10 years and the
right of first refusal expiring after 20 years, pointed away from a perpetual
agreement. He considered the non-pecuniary considerations expressed in the
Townships letter such as mutual betterment of the community but he did not
explain how these considerations figured into his analysis. The application
judge also found that the Municipalitys efforts to terminate the agreement in
2002 and 2012 supported a finding that the contract could be terminated on
reasonable notice in November 2017.
[20]
Although he did not determine what would
constitute a reasonable notice provision in the circumstances, the application
judge was satisfied that the Municipality has properly exercised its implied
right to terminate its obligations on reasonable notice to the Board.
ISSUES
[21]
The only issue on appeal is whether the
application judge erred in concluding that the 1988 agreement was terminable on
reasonable notice. In light of my conclusion that he did so err and that the
agreement was not terminable on reasonable notice, I need not address the issue
of whether reasonable notice was in fact given in this case.
THE LAW
[22]
Before addressing the specific arguments raised
in this case, I will outline the principles that guide the interpretation of
contracts that are silent on the issue of termination.
[23]
The interpretation of a contract that is not a
standard form contract or contract of adhesion involves questions of mixed fact
and law. An appellate court will only intervene if the decision below is
tainted by palpable and overriding error:
Sattva Capital Corp. v. Creston
Moly Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 4, 55-56, and
69-71.
[24]
As this court explained in
Thunder Bay
,
at para. 30, the overriding principle is that the meaning of an agreement and
the intent of the parties in entering into it must be derived from the words
the parties used and the context in which they used those words.
[25]
In this case the court must determine whether,
in the absence of any stipulation as to the duration of the contract or the
parties rights of termination, the contract should be treated
as either perpetual in
nature or as an indefinite term contract into which the court implies a
provision of unilateral termination on reasonable notice
. The
inquiry focuses on the specific parties to the contract in issue. As the
Supreme Court specified in
M.J.B. Enterprises Ltd. v. Defence Construction
(1951) Ltd.
, [1999] 1 S.C.R. 619, at para. 29:
A court, when
dealing with terms implied in fact, must be careful not to slide into
determining the intentions of
reasonable
parties
(emphasis in original).
[26]
The case law has in the last 150 years
identified certain challenges unique to the issue of when parties are silent on
issues of duration and termination.
[27]
Historically, courts concluded that contracts of
indefinite duration were presumptively perpetual and that the burden lay on the
party seeking termination to establish an implied right of termination.
John McCamus explains as follows:
Initially, the
common law took the position that if the parties did not stipulate in the
agreement a method of termination, the agreement should be presumed to be
perpetual in nature. The presumption could be set aside if the party alleging
an entitlement to terminate, perhaps on reasonable notice, was able to
demonstrate either from the wording of the agreement or its nature that the
presumption should be set aside.
See John McCamus,
The Law of
Contracts
, 3rd ed. (Toronto: Irwin Law, 2020), at pp. 844-845.
[28]
The 1875 House of Lords decision in
Llanelly
Railway & Dock Co. v. London & North Western Railway Co.
(1875),
L.R. 7 H.L. 550 is typically
cited as the starting point for this line of cases. In that case, the Llanelly
Railway company allowed trains owned by the London & North Western Railway
to travel on its rails. The contract did not stipulate any kind of term. Lord
Selborne wrote what was, for a time, the predominant view:
My lords, an
agreement
de futuro
, extending over a tract of time which, on the face
of the instrument, is indefinite and unlimited, must (in general) throw upon
anyone alleging that it is not perpetual, the burden of proving that
allegation, either from the nature of the subject, or from some rule of law
applicable thereto.
[29]
The presumption that an indefinite contract was intended
to be perpetual survived in one form or another into the mid-20
th
century, appearing for example in Kerwin J.s reasons in
Gill Brothers v.
Mission Saw Mills Limited
, [1945] S.C.R. 766, where he wrote: Speaking
generally, a contract indefinite in time is
prima facie
perpetual.
[30]
Despite the long lifespan of the historical
approach, a contrary presumption in favour of termination rights arose in the
commercial context. The trend favouring a presumptive right to terminate on
reasonable notice appears to have gained traction following the House of Lords
decision in
Winter Garden Theatre (London) Ltd. v. Millennium Productions
Ltd.
,
[1948] A.C. 173, in
which Lords Porter and Uthwatt acknowledged that, in a business context, it is
more realistic to expect that parties
do not
intend an indefinite arrangement to be perpetual, and that they would generally
expect to be granted a right to terminate on reasonable notice: See
Rapatax
(1987) Inc. v. Cantax Corporation Ltd.
, 1997 ABCA 86, 145 D.L.R. (4th)
419, at paras. 15-19, leave to appeal refused [1997] S.C.C.A. No. 307. Even
before
Winter Garden
, however, this court had expressed a view that
business contracts must be interpreted in a business way; and it would be a palpable
absurdity to consider such a contract as a perpetual chain on the defendant to
oblige it for all time to continue the plaintiff in such work; the only
reasonable way of interpreting it is to consider it as terminable on reasonable
notice:
Robinson v. Galt Chemical Products Ltd.
, [1933] O.J. No. 114
(C.A.), at para. 14.
[31]
More recently, the law has evolved to eschew all
presumptions in favour of a more balanced contextual approach. As McCamus
explains at p. 844, there is no longer any kind of presumption going either
way:
Modern authorities appear to accept, however,
that the matter is to be determined simply on the basis of ordinary principles
of interpretation, without the aid of a presumption in favour of perpetuity.
While the trend of
the modern cases appears to lie in the direction of implying rights to
terminate on reasonable notice, there is no reason, in principle, precluding
parties from agreeing to indefinite or perpetual obligations and if, on the
proper construction of the agreement, a perpetual obligation is intended, it
will be enforced.
[32]
The modern reconciliation between conflicting
presumptions is best expressed in the Manitoba Court of Appeal decision in
Shaw
Cablesystems (Manitoba) Ltd. v. Canadian Legion Memorial Housing Foundation
(Manitoba)
(1997), 143 D.L.R. (4th) 193. In
Shaw
, a cable company
provided cable television to two retirement homes at a promotional price. The
contract provided for a unilateral right of termination in favour of the
clients, but it was silent on Shaws right to terminate. Ultimately, the
Manitoba Court of Appeal held that the contract was perpetual, largely because
the contract included a price adjustment clause ensuring that Shaw was not
required to provide services at an unreasonably low price in the future.
[33]
Shaw
provides
an authoritative expression of what has become the dominant approach.
Huband
J.A. wrote at p. 196:
There is no lack of
reported cases where the courts have implied a term into a contract allowing
one of the parties to terminate an agreement that otherwise would be unlimited
in time, by giving reasonable notice. There is also a host of cases which go in
the other direction
I think the essence of the case is
simply that each of the decisions turns on the particular agreement under
consideration and the circumstances surrounding it
.
[34]
In concurring reasons, Helper J.A. agreed at p.
211 that whether a contract is on the one hand perpetual in duration or on the
other hand, terminable by one or both parties, is purely a matter of
construction. Arguably, contracts are not subject to a presumption one way or
the other.
[35]
Turning to the particular facts in
Shaw
,
Huband J.A. explained at p. 200:
Counsel for the company argues that the
parties must have contemplated from the outset that the company would not
continue to provide the service on a subsidized basis until the buildings
crumble into dust.
This would be a
strong argument indeed, if there was no provision for an increase in the
monthly fee. But the agreements specifically contemplate the prospect of future
rate increases. The agreements foresee what has taken place over the years,
namely, that the individual service fee has more than doubled; and so has the
fee payable by these customers. The agreements contemplate contingencies far
into the future, and contemplate that the service fee payable by these
customers would remain subsidized into the future.
[36]
This court adopted the approach set out in
Shaw
in
Nordic Gaming
, at para. 13, where OConnor A.C.J.O. stated:
When the term of a
contract is not fixed and there is no provision for termination on reasonable
notice, a court may treat a contract
as either perpetual
in nature or as an indefinite term contract into which the court implies a
provision of unilateral termination on reasonable notice
In
determining this issue, courts typically look to the specific terms of the
contract as well as to the relationship between the parties and the surrounding
circumstances. As the majority of the court explained in
Shaw
at para.
15, the essence of the cases is simply that each of the decisions turns on the
particular agreement under consideration and the circumstances surrounding it.
[Emphasis added. Citations omitted.]
See also
Brown v. Belleville (City)
,
2013 ONCA 148, 359 D.L.R. (4th) 658, at para. 64.
[37]
In considering the nature of the parties
agreement, the case law places a particular emphasis on the relationship
created by the contract. As this court recognized in
Nordic Gaming
, at
para. 14, certain types of contracts naturally give rise to an implied right to
terminate upon reasonable notice. Employment relationships, partnerships, and
personal service contracts, all of which depend upon a level of trust and
continuous performance, engage specific concerns about the extent to which
courts should enforce performance when a relationship has collapsed. The
implied right to terminate a contract for personal services is in a sense the corollary
to the courts general unwillingness to order specific performance of such
contracts.
[38]
In
Nordic Gaming
, for example, the
trust relationship was inherent in the nature of the contract, as OConnor
A.C.J.O explained at para. 24:
The agreement
contemplates that the two parties would work together with 139 operating a food
and beverage service and maintaining the premises, and Nordic running the [off-track
betting] operation in the premises. Thus, they would have to work together closely
and co-operation would be important. While the relationship created by the
agreement was not one of employment, partnership or, strictly speaking, for
personal services which are the types of contracts into which courts
routinely imply terms of termination on reasonable notice it did involve many
of the same components, such as the need for trust, confidence and
satisfaction.
[39]
However, the simple characterization of a
contract as a personal service contract does not automatically give rise to
an implied right of termination on reasonable notice; the court is still
required to examine the agreement in its entire context. Mesbur J. examined
this question in
Credit Security Insurance Agency Inc. v. CIBC Mortgages
Inc.
(2006), 268 D.L.R. (4th) 725, affd 2007 ONCA 287. In that case,
Credit Security agreed to provide pooled mortgage insurance to customers of
FirstLine Trust, later acquired by CIBC Mortgages. The contract stipulated that
the agreement could only be terminated by mutual agreement or for fundamental
breach. CIBC decided for business reasons that it wished to terminate the
agreement and gave Credit Security three months notice of termination. Credit
Security commenced an action to enforce the agreement.
[40]
Mesbur J. found that the contract between Credit
Security and CIBC was a commercial contract with only some of the hallmarks of
trust and confidence that would normally give rise to an implied right to
terminate on reasonable notice. She said, at para. 33: While there is no doubt
that there is a provision of services element to the contract, it is also,
and primarily, a contract for the provision of a product to CIBC Mortgages, a
product in which
Credit Security was to retain a long-term proprietary
interest for which it was to be paid. She continued, at para. 36:
As I have said, it
is true that there are elements of provision of services within the contract.
What the court must look at, however, is whether, from the
inception of the contract there should be an implied right to terminate
.
One does not look at the circumstances at the time that one of the parties
wishes to terminate to see if it is then commercially reasonable. One must look
at the time of the formation of the contract to make that determination.
[41]
On appeal, this court held Mesbur J.s analysis
to be entirely sound in every respect on all issues: at para. 1.
[42]
As
Credit Security
makes clear, the
existence of a provision of services element in a contractual relationship
does not automatically relieve the court of going through the exercise of
determining whether, at the moment of contract formation and in all the
circumstances, a term could be implied into the parties agreement providing
for termination on reasonable notice. The existence of a special relationship
or trust relationship is a strong and often decisive factor, but it is not
definitive. This aligns with the Manitoba Court of Appeals reasoning in
Shaw
,
where the companys ongoing obligation
to provide cable services was found to be perpetual, despite what could be
described as a service element.
[43]
I turn now to the consideration of the issues
raised in this case.
POSITIONS OF THE PARTIES
[44]
The school board argues that, in carrying out
his analysis, the application judge committed several errors. Specifically, the
school board submits that he erred in:
1.
Placing the burden of showing that the contract
is perpetual on the school board;
2.
Finding that the contract is one of personal
service involving the need for trust, confidence and satisfaction such that a
term of termination on reasonable notice ought to be implied;
3.
Considering the Municipalitys post-contract
desire to terminate; and
4.
Considering the two clauses inserted in the deed
of transfer as being indicative of value or intention.
[45]
For its part, the Municipality argues that the
application judges assessment of the circumstances relevant to the contract
and his determination that it resembles in some fashion a personal services
contract are reasonable findings. In its submission there is simply no basis to
set aside his conclusion that the contract did not bind the Municipality in
perpetuity.
ANALYSIS
[46]
In my view, the path taken by the application
judge to reach his conclusion was flawed in several respects. As I will
explain, the application judges analytical approach was confusing, and he
erred in concluding that the agreement at issue was in the nature of a personal
service contract such that a right of termination on reasonable notice ought to
be implied. He also erred in his consideration of the surrounding
circumstances. On a proper analysis, he ought to have concluded that the
contract was perpetual in nature
(1)
How the application judge approached his task
[47]
The application judges reasons present the
analytical task as one involving two steps to address two discrete issues, with
the first step requiring him to decide if the contract was perpetual in
duration and the second requiring him to decide whether the contract could be
terminated unilaterally by the Municipality in the manner it had done.
[48]
In his analysis on this first issue, the
application judge noted that nowhere is it indicated, or even implied, that
this contract is to be of perpetual duration. He went on to state that, on the
basis of what he considered to be cryptic evidence as to the terms of the
agreement, he had tremendous difficulty finding that the [school board] has
satisfied me that this indefinite contract is of perpetual duration. He then
indicated that this did not end the analysis and further consideration was
necessary. It was at that point that he turned to the second issue, where he reviewed
the case law and considered the relationship of the parties and the surrounding
circumstances.
[49]
In my view, the application judges decision to
divide the analysis into two separate questions was unnecessary and confusing
in light of the applicable test. As this court explained in
Nordic Gaming
,
when a contract contains no fixed term and no provision for termination on
reasonable notice, the court may treat the contract either as perpetual or as
indefinite into which a provision of unilateral termination on reasonable
notice is implied. The decision as to which is the proper interpretation is an
exercise in contractual interpretation which requires the court to examine the
specific terms of the contract as well as the relationship between the parties
and the surrounding circumstances. Because there is no presumption either way,
neither party bears an onus except to the extent that any applicant bears the
onus in an application for declaratory judgment, such as this one. The
application judges reasons, however, could be read in such a way as to place
the onus on the school board to satisfy the court that the contract was
perpetual. Thus, without giving rise to a reversible error, the application
judges reasons tend to obscure his approach to the relevant legal principles.
[50]
It was on his second step that the application
judge considered the application of
Nordic Gaming
and addressed the
relationship between the parties and the surrounding circumstances. However,
despite correctly identifying
Nordic Gaming
as the governing authority,
the application judge committed palpable and overriding errors in its
application, to which I now turn.
(2)
The nature of the relationship
[51]
Relying on
Nordic Gaming
, the application
judge found that the relationship created by the 1988 contract resembles in
some fashion a personal service contract and that the provision of snow
removal and garbage disposal involves the need for trust, confidence and
satisfaction. The application judge then concluded that the contract was the
type of contract into which courts routinely imply terms of termination on
reasonable notice.
[52]
I disagree. The contract in this case is
fundamentally different from the types of contract into which the courts
routinely imply termination on reasonable notice. In my view, the application
judges characterization of the agreement between the parties is tainted by
palpable and overriding error. When compared against the contract at issue in
Nordic
Gaming
, for example, there are two critical differences.
[53]
First, in
Nordic Gaming
, the services
being provided were being paid for on an ongoing basis. In the present case,
the services provided by the Municipality form part of the consideration payable
for real property transferred in 1988. This is not an ongoing relationship
where service is being provided and payment made on an ongoing basis. Indeed,
in
Nordic Gaming
, at para. 27, the court explained that a partys
large upfront investment can provide an indication that the parties intend to
create a perpetual agreement:
However, there are
aspects of the surrounding circumstances which could point to a perpetual
agreement. Most significantly, was the large cost incurred by 139 in order to
install fixtures in the premises. In passing, the trial judge indicated that
this amount was $117,700, but made no clear finding on the point. This sum of
money could have taken 139 many years to recover.
Thus,
it may be argued that it would be unusual for 139 to agree to enter a contract
that could be terminated on reasonable notice where such a significant initial
investment was needed
. [Emphasis added.]
[54]
The school boards upfront investment was the
transfer of the school for one dollar. As contemplated in
Nordic Gaming
,
it would be unusual in this case for the school board to transfer property to
the Municipality in return for a nominal sum plus ongoing services if those
services could be terminated unilaterally and potentially prematurely. In that
regard, it is of particular significance that the school board was transferring
real property with enduring value.
[55]
A second basic difference is that in
Nordic
Gaming
, one party was serving the clientele of the other party. As the
court explained, in such circumstances the parties had to work together
closely and co-operation would be important. Implying a term permitting one
party to exit the relationship in such circumstances is reasonable as it would
be inappropriate to force such parties to continue working together where there
is no longer any trust.
[56]
The services being provided by the Municipality in
this case are not the types of services that raise concerns of the nature
referenced in
Nordic Gaming
. Snow and garbage removal are normal functions
of a municipality, and the standards to which they are provided is generally
consistent and uniform throughout the municipality. They do not engender the
same type of trust relationship that gives rise to a presumption of an implied
right to terminate. Nor is it suggested that the relationship of trust
between the school board and the Municipality, if one was required, has
collapsed or deteriorated to a point where it would be inappropriate to force
the relationship to continue. In my view, the contract between the Municipality
and the school board is not the sort of agreement into which courts routinely
imply a right to terminate on reasonable notice and the application judge erred
in so concluding.
(3)
The surrounding circumstances
[57]
In his analysis of the surrounding circumstances,
the application judge referenced:
1.
The mutual betterment of the community;
2.
The provision in the transfer imposing a lien in
the amount of $27,300 for 10 years and the right of first refusal in favour of
the school board for 20 years; and
3.
The length of time the Municipality performed
the services and the Municipalitys express desire to end the relationship.
[58]
The application judge considered that these
circumstances supported the implication of a term permitting the Municipality to
terminate the agreement unilaterally in the manner it did. The Municipality in
its submissions further argued that, because the services had been provided for
over 30 years, the transferred property had been paid for many times over. This
provided further support for the application judges decision and addressed the
concern, discussed above, that a unilateral termination right might prevent the
school board from recovering fair value for the transferred property if the
services were terminated prematurely.
[59]
As I will explain, the application judge erred
in his appreciation of the surrounding circumstances by considering irrelevant
factors and failing to consider relevant factors. Viewed properly, the
surrounding circumstances support the conclusion that the contract is perpetual
in nature. Moreover, the Municipalitys suggestion that it has provided enough
services over time to pay for the transferred property is not persuasive. The
circumstances that are most relevant in interpreting the agreement are those
known to the parties when they reached the agreement, not when the Municipality
seeks to terminate it. I turn first to the three circumstances identified by
the application judge.
[60]
The application judge made reference to the
mutual betterment of the community but he did not provide any indication of how
it might favour either the school boards or the Municipalitys interpretation
of the agreement. I view this circumstance as being neutral in that it is
simply an observation that the transaction was of benefit to the community
served by both parties. At most, the status of the parties as public bodies working
for the betterment of the community provides an indication that neither party
was pursuing strictly commercial aims by entering into the agreement.
[61]
As for the two provisions inserted into the transfer,
these provisions appear to flow directly from the requirements of the Ministrys
Capital Grant Plan and the school boards desire to ensure that the Municipality
would not simply resell the property. They are of little assistance in
interpreting the Municipalitys obligation to provide snow and garbage removal,
which is not tied to its continued ownership of the property.
[62]
With respect to the third surrounding
circumstance considered by the application judge, the length of time the Municipality
rendered the services and its repeated attempts to bring them to an end, this
circumstance may have relevance once it is decided that a reasonable notice
period should be implied. It is, however, of little assistance in deciding the
central issue as to whether the agreement is perpetual or one into which a
reasonable notice provision should be implied.
[63]
Similarly, the Municipalitys argument that the transferred
property has been paid for many times over is of no assistance. The Municipality
submits that this is relevant because the Township would have been alive to
this possibility at the time of contract formation and would not have agreed to
a contract requiring it to continue providing services until long after the
aggregate value of the services exceeded the value of the property. The Municipality
suggests that because it has provided services in excess of the propertys
value many times over, it should now be permitted to terminate the agreement.
[64]
I reject the Municipalitys position for two
reasons. First, the record does not permit an accurate assessment of either the
value of the school property or the value of the municipal services either at
the time the contract was entered into or in the years following. The Municipality
refers to the affidavit of Stephan Poulin, Director of Economic Development and
Community Services for the Municipality of West Nipissing, where the
calculation of the overpayment is contained. In his affidavit, Mr. Poulin
suggests that the amount of the vendors lien included in the transfer, some
$27,300, was the value of the property at the time of transfer. There is
nothing to substantiate his evaluation on this point, and no indication of how
the value of the property might have changed in relation to the value of the
services over time. It is simply impossible to determine on this record the
value of the property, whether at the date of the sale or in the period since
the sale.
[65]
With respect to the value of the snow and
garbage removal services, Mr. Poulin estimated that the value of the services
provided by the Municipality since 1988 could be as much as $270,000. This too
is impossible to substantiate. Mr. Poulins figure is taken from the affidavit
of Mr. Cantin, for the school board, who deposed that in 2017-18, when, on
short notice, the school board was forced to pay for its own snow and garbage
removal, it paid $4,500 for each service, or $9,000 for the year. Mr. Poulin
then apparently extrapolates back to 1988, simply multiplying $9,000 by 30
years (1988-2019) to reach the figure of $270,000. There is no evidence of the
value to the school board of the snow and garbage removal over the period, nor of
the cost to the Municipality of providing the services. The amounts paid by the
school board in 2017-18 for the services previously provided by the Municipality
are of no assistance in determining the value of the services that the Township
agreed to provide.
[66]
Second, and more importantly, even if it could
be shown that the value of snow and garbage removal had exceeded the value of
the property since the 1988 sale, it does not necessarily follow that the
parties did not intend those services to be provided in perpetuity. Contractual
interpretation focuses on the intentions of the parties at the moment of
contract formation:
Sattva
, at para. 58. Or, as Mesbur J. wrote
in
Credit Security
, at para. 36: One does not look at the
circumstances at the time that one of the parties wishes to terminate to see if
it is then commercially reasonable. One must look at the time of the formation
of the contract to make that determination.
[67]
At the time the contract was entered into, the
parties would not have known how long the school board would continue to
operate the Ste. Marguerite dYouville School. Obviously, if the school is closed,
the Municipalitys obligations would come to an end. The schools closure could
have occurred five, ten or more years after the agreement was entered into. An
early closure would potentially constitute a windfall for the Municipality. The
fact that the school has remained in operation for over 30 years may result in
a windfall to the school board, which it would turn out was not known nor
likely contemplated by the parties when they made their contract. It ought not
to have been a factor in the application judges decision.
[68]
The application judge also appears to have overlooked
other relevant considerations, such as the nature of the contracting parties as
well as additional surrounding circumstances.
[69]
This was an agreement between two public
institutions. Both were in the business of providing services to the community
they served, and both saw the agreement as a win-win in that regard. Neither
party was pursuing strictly commercial objectives and it is doubtful, based on
their relationship and on the available evidence, that much consideration was
given to whether one might achieve a windfall at the others expense. It simply
was not the focus of the parties negotiations.
[70]
The public nature of the contracting parties
also explains an additional surrounding circumstance with which the application
judge failed to grapple. The parties did not carry out a valuation of the St.
Jean Baptiste School being transferred, nor did they estimate the costs to the Municipality
of incorporating the snow and garbage removal services for the Ste. Marguerite
dYouville School into their usual operations. An after-the-fact analysis as to
whether the arrangement turns out to be economically advantageous to one party
or the other ought not to have factored into the interpretation of the agreement
that was reached. The fact that an agreement reached between two parties is
not, after many years of operation, economically fair to one party or the
other should not operate so as to justify ending the relationship. It is not
the courts role to save a contracting party from a bargain that proves
improvident with hindsight:
Northrock Resources v. ExxonMobil Canada
Energy
, 2017 SKCA 60, at para. 21; see also
Churchill Falls (Labrador)
Corp. v. Hydro-Québec
, 2018 SCC 46, [2018] 3 S.C.R. 101.
[71]
I hasten to add that, even if I were to conclude
that the contract was ambiguous such that it became necessary to look at the
subsequent conduct of the parties, that is, the fact that the service continued
to be provided for over 30 years despite the twice stated intention of the Municipality
to end it, this would not assist the Municipality. The fact that the Municipality
continued to provide the services until 2017, well after the 10 and 20 year
periods set out in the transfer had passed and despite the twice stated
intention to end the provision of the services, is, in my view, more consistent
with the agreement being perpetual in nature. The continuous 30-year
performance and the abrupt termination in 2017, without any reference to an
understanding that the agreement contained an implied termination provision,
suggests that the agreement had been treated by the Municipality, until then,
as being perpetual.
CONCLUSION
[72]
In summary, in determining whether to treat a
contract
as either
perpetual in nature or as an indefinite term contract into which the court
implies a provision of unilateral termination on reasonable notice
,
the court looks to the specific terms of the contract as well as to the
relationship between the parties and the surrounding circumstances.
[73]
The contract in this case does not contain any
clear indication as to whether it was intended to be perpetual. The word
perpetual does not appear in the contract, nor does the contract provide for unilateral
termination.
[74]
As I have explained, the application judge erred
in his analysis of the surrounding circumstances and in his characterization of
the contract as a personal services contract into which courts routinely imply
a right of termination upon reasonable notice. Viewed properly, the
relationship between the parties and the surrounding circumstances suggest that
no such right of termination was intended, nor should one be implied. As noted
above, the contracting parties are two public institutions offering services to
the same community. The arrangement reached was mutually beneficial. This was a
relatively small township seeking to acquire a property it needed but was
unable to pay for. In exchange for the acquisition of this capital asset, it
made a commitment that was neither onerous nor unusual for a municipality. It
already had the perpetual obligation to carry out snow and garbage removal
throughout its boundaries. The Ste. Marguerite dYouville School, a school
located in and serving its township, would simply be treated as the Municipality
might treat municipal arenas, libraries, parks and the like. It would clear
snow from the parking lot and remove garbage for as long as the facility
continued to operate.
[75]
The school board, for its part, disposed of a
capital asset and, although it did not receive payment for it, nonetheless
benefitted in that the arrangement reduced its ongoing operating costs for the
Ste. Marguerite dYouville School. It is not possible to determine at this
point and on this record what a sale of the property at fair market value might
have generated in 1988 or what income might have been derived from investing
the proceeds of sale, nor is that information necessary to understand and
properly construe the bargain struck between the parties at the time. In
exchange for an enduring capital asset, the school board received an enduring
benefit, one that would last for as long as the school board continued to
operate the Ste. Marguerite dYouville School.
[76]
Both parties also saw the advantage, as public
bodies, of the St. Jean Baptiste School continuing to benefit the community
served by them.
[77]
Therefore, considering the terms of the
agreement, the relationship of the parties and the surrounding circumstances at
the time the contract was entered into, I conclude that the obligation of the
municipality to provide snow and garbage removal services to the Ste.
Marguerite dYouville School is perpetual in nature.
DISPOSITION
[78]
As a result, I would allow the appeal, set aside
the application judges decision and grant judgment:
a.
declaring that the 1988 agreement between the
parties remains in force;
b.
awarding the appellant damages in the amount of
$9,000 plus applicable taxes per year from the month of November 2017 to the
date of this decision; and
c.
awarding costs of the appeal fixed in the amount
of $12,000 to the appellant, together with costs of the application below.
[79]
If the parties cannot agree on the amount of
costs of the application below, I would ask the parties to submit brief written
submissions not exceeding three pages, with the appellants submissions due
within 10 days hereof and the respondents submissions due 7 days thereafter.
Released: July 28, 2021 P.R.
Paul
Rouleau J.A.
I
agree Alexandra Hoy J.A.
I
agree K. van Rensburg J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Politis v. Politis, 2021 ONCA 541
DATE: 20210728
DOCKET: C68238
Tulloch, Nordheimer and Jamal
JJ.A.
BETWEEN
Catherine Elizabeth Politis
Applicant
(Appellant and
Respondent
by way of cross-appeal)
and
Themistocles Politis
Respondent
(Respondent and
Appellant
by way of cross-appeal)
Herschel I. Fogelman and Lauren Daneman,
for the appellant and respondent by way of cross-appeal
James D. Singer, for the respondent and
appellant by way of cross-appeal
Heard: April 6, 2021 by video conference
On appeal from the order of Justice E. Llana
Nakonechny of the Superior Court of Justice, dated February 27, 2020, with
reasons reported at 2020 ONSC 1306.
On cross-appeal from the costs
endorsement of Justice E. Llana Nakonechny of the Superior Court of Justice,
dated April 9, 2020.
Tulloch J.A.:
A.
Introduction
[1]
The parties were married for 25 years. They
separated in 2008, when they were both 48 years old. By the time of trial, the
parties had been separated for eleven years and the appellant had resided with
her new partner, Mr. Burleigh, for at least eight years.
[2]
After a six-day trial, the trial judge held that
the appellant established a prima facie entitlement to spousal support on both
a compensatory and needs-based model. The trial judge reduced the spousal
support payments that the respondent owed to the appellant, reasoning that the appellants
second spouse had an increasing obligation to contribute. The trial judge
further ordered the support payments to terminate as of October 2026. The trial
judge awarded costs of $45,000 all-inclusive to the appellant.
[3]
On appeal, the appellant submits that the trial
judge erred in law in her determination of the quantum and duration of spousal
support. The respondent cross-appeals the costs order awarded against him at
trial.
[4]
For the reasons that follow, I would dismiss
both the appeal and the cross-appeal.
B.
Overview of the facts
[5]
As noted above, the parties were married for 25 years.
They had three children together. The children are now adults and independent.
[6]
The appellant has a high school education. She
was a full-time homemaker and caregiver to the parties children throughout the
marriage. She has not been employed since separation. She was diagnosed with
Lyme disease in October 2012, affecting her ability to re-enter the
workforce. At trial, her position was that she had no ability to earn income or
contribute to her own support.
[7]
The respondent is a civil engineer. He earns
income through his own professional corporation, which he has owned since 1992.
[8]
At the time of separation, the parties did not
have any significant assets, besides the matrimonial home, which was
significantly encumbered. The net proceeds of sale were $113,263.05. Neither
party paid any equalization payments to the other.
[9]
In 2015, the appellant brought a motion for
interim spousal support. On November 13, 2015, the motion judge ordered the
respondent to pay spousal support in the amount of $5,288 per month on an
interim basis, based on an imputed income of $200,500. The respondent paid the outstanding
arrears of support, totalling $52,880, to the appellant from his share of the
net proceeds of the sale of the family home. In calculating the quantum of
interim support, the motion judge took into consideration a monthly amount
contributed by Mr. Burleigh to the appellants expenses.
[10]
At trial, the appellant sought increased monthly
spousal support for an indefinite period. She argued that the respondent
underpaid support as his income was actually higher than the income imputed by the
motion judge. For his part, the respondent sought a termination of spousal
support, and credit for overpayments made to the date of trial. His position
was that the entirety of his support obligation should shift to the appellants
new partner.
C.
Decision below
[11]
There were three issues before the trial judge:
(1) whether the appellant was entitled to spousal support; (2) if so, what was
the respondents income for the purpose of calculating spousal support; and (3)
what was the effect of the appellants cohabitation with her new spouse on
entitlement to, as well as quantum and duration of, spousal support.
Additionally, the trial judge determined the quantum of costs to be awarded in
relation to these proceedings.
[12]
The sections that follow summarize the trial
judges conclusions on each of these issues, in turn.
(1)
The Appellants Entitlement to Spousal Support
[13]
The trial judge found that the appellant had
established a prima facie entitlement to spousal support on both a compensatory
and needs-based model. On this issue, the trial judge made the following
findings of fact: the parties had a long-term marriage; the appellant was a
stay-at-home parent, but the respondent assisted her with home and parenting
responsibilities when he could; as a result of the appellants age, health,
lack of education and work experience, she had a difficult time re-entering the
workforce following separation; and she cannot be self-sufficient based on her
own income or assets.
(2)
The Respondents Income for Support Purposes
[14]
For the quantum of spousal support, the starting
point was determining whether the amount imputed to the respondents income in the
interim order was appropriate. The appellant sought an adjustment upward, while
the respondent sought credit for overpayment.
[15]
While the respondents income deviated somewhat from
the amount imputed by the motion judge in the two years since the interim order
was issued in 2015, the trial judge found that the sums paid to the appellant ultimately
balanced out. Accordingly, the trial judge decided that: On balance, and
taking into account the means, needs, and circumstances of the Applicant and
the financial support she received from Mr. Burleigh in the relevant years,
neither an increased payment nor a credit for overpayment is appropriate in
this case.
(3)
The Effect of the Appellants Common Law Spouse
on the Quantum and Duration of Spousal Support
[16]
The trial judge found that the appellant and Mr.
Burleigh began a committed relationship in 2009 and began cohabitating in 2011.
She noted that a spouses re-partnering does not disentitle her to spousal
support but does affect quantum and duration.
[17]
The trial judge found that the appellant enjoys
a standard of living with Mr. Burleigh that is comparable to, or better
than, the standard of living that the parties enjoyed during their marriage. The
trial judge concluded that while a greater portion of the Applicant's need
should now be met by Mr. Burleigh, the economic loss from her marriage to the
Respondent has not been completely compensated by the support paid by the
Respondent to date.
[18]
The trial judge disbelieved several aspects of
the appellants evidence, including: that she had no knowledge of Mr.
Burleighs financial circumstances; and that she was obligated to repay a loan
to Mr. Burleigh on a monthly basis. According to the trial judge, the
appellants evidence concerning her financial arrangement with Mr. Burleigh did
not ring true.
[19]
The trial judge found that the appellant received
a net financial benefit from Mr. Burleigh in the amount of at least $3,100 per
month. The trial judge grossed-up this amount to a notional income of $44,268
per year. The respondents income was $193,816. The trial judge determined that
the Spousal Support Advisory Guidelines formula (SSAGs) range for this income
differential contemplates both needs based and compensatory support. She
further identified the SSAGs formula range as follows: $4,673 at the low end, $5,452
at the mid range, and $6,185 at the high end.
[20]
In determining the amount of support to be paid
by the respondent, the trial judge considered the SSAGs ranges, the partially
compensatory and initially partially needs-based nature of the applicants
entitlement, as well as the benefit she receives from her cohabitation with Mr.
Burleigh. The trial judge concluded that spousal support payments should not be
terminated as the appellant had not yet been fully compensated for her economic
loss. However, the trial judge reduced the amount owed based on her
significantly decreased need given her second spouses ability to support her.
[21]
As of November 1, 2019, the respondent was
ordered to pay spousal support in the amount of $3,000 per month up to and
including October 1, 2024. Commencing November 1, 2024, the respondent was
ordered to pay spousal support to the appellant in the amount of $1,500 per
month up to and including October 1, 2026. Thereafter, the trial judge held
that spousal support shall terminate.
[22]
The respondent was also ordered to pay
$10,446.50 to the appellant to reimburse her for debts paid by her on the
respondents behalf.
(4)
Costs
[23]
The trial judge awarded costs of $45,000 all
inclusive to the appellant. On balance, she found that the appellant was the
more successful party based on the claims made by the parties in the pleadings
and at trial, as well as the outcome of the trial. She was entitled to a
portion of her costs.
D.
ISSUES RAISED by the appellant
[24]
The appellant argues that the trial judge erred in
her determination of the quantum and duration of spousal support because she
deviated from the values generated by the SSAGs formula. Additionally, the
appellant argues that the trial judge effectively double-counted the
contributions of the appellants new spouse, first as a source of income and
then as benefits paid to the appellant.
E.
standard of review in relation to the
appellants grounds of appeal
[25]
Before addressing each of these issues, it is
important to briefly set out the applicable standard of review as it shapes the
contours of the discussion below.
[26]
This court should not overturn a support order
"unless the reasons disclose an error in principle, a significant
misapprehension of the evidence, or unless the award is clearly wrong":
Hickey
v. Hickey
, [1999] 2 S.C.R. 518, para. 12. This court is not entitled to
overturn a support order simply because it would have made a different decision
or balanced the factors differently. This deferential posture is informed by
both the discretion involved in making support orders and the importance of
finality in family law litigation.
F.
analysis of the appellants grounds of appeal
[27]
As noted above, the appellant first takes issue
with the trial judges determination of the quantum and duration of spousal
support, namely, she asserts that the trial judge deviated from the SSAGs formula
ranges of support entitlement and from the Rule of 65. She also asserts
insufficiency of reasons. As I will explain, I disagree.
(1)
SSAGs Guidance
[28]
The appellant is correct in pointing out that
the ranges generated by the
Spousal Support Advisory Guidelines
(Ottawa: Department of Justice, 2008) formulas are the presumptive starting
point for awarding support:
McKinnon v. McKinnon
, 2018 ONCA
596, [2018] O.J. No. 3487, at para. 24;
Slongo v. Slongo,
2017 ONCA
272, 137 O.R. (3d) 654, at paras. 105-106. While not binding, the SSAGs should
not be lightly departed from:
Slongo,
at para. 105. Any departure
requires adequate explanation:
McKinnon,
at para. 24. That being said,
while the SSAGs formula offers a valuable tool in assessing a reasonable amount
of spousal support, there are complicating factors that must be considered:
Gray
v. Gray,
2014 ONCA 659, 50 R.F.L. (7th) 257, at para. 45.
[29]
Where, in my view, the appellants position errs
is in equating the principled guidance offered in the SSAGs
as a whole
with the values generated by the short-hand formulas. Those formulas are
intended to be used as tools only and, according to the SSAGs themselves,
cannot be applied automatically in every case.
[30]
Re-partnering in particular is a circumstance that
the SSAGs suggest, at s. 14.7, requires case-by-case decision-making:
Where the recipient remarries or re-partners
with someone who has a similar or higher income than the previous spouse,
eventually faster or slower, depending upon the formula adopted spousal
support would be extinguished. We have been unable to construct a formula with
sufficient consensus or flexibility to adjust to these situations, despite
considerable feedback that a formula would be desirable. In this final version,
we still have to leave the issues surrounding the recipients remarriage or
re-partnering to individual case-by-case negotiation and decision making.
[31]
Re-partnering is also specifically contemplated
by the SSAGs as a reason to revisit entitlement to support and consider
terminating it. On the topic of re-partnering, the SSAGs
state at
§13.8:
Entitlement may then be revisited for any
number of reasons the recipient finding employment, the recipients
remarriage or re-partnering, the payors retirement or loss of employment, etc.
and support may be terminated if entitlement has ceased.
[32]
Section 16 the
Spousal Support Advisory
Guidelines: The Revised Users Guide
(Ottawa: Department of Justice,
2016), echoes the sentiment in instructing that re-partnering does not mean
the automatic termination of spousal support, but support is often reduced and
sometimes even terminated. This depends on whether support is compensatory or
non-compensatory, as well as the length of the first marriage, the age of the
recipient, the duration and stability of the new relationship and the standard
of living in the recipients new household.
[33]
Here, the original support was awarded on both a
compensatory and needs basis. The trial judges explanation for deviating from
the SSAGs formula range is clear with respect to both bases of support
entitlement and reveals no error in principle.
[34]
First, it is clear from the trial judges
reasons that she viewed the contributions of the appellants new spouse as
sufficient to meet the appellants needs. The trial judge found that the
appellant enjoys a standard of living that is comparable to, or better than,
the standard of living she enjoyed during the marriage. The trial judge viewed
the appellants new relationship as lengthy and one of permanence. The trial
judge also rejected the appellants evidence that she was under any obligation
to repay her new spouse for the financial assistance he provided her during
their relationship. These factual findings support the trial judges conclusion
that re-partnering diminished the appellants needs-based entitlement to
spousal support.
[35]
In this way, the trial judges deviation from
SSAGs formula ranges on this point was not in error, but rather was consistent
with the SSAGs overall guidance.
[36]
Second, the trial judges reasons explain her decision
with respect to the partially compensatory nature of the appellants support
entitlement, and similarly disclose no error in principle. On this point, the
trial judge said as follows:
In my view, the time has not yet come when the
Applicant has been fully compensated for her economic loss and the Respondents
obligation to pay support to her can end. However, it is appropriate for the
amount of support and the ranges themselves to be reduced, based on the
increasing obligation of the Applicants second spouse to contribute to her
need.
[37]
The trial judge also noted that at the time of
trial, the respondent had paid the appellant spousal support for about nine
years. Given the considerable length of the parties marriage, the respondent was
ordered to continue to pay support until 2026, albeit on a reduced basis. By
then, the trial judge found that the appellant will be compensated for any
economic loss associated with the dissolution of the marriage.
[38]
Again, the trial judges approach was consistent
with the overall guidance in the SSAGs, is owed considerable deference, and I
see no reason to interfere.
[39]
I would dismiss this ground of appeal.
(2)
The Rule of 65
[40]
The appellant also takes issue with what she
refers to as the trial judges deviation from the Rule of 65, as set out in
s. 3.3.3 of the SSAGs that is, where the length of cohabitation in years plus
the recipients age at the date of separation equals or exceeds 65, indefinite
spousal support is appropriate:
Climans v. Latner,
2020 ONCA
554, 449 D.L.R. (4th) 651, at para. 3.
[41]
Here again, the appellants position fails to
consider the more nuanced explanations provided in the SSAGs. Section 7.5.3 of
the SSAGs explains further:
The
without child
support formula
provides that indefinite (duration not specified) support will be available
even in cases where the marriage is shorter than 20 years
if the years
of marriage plus the
age
of the support recipient
at the time of
separation
equals or exceeds 65.
In a shorthand
expression, we described this as the rule of 65. [Emphasis in original.]
[42]
The SSAGs make very clear at s. 13.8 that indefinite
support is not permanent support:
Under the Advisory Guidelines duration of
spousal support will be indefinite, under both formulas, where the parties have
been married for 20 years or more, or where the rule of 65 applies. But
indefinite support, under the Guidelines as under the current law, does not
necessarily mean that support is permanent or infinite, only that the
duration has not been specified. We have purposely changed the language in this
final version to convey that notion; our new terminology is indefinite
(duration not specified).
Duration may be specified at
some point in the future and support terminated, if entitlement ceases.
[Emphasis
added.]
[43]
Moreover, the SSAGs explain at s.7.5.3 that the Rule
of 65 is, intended to respond to the situation of older spouses who were
economically dependent during a medium length marriage and
who may have
difficulty becoming self-sufficient given their age
(emphasis added).
[44]
As already mentioned above, re-partnering is
highly relevant to what otherwise might be an insurmountable difficulty in
becoming self-sufficient. Given the trial judges findings that the appellants
standard of living was now comparable to, or higher than what it was during the
marriage, I see no error in this aspect of the trial judges reasons either.
[45]
I would dismiss this ground of appeal.
(3)
Accounting for Mr. Burleighs Contributions
[46]
Finally, the appellant alleges that the trial
judge effectively double counted Mr. Burleighs contributions first as a source
of income, and second as benefits paid by Mr. Burleigh as justification for
her order outside of the SSAGs formula ranges. I do not read the trial judges
reasons in the same light. The impugned comments are as follows:
I am satisfied that the Applicant receives a
net financial benefit from Mr. Burleigh in the amount of at least $3,100 per
month: half of the $5,500 he contributes to the household expenses and the $350
alleged debt repayment. Grossed up for tax at 19%, this results in a notional
income of $44,268 per year. The
SSAG
range for the Applicants income
of $44,268 and the Respondents income of $193,816 is $4,673 at the low end,
$5,452 at the mid range, and $6,185 at the high end. The amounts in this range
contemplate both need-based and compensatory support.
[47]
She then goes on to state that it is
appropriate for the amount of support and the ranges themselves to be reduced,
based on the increasing obligation of the Applicants second spouse to
contribute to her need.
[48]
Again, the SSAGs guidance on the need for
case-by-case decision-making in the face of re-partnering cited above is
apposite.
[49]
I would dismiss this ground of appeal as well.
G.
Conclusion on the appeal of the support order
[50]
I would dismiss the appeal.
H.
Cross appeal of costs
[51]
The respondent seeks to cross-appeal the costs
order, dated April 9, 2020, in the sum of $45,000. This cross-appeal requires
leave pursuant to s. 133(b) of the
Courts of Justice Act
and r.
61.03.1(18) of the
Rules of Civil Procedure.
The respondent argues
that the trial judge erred in the following ways: (a) by effectively
disregarding the nature, calculations and purpose of the respondents offer to
settle; (b) by determining that the appellant was the more successful party at
trial; (c) by failing to take into account each party's behaviour during trial
and thereby committing an error in principle; and (d) by taking into account the
outcomes of a pre-trial and mid-trial motion on the costs awarded for the trial,
in effect double-counting.
[52]
In
Nolan v. Kerry (Canada) Inc.
, 2009
SCC 39, [2009] 2 S.C.R. 678, at para. 126, Rothstein J. held that costs
awards are quintessentially discretionary. Discretionary costs decisions
should only be set aside on appeal if the court below 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.
None of the respondents arguments meet this exacting standard. Accordingly,
leave to appeal the costs order is granted. However, I would dismiss the
cross-appeal of costs.
I.
Conclusion and Disposition
[53]
I would dismiss the appeal and, while I would
grant leave to appeal the costs order, I would dismiss the cross-appeal of the
costs order.
[54]
If the parties cannot agree on the disposition
of costs of the appeal, they may make brief written submissions of no more than
two pages, plus a costs outline, within ten days of the release of these
reasons.
Released: July 28, 2021 M.T.
M.
Tulloch J.A.
I
agree. I.V.B. Nordheimer J.A.
I
agree. M. Jamal J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Brown, 2021 ONCA 540
DATE: 20210728
DOCKET: C67378
Rouleau, Pepall and Roberts
JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Dwayne Brown
Appellant
Paul Calarco, for the appellant
Brendan Gluckman, for the respondent
Heard: March 16, 2021 by video
conference
On appeal from the conviction entered on
February 12, 2019, by Justice Dino DiGiuseppe of the Ontario Court of Justice.
Pepall J.A.:
A.
Introduction
[1]
The police obtained a general warrant to make
covert entries into a storage locker used by the appellant and rented under a
false name. The police discovered cocaine, marijuana, oxycodone, alprazolam and
Canadian currency in the locker. The appellant was charged with possession of cocaine
for the purpose of trafficking, possession of the proceeds of crime, and
conspiracy to traffic cocaine.
[2]
At trial, the appellant was convicted after
unsuccessfully applying to quash the general warrant based on s. 8 of the
Canadian
Charter of Rights and Freedoms
. Before this court, the appellant argues
that the reviewing judge applied the wrong standard in considering whether the
warrant was valid and that the requirements of s. 487.01 of the
Criminal
Code
, R.S.C. 1985, c. C-46 were not met. Moreover, the test in
R. v.
Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353 favoured exclusion of the seized
evidence. He asks that the warrant be quashed, the evidence obtained excluded,
and an acquittal entered.
[3]
For the following reasons, I would dismiss the
appeal.
B.
Facts
[4]
The Thunder Bay Police Service received
information from seven confidential informants (CIs) that the appellant and
two associates were selling cocaine at the Royalton Hotel in Thunder Bay. Surveillance
was conducted which confirmed the information provided by the CIs and which led
to a storage locker where it was believed drugs and other evidence of
trafficking would be located. The appellant and his associates were observed in
vehicles rented by them going to and from the storage locker and entering and
exiting the locker with various bags.
[5]
The police applied for, among other things, a
general warrant to covertly enter and search the storage locker. In the
information to obtain (ITO), Detective Constable Bartol was the affiant. He
set forth the basis for his belief that there were reasonable grounds to
believe that the appellant and his two associates had committed the subject
offences.
[6]
D.C. Bartol outlined information received on the
appellant and his drug dealing activities since 2007, his arrests and charges for
possession of cocaine for the purpose of trafficking in 2008 and 2011, his guilty
plea and conviction of the former and withdrawal of charges in the latter, and
his continued active trafficking in cocaine assisted by Romariando Meggoe, whose
street name was Cash, and another unidentified male known as Money.
[7]
Police investigation revealed that the appellant
had rented a grey Toyota vehicle and Mr. Meggoe a black Chevrolet Malibu and a
green Volkswagon Jetta, and the police obtained other identification
particulars associated with the vehicles.
[8]
D.C. Bartol described in detail the information
obtained from the seven CIs in the summer and autumn of 2017, four of whom had
previously provided information to the police. In addition, much of the
information provided was corroborated by independent investigation by the
police.
[9]
CI No. 1 advised that the appellant, who went
by the name Marshall, was in town selling cocaine with a few other black
males. They were driving a new grey or silver car. The appellant was using a
cell phone and his number was provided. He recruited women to sell for him and was
the main guy selling hard and soft cocaine. CI No. 2 said that the appellant
was back in town and dealing cocaine out of the Royalton Hotel. CI No. 3 stated
that the appellant was back in town, using the phone number identified by CI
No. 1, his boy who was black, in his 20s, and skinny with short hair, went
by the street name Cash, and CI No. 3 saw Cash with coke a couple of days prior.
[10]
CI No. 4 reported that the appellant was driving
a rented silver Toyota Camry and was usually in the company of two other black
males, one of whom was Cash. The appellant had two phones, moved around and
used hotels and met people in parking lots. CI No. 5 reported that there were
two black guys in town who were usually at the Royalton Hotel bar dealing three
to four times a week. They supplied drugs to friends who lived there, and two
named individuals dealt drugs for them. They were trying to get people to sell
cocaine for them. The owner did not want them selling in the bar, so they went
outside to deal and did all the drug dealing behind the bar. The black guys in
the bar had a boss named Marshall who was not seen in the bar very often.
[11]
CI No. 6 reported that there were black males
selling crack cocaine at the Royalton and that the informant had bought drugs
from them. CI No. 6 identified a photo of Mr. Meggoe as Cash. CI No. 7 stated
that two black guys from Toronto were selling coke and crack at the Royalton
almost every day, hanging around the bar. They went by the names Cash and
Money. Cash was about 57, black, and skinny with short hair and a nose
piercing. They sold crack that was prepackaged, wrapped in a plastic bag. They
always had lots of coke on them and kept it in their pockets. They met people
behind the building in the back lane to make the deal.
[12]
D.C. Bartol also reported on the surveillance
conducted at the Royalton and other locations on August 23, September 7, 21,
and 26, 2017. This revealed three black males engaging in apparent drug dealing
activities and using the three vehicles noted. On September 21, 2017, following
suspected drug transactions at the Royalton, a black male got into the Volkswagen
Jetta vehicle believed to be rented by Mr. Meggoe, and drove in a manner
consistent with attempting to lose anyone trying to follow to a residence at 25
Melon Street. The vehicle remained for about 20 minutes and then returned to
the Royalton Hotel.
[13]
On September 26, 2017, the police conducted
surveillance at 25 Melon Street where the Volkswagen Jetta was parked outside.
A black male carrying a white Old Navy bag, and identified as Mr. Meggoe, exited
the building, got into the vehicle, and drove to Nor-Shore Storage where he
went to storage locker number 316 and placed two bags inside. He then picked up
a female at Confederation College, drove to the Thunder Bay airport, went into
the terminal for a period of time, exited, dropped the female off at
Confederation College, and returned to 25 Melon Street. Thirty minutes later he
drove to the airport again, returned the Volkswagen Jetta, and entered the
terminal where he checked a dark bag.
[14]
On September 28, 2017, the police determined
that storage locker 316 was rented to a male named Mark James who had paid cash
and had produced a drivers licence on July 31, 2017. However, on
investigation, there was no person with that name and date of birth on the CPIC
file or the MTO database.
[15]
The storage facility surveillance system on July
31, 2017 showed a black male paying for the rental of the storage locker and
exiting the passenger seat of the silver Toyota rented by the appellant, and on
August 7, 2017, two men were seen exiting the same silver Toyota at storage
locker 316 and placing a black pack sack inside.
[16]
On October 3, 2017, the police installed a
camera with a clear view of the front of storage locker 316.
[17]
As the reviewing judge summarized:
On October 6, 7, 8, 10, 11, 12, 17 and 19, a
silver vehicle was observed parking near the storage locker. Black males were
observed on these dates, often more than once on the same date, removing bags
from the vehicle and taking them to the storage locker, and removing bags from
the storage locker and placing them in the vehicle. On three occasions, a male
believed to be Mr. Brown is seen exiting the drivers side of this vehicle.
Each visit to the locker is brief, and the door to the locker is continually
shut behind these individuals in an effort to conceal their actions.
[18]
Armed with this
information, D.C. Bartol outlined in the ITO why he had reasonable grounds to
believe that evidence of drug trafficking, telecommunication devices, evidence
of money laundering and proceeds of crime would be obtained from the storage
locker while at the same time preserving the integrity of the investigation. He
believed that the information provided by the CIs when taken in totality was
compelling, credible and corroborated. Physical surveillance at the Royalton
Hotel had provided observations consistent with hand to hand drug trafficking;
physical and video surveillance of the storage locker had shown on numerous
occasions that bags were placed inside and taken out of locker 316. Each stay
at the locker was brief and the door continually pulled closed behind them.
[19]
D.C. Bartol set
out the objectives of the application, namely: to gather sufficient evidence of
the full scope of the drug network, learn the stash locations, identify the
persons assisting with drug transactions or exchanges, identify the couriers of
drugs and money, and to seize evidence to support trafficking charges against
the appellant, Mr. Meggoe and Money and any co-conspirators.
[20]
He addressed
the three components of s. 487.01(1), stating that he believed that the covert
interception of one or more of the drug shipments and currency shipments will
provide police with evidence to further their investigation while at the same
time preserving the integrity of the ongoing criminal investigation. He
expressed his belief that it was in the best interests of the administration of
justice to issue the warrant. The investigation was ongoing and a conventional
search warrant would by its nature likely terminate the investigation as the
main targets would be immediately notified that they were the subject of a
police investigation. He noted his belief that no other statutory provision
would permit the technique contemplated by the general warrant.
[21]
He believed that
the appellant, Mr. Meggoe and Money were utilizing the storage locker to
store the majority of the drugs and money and concluded by stating: I believe
that there will be further evidence collected from the storage locker that will
further support the charges of possession for the purpose of trafficking. He
proposed 15 conditions and sought authorization to covertly enter and search
the storage locker from November 9, 2017 to January 8, 2018.
[22]
A general
warrant was granted by the issuing judge on November 9, 2017, and on November
22, 2017, police covertly entered and searched the storage locker, finding
cocaine, marijuana, oxycodone, alprazolam and Canadian currency. This was the
only entry made.
[23]
The appellant
was arrested on December 14, 2017. A search of his room revealed the key for
storage locker 316. Money, who was identified as Novado Fraser, was arrested
later that day at the airport. A search of his luggage revealed 11 ounces of
cocaine. A search of a cell phone seized from the appellant on his arrest
revealed text messages between the appellant and Mr. Fraser as Mr. Fraser was
arriving in Thunder Bay.
[24]
The appellant
was charged and subsequently tried, and convicted. As mentioned, at trial, he
unsuccessfully challenged the general warrant.
C.
Reviewing
Judges Reasons
[25]
The reviewing
judge found that the ITO, as amplified by the cross-examination of D.C. Bartol,
was sufficient to afford the issuing judge reasonable grounds to issue the
general warrant. In addressing the requirement for reasonable grounds to
believe an offence has taken place and that evidence of a crime would be found
in the storage locker, he stated that the standard was one of reasonable
probability, and did not rise to the standard of proof on a balance of
probabilities or proof beyond a reasonable doubt. As the reviewing judge, he
was to inquire whether there was a basis upon which the issuing judge could be
satisfied that the necessary preconditions to issue the warrant existed.
[26]
After
instructing himself on the law, he noted that the ITO depended on two planks:
the information collected from CIs and the information generated directly by
police surveillance and other investigative techniques. Neither plank was
independently capable of justifying the grant of the warrant. The reliability
of the police investigation, particularly with respect to the storage locker,
was strong but the information provided by the CIs required scrutiny pursuant
to
R. v. Debot
, [1989] 2 S.C.R. 1140. Even if it were
trustworthy, there remained the question of whether that information together
with that collected by the police investigation objectively established the
reasonable grounds to issue the warrant. He concluded that the CI information
was compelling, credible and corroborated. The information was detailed in identifying
the street names of the sellers, the location of the drug transactions, the
vehicle descriptions, the cell phone number used by Marshall, that Marshall
recruited women to sell the drugs, the drug packaging and pricing, and the frequency
of the transactions. In addition, each CI provided information from August,
September and October of 2017 and described the interactions and the
individuals involved with similar particularity.
[27]
The reviewing
judge found that the issuing judge had ample information available to determine
the credibility and reliability of each CI based on the information in the ITO.
Finally, the CI accounts were corroborated by the police observations of
suspected drug transactions behind the Royalton Hotel, the grey Toyota and the
Volkswagen Jetta involved in the suspected transactions and found to be rented by
the appellant and Mr. Meggoe respectively, and the cell phone number associated
with the appellant. He noted that the totality of the circumstances must be
considered. In this case, the information was compelling and corroborated in
every material respect.
[28]
He described
how the surveillance video at the storage locker revealed that: the locker was
rented by someone likely using a false name with false identification; the vehicles
rented by the appellant and Mr. Meggoe were seen at the storage locker;
significant activity was noted with each visit to the locker, particularly the
movement of bags or packs between the vehicles and the storage locker; the
appellant and Mr. Meggoe were present and accessing the storage locker; and the
individuals observed appeared to be trying to conceal their actions.
[29]
The reviewing
judge stated that D.C. Bartol believed that the general warrant was needed to
continue the investigation and ultimately uncover the full extent of the drug
operation. He was cross-examined at length. The reviewing judge stated that the
police believed that there were no other provisions in the
Criminal Code
or any other Act of Parliament that would provide for a warrant permitting the
investigative techniques sought. The reviewing judge concluded that the ITO, as
amplified by the cross-examination of D.C. Bartol was sufficient to afford the
issuing judge reasonable grounds to issue the general warrant. He accordingly dismissed
the appellants s. 8
Charter
application.
D.
Analysis
[30]
Section
487.01(1) of the
Criminal Code
addresses the three requirements that
need to be met to obtain a general warrant. That subsection provides:
487.01 (1)
A provincial court judge, a judge of a superior court of criminal jurisdiction
or a judge as defined in section 552 may issue a warrant in writing authorizing
a peace officer to, subject to this section, use any device or investigative
technique or procedure or do any thing described in the warrant that would, if
not authorized, constitute an unreasonable search or seizure in respect of a
person or a persons property if:
(a) the
judge is satisfied by information on oath in writing that there are reasonable
grounds to believe that an offence against this or any other Act of Parliament
has been or will be committed and that information concerning the offence will
be obtained through the use of the technique, procedure or device or the doing
of the thing;
(b) the
judge is satisfied that it is in the best interests of the administration of
justice to issue the warrant; and
(c)
there is no other provision in this or any other Act of Parliament that would
provide for a warrant, authorization or order permitting the technique,
procedure or device to be used or the thing to be done.
[31]
Boiled down to
its basics, the issuing judge had to be satisfied that (i) there were
reasonable grounds to believe that an offence had been or would be committed
and that information concerning the offence would be obtained through the use
of the general warrant, (ii) it was in the best interests of the administration
of justice to issue the warrant, and (iii) there was no other federal statutory
provision that would provide for a warrant permitting the technique or thing
sought to be done.
[32]
In
R. v. Ha
, 2009
ONCA 340, 96 O.R. (3d) 751, leave to appeal refused, [2009] S.C.C.A. No. 295, MacPherson
J.A. discussed s. 487.01 in some detail noting, at para. 26, that it focuses
not on authorizing specific techniques but rather on whether the public
interest in authorizing the specific investigative technique in issue is
sufficiently strong in the circumstances to overcome an individuals
constitutional right not to be subject to an unreasonable search or seizure.
[33]
In
Ha
, this court
held that a covert entry and search falls squarely within the meaning of an
investigative technique or procedure under s. 487.01. The subsection (c) requirement
was met in that case because no provision in any other federal statute would
authorize an unlimited number of covert entries and searches on private
property over a two-month period. This court, at para. 42, accepted the
proposition put forward by Frankel J.A. in
R.
v. Brand
, 2008 BCCA 94, 229
C.C.C. (3d) 443, at para. 51, that there was nothing wrong in utilizing a
general warrant to obtain information with a view to gathering additional and
possibly better evidence than that which could be seized immediately through
the execution of a search warrant. Subsection (b) was met as the evidence obtained
by the police in
Ha
strongly pointed to the accused having a
major role in a drug laboratory and the warrant was not merely a fishing
expedition. The authorization of multiple entries and the 59-day duration of
the warrant, on the facts of that case, were considered to be reasonable. The
court was also satisfied that the conditions attached to the general warrant
were explicit, clear and narrowly drawn as described in
R. v. Brooks
(2003), 178 C.C.C. (3d) 361 (Ont. C.A.).
[34]
In
R. v. TELUS Communications Co.
, 2013 SCC 16, [2013] 2 S.C.R. 3, at para. 56, in concurring
reasons, Moldaver J. noted that subsection (c) is designed to ensure that the
general warrant is used sparingly as a warrant of limited resort and, citing
S.C. Hutchison et al.,
Search and Seizure
Law in Canada
(loose-leaf), at p. 16-40.3, to guard against it becoming an easy back door
for other techniques that have more demanding pre-authorization requirements.
[35]
At para. 77, he
addressed the test under s. 487.01(1)(c), stating:
The test under s.
487.01(1)(c) must consider the investigative technique that the police seek to
utilize with an eye to its actual substance and not merely its formal
trappings. The provision must be interpreted so as to afford the police the
flexibility Parliament contemplated in creating the general warrant, while
safeguarding against its misuse. As the facts of this case illustrate, there is
a need for heightened judicial scrutiny where Parliament has provided an
authorization for an investigative technique that is substantively equivalent
to what the police seek but requires more onerous preconditions.
[36]
The appellant
advances four arguments in support of his position that his s. 8
Charter
rights were violated and also urges this court to conclude that under s. 24(2)
of the
Charter
, the
Grant
test favours exclusion of the evidence
seized.
[37]
First, he
submits that the reviewing judge erred by applying the wrong standard for
reasonable grounds and that there were insufficient grounds before the issuing judge
to support a general warrant. In that regard, he argues that the ITO only
disclosed possibilities, not a reasonable probability that the covert entry
into the storage locker would reveal evidence of offences as required by s. 487.01(1)(a).
The evidence before the issuing judge did not show that the use of a covert
entry would produce evidence to support a charge. He asserts that the ITO
contained conditional language such as if controlled substances are located,
should the police discover a large quantity of drugs, and that the reviewing
judge used phrases such as [i]t was hoped and police hoped which imply
reservation, not likelihood.
[38]
In addition, he
argues that the timing of the ITO detracted from there being any reasonable
probability of evidence being found. The CIs provided information in the August
to October timeframe and camera surveillance of the locker ended on October 19,
yet the warrant was issued on November 9, 2017.
[39]
I do not agree with
these submissions.
[40]
The reviewing
judges first task, which he recognized and applied, was to consider whether
the issuing judge had a basis on which to issue the warrant:
R. v. Garofoli
, [1990] 2 S.C.R. 1421, at p. 1452. He also correctly set out the
standard for reasonable grounds as one of reasonable probability or
credibly-based probability:
Hunter v.
Southam Inc.
,
[1984] 2 S.C.R. 145, at pp. 167-68;
Debot
, at p. 1166. The reviewing judges use of the word hope
in his reasons was in the context of summarizing some of D.C. Bartols evidence
and the ITO, and it was not his articulation or application of the standard of
reasonable probability.
[41]
After a
detailed review, the reviewing judge was satisfied that there was a basis upon which
the issuing judge could be satisfied that there were reasonable grounds to
support the issuance of a general warrant. Although D.C. Bartol used some
conditional terminology, he clearly set out in the ITO that the police believed
that drugs and other evidence of trafficking would be located in the storage
locker. He also testified that he believed the police had reasonable and
probable grounds for a
Controlled Drugs and
Substances Act
, S.C.
1996, c. 19 warrant and a conventional search warrant. The reasonable and
probable grounds were supported by the information provided from the CIs and
the police investigation. Reviewing the ITO and D.C. Bartols evidence in
totality, it is hard to see how any other conclusion could be reached.
[42]
As for timing, in
this case, the appellant and Mr. Meggoe had been using the storage locker for
months, since July 31, 2017. In October, the month preceding the ITO, they were
observed accessing the storage locker at least 12 times. Although it was put to
him multiple times in cross-examination, D.C. Bartol did not agree that it was
common for drugs to be moved between stash locations to evade police or
prevent seizure, only that it happened sometimes out of precaution. When the general
warrant was issued on November 9, 2017, only a few weeks after the last
observation, it was reasonable to believe that information concerning the
offences would still be found there.
[43]
I would not
give effect to this ground of appeal.
[44]
Second, the
appellant submits that the reviewing judge applied the wrong legal test under
s. 487.01(1), treated the police request as being for a conventional warrant,
and neglected to consider all of the components of s. 487.01(1). Counsel
particularly emphasized the failure of the reviewing judge to address the best
interests of the administration of justice element found in s. 487.01(1)(b).
[45]
It is the case
that, consistent with the submissions of counsel, the reviewing judge placed
emphasis on the reasonable grounds requirement found in s. 487.01(1)(a)
and did not explicitly use the term best interests in his reasons. However,
he referred to s. 487.01(1) as a whole and dealt with the issue of best
interests in the context of the argument made before him. In submissions before
the reviewing judge, defence counsel had argued that it would only be in the
interests of justice to permit entry to the storage locker if there were a
reasonable basis to believe evidence would be located there and that it was not
in the interests of justice to go on a fishing expedition. The reviewing judge
clearly found that there was a reasonable basis to conclude that evidence would
be located in the storage locker, thus implicitly negating any suggestion of a
fishing expedition.
[46]
Defence counsel
also submitted that the interests of justice and the no other provision
authorizing blurred together although he would try to keep them distinct.
[47]
The reviewing
judge expressly addressed the third element or no other provision authorizing
element of s. 487.01(1) noting that D.C. Bartol had stated that there were no
other Acts of Parliament or provisions in the
Criminal Code
that would authorize a warrant permitting the techniques or procedures needed
to conduct this particular investigation. This lends further credence to the
conclusion that the reviewing judge did not overlook the three elements of s. 487.01(1)
including the best interests requirement. Although it would have been
preferable if the reviewing judge had expressly referenced this element, reading
his reasons as a whole, he implicitly considered the best interests of justice.
As he stated at p. 23:
The CIs and the
information they provided, were worthy of belief. The police investigation,
from corroborating the CIs information to locating the storage locker, was
unassailable. It followed a linear and logical path from one step to the next.
While the focus of the investigation commenced at the Royalton Hotel, it
inevitably shifted to the storage locker. The information in the ITO, as
amplified by the cross-examination of Detective Constable Bartol, set out those
investigatory steps taken, the objectives of the investigation and the need for
a general warrant to surreptitiously enter the storage locker, obtain evidence
and continue the investigation.
[48]
D.C. Bartol had
also explicitly addressed the best interests requirement in the ITO. He
believed it would be in the best interests of the administration of justice to
issue the proposed general warrant because the investigation was ongoing and
the execution of a conventional warrant would likely terminate the
investigation, as the main targets would be immediately notified that they were
the subject of a police investigation. The reviewing judge referenced the need
for surreptitious entry and concluded that [n]othing in the ITO, nor in
Detective Constable Bartols evidence in cross-examination, persuades me, as a
reviewing justice, that seeking a general warrant in these circumstances, was
inappropriate.
[49]
Turning to the
appellants third argument, he submits that the warrant permitted potentially
unlimited covert entries over a 60-day period and as such, could not meet the
best interests of the administration of justice requirement under s. 487.01(1)(b).
He argues that the conditions of the warrant should have been explicit, clear,
and narrowly drawn. Section 487.01(3) of the
Criminal Code
provides that:
(3) A
warrant issued under subsection (1) shall contain such terms and conditions as
the judge considers advisable to ensure that any search or seizure authorized
by the warrant is reasonable in the circumstances.
[50]
This argument was
not made by the appellant before the reviewing judge and is raised for the
first time on appeal. In any event, although the facts of each case differ, there
was judicial precedent for such a time period (see
Ha
, at para.
51;
Brand
, at para. 14; and
R. v. Lucas
,
2014 ONCA 561, 121 O.R. (3d) 303, at para. 186, leave to appeal refused,
[2014] S.C.C.A. No. 460, [2014] S.C.C.A.
No. 461). In addition, D.C. Bartol explained the need for 60 days to uncover
the bulk amount of hidden controlled substances and the full drug operation,
and to add to the success of the investigation while preserving its integrity.
Here the targets had rented the storage locker for months and in October alone,
had accessed it at least 12 times. As this court noted in both
Ha
and
Lucas
, an
authorization under s. 186(4)(e) of the
Criminal Code
to intercept private communications similarly may be valid
for up to 60 days. The time was reasonable in the circumstances, and the 15
conditions were clear and sufficiently narrow.
[51]
Fourth, the
appellant submits that the purpose of the covert entry, namely the collection
of evidence, could have been accomplished by other means such as a production
order for past text messages and numbers called and an authorization to
intercept private communications under Part VI of the
Criminal Code
.
He argues that in pursuing a general warrant, the police were attempting to
make an end run around these more demanding and time-consuming provisions.
[52]
I do not accept
this submission.
[53]
Even though the
police might have gathered some evidence under a conventional search warrant,
production order, or authorization to intercept communications, this does not
preclude reliance on a general warrant: see e.g.
Brand
, at
paras. 50-51;
Ha
, at paras. 42, 52. In
Telus
, Moldaver
J. confirmed that his approach to s. 487
.01(1)(c)
has
nothing to do with investigative necessity: at para. 100. In addition, at para.
102, he clarified that:
[U]nder the no
other provision test, the police are not asked to show why an alternative
authorization
would not work
on the facts of a particular case, but
rather why it is
substantively different
from what Parliament has already provided.
Though the fact that an alternative authorization will satisfy the
investigative objective of the police may be helpful as a factor in
demonstrating its substantive equivalence, the inquiry under the no other
provision test remains focused on the latter point, not the former. If the
police successfully make this showing, the inquiry under s. 487.01(1)(c) ends. [Emphasis
in original.]
[54]
MacPherson J.A.
similarly stated in
Ha
, at para. 43:
The focus in the s.
487.01(1)(c) analysis is not on whether there are other investigative
techniques that might accomplish the purported investigative purposes or goals
of the police; rather, the focus is on the particular investigative technique
or procedure that the police seek to utilize and whether it can properly be
authorized by another provision in the
Code
or any other federal statute.
[55]
As the
appellant concedes, there is no other provision in the
Criminal Code
or other federal statute that would have authorized covert entries and searches
at the storage locker. The other investigative techniques raised by the
appellant are not, in substance, equivalent to unlimited covert entries and
searches on private property. They would not allow the police to do what they
sought to do in this case, namely, search the storage locker, where they
believed evidence of the offences was located, without effectively terminating
the ongoing investigation. The police in this case were not using the general
warrant to circumvent more onerous requirements for other substantively
equivalent investigative techniques.
[56]
In light of my
conclusion that none of the grounds of appeal relating to the alleged s. 8
breach can succeed, it is unnecessary to address the appellants ground
relating to s. 24(2).
E.
Disposition
[57]
For these
reasons, I would dismiss the appeal.
Released: July 28, 2021 P.R.
S. E. Pepall
J.A.
I agree. Paul
Rouleau J.A.
I agree. L.B.
Roberts J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Hume v. 11534599 Canada Corp.,
2021 ONCA 549
DATE: 20210727
DOCKET: M52657 (C69657)
Thorburn J.A. (Motions Judge)
BETWEEN
Ivylin Ricketts Hume and Weston
Rodney Hume
Applicants
(Respondents/Responding Parties)
and
11534599
Canada Corp.
Respondent
(Appellant/Moving Party)
Paul Robson, for the moving party
Elaine S. Peritz, for the responding
parties
Heard: July 19, 2021 by videoconference
ENDORSEMENT
The order sought
[1]
The moving party-appellant, 11534599 Canada
Corp., seeks an order granting a stay pending appeal of the order of Justice Kendra
D. Coats (the Order), dated June 28, 2021.
[2]
The Order requires the appellant to forthwith
provide possession of 7047 Dalewood Drive, Mississauga (the property) to
the respondents, Mr. and Ms. Hume. The Order requires the respondents to redeem
the appellants mortgage and the appellant to assign the mortgage debt and
convey the property to a third-party lender, pursuant to s. 2 of the
Mortgages
Act
, R.S.O. 1990, c. M.40
Background
[3]
In September 2019, the appellant provided a
second mortgage to the respondents in the amount of $215,000. The first
mortgage is held by CIBC in the approximate amount of $480,000. The second
mortgage was due on September 1, 2020 and automatically renewed on September
2.
[4]
The appellant says that the respondents
defaulted on the interest payments due on the loan on October 1. Total arrears
amounted to $4,044.50.
[5]
The appellant sent out a demand letter on
October 2 but did not receive a response.
[6]
On October 28, 2020, upon conducting a routine
check of the property, the appellant found the property to be unoccupied and severely
damaged by a fire earlier that month.
[7]
Without warning or notification to the respondents,
the appellant retained a property manager to change the locks and post notices
to secure control and possession of the property. Possession of the property was
secured on October 28, 2020.
[8]
On November 4, 2020, Mr. and Ms. Humes counsel accused
the appellant of breaking and entering and claimed that the possession was
illegal as the property was not vacant. The respondents claimed entitlement to
pay the arrears and demanded an assignment of the mortgage.
[9]
On December 30, 2020, a Notice of Sale was sent
to the address set out in the mortgage (i.e. the property), although the
respondents no longer resided there, as well as to the respondents lawyer.
After receiving the Notice of Sale in January 2021, the respondents again
requested a payout statement and were given a mortgage discharge statement.
[10]
The respondents lawyer and a new third-party
lender then demanded that the mortgage be assigned to a third-party lender on
the basis of s. 2(1) of the
Mortgages Act
. The appellant refused on
the basis of the exception in s. 2(3), which provides that the obligation of a
mortgagee to transfer is not applicable where the mortgagee is or has been
in possession of the mortgaged property.
The test to be met for a stay pending appeal
[11]
In deciding whether to stay an order being
appealed, the test is the same as that for an interlocutory injunction. The
overarching consideration is the interests of justice:
Zafar v. Saiyid
,
2017 ONCA 919, at para. 18;
Circuit World Corp. v. Lesperance
(1997),
33 O.R. (3d) 674 (C.A.), at para. 8.
[12]
The factors to be considered are whether:
i.
there is a serious issue to be tried, based on a preliminary
assessment of the merits of the case;
ii.
the applicant would suffer irreparable harm if
the application were refused; and,
iii.
the balance of convenience, that is, which parties would suffer
greater harm from the granting or refusal of the remedy pending a decision on
the merits: see
M & M Homes Inc. v. 2088556 Ontario Inc.
, 2020
ONCA 134, 51 C.P.C. (8th) 253, at para. 29;
RJR-MacDonald
Inc. v. Canada (Attorney General)
, [1994] 1
S.C.R. 311, at p. 334.
[13]
The strength of one factor may compensate for the
weakness of another:
Zafar
, at para. 18.
The application judges decision
[14]
In this case, the application judge ruled that
the appellant was entitled to quiet or peaceable possession of the property.
The issue was whether it took peaceable possession of the property.
[15]
The application judge noted the respondents were
in default.
[16]
However, in her endorsement at paras. 48-50, the
application judge found that the property was not vacant; the respondents had
not abandoned the property and their possessions remained there; the appellant could
expect resistance to the taking of possession; the property was locked; and the
respondents lawyer challenged the taking of possession within days.
[17]
She therefore held that the appellant did not take
quiet possession but, rather, took illegal possession of the property contrary
to the
Mortgages Act
. Accordingly, the appellant could not rely on s.
2(3) of the
Mortgages Act
to refuse assignment of the mortgage to the
new third-party lender.
Whether there is a serious issue to be tried
[18]
The appellant claims there is a serious issue to
be tried. The appellant claims that not granting a stay would trammel the
appellants contractual and statutory entitlement to quiet possession upon the
mortgagors default. The appellant further submits that there is no basis in
law for the determination that the appellant took unlawful possession of the
property as the respondents were in default, they were not occupying the
premises as the property was damaged by fire, and the appellant did no more
than any prudent mortgagee would do to effect control of the premises in these
circumstances.
[19]
The appellant suggests the application judge
made the following errors which raise serious issues to be determined:
i.
Although she noted that neither notice nor vacant possession is
required before taking possession of the property, the appellants right to
possess was seriously challenged after it received the letter from the respondents
counsel, such that there was no peaceable possession;
ii.
The application judge further determined that the appellant did not
have the statutory right, pursuant to s. 2(3) of the
Mortgages Act
, to
refuse to assign the mortgage but cited no legal authority for why s. 2(3) was
not applicable where the mortgagee is in
de facto
possession;
iii.
The application judge placed too high a
threshold for the determination of whether the appellant established that it
had acquired peaceable possession
by invoking the definition in s. 41
of the
Criminal Code
; and,
iv.
Notwithstanding the requirement to pay
litigation fees and property management fees, the respondents were not
obligated to pay them on the grounds that the appellants possession of the
property was not legal.
[20]
In
Royal Trust Corp. of Canada v. Gupta
,
1997 CarswellOnt 571, 24 O.T.C. 27 (Gen. Div.), at paras. 35-37, the court observed:
If peaceably is interpreted literally, i.e.,
no conflict arose, then Royal Trust took possession peaceably. However, if peaceably
is interpreted to mean with knowledge and consent of the mortgagors, or voluntarily
as described by the Court of Appeal [in
Lee v. Guettler
(1975), 10 O.R. (2d) 257 (C.A.)], then Royal Trust did not take
possession peaceably.
Although the mortgagee has the right to
immediate possession upon default, the mortgagee usually does not exercise that
right unless the mortgagor consents to giving up possession, or if the premises
are abandoned.
[21]
The appellant relies on
Royal Trust
Corp. of Canada v. 880185 Ontario Ltd.
(2005),
198 O.A.C. 235
(C.A.). The appellant says that this case stands for the proposition that the
mortgagee is entitled to unilaterally take possession immediately upon the
mortgagors default, so long as possession is exercised peaceably.
[22]
The appellant also relies on the decision in
Lusk
v. Perrin
, [1920] O.J. No. 201 (Ont. H.C.) where the court held that
the
lands being vacant [as Lusk had been away from the property for a month],
Perrin was able to enter peaceably. The appellant submits that this case
stands for the proposition that, on default, the mortgagee is entitled to
remain in possession even if possession was not taken peaceably.
[23]
The respondents submit that the application
judge was correct to find that the appellant did not take quiet possession of
the property and that appellants unilateral changing of the locks was
unlawful. The respondents argue that the law and the findings of fact relied
upon by the application judge are consistent with the principles set out in the
cases relied upon by the appellant below and on appeal.
[24]
I agree that this case appears to be distinguishable
from the cases cited by the appellant as in this case:
i.
The property was not vacant because the
respondents chose to leave. The respondents were forced to leave after the fire;
ii.
They left the property locked to prevent others from entering and
their possessions remained there.
iii.
There was no abandonment of the property; and,
iv.
The appellant could reasonably expect that the respondents would not
consent to taking possession without notice, which resistance took place within
days of the appellant taking possession.
[25]
I find that, while the respondents have raised a
serious argument that the appellant did not effect peaceable possession, the
interpretation of peaceable possession remains a serious issue on the appeal.
Irreparable harm and where the balance of
convenience lies
[26]
The appellant claims that if the stay is not
granted it will suffer irreparable harm to its ability to enforce this and
other like mortgages given the finding that it took unlawful possession. The
appellant may forfeit its entitlement to quiet possession; and lose the
security of its litigation costs, property management expenses and other
charges the respondents are contractually obligated to pay. Moreover, the
appellant claims that there would be nothing prohibiting the respondents, or
the new third-party lender, from selling the property and prohibiting the
appellant from collecting the full amount owed.
[27]
The respondents claim the appellant will suffer
no irreparable harm as the respondents undertake not to sell the property, the
appellant will be entitled to seek damages, there is equity in the property and,
to the extent that not all funds may be recovered, this was a risk assumed by
the appellant in giving a second mortgage.
[28]
The respondents point out that in
Dhatt v.
Beer
, 2020 ONCA 545, the Dhatts provided an undertaking not to deal with
the property pending disposition of the appeal. Zarnett J.A., as motion judge,
denied the Beers requested stay of an order transferring ownership of a
property, holding that the right to effective relief as a result of a
successful appeal will not be lost given this undertaking.
[29]
I find that, while the appellant may not recover
all funds owing, the appellant will not suffer irreparable harm if there is no
stay pending this expedited appeal. There is equity in the property, the
appellant may pursue a claim for relief, and the respondents have undertaken
not to sell the property in the interim. I note that Mr. and Ms. Hume, on
the other hand, would suffer significant hardship if they lost their principal
residence which they only vacated as a result of the fire.
Conclusion
[30]
For the above reasons, I find that, while there
is a serious issue to be resolved on appeal, the appellant will not suffer
irreparable harm in the absence of the proposed stay. If a stay were granted,
however, the respondents would suffer significant hardship as they would lose
their home. As such, the balance of convenience favours the respondents.
[31]
The motion to stay the order of the application
judge pending appeal is therefore dismissed.
[32]
The issue of costs is reserved for the panel
hearing the appeal.
J.A.
Thorburn J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Sakab Saudi Holding Company v. Al
Jabri, 2021 ONCA 548
DATE: 20210726
DOCKET: M52628 (C69620)
Benotto
J.A. (Motion Judge)
BETWEEN
Sakab Saudi Holding Company, Alpha Star Aviation Services Company,
Enma Al Ared Real Estate Investment and Development Company, Kafaat Business
Solutions Company, Security Control Company, Armour Security Industrial
Manufacturing Company, Saudi Technology & Security Comprehensive Control
Company, Technology Control Company, New Dawn Contracting Company and Sky Prime
Investment Company
Plaintiffs (Respondents/
Responding Parties)
and
Saad
Khalid S Al Jabri,
Dreams International Advisory Services Ltd.
, 1147848
B.C. Ltd.,
New East (US) Inc.
,
New East 804 805 LLC
,
New East Back
Bay LLC
,
New East DC LLC
, Jaalik Contracting Ltd., Nadyah Sulaiman A
Al Jabbari, Khalid Saad Khalid Al Jabri,
Mohammed Saad KH Al Jabri
, Naif
Saad KH Al Jabri, Sulaiman Saad Khalid Al Jabri, Hissah Saad KH Al Jabri, Saleh
Saad Khalid Al Jabri, Canadian Growth Investments Limited, Gryphon Secure Inc.,
Infosec Global Inc., QFive Global Investment Inc.,
Golden Valley Management
Ltd.
, New South East Pte. Ltd.,
Ten Leaves Management Ltd.
, 276143
Ontario Inc., Nagy Moustafa, HSBC Trustee (C.I.) Limited in its capacity as
Trustee of the Black Stallion Trust, HSBC Private Banking Nominee 3 (Jersey)
Limited in its capacity as a Nominee Shareholder of Black Stallion Investments Limited,
Black Stallion Investments Limited, New East Family Foundation,
New East International
Limited, New South East Establishment, NCom Inc.
and
2701644 Ontario Inc.
Defendants (Appellants/
Moving Parties
)
Harry Underwood and Andrew Max, for the
moving parties
Munaf Mohamed, Q.C., for the responding
parties
Heard: July 16, 2021, by video conference
ENDORSEMENT
[1]
The applicants are some of the defendants in this action. They move for
a stay of the order of Gilmore J. which determined that Ontario has jurisdiction
over an action involving an alleged fraud by former high-ranking government
officers in Saudi Arabia.
[2]
Several orders in the court below set out the extensive history. I
summarize only that which frames this motion.
FACTS IN BRIEF
(1)
Background to the action
[3]
The plaintiffs are a group of ten companies
established between 2007 and 2015. They operate in strategic industries, such
as aerospace and cybersecurity. They also fund covert operations for
counterterrorism operations in Saudi Arabia and operate legitimate businesses
to provide plausible public cover for these activities.
[4]
The plaintiffs allege that billions of dollars
have been brazenly stolen through a fraudulent scheme masterminded by a former
Saudi cabinet minister, the defendant Saad Khalid Al Jabri (Al Jabri). The
other defendants allegedly participated in or benefitted from the scheme to
defraud the plaintiffs. Al Jabri was the Director of the Department of Officers
and Personnel Affairs and Security Advisor to the Ministry of Interior of Saudi
Arabia. He is highly educated and worked for decades as a senior civil servant
in the security and intelligence agencies of Saudi Arabia. He served as a
Minister of State and as a Special Advisor to Muhammed Bin Nayef (MBN), the
former Crown Prince and Minister of the Interior.
[5]
In 2015, on King Abdullahs death, King Salman
acceded to the throne and MBN was named Minister of the Interior. King Salmans
son, Mohammed Bin Salman (MBS), was appointed Minister of Defence. In April
2015, MBN was named Crown Prince and MBS was named Deputy Crown Prince. MBN was
later deposed in a coup.
[6]
In September 2015, Al Jabri was removed
from office at the insistence of MBS. The reason for the removal is in dispute.
The plaintiffs say he was removed because of his fraudulent activity. Al Jabri
submits that it was because he met with the U.S. Central Intelligence Agency
Director and did not report that meeting to MBS. In any event, an investigation
into Al Jabri was conducted and he eventually moved to Canada. He lives in
Toronto with his wife and family members.
(2)
The allegations of fraud
[7]
The plaintiffs allege that Al Jabri organized a
fraudulent scheme to misappropriate $3.5B USD from the plaintiffs. He did so,
it is alleged, using nominees to hide his control and beneficial ownership of
significant assets. He installed family members, including his son, Mohammed Al
Jabri (Mohammed), as nominee shareholders. He then made significant transfers
to the nominees. The misappropriated funds were used to acquire assets around
the world.
[8]
The plaintiffs say they have already traced
nearly half a billion US dollars through this scheme. There is also a gift
deed that Al Jabri made to Mohammed whereby Al Jabri purportedly gifted
Mohammed all of his worldwide assets. Mohammed used these assets, in part, to
benefit family members including through the purchase of a $13 million home in
Toronto for Al Jabri.
(3)
The
Mareva
Injunction
[9]
Gilmore J. has had carriage of all the steps in
the litigation. In January 2021, she issued an
Mareva
injunction over
all of Al Jabris worldwide assets, restraining him from dissipating his
assets. In February 2021, the plaintiffs learned of the gift to Mohammed and
returned to Gilmore J. to seek to vary the order to secure the gifted assets. Gilmore
J. adjourned the motion so that Mohammed and other corporate defendants could
move to challenge the jurisdiction of the Ontario courts.
(4)
The Jurisdiction Decision
[10]
The jurisdiction motion was heard on May 19,
2021, with reasons released on June 22, 2021.
[11]
The motion judge held that to assert
jurisdiction over a foreign defendant, a good arguable case must be
established on the record before her. She concluded on five separate grounds
that Ontario had jurisdiction. In particular:
1.
A presumptive connecting factor arose from
numerous contracts made in Ontario.
2.
The deed of gift from Al Jabri to Mohammed was
written and signed in Ontario. She also concluded that the gift was a ruse and that
Al Jabri continues to direct the management of the assets acquired through a
fraudulent scheme, even though Mohammed may be the legal or beneficial owner of
the assets.
3.
There were assets in Ontario acquired with funds
re-gifted by Mohammed to Al Jabri.
4.
Acts in furtherance of the alleged tort of
conspiracy occurred in Ontario.
5.
There is a real and substantial connection
between the subject matter of the claim and Ontario which had not been rebutted
by the defendants who had not raised
forum non conveniens.
(5)
Further scheduled motion
[12]
The motion to expand the
Mareva
to
include Mohammads assets is now scheduled for August 9, 2021.
[13]
On July 5, 2021, the Notice of Appeal and this
motion were filed.
ISSUE
[14]
The only issue before me is whether to grant a
stay of jurisdiction so that the underlying action (including the August 9
motion) awaits the determination of the jurisdiction appeal.
DISCUSSION
[15]
The test for a stay pending appeal is not in
dispute so I turn to each component
[1]
.
(1)
Serious
issue to be determined
[16]
A preliminary assessment of the merits of the
appeal presumes correctness of the decision under appeal.
[17]
The moving parties submit that the motion judge
erred by:
·
Relying on efficiency and fairness, and the
convenience of a single trial, as relevant factors for determining jurisdiction
simpliciter
.
·
Finding that jurisdiction could be assumed over
the claim as a whole rather than through the presence of a presumptive
connecting factor with respect to each defendant.
·
Relying on the actions of Al Jabri and his
connections to Ontario to ground jurisdiction over the other defendants.
·
Failing to apply the proper legal test in
finding that the presumptive connecting factor of a contract connected with the
dispute made in the province connected the defendants and the claim against
them with the jurisdiction.
·
Relying on a document other than a contract,
namely a gift deed, and on contracts unconnected to the defendants.
·
Finding that the use of proceeds of an alleged
fraud to acquire property located in Ontario is a presumptive connecting
factor.
[18]
In particular, the moving parties submit that
the motion judge erred by concluding that the gift to Mohammed was a connecting
factor because the gift was made in Turkey, not in Ontario.
[19]
The motion judge concluded that there were five
independent reasons to find jurisdiction. Any one of them would lead to her
order being upheld. The record before the motion judge was extensive. (The
moving parties have filed nearly 3,000 pages on this motion.) It was open to
the motion judge to conclude on the extensive record before her, that there is
a real and substantial connection between Ontario, the subject matter of the
litigation and the defendant.
[20]
The motion judge referred to the gift to
Mohammed as particularly important. The evidence from Al Jabri himself is
that an oral promise was made in Turkey in 2017. The motion judge found that the
circumstances of this gift were undocumented and uncorroborated and that Al
Jabris evidence on the gift was contradictory. The gift deed was finally written
in Ontario in late 2018. Transfers in accordance with the gift did not happen
for months or years after the purported gift was made. Without commenting on
the validity of the gift, she concluded that the written gift deed could be
used to ground jurisdiction.
[21]
The motion judge identified other contracts made
in Ontario and concluded that funds misappropriated from the plaintiffs flowed
to entities that made the agreements. Further, property in Ontario was purchased
with these funds.
[22]
While I cannot say the appeal is frivolous, the
merits of the appeal lean to favour the plaintiffs.
(2)
Irreparable harm
[23]
The moving parties allege that if they are
required to continue responding to the merits of the
Mareva
injunction
they suffer irreparable harm because they may be deemed to have attorned to the
jurisdiction. Anticipating this concern, the plaintiffs undertake not to raise
the issue of attornment in the appeal and consent to an order in this court
directing that the moving parties defence of the
Mareva
injunction
cannot be relied on as attornment in the action. Alternatively, the plaintiffs
are prepared to proceed with the
Mareva
injunction on an
ex parte
basis, without prejudice to the moving parties rights on a comeback motion.
The moving parties say this is not enough.
[24]
The moving parties submit that they would remain
at risk of having attorned to the jurisdiction if they respond to the
outstanding
Mareva
motion because there is uncertainty with respect to
the law on this issue. I therefore turn to the source of the alleged
uncertainty and discuss the implications for this case.
[25]
In 2004, a chambers decision from this court
granted a stay pending appeal of a jurisdiction decision. In
M.J. Jones
Inc. v. Kingsway General Insurance Co.
(2004), 242 D.L.R. (4th) 139 (Ont.
C.A.), Lang J.A. considered a motion for a stay of a jurisdiction order affirmed
by the Court of Appeal pending an application for leave to appeal to the
Supreme Court of Canada. The moving party alleged that if they were ordered to
file a statement of defence, compliance with the order would amount to
attornment to Ontarios jurisdiction rendering the application moot and causing
irreparable harm. Lang J.A. found that the moving party might be found to
have attorned, stating at para. 30:
On the authorities given to me, there is no clear
answer as to whether court-ordered involuntary participation on the merits will
be an attornment sufficient to render [the moving partys] leave application
moot.
[26]
In the 17 years since this decision, this courts judges have addressed
the question of attornment in the face of a challenge to jurisdiction. There is
now a body of jurisprudence on this issue.
[27]
In
BTR Global Opportunity Trading Limited
v. RBC Dexia Investor Services Trust
, 2011 ONCA
620
, 283 O.A.C. 321, Laskin J.A. considered a request for
a stay of a jurisdiction order pending an application for leave to appeal to
the Supreme Court of Canada. The responding party undertook not to argue that
delivery of a defence or participation in examinations for discovery
constituted acts of attornment. Referring to
M.J.
Jones
, Laskin J.A. stated, at paras. 29-31:
[
29
]
Without commenting
on the correctness of that decision, I simply observe that the present case is
distinguishable. In
M.J. Jones
, Lang J.A. dealt with whether a court order requiring a defendant to
deliver a statement of defence would amount to attornment. She held that a
court order requiring a defendant to participate in an action, even though
involuntarily, might amount to attornment. Therefore, she held that despite the
plaintiffs undertaking not to treat the defendants participation as
attornment, refusing a stay could cause irreparable harm.
[
30
] Here, no court order
or involuntary participation is required because [the plaintiff] asks [the
defendant] only for a statement of defence to permit it to move ahead with
discoveries. Furthermore, Lang J.A. appears to have contemplated and approved
of this very scenario. She wrote at para. 52:
This disposition does not necessarily preclude
all parties to this action cooperating by exchanging documents and answering
questions about the merits of the disputes between them. Such exchange, if done
outside the formal bounds of these court proceedings, would, in my view, not be
considered an attornment to Ontarios jurisdiction. It would simply be an
efficient exchange of information that, with the agreement of the parties,
could later be used either in the Ontario proceeding, or in any subsequent
Michigan proceeding.
[
31
] As [the documents are
requested] outside of the formal bounds of the court proceedings, I do not
consider that the delivery of a statement of defence or participation in
discoveries, would amount to attornment. If there is no attornment, the risk of
[the defendants] appeal becoming moot is eliminated. [The defendant]
therefore, has not made out irreparable harm.
[28]
In
Van Damme v. Gelber
, 2013 ONCA 388, 115 O.R. (3d) 470, at paras. 22-23, Doherty J.A.,
writing for a panel of this court, considered the participation necessary to
constitute attornment:
Attornment by participation in court proceedings
was recently addressed in
Wolfe v. Pickar
, 2011 ONCA 347, 332 D.L.R. (4th) 157, at para. 44, where Goudge J.A.
said:
[W]hen a party to
an action appears in court and goes beyond challenging the jurisdiction of the
court based on
jurisdiction simpliciter
and
forum non conveniens
, the party will be regarded as appearing voluntarily, thus giving the
court consent-based jurisdiction.
There is also
authority for the proposition that, if a party appears in a court to challenge
jurisdiction or seek a stay on the basis of
forum
non conveniens
, any additional steps taken by the
party pursuant to an order of the court will also not amount to
attornment: see
Gourmet Resources
International Inc. (Trustee of) v. Paramount Capital Corp.
(1991), 5 C.P.C. (3d) 140 (Ont. C.A.);
M.J.
Jones Inc. v. Kingsway General Insurance Co.
(2004), 72 O.R. (3d) 68 (C.A.), at paras.
18-31
(per Lang J.A., in chambers). Giving these cases their widest reasonable
reading, [the defendants] motion challenging the jurisdiction of the New York
court, his filing of a defence, and his conduct of depositions and discoveries
did not amount to attornment.
[29]
In
Yaiguaje v. Chevron Corporation
, 2014 ONCA 40, 315 O.A.C. 109, MacPherson J.A. considered the moving
parties submission that, even in the face of an undertaking not to raise
attornment, they will suffer irreparable harm. MacPherson J.A. said, at para.
11:
I do not accept this
submission. This court has stated that where a court order requires a party to
file a defence, compliance with the order, including related conduct of
depositions and discoveries, does not constitute attornment in the face of an
ongoing jurisdictional challenge: see
Van Damme v.
Gelber
, 2013 ONCA 388, 115 O.R. (3d) 470, at para. 23.
Moreover, and importantly, the responding parties have explicitly stated in
their factum (para. 28) that if the moving parties simply provide them with
their statements of defence (without formally filing them), the respondents
are content to receive the same, without prejudice to the Chevron companies
Leave to Appeal Applications and will not claim that by doing so they have
attorned to the jurisdiction of the Ontario Superior Court of Justice.
See
BTR Global
, at para.
31. I see no reason not to accept and respect this undertaking.
[30]
Later in 2014, Epstein J.A. considered a stay pending the appeal of a
jurisdiction motion:
Stuart Budd & Sons Ltd. v.
IFS Vehicle Distributors ULC
, 2014 ONCA 546, 122 O.R.
(3d) 472. She referred to differing views concerning when a party risks
attornment by taking court-ordered steps in the fact of an ongoing jurisdiction
challenge. She cited
M.J. Jones
,
BTR Global
,
Van Damme
and
Yaiguaje
and concluded that the issue was unresolved: at para. 36. The stay
was granted.
[31]
I see the case before me differently and on the facts here the
issue is not unresolved. This case is distinguished from
Stuart Budd.
I say
this for several reasons.
[32]
First, in
Essar Steel Algoma (Re)
, 2016 ONCA 138, 33 C.B.R.
(6th) 172, at paras. 41-45, Brown J.A. referred to and cited the cases to which
I have referred and concluded, at para. 52:
[
52
]
I need not express a view on the effect of court-ordered
participation in a proceeding on a partys ability to continue to advance a
jurisdictional challenge because
decisions
of this court uniformly have held that where the responding party provides the
court with undertakings of the kind given by Essar in this case, the
undertakings significantly reduce or remove the risk of irreparable harm.
[Emphasis added.]
[33]
Second,
Van Damme
was a decision by a panel of this court. As MacPherson J.A. pointed out: (i)
compliance with the order, including related conduct of depositions and
discoveries, does not constitute attornment in the face of an ongoing jurisdictional
challenge; and (ii) there is no reason not to respect counsels undertaking.
[34]
Finally, to attorn to the jurisdiction, a party must take a
voluntary
step indicating submission to the jurisdiction. Attornment cannot
arise is circumstances of duress:
Wolfe v. Wyeth
, 2011 ONCA 347, 332 D.L.R. (4th) 157, at para. 44. The plaintiffs
submit that a response to a worldwide
Mareva
injunction should not be considered a voluntary step indicating
submission to the jurisdiction. Rather they say it is an example of duress. The
plaintiffs analogize the situation here to that in
Schwarzinger
v. Bramwell
, 2011 BCSC 283 where the British Columbia
court held that the defendants were under duress when they applied to vary a worldwide
Mareva
injunction. Although their assets were not in the custody of the court,
the effect of the order was to prohibit them from dealing with assets and conducting
their day-to-day business operations. Consequently, there was no consent-based
jurisdiction.
[35]
I agree with the plaintiffs that a response to the worldwide
Mareva
injunction would not amount to
attornment in these circumstances. The defendants would not be asking the court
to engage in an issue, unlike in
Wolfe,
where the defendants sought to dismiss or stay the action for issue
estoppel. Here, there is also the undertaking of the plaintiffs not to assert
attornment.
[36]
I conclude that the moving parties have not demonstrated that they
would suffer irreparable harm if a stay pending appeal is not granted.
(3)
Balance of convenience
[37]
The balance of convenience favours the plaintiffs. They point to the
risk of funds that are the subject matter of the litigation being dissipated.
Gilmore J. concluded that, on the record before her, there was an attempt to
put the assets beyond the reach of the plaintiffs and that there is evidence to
suggest that Al Jabri continues to move money around in furtherance of the alleged
conspiracy.
[38]
The moving parties have offered to provide an undertaking from Mohammed
not to dispose of any assets (subject to certain exceptions including
reasonable living expenses, legal fees, and ordinary course business expenses
or activities of companies he owns or controls). In oral submissions, counsel
suggested the appointment of an Arbitrator to oversee this process. I do not
accept that this is a reasonable proposal that would tilt the balance of
convenience in favour of the moving parties.
[39]
Considering all of the criteria and the fact that the plaintiffs
consent to an order of this court that the moving parties will not attorn to
the jurisdiction by defending the
Mareva
injunction, I conclude that it is not in the interests of justice to
grant the stay.
[40]
The motion is dismissed with costs in the agreed upon amount of $20,000
inclusive of disbursements and HST.
M.L.
Benotto J.A.
[1]
RJR-MacDonald Inc. v. Canada
(Attorney General)
, [1994] 1 S.C.R. 311, at p. 334.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Gardner, 2021 ONCA 539
DATE: 20210727
DOCKET: C67014
Simmons, Gillese and Huscroft
JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Odain Gardner
Appellant
Delmar Doucette and Cara Barbisan, for
the appellant
Robin Flumerfelt, for the respondent
Heard: May 25, 2021 by video
conference
On appeal from the conviction entered by
Justice Antonio Skarica of the Superior Court of Justice, sitting with a jury, on
May 10, 2018.
Simmons J.A.:
Introduction
[1]
Neil Harris was shot and killed at his Hamilton
barbershop at around 4:18 p.m. on February 18, 2016. Two men wearing
hoodies were seen entering the barbershop shortly before the shooting and
fleeing the scene immediately after. Surveillance video confirmed that, in all,
the duration of the incident from the time the two men entered the barbershop
until they left was between 15 to 18 seconds.
[2]
Mr. Harris was killed by a single bullet that
passed through his right arm, entered the right side of his chest, and then
exited the left side, causing fatal injuries to his heart, aorta, lungs, and
pulmonary artery.
[3]
The appellant and Erick Reid were arrested and tried
together for the first degree murder of Mr. Harris. Following a multi-day
trial, the jury found the appellant guilty of first degree murder and Mr. Reid
not guilty of first degree murder, but guilty of manslaughter.
[4]
Two witnesses at trial identified the appellant
as the shooter and gave evidence implicating Mr. Reid as his accomplice. One of
these witnesses, Devon Edwards, was sitting on a couch in the barbershop at the
time of the shooting. He knew Mr. Reid and was acquainted with the appellant.
He claimed that, upon entering the barbershop, Mr. Reid put a gun to his side and
told him not to move while the appellant approached, and then shot, Mr. Harris.
The second witness, Justin Dumpfrey, claimed to have heard both the appellant
and Mr. Reid make inculpatory statements following the shooting; to have seen
the appellant with a gun soon after the shooting; and to have observed Mr. Reid
give a third man, Tyrone Abrahams, some clothing, including the hoodie it was
later established Mr. Reid was wearing at the time of the shooting. Both Mr.
Edwards and Mr. Dumpfrey had criminal records. Neither identified the
appellant or Mr. Reid as being involved in the shooting until being charged
with unrelated criminal offences. Moreover, after being arrested as a suspect
within hours of the shooting, Mr. Edwards told police he could not identify
the perpetrators.
[5]
In late February 2016, police recovered the
hoodie Mr. Reid was wearing at the time of the shooting from the home of Sarah
Bernard, Mr. Abrahams then-girlfriend. Mr. Reids
DNA
was found on the collar
, and fibres from the hoodie were indistinguishable
from fibres found on the undershirt Mr. Harris was wearing when he was shot.
[6]
Mr. Reid testified at trial and admitted he
accompanied the shooter to the barbershop. He claimed the shooter offered to
connect him with a marijuana supplier and that he went to the barbershop solely
to buy weed and possibly get a haircut.
[7]
According to Mr. Reid, the shooter entered the
barbershop first and approached Mr. Harris while he (Mr. Reid) stayed at the
door. He recognized Mr. Edwards, who he knew, and nodded to him. As the
shooter approached Mr. Harris, Mr. Reid heard something drop and then a
shot. Mr. Harris ran and bumped into Mr. Reid as he went out the door. Mr. Reid
ran away with the shooter. Although Mr. Reid knew who the shooter was, he would
not identify him at trial because he feared for his life and the safety of his
family. However, he acknowledged that he got a call from the shooter just
before meeting him and going to the barbershop. Mr. Reid did not dispute that
was the last telephone call he received before the shooting. He declined to say
who he was talking to during that call, but cell phone records revealed that
the last telephone call to his cell phone before the shooting (as opposed to
the last text message) was from a cell phone the appellant had been known to
use. However, Mr. Reid denied the Crowns suggestions that he went to the
barbershop with the appellant to assist the appellant in carrying out the
execution of Mr. Harris.
[8]
The appellant did not testify at trial. His
position at trial focused on identity. He claimed he was not one of the two men
who entered the barbershop. A statement he gave to the police about three weeks
after the killing in which he denied any involvement was introduced as evidence
at trial.
[9]
No physical evidence tied the appellant to the
killing. However, cell phone records showed Mr. Reids phone and one of several
cell phones the appellant was known to use were in communication shortly before
the shooting and on several days thereafter. Both cell phones had gaps in usage
around the time of the shooting. As noted above, the last telephone call to Mr.
Reids cell phone before the shooting came from a cell phone the appellant had
been known to use.
[10]
By the end of the trial, neither the Crown nor
the appellant was taking the position Mr. Reid was the shooter. In his closing
address, Crown counsel asserted that Mr. Reids liability for first degree
murder arose from the fact that he aided the appellant in committing a planned
and deliberate murder. In the alternative, the Crown asserted Mr. Reid agreed
to participate in a robbery with the appellant, knowing the appellant was armed
with a gun and knowing that murder was a probable consequence of their common
unlawful purpose, thus making him guilty of second degree murder.
[11]
In his charge to the jury, the trial judge instructed
the jury on first degree murder, second degree murder, manslaughter and party
liability. Under the heading Parties, he explained that, in addition to
actually committing an offence, a person can be guilty of an offence under the
aiding (s. 21(1)(b)) or common purpose (s. 21(2)) provisions of the
Criminal
Code
, R.S.C. 1985, c. C-46.
[12]
When dealing with the substantive offences and
the liability of the principal,
i.e.
, the shooter, the trial judge
appeared to leave it open to the jury to consider whether either the appellant
or Mr. Reid was the shooter. However, when addressing Parties (and in the
decision trees and verdict sheet), he clarified that Mr. Reids potential
liability arose only under the aiding or common purpose provisions of the
Criminal
Code
.
[13]
The trial judge reviewed the bulk of the trial
evidence (the evidence of 23 of the 27 witnesses) when dealing with causation,
the first of the four elements of the standard charge for first degree murder
(causation; unlawful act; intent for murder; planning and deliberation).
[14]
The appellant raises two issues on his
conviction appeal:
i.)
the trial judge erred in failing to properly
relate the material evidence to the issues to be determined by the jury; and
ii.)
the trial judge gave an erroneous after-the-fact
conduct instruction.
[15]
For the reasons that follow, I would dismiss the
appeal.
Background
(1)
The Witnesses at Trial
[16]
In total, 27 witnesses testified at trial: 25
for the Crown; Mr. Reid on his own behalf; and Ms. Bernard on behalf of the
appellant.
[17]
In her closing address to the jury, trial
counsel for the appellant (not appellate counsel) divided the trial witnesses
into five categories. I will follow trial counsels approach but provide additional
detail.
[18]
The category one witnesses comprised what trial
counsel referred to as the helpful, truthful, and innocent witnesses. These
were: Tanya Harris, the deceaseds widow; Gregory Richards, a friend and former
co-worker of the deceased who testified to Mr. Harris limited marijuana sales
to his inner circle; and five neighbourhood witnesses.
[1]
The neighbourhood witnesses described
various aspects of what could be observed about the incident from outside the
barbershop, including the following:
·
two men wearing hoodies entering the barbershop;
·
the two men in hoodies and the barber emerging
from the barbershop;
·
the barber falling to the ground after what
appeared to be a brief tussle;
·
the two men wearing hoodies fleeing in a
southerly direction, the larger of the two men (later acknowledged to be Mr.
Reid) pumping his arms as he fled, the smaller man appearing to be concealing
something under his clothing; and
·
subsequently, two other men, later identified as
Mr. Edwards and Jevais Dunkley, emerging from the barbershop and heading north.
[19]
None of the five neighbourhood witnesses who saw
the two men wearing hoodies enter or exit the barbershop or flee the scene
could identify them. Nor could the surveillance video.
[20]
Trial counsel for the appellant described the category
two witnesses as the lying manipulative witnesses who [were] only there to
help themselves. The first of the category two witnesses was Mr. Edwards; the
second was Mr. Dumpfrey.
[21]
Mr. Edwards testified he was sitting on a couch
in the barbershop playing a game on his phone when the two men entered. He knew
Mr. Reid and had met the appellant a few times. He claimed Mr. Reid approached
him, put a gun to his side and told him not to move and to keep his head down.
Meanwhile, the appellant approached Mr. Harris. Although Mr. Edwards had his
head down, he was able to see that the appellant had a gun. Nothing was said; Mr.
Harris batted at the appellants hand and ran for the door. He was shot as he
did so.
[22]
Mr. Edwards was confronted at trial about many
inconsistencies and potential frailties in his evidence. Although he was
arrested as a possible suspect within hours of the shooting, he told police at
that time that he kept his head down after seeing a gun and that he could not
identify the assailants. While asserting that his conscience bothered him over
the next five months, Mr. Edwards did not tell the police what he claimed he
knew until July 2016. This occurred only after he was arrested and charged with
multiple offences relating to automobile thefts. Following the preliminary
inquiry in relation to these offences, he was allowed to plead guilty to a
fraction of the charges. He was sentenced to one day in jail, based on a joint
submission that took into account the one night Mr. Edwards spent in jail
following his arrest and his cooperation in this matter.
[23]
Mr. Edwards acknowledged that by July 2016, he
had heard talk on the street that the appellant was the shooter. He also
acknowledged variations in his prior statements and evidence, including his
evidence concerning whether the two men put on masks, where they were when he
was able to see their faces, and what the person who approached him was
wearing. Nonetheless, he maintained all versions of his statements and evidence
were true.
[24]
A second witness, Mr. Dumpfrey, identified the
appellant as the shooter and Mr. Reid as the shooters accomplice. Mr. Dumpfrey
had a lengthy criminal record. He made an initial statement implicating the
appellant and Mr. Reid only after being arrested for unrelated offences in May
2016.
[25]
According to Mr. Dumpfrey, he overheard
inculpatory statements by the appellant and Mr. Reid at a Hamilton
house/hangout known as the office shortly after the shooting. He claimed he
was waiting for Mr. Reid at the office to buy some weed. Mr. Abrahams arrived
about half an hour after he arrived. About five minutes later, the appellant
and Mr. Reid arrived. Mr. Abrahams told them they had fucked up and they were
hot. Mr. Abrahams, the appellant, and Mr. Reid went into an adjacent room. The
appellant suggested Mr. Abrahams had given him a broken gun. Mr. Abraham took
the gun from the appellant, unjammed it, and told the appellant it was jammed,
not broken. The appellant and Mr. Reid had a heated discussion. Among other
things, Mr. Reid told the appellant it was supposed to be a robbery, and no one
was to get killed. The appellant responded that Mr. Reid was supposed to watch
the door; he wasnt supposed to let the guy run out of the barbershop. Mr.
Reid answered his job was to rob everyone who was sitting in the barbershop. Mr.
Dumpfrey also said he saw Mr. Reid give Mr. Abrahams the clothing he (Mr. Reid)
was wearing at the time of the shooting. Police later recovered Mr. Reids
hoodie during a search of Ms. Bernards home.
[26]
In addition, Mr. Dumpfrey testified that the
appellant made inculpatory statements while the two shared a jail cell in July
2016. Among other things, he said the appellant blamed Mr. Reid for causing the
shooting because Mr. Reid failed to block the barbershop doorway. Further, he
claimed that, at the appellants request, he invited Mr. Abrahams, who was also
then incarcerated, to their cell. According to Mr. Dumpfrey, the appellant and
Mr. Abrahams had a lengthy and heated conversation about what Mr. Abrahams may
have told Ms. Bernard and, at one point, the appellant pulled out a shank and
threatened to stab Mr. Abrahams.
[27]
Closely associated with category two, the
category three witness, Mr. Dunkley, was what trial counsel called a reluctant
witness. Mr. Harris was cutting Mr. Dunkleys hair while Mr. Dunkley sat in a
barbers chair near the back of the shop when the two men wearing hoodies
entered. At trial, Mr. Dunkley was reluctant to testify, claiming he had
already given an account of the events. He said the perpetrators were masked,
but he had little other recall of the event. His preliminary inquiry testimony
was admitted on consent under
KGB
.
[2]
At the preliminary inquiry, he testified that he was facing the door when two
masked men entered, and one stayed at the door while the other approached Mr.
Harris. No words were spoken prior to the shooting, and it was the man who
approached Mr. Harris who shot him.
[28]
Trial counsel described the category four
witnesses as police, forensic, cell phone, and professional witnesses. This
category consisted of eight police officers or police employees, one
correctional officer, the pathologist who conducted the autopsy, two forensics
experts who testified about the DNA and fibre evidence, and three cell phone
company witnesses.
[29]
Although there were intervening witnesses, the
police/corrections witnesses testified in the following order:
·
Michael Plaxton, a forensic video analyst who
compiled the surveillance evidence presented at trial;
·
Sergeant Timothy OKeefe, the exhibits officer,
who among other things, produced photographs of the murder scene, including
depictions of a discharged semi-automatic cartridge, a spent bullet, and what
he described as a probable bullet strike mark on a wall;
·
Detective Constable Tamara McGillivray, who attended
the autopsy;
·
Detective Kwabena Saffu, who recovered Mr.
Reids hoodie from Ms. Barnards home;
·
Sergeant Jonathyn Murphy, the lead investigator
who testified concerning various exhibits and Mr. Edwards and the appellants
statements to the police, and confirmed what information had or had not been told
to Mr. Edwards and that police did not assist him in obtaining bail;
·
Anthony Veith, a jail security manager for the
Barton Street Jail (where the appellant, Mr. Dumpfrey, and Mr. Abrahams were
incarcerated), who testified that corrections officers would have noted it had there
been a heated exchange involving a third person in the cell occupied by the
appellant and Mr. Dumpfrey;
·
Officer Anthony Volpe, a firearms specialist, who
testified that if a gun jams after the successful firing of a bullet and
ejection of the cartridge, this indicates a failed effort to fire again;
·
Sergeant John Tselepakis, who testified about
extracting photographs of Mr. Reid wearing a hoodie from a cell phone; and
·
Jovan Krasulja, an investigative crime analyst who
analyzed the cell phone records produced as evidence.
[30]
The category five witnesses were the defence
witnesses: Mr. Reid, who testified in his own defence, and Ms. Bernard, who
testified that the hoodie police found at her house did not belong to Mr.
Abrahams. In cross-examination she also described, among other things, various
contacts she had with the appellant through Mr. Abrahams.
(2)
The Structure of the Trial Judges Jury Charge
[31]
The main issue raised by the appellant on appeal
relates to the manner in which the trial judge summarized the evidence for the
jury and related it to the issues the jury had to determine. To appreciate the
appellants position concerning the issue, it is important to understand the
structure of the trial judges jury charge.
[32]
In total, the trial judges charge spans
approximately 258 pages of transcript.
[3]
As
is customary, the trial judge gave the jury standard instructions relating to
many general issues before turning to the elements of first degree murder. The
standard instructions begin on p. 10 of the transcript and continue to p. 110.
Notably, they include standard instructions with detailed examples concerning
the following issues:
·
previous convictions of a non-accused witness
relating to the evidence of Mr. Edwards (nine convictions), Mr. Dunkley (three
convictions), Mr. Dumpfrey (approximately 40 convictions in addition to
youth court findings of guilt), and Ms. Bernard (five convictions);
·
prior inconsistent statements of a non-accused
witness, with a nine-page example relating to Mr. Edwards evidence;
·
a Vetrovec
[4]
caution,
concerning the evidence of Mr. Edwards, Mr. Dunkley, and Mr.
Dumpfrey, spanning about nine-and-one-half pages;
·
an instruction about the dangers of eyewitness
identification evidence, linked also to the
Vetrovec
caution,
concerning Mr. Edwards evidence, totaling about nine pages; and
·
a caution relating to outstanding charges
against a prosecution witness (Mr. Dumpfrey), who, at the time of trial,
was facing charges for drug trafficking and second degree murder.
[33]
Following the standard instructions, at p. 113
of the transcript, the trial judge turned to planned and deliberate first
degree murder. From pp. 113 to 117, he described the offence charged against
the appellant and Mr. Reid as set out in the indictment and the four elements
of first degree murder (causation, unlawful act, intent for murder, and
planning and deliberation). He framed the questions the jury had to answer as
follows:
For you to find any of the two particular
accused, Odain Gardner and/or Erick Reid, guilty of first degree murder, Crown
counsel must prove each of these essential elements beyond a reasonable doubt:
(1)
that the particular accused, Odain Gardner
and/or Erick Reid, caused the death of Neil Harris;
(2)
that the particular accused, Odain Gardner
and/or Erick Reid, caused the death of Neil Harris unlawfully;
(3)
that the particular accused, Odain Gardner
and/or Erick Reid had the state of mind required for murder; and
(4)
that the particular accused, Odain Gardner
and/or Erick Reids murder of Neil Harris was both planned and deliberate.
[34]
The trial judge began his review of the evidence
relating to the first element of first degree murder, causation, at p. 117 of
the transcript. He began with the question of the medical cause of death and
the evidence of the pathologist. He then reviewed the evidence of the following
witnesses in the following order and with the headings or introductions noted
below. Where noted, the trial judge reviewed a particular witness evidence by
summarizing portions of the examination-in-chief, cross-examination by each
defence counsel, and re-examination (where applicable).
Witnesses to Scene of Shooting
·
Each of the five neighbourhood witnesses in the
order in which they testified (Ms. Mack, Mr. Lamothe, Ms. Bell, Mr. Scott, Mr.
Thetrault): five pages in total;
·
Mr. Edwards (chief, cross, re-exam): 10 pages;
and
·
Mr. Dunkley (chief, Crown-cross, defence cross):
four pages.
Witnesses Post Shooting
·
Mr. Dumpfrey (chief, cross, re-exam): 10 pages;
·
lead investigator, Sergeant Murphy (chief,
cross): three pages; and
·
jail security manager, Mr. Veith: one page.
Forensic Evidence
·
Exhibits officer, Sergeant OKeefe: one page;
·
search warrant officer, Detective Saffu: half a
page;
·
DNA expert, Kelly Jo Walden: one page;
·
fibre collection expert, Barbara Doupe: two
pages; and
·
firearms specialist, Officer Volpe: one page.
Cell Phone Evidence
·
Freedom Mobile security analyst, Gord Kent (Mr.
Dumpfreys cell phone): two pages;
·
Telus Communications security analyst, Rebecca OGrady
(Mr. Reids cell phone): one page;
·
Rogers Communications senior investigator, Danielle
Fortier (the appellants cell phone): one-and-one-quarter pages;
·
cell phone photograph extraction officer,
Sergeant Tselepakis: half a page; and
·
cell phone data analyst, Mr. Krasulja (chief,
cross, re-exam): seven pages.
Evidence Solely Admissible for or Against
Odain Gardner
·
Statements by Mr. Gardner to Mr. Dumpfrey
(chief, cross, re-exam): four-and-one-half pages.
Evidence Solely Admissible for or Against
Erick Reid
·
Statements by Mr. Reid to Mr. Dumpfrey (chief,
cross): three-and-one-half pages.
Defence Evidence
·
Ms. Bernard (chief, cross, re-exam): two-and-one-half
pages; and
·
Mr. Reid (chief, cross): 14 pages.
[35]
The trial judge completed his review of the
evidence related to element one (causation) at the top of p. 200 of the
transcript. Before turning to element two he gave the jury the following
instruction, essentially telling the jury that if they were not satisfied that
a particular accused caused Mr. Harris death, their deliberations in relation
to that accused under this section would be over:
If you are not satisfied
beyond a reasonable doubt that the particular accused, Odain Gardner and/or
Erick Reid caused Neil Harris death, you must find that [
sic
] the particular accused, Odain Gardner and/or
Erick Reid not guilty. Your deliberations would be over for that particular
accused.
If you are satisfied beyond a reasonable doubt
that the particular accused, Odain Gardner and/or Erick Reid caused Neil Harris
death, you must go on to the next question with respect to that particular
accused. [Emphasis added.]
[36]
Concerning element two, unlawful act, the trial
judge described the unlawful act alleged as follows: Neil Harris was assaulted
by a gunshot at a relatively close range. In his evidence review, he told the
jury to consider the surveillance videos, the pathologists evidence concerning
the cause of death, and the evidence summarized under element one.
[37]
Concerning element three, intent for murder, in
addition to standard instructions explaining this element (including the common
sense inference that a person usually knows the predictable consequences of
their conduct and intends to bring them about), the trial judge told the jury
to consider for both the appellant and Mr. Reid the evidence already summarized
under elements one and two (other than the after-the-fact conduct evidence),
and nine other listed items, one of which was evidence admissible only for or against
Mr. Reid.
[38]
Concerning element four, planning and
deliberation, in addition to the standard instructions, the trial judge told
the jury to consider for both the appellant and Mr. Reid the evidence already
summarized under elements one, two, and three (other than the after-the-fact
conduct evidence), the short time frame during which the shooter and Mr. Reid
were in the shop, and eight of the nine items he had listed under element
three.
[39]
After completing his instructions on the
elements of first degree murder,
[5]
the trial judge turned to his instructions on Parties. He explained that a
person commits an offence if he does everything necessary to constitute the
offence and also if he does anything for the purpose of helping another person
to commit it. The trial judge confirmed that the Crowns position was that the
appellant was a principal to the first degree murder of Mr. Harris, that is,
the appellant was the shooter, and further, that Mr. Reid aided the appellant
in that first degree murder. The trial judge also confirmed it was the position
of the defence that neither accused had the required mental state to commit
first or second degree murder and that neither was involved in the shooting of
Mr. Harris. Following his discussion of aiding, the trial judge discussed
common purpose liability under s. 21(2) of the
Criminal Code
.
[40]
Before completing his charge, the trial judge
provided the jury with a decision tree to assist them in their deliberations.
He explained that the decision tree addressed the appellant and Mr. Reid
separately. The decision tree relating to Mr. Reid dealt with liability solely
as an aider under s. 21(1) of the
Criminal Cod
e or through common
purpose under s. 21(2). The trial judge completed his charge by setting out the
positions of the Crown, the appellant, and Mr. Reid.
Issues
(1)
Did
the Trial Judge Err in Failing to Properly Relate the Material Evidence to the
Issues to be Determined by the Jury?
(a)
Overview of the Appellants Position on Appeal
[41]
The appellant points out there are two aspects
to a trial judges duty to assist a jury by relating the material evidence to
the factual issues to be determined to reach a true verdict. First, the trial
judge must distill the evidence to what is material to the issues that are
still in play at the end of the trial. Second, the trial judge must relate the
relevant parts of the material evidence to the particular issues to which the
evidence relates.
[42]
In this case, by the end of the trial, the live
issues for the two accused were distinctly different. The fundamental issue for
the appellant was identity was he the shooter who caused Mr. Harris death? If
the appellant was found to be the shooter, the additional issues were whether
he possessed a murderous intent and whether the killing was planned and
deliberate.
[43]
On the other hand, for Mr. Reid, there was no
issue that he was the shooter. Rather, as the person who was admittedly with
the shooter, the issues were whether he acted as a party under either s.
21(1)(b) or s. 21(2) of the
Criminal Code
and, if he did, whether he
was a party to a planned and deliberate murder.
[44]
The appellant acknowledges that the trial judge
had discretion to structure his charge as he saw fit, including by providing a
single review of the evidence for both accused and by incorporating evidence by
reference into his discussion where material evidence was relevant to more than
one issue. However, the appellant submits that, in this case, the trial judge
erred in two ways.
[45]
First, the trial judge failed to distill the
evidence to that which was material to the live issues still in play at the end
of the trial. Second, he erred in failing to make clear for the jury which
parts of the material evidence were to be considered in relation to the live
issues for each of the two accused.
[46]
The appellants submissions focus on the trial
judges review of the evidence in relation to element one, causation. However,
while the appellant submits that the trial judges erroneous approach to
reviewing the evidence under element one is sufficient to warrant a new trial,
he contends that the trial judge made further errors in his review of the
evidence for elements two (unlawful act), three (intent for murder), and four
(planning and deliberation). I will discuss the appellants position regarding
each element in turn. Before doing so, I will review the general principles
relating to appellate review of the structure of a criminal jury charge.
(b)
Appellate Review of the Structure a Criminal
Jury Charge
[47]
In
R. v. Newton
, 2017 ONCA 496, 349
C.C.C. (3d) 508, at paras. 11 to 13, Laskin J.A. summarized the necessary
components of a trial judges instructions to the jury in a criminal jury
trial. He also explained that trial judges have a broad discretion in
structuring a jury charge; that the standard of review on appeal is adequacy,
not perfection; and that appellate courts must adopt a functional approach in
reviewing jury instructions that assesses the adequacy of the instructions
against their purpose. The further question is whether the trial judges
instructions provided the jury with a sufficient understanding of the facts as
they related to the various issues:
In brief, trial judges have a broad discretion in how to charge
a jury. Their decision about how much evidence to review, what structure to use
and how to organize the charge falls within that discretion.
But, ideally, the charge should contain some
basic components
. In addition to general instructions on the
presumption of innocence, the burden of proof, how to assess the credibility
and reliability of witnesses testimony and the like,
the charge on the particular case should contain the following five
components
:
i.
the legal framework, typically the elements of the offence or
offences with which the accused is charged;
ii.
the factual issues arising out of the legal framework that the jury
must resolve;
iii.
the material evidence relevant to these issues;
iv.
the position of the Crown and defence on these issues; and
v.
the evidence supporting each of their
positions on these issues
.
A charge containing these five components best enables the jury
to appreciate the value and effect of that evidence, and how the law is to be
applied to the facts as
they
find them
(emphasis in original). See
Azoulay v. The Queen
,
[1952] 2. S.C.R. 495, at p. 498.
On appeal, the standard
of review is adequacy, not perfection. An appellate courts approach is
functional. It assesses the adequacy of the charge in the light of its purpose
.
Even if a trial judge strays from the ideal, the fundamental question an
appellate court must ask is:
has the
jury been left with a sufficient understanding of the facts as they relate to
the relevant issues
. See
R. v. Jacquard,
[1997] 1 S.C.R. 314, at para. 14. Or,
are we satisfied that the jurors would adequately understand the
issues involved, the law relating to the charge the accused is facing, and the
evidence they should consider in resolving the issues
. See
R. v. Cooper
, [1993] 1 S.C.R. 146, at p. 163. If
the answer to either question is yes, then the charge will be upheld on
appeal, despite any imperfections. If the answer is no, then the accused will
have been denied a fair trial and any convictions must be set aside. [Emphasis
added.]
[48]
Particularly where, as here, trial counsel had a
full copy of the trial judges instructions to the jury prior to making her
closing address, the failure to object to the manner in which the trial judge
reviewed the evidence can be of some significance on appeal:
R. v. Daley
,
2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 54-58;
R. v. P.J.B.
,
2012 ONCA 730, 97 C.R. (6th) 195, at paras. 44-49.
(c)
The Trial Judges Review of the Evidence
Relating to Element One, Causation
(i)
The Appellants Position
[49]
As I have said, by the end of the trial, causation
boiled down to whether the Crown had proven identity beyond a reasonable doubt,
i.e.
, was the appellant the shooter? There was no live issue
concerning the cause of death, nor did anyone take the position that Mr. Reid
was the shooter.
[50]
However, in reviewing the evidence in relation
to causation, the appellant submits that, with minor exceptions, the trial
judge reviewed all of the evidence from the trial in the order in which was
presented, much of which he claims was irrelevant to element one.
[51]
As set out above, the trial judge began by
reviewing the pathologists evidence concerning cause of death, which was not a
live issue. According to the appellant, the trial judge then proceeded with a witness-by-witness
review of the remaining witnesses, essentially in the order in which they
testified. The only witnesses omitted were the deceaseds widow, Mrs. Harris;
the deceaseds friend, Mr. Richards, who gave evidence relevant to motive; and
two police witnesses called to prove exhibits (Detective Constable McGillivray,
who attended the autopsy, and Mr. Plaxton, the forensic video analyst). The
appellant claims that the only witnesses whose evidence the trial judge
reviewed out of order were three police witnesses who testified about
statements they took or the operation of semi-automatic weapons.
[52]
The appellant submits that by proceeding in this
fashion, the trial judge erred in both failing to distil the evidence to what
was material at the end of the trial and in failing to relate material evidence
to the issue to which it was relevant. He submits that the trial judge should
not have reviewed the evidence of the following witnesses at all under element
one, because they had no relevant evidence to give concerning the key issue on
causation,
i.e.
, whether the appellant was the shooter:
·
the pathologist (cause of death);
·
the five neighbourhood witnesses (could not
identify the shooter);
·
Mr. Dunkley (could not identify the shooter);
·
Sergeant OKeefe (forensic evidence from the
scene);
·
Detective Saffu (seized Mr. Reids hoodie);
·
Ms. Walden (DNA evidence regarding Mr. Reid);
·
Ms. Doupe (fibre evidence regarding Mr. Reids
hoodie);
·
Officer Volpe (firearms evidence regarding a gun
that jams);
·
statement evidence regarding statements made by
Mr. Reid to Mr. Dumpfrey;
·
Ms. Bernard (evidence regarding Mr. Reids
hoodie); and
·
Mr. Reid (in his own defence).
[53]
The appellant contends that including the
evidence of witnesses that had no relevant evidence to give concerning a
particular issue could only have led to confusion on the part of the jury.
[54]
The appellant likens this case to
R. v. Barreira
,
2020 ONCA 218, 62 C.R. (7th) 101, a multiple-accused first degree murder trial
presided over by the same trial judge who presided over the appellants trial.
The appellant submits the trial judge used essentially the same methodology to
review the evidence in this case as he did in
Barreira
. This court
described the trial judges approach in
Barreira
, at para. 28, and
ultimately set aside the first degree murder convictions of the alleged
principal and two parties, at para. 28:
[T]he trial judge
proceeded [under Element 1] to review the evidence of each and every witness at
the trial
, over 145 pages of transcript.
The trial judge did not make any effort to relate any of this
evidence to particular elements of the offence or to particular issues raised
.
Instead, the trial judge simply repeated the evidence from start to finish.
[Emphasis added.]
[55]
The appellant also relies on this courts
comments in
Newton
, at paras. 15 and 16, another murder case from the
same jurisdiction (but presided over by a different trial judge), in which this
court quashed the convictions and ordered a new trial:
A witness by witness
recitation of the evidence is almost always ineffective
. It is ineffective for at least two reasons. First
the recitation tends to be unnecessarily detailed
, as
was the trial judges recitation. When a trial judge simply recites all the
evidence of each witness, instead of trying to distill it for the jury, the
jurors will naturally have difficulty processing what evidence is important and
what evidence is not.
The second and most important reason a witness
by witness recitation is ineffective is that
the summary
of the evidence bears no relationship whatsoever to the issues in dispute
.
We are not court reporters.
The evidence at trial has to
be organized for the jury according to its relevance to the issues. Otherwise
the jury will not appreciate its significance.
[Emphasis added.]
(ii)
Discussion
[56]
On the facts of this case, I am not satisfied that
the trial judge committed reversible error by reviewing the bulk of the trial
evidence when addressing causation, the first of the four elements of first
degree murder. Nor am I satisfied that the trial judges review of the evidence
under element one was simply a holus bolus regurgitation of virtually the whole
of the trial evidence, unrelated to the issues presented to the jury, which
would have left them with an insufficient understanding of the evidence as it
related to those issues.
[57]
The trial judge presented the case to the jury
as if either the appellant or Mr. Reid was a potential principal,
i.e.,
the shooter. In oral argument on appeal, the Crown acknowledged that it would
have been preferable had the trial judge not done so but argued that the
appellant was not prejudiced in the result. I agree. In my view, the trial
judge overcomplicated his instructions by proceeding in this fashion.
Nonetheless, on the facts of this case, the issues relating to whether the
appellant was the shooter were obvious and the trial judge reviewed the
evidence relating to those issues repeatedly. Further, it would have obvious to
the jury what evidence reviewed under element one related to Mr. Reid.
[58]
The contentious issue vis-à-vis the appellant
under element one was identity. In the context of this case, the identity issue
boiled down to questions of credibility and an assessment of the cell phone
evidence.
[59]
Two witnesses identified the appellant as the
shooter. Both knew him. One, Mr. Edwards, was present when the shooting took
place. He initially told the police he could not identify the assailants, but
changed his story following his arrest on serious charges. The other witness,
Mr. Dumpfrey, claimed to have seen the appellant and Mr. Reid arrive at the
office shortly after the shooting, to have seen the appellant with a gun, and
to have heard both the appellant and Mr. Reid make inculpatory statements at
that location. He also claimed to have heard the appellant make additional
inculpatory statements when the two were subsequently incarcerated. The
credibility of Mr. Edwards and Mr. Dumpfrey was thus central to the issue of
the identity of the shooter.
[60]
The cell phone evidence was also central to the
Crowns case concerning the identity of the shooter. On one interpretation of
the evidence, Mr. Reid acknowledged in his evidence that the last telephone
call he received on his cell phone before the shooting being the call he
received at approximately 4:06 p.m. on February 18, 2016 was from the
shooter. Cell phone records demonstrated that this call came from a cell phone
with which the appellant was known to be associated.
[61]
In my view, considering the trial judges charge
as a whole, I am satisfied the jury would have understood that the central
issues relating to whether the appellant was the shooter were the credibility
of Mr. Edwards and Mr. Dumpfrey and the assessment of the cell phone evidence.
[62]
The jury would also have appreciated the
frailties in Mr. Edwards and Mr. Dumpfreys evidence and the caution they
were required to exercise in evaluating that evidence. The trial judge
cautioned the jury repeatedly concerning the frailties in Mr. Edwards and Mr.
Dumpfreys evidence, both in his
Vetrovec
caution and in his
instructions on the following matters: previous criminal records of non-accused
witnesses; prior inconsistent statements; eyewitness identification evidence;
and outstanding charges against a non-accused witness.
[63]
As set out above, the trial judge organized his
recitation of the evidence under headings or introductions, such as the
following:
·
Medical Cause of Death;
·
Witnesses to Scene of Shooting;
·
Witnesses Post Shooting;
·
Forensic Evidence;
·
Cell Phone Evidence;
·
Evidence Solely Admissible for or Against Odain
Gardner (statements to Mr. Dumpfrey);
·
Evidence Solely Admissible for or Against Erick
Reid (statements to Mr. Dumpfrey); and
·
Defence Evidence.
[64]
Much of this evidence followed the sequence in
which the witnesses testified at trial. However, contrary to the appellants
submissions, in my view, the trial judge organized the evidence in an
intelligible manner, which would have allowed the jury to appreciate what
issues each witness evidence pertained to: the medical cause of death; whether
the appellant was the shooter and the reliability and credibility of the
witnesses who claimed that he was; Mr. Reids participation in the shooting and
how his evidence reflected on the reliability and credibility of the
identification witnesses; and the impact of the cell phone evidence.
[65]
The fact that the medical cause of death was not
a contentious issue by the end of the trial does not mean the trial judge erred
in reviewing the pathologists evidence under element one. Cause of death was
not conceded. Moreover, the pathologists evidence about lack of stippling
demonstrated that the shooter and the barber were at least one metre apart,
potentially supporting Mr. Edwards evidence that Mr. Harris tried to run away.
[66]
The evidence of the scene witnesses who could
not identify the assailants, including Mr. Dunkley, nonetheless provided
context for the jury to evaluate the reliability and credibility of Mr.
Edwards evidence. Some, including Mr. Dunkley, testified about whether they
saw masks. Some testified about what they heard or saw Mr. Edwards say or do as
he exited the barbershop. This provided not only a backdrop from which the jury
could evaluate Mr. Edwards evidence, but also evidence relevant to specific
aspects of his evidence. Moreover, the very fact that these witnesses could not
identify the assailants was relevant to the question whether identity had been
proven.
[67]
The two post-shooting witnesses whose evidence
the trial judge reviewed in addition to Mr. Dumpfreys (Sergeant Murphy and Mr.
Veith), provided context for the jury to evaluate the reliability and
credibility of the identification witnesses. The review of Sergeant Murphys
evidence related primarily to the police contact with Mr. Edwards and what, if
any, information or help they gave him. The review of Mr. Veiths evidence
cast suspicion on Mr. Dumpfreys evidence concerning the appellants
interaction with Mr. Abrahams while in jail.
[68]
I agree that most of the witnesses evidence
that the trial judge reviewed under the heading Forensic Evidence pertained
to identifying Mr. Reid, a matter not in issue by the end of the trial.
However, that that evidence pertained solely to identifying Mr. Reid as a possible
shooter would have been obvious to the jury. I fail to see how it could have
confused them when, at least in this segment of his charge, the trial judge was
treating Mr. Reid as a possible shooter. Sergeant OKeefes evidence, also
reviewed under the Forensic Evidence heading, once again provided the jury
with context in which to evaluate the reliability and credibility of both Mr.
Edwards and Mr. Dumpfreys evidence. Sergeant OKeefe provided photographs of
the scene and gave evidence about finding a cartridge case and probable bullet
strike mark at the scene. This evidence was relevant to Mr. Edwards evidence
concerning how events unfolded (thus his credibility) and to Mr. Dumpfreys
evidence about the gun jamming.
[69]
The appellant does not contest the propriety of
the trial judge reviewing the evidence of the cell phone witnesses, save for
Sergeant Tselepakis, who extracted a photograph of Mr. Reid wearing a
particular garment from a cell phone. Once again, I am confident the jury would
have easily understood that this evidence related to the identification of Mr.
Reid, and that it did not prejudice the appellant.
[70]
As for the evidence the trial judge reviewed
under the headings Evidence Solely Admissible for or Against Erick Reid and
Statements Made by Erick Reid to Justin Dumpfrey, this evidence related to
statements Mr. Reid allegedly made to Mr. Dumpfrey two days after the shooting,
when Mr. Dumpfrey again met Mr. Reid to buy weed. The alleged statements
included assertions that the appellant fucked up Mr. Reids life, that the
shooting was not supposed to happen, and that Mr. Reid felt the murder was a
hit based on someone paying the appellant to do it. Undoubtedly, the trial
judge reviewed this evidence because, in this section of the charge, he treated
Mr. Reid as a potential principal to the offence of first degree murder. Once
again, I acknowledge that it would have been preferable had the trial judge not
done so. However, I reiterate that given the manner in which the trial judge
structured his charge, I am confident the jury would have understood this
evidence related solely to Mr. Reids participation and, equally important,
that this evidence was not admissible against the appellant.
[71]
As for the defence evidence reviewed under
element one, in addition to treating Mr. Reid as a potential principal in this
section of the charge, I conclude it was open to the trial judge to review Mr.
Reids evidence to provide a context for the jury to assess the reliability and
credibility of Mr. Edwards and Mr. Dumpfreys evidence, specifically as it
related to the shooting and events immediately preceding and following it. Ms.
Bernards evidence went primarily to the identification of Mr. Reid. However,
she was also cross-examined by the Crown and gave evidence relevant to the cell
phone number used by the appellant.
[72]
Reviewing the charge as a whole, I am satisfied
that the jury would have understood that the issues relating to the appellants
identity as the shooter centred on the credibility of Mr. Edwards and Mr.
Dumpfrey and an assessment of the cell phone evidence. I am also satisfied that
the jury would have understood that they were required to determine those
issues, not by examining that evidence in isolation, but by examining it in the
context of the evidence of other witnesses who gave evidence relevant to it. I
am not satisfied the jury would have been confused by the evidence relating to
the identification of Mr. Reid. The trial judge charged the jury as if Mr. Reid
was a potential principal to the offence of first degree murder,
i.e.
,
the shooter. It would have been obvious to the jury that evidence relevant to
his identity pertained to that issue.
[73]
In my view, this case is distinguishable from
this courts decisions in both
Barreira
and
Newton
, on which
the appellant relies.
[74]
Unlike this case, in
Barreira
, the
shooter admitted through counsel that he was the person who shot the deceased.
He took the position that he had done so instinctively as a reaction to the
deceased punching him. The remaining defendants admitted through counsel to
being present at the shooting, but denied they were parties to it. In
Barreira
,
the trial judge reviewed the evidence of
all
the
witnesses at trial in the order in which they testified under element one of
first degree murder (causation). However, in
Barreira
neither
causation nor identity were in issue. Concerning intent for murder and planning
and deliberation the two live issues at the trial for the shooter this
court plainly found the trial judges evidentiary review inadequate. In
relation to intent for murder, the trial judge told the jury only to consider
the evidence already summarized and then made brief reference to the issue of
intoxication and one reference to a piece of post-offence conduct: at para.
34. After setting out the evidence the trial judge reviewed under element four,
planning and deliberation, this court said, at para. 35: None of this had any
potential to assist the jury in terms of the issues they had to decide.
[75]
In
Newton
, again the shooter admitted
his identity, but asserted the murder was not planned and deliberate and also
claimed he lacked the intent for murder, as he had just been shooting randomly.
This court noted that the trial judge reviewed the evidence of most of the
witnesses who testified but did so by reading her notes of their evidence,
roughly in the order each witness gave evidence. This court stated, at para.
20, in part:
The issues were numerous and some were
difficult. [The shooters] main defence was that he did not plan and deliberate
on the killing so he should not be found guilty of first degree murder.
A considerable amount of evidence was relevant to the issue of
planning and deliberation
.
The jury needed help to
assess this evidence. Unfortunately, the trial judge did not help it to do so.
[
The shooters] secondary position
was that he
lacked the
mens rea
or mental state for murder
he was just stupidly firing bullets to scare [one of the
victims]. Again the trial judge did not discuss the evidence bearing on that
issue
. [Emphasis added.]
[76]
In this case, the trial judge conducted the bulk
of his evidentiary review in relation to the main issue for the shooter,
i.e.
,
his identity. Again, I agree that it would have been preferable had the trial
judge not referred to Mr. Reid as a potential principal to first degree murder
and not reviewed the evidence relating to Mr. Reids identification under
element one, or under the remaining elements of first degree murder. That said,
there was no objection to the trial judges approach in that respect, and
having reviewed the charge as a whole, I am satisfied that the jury would have
understood the issues relating to the shooters identity and the evidence they
had to consider in determining those issues.
[77]
The instructions concerning element one were not
perfect. By instructing the jury as if Mr. Reid were a potential shooter and
then taking that option away, the trial judge made his instructions to the jury
more complicated than was necessary. However, taking a functional approach to
these instructions, I conclude they were adequate in the circumstances of this
case, where the issues concerning whether the appellant or Mr. Reid was the
shooter and the evidence relevant to those issues were obvious. Adequacy is the
standard to be met.
(d)
The Trial Judges Review of the Evidence
Relating to Element Two, Unlawful Act
(i)
The Appellants Position
[78]
Under element two, unlawful act, the trial judge
instructed the jury to consider the surveillance recordings, the pathology
evidence, and the evidence that he had already summarized under element one.
[79]
The appellant submits that this approach was
both unnecessary and wrong. It was unnecessary because the question whether Mr.
Harris was killed unlawfully was not a live issue by the end of the trial. It
was wrong because much of the evidence summarized under element one was
irrelevant to the question whether the homicide was unlawful. Although the
appellant acknowledges that this instruction caused him no harm, he submits
that it demonstrates the continuation of the trial judges erroneous approach.
(ii)
Discussion
[80]
I agree with the appellant that he was not
prejudiced by the manner in which the trial judge reviewed the evidence
relating to element two. While the issue was not conceded, no issue was raised
at trial that shooting Mr. Harris was somehow lawful. However, the evidentiary
review consisted of only three paragraphs and focused on the pathologists
evidence of the gunshot wound Mr. Harris suffered. The trial judges remaining
instructions to consider the circumstances of each accused, the nature of the
act alleged, anything said around the time of the incident, the surveillance
evidence, and the evidence reviewed under element one, were in accordance with
standard instructions that a jury should not consider evidence in isolation and
should bear in mind the whole of the evidence.
(e)
The Trial Judges Review of the Evidence
Relating to Element Three, Intent for Murder
(i)
The
Appellants Position
[81]
Concerning
element three, intent for murder, after setting out the standard instructions,
the trial judge instructed the jury to consider, with respect to both the
appellant and Mr. Reid, the evidence he had already summarized under elements one
and two (other than the after-the-fact conduct evidence) and nine other listed
items, including Mr. Reids evidence that his only purpose in going to the
barbershop was to buy weed and possibly get a haircut. The appellant contends
that the trial judge committed reversible error by proceeding in this way.
[82]
As
a starting point, the appellant argues that much of the evidence summarized
under element one was irrelevant to the shooters intent. More importantly,
since no one took the position Mr. Reid was the shooter, the issue concerning
his intention had to be dealt with when addressing party liability. The
requisite intent for a party under ss. 21(1)(b) or 21(2) and a principal is different.
Accordingly, it was an error to identify Mr. Reids intention as an issue in this
section of the charge and review evidence relevant to his intention. The
appellant submits this was not a harmless error vis-à-vis him because evidence
relevant to Mr. Reids intent was not material to the intent of the shooter.
[83]
Finally,
the trial judges erroneous approach to reviewing the evidence relevant to
element three was compounded by his use of and/or language.
Overall,
the trial judge used the phrase and/or 23 times when discussing this element.
Use of this language was improper and could only have increased the potential
for the jury to use irrelevant evidence to assess the shooters intention:
R.
v. Josipovic
, 2019 ONCA 633, 147 O.R. (3d) 346, at paras. 46-58.
(ii)
Discussion
[84]
Concerning element three, intent for murder, the
focus of the appellants complaints is on the trial judges review of the
evidence relating to Mr. Reids intent and the trial judges use of and/or
language in relation to the appellant and Mr. Reid. The appellant submits
this created a risk the jury would have relied on evidence irrelevant to his
intent to decide whether he had the intent for murder.
[85]
I would not accept these submissions. As I have
said, I agree the trial judge overcomplicated the charge by including Mr. Reid
in his instructions concerning a principals liability for first degree murder.
However, overall, I am not satisfied the appellant was prejudiced by this
approach.
[86]
The trial judge began this section of his charge
with the following instruction:
Did the particular accused, Odain Gardner
and/or Erick Reid have the state of mind required for murder?
[87]
He repeated the and/or language throughout his
discussion of the intent issue (and throughout his discussion of the liability
of a principal for first degree murder).
[88]
As I have said, in my view, it would have been
obvious to the jury that in the section of his charge dealing with the
liability of a principal for first degree murder, the trial judge was treating
both the appellant and Mr. Reid as a potential principal,
i.e.
as a
possible shooter. By the time the jury reached element three of first degree
murder, they would have determined that the appellant was the shooter and it
would have been obvious to them that evidence relating to Mr. Reids intent was
not relevant to that issue. As this court explained in
Josipovic
, at
para. 44, and/or language is not in and of itself improper. Jury instructions
must be evaluated by reference to the overall meaning conveyed, having regard
to the context of the evidence and the trial as a whole: at para. 44.
[89]
The appellant also submits that the trial
judges instruction to consider the evidence reviewed under elements one and
two (save for the after-the-fact conduct evidence previously discussed) was
simply wrong. Much, if not all, of such evidence was irrelevant to the issue of
the shooters intention.
[90]
I would not accept this submission. The trial
judge highlighted for the jury evidence that was specifically relevant to the
intent of the shooter. I am not persuaded the jury would have been confused by
references to additional evidence.
[91]
Under the heading Evidence Admissible for or Against
Both Accused, in addition to his instructions to consider the evidence already
reviewed under elements one and two (apart from the after-the-fact conduct
evidence), the trial judge instructed the jury to consider the following
evidence admissible for or against both accused:
·
the surveillance videos, phone records, and
contact by the various accused prior to the shooting;
·
Mr. Edwards evidence that upon entering the
barbershop Mr. Reid shoved a gun in his side while the appellant pulled a gun
on Mr. Harris who slapped at the gun and ran the appellant then shot Mr.
Harris and both accused ran away;
·
Mr. Dunkleys evidence that one of the two
masked men who entered the barbershop approached him and H, there was a
moment of silence, no words were exchanged, the barber just ran and got shot;
·
Mr. Dumpfreys evidence that he overheard an
argument between the appellant and Mr. Reid at the office in which each blamed
the other for the shooting;
·
the forensic evidence demonstrating the hoodie
recovered by police contained Mr. Reids DNA and that fibres from that hoodie
were indistinguishable from fibres found on the undershirt Mr. Harris was
wearing when he was shot;
·
Officer Volpes evidence that a jammed gun after
a successful first shot indicates a failed attempt to fire another shot; and
·
Mr. Reids evidence that his only purpose in
going to the barbershop was to buy weed and possibly get a haircut, that he was
not involved in any plan to rob or shoot Mr. Harris, and that he did not know
the shooter had a gun or that he would use it to shoot Mr. Harris.
[92]
Concerning the appellant, the trial judge also
instructed the jury to consider Mr. Dumpfreys evidence that, while the two
were in jail, the appellant told Mr. Dumpfrey that he blamed Mr. Reid for
the shooting and said the shooting would not have been necessary had Mr. Reid
done his job.
[93]
I acknowledge that much of the evidence reviewed
under elements one and two and the forensic evidence identifying Mr. Reid would
not have been relevant to the shooters intent and that the surveillance
evidence would have had marginal, if any, relevance to that issue. However, the
remaining items specifically reviewed by the trial judge, as well as the
pathologists evidence, Mr. Dumpfreys evidence about the jammed gun, and the
exhibit officers evidence relating to the scene of the crime, would have been
very relevant to that issue.
[94]
Given the specific items of evidence that the
trial judge did review, I see little likelihood that the jury would have been
in any way confused about the evidence that was relevant to this issue. In
other words, given that the trial judge specifically reviewed evidence relevant
to determining the issue of intent, I am not convinced the jury would have been
confused by an instruction to bear in mind the whole of the evidence.
[95]
Finally, I observe that on the facts of this
case, the question of the shooters intent was barely, if at all, a live issue.
Mr. Harris was shot in the chest at relatively close range. While not conceding
intent, appellants counsel did not raise any issues in her closing suggesting
how the jury might find a reasonable doubt concerning at least the secondary
intent for murder.
(f)
The Trial Judges Review of the Evidence
Relating to Element Four, Planning and Deliberation
(i)
The Appellants Position
[96]
Concerning element four, after explaining the
concepts of planning and deliberation, the trial judge instructed the jury to
consider the evidence he had summarized under elements one to three (other than
the after-the-fact conduct), the short time frame during which Mr. Reid and the
shooter were in the barbershop, and eight of the nine items he had listed under
element three. Once again, the appellant submits that the instruction to
consider the evidence summarized under element one was an error because much of
that evidence was irrelevant to planning and deliberation. Moreover, use of the
and/or language under this element improperly suggested either that Mr. Reid
and the shooter had both committed a planned and deliberate murder, or that at
least one of them had done so.
(ii)
Discussion
[97]
I would not accept these submissions. The
specific items of evidence the trial judge did review were very relevant to the
question of planning and deliberation and would have provided the jury with a
clear understanding of the type of evidence that was relevant to that issue.
[98]
The appellants specific objection to the trial
judges use of and/or language under this heading is that the 15 times the
trial judge used such language in this section of the charge may have misled
the jury into thinking either both (the and of the phrase) or at least one of
them (the or of the phrase) committed a planned and deliberate murder. In
other words, the jury may have understood they were required to find at least
one of the accused committed a planned and deliberate murder.
[99]
However, the trial judges opening statement to
the jury under this heading reads:
Was the particular accused, Odain Gardner
and/or Erick Reids murder of Neil Harris both planned and deliberate?
[100]
Nothing about this question suggests at least one of the named
accused must have committed a planned and deliberate murder. In any event, the
trial judge closed his instructions on this issue with the following
statements:
If you are not satisfied
beyond a reasonable doubt that the murder of Neil Harris was both planned and
deliberate, you must find the particular accused, Odain Gardner and/or Erick
Reid not guilty
of first degree murder, but
guilty of second degree murder.
If you are satisfied beyond a reasonable doubt
that the murder of Neil Harris was both planned and deliberate, you must find
the particular accused, Odain Gardner and/or Erick Reid guilty of first degree
murder. [Emphasis added.]
[101]
In my view, the first of these statements made it clear that the
central question was whether the murder was planned and deliberate. If it was
not, the jury was required to find whichever person they were considering not
guilty of first degree murder.
(2)
Did the Trial Judge Err by Giving an Erroneous
After-the-Fact Conduct Instruction?
(a)
The Appellants
Position
[102]
In his factum, the appellant submitted that two aspects of the trial
judges after-the-fact conduct instruction amounted to reversible error: i) the
Flight from the Scene instruction; and ii) the Lies to the Police
instruction. In oral argument, the appellant abandoned his argument about the lies
to the police instruction. However, he maintained his position that, vis-à-vis
him, the trial judge erred in his after-the-fact conduct instruction concerning
flight from the police.
[103]
As part of his after-the-fact conduct instructions, the trial judge
told the jury they could find that any, all or some of the accuseds flight
from the scene was circumstantial evidence that an accused was a participant
to the unlawful act of shooting Neil Harris. The appellant acknowledges that
this instruction was correct concerning Mr. Reid: his flight from the scene was
some evidence that he was not an innocent dupe but rather a knowing participant
in the shooting. However, the appellant submits that the instruction was not
correct vis-à-vis him. Only if the jury found that the appellant was the
shooter could they then find that he fled from the police because he was
conscious of being a participant in the shooting and only then could they
consider his flight as circumstantial evidence that he was the shooter. Since
the jury had to find the appellant was the shooter before it could use his
flight as circumstantial evidence that he was the shooter, vis-à-vis him, the
instruction was wrong. Such circular or tautological reasoning is improper: see
R. v. Hall
, 2010 ONCA 724, 263 C.C.C. (3d) 5, at paras.
141-43, leave to appeal refused, [2010] S.C.C.A. No. 499.
[104]
The appellant submits that this ground, standing alone, constitutes
reversible error warranting a new trial.
(b)
Discussion
[105]
I would not accept this submission.
[106]
The impugned instruction from
Hall
reads as follows:
If you do not or cannot find that Carl Hall
did or said those things because he was conscious of having done what is
alleged against him, you must not use this evidence in deciding or helping you
decide that Carl Hall committed the offence charged. On the other hand, if you
find that anything Carl Hall did or said afterwards was
because he was conscious of having done what is alleged against him
, you
may consider this evidence together with all of the other evidence in reaching
your verdict. [Emphasis added.]
[107]
This courts concern in
Hall
was that the jury was invited
to jump directly to the issue of guilt as a precondition to deciding the use
they would make of the after-the-fact conduct. Nonetheless, in
Hall
,
this court found that this flaw in the instructions, standing alone, did not
constitute reversible error.
[108]
In this case, the trial judge did not use the impugned language from
Hall
. Instead, prior to giving the instruction with which the
appellant takes issue, the trial judge told the jury that before they used the
after-the-fact conduct evidence for any purpose, they first had to decide if
the appellant (or Mr. Reid) had engaged in the conduct alleged:
You may find it helpful to approach this
evidence of what the accused are alleged to have said or done afterwards in two
steps.
The first step requires you to decide whether
any of the accused actually did or said what he is alleged to have said or done
after the offence was committed.
If you find that a particular accused did not
do or say what he is alleged to have done or said after the offence was
committed, you must not consider this evidence in reaching or helping you reach
your verdict.
[109]
These instructions would have made it clear to the jury that to
consider the appellants flight from the scene as after-the-fact conduct, they
first had to conclude that he was one of the men seen fleeing in a southerly
direction immediately after the shooting. The subsequent instruction that, if
they were so satisfied, they could use the after-the-fact conduct evidence to
find the appellant was a participant in the shooting, may have been both unnecessary
and circular, but it did not prejudice the appellant. In any event, as
Hall
makes clear, such an instruction, standing alone, does not constitute
reversible error.
Disposition
[110]
Based on the foregoing reasons, I would dismiss the appeal.
Released: July 27, 2021 J.S.
Janet
Simmons J.A.
I
agree. E.E. Gillese J.A.
I
agree. Grant Huscroft J.A.
[1]
The five neighbourhood witnesses were: Melody Mack, Daniel Lamothe,
Shirley Bell, Paul Scott, and Adam Thetrault.
[2]
R. v. B.(K.G.)
, [1993] 1 S.C.R. 740.
[3]
The charge begins at p. 10 of the transcript of proceedings for May
15 and 16, 2018 and ends on p. 268. There were various breaks during the course
of the charge and comments by counsel on at least one occasion.
[4]
Vetrovec v. The Queen
, [1982] 1 S.C.R. 811.
[5]
The trial judge addressed second degree murder and manslaughter as
part of this discussion.
|
COURT
OF APPEAL FOR ONTARIO
CITATION: Charlesfort Developments Limited
v. Ottawa (City), 2021 ONCA 542
DATE: 20210726
DOCKET: C67355
Doherty,
Nordheimer and Harvison Young JJ.A.
BETWEEN
Charlesfort
Developments Limited
Plaintiff (Respondent)
and
The
Corporation of the City of Ottawa
Defendant (Appellant)
Alyssa Tomkins and Anne
Tardif, for the appellant
Timothy J. Hill and Mark van
Zandvoort, for the respondent
Heard: in writing
On appeal
from the judgment of Justice Sally A. Gomery of the Superior Court of Justice,
dated July 24, 2019, with reasons reported at 2019 ONSC 4460.
COSTS ENDORSEMENT
[1]
On June 11, 2021, we released our decision in
which we allowed the appeal in this matter and dismissed the respondents
action. We invited written submissions regarding the costs of the appeal and of
the proceeding below.
[2]
We have now received and reviewed the written
submissions of the parties. The respondent does not dispute the amount sought
for the costs of the appeal in the amount of $54,390.06, inclusive of
disbursements and HST. The respondent also does not dispute the fees sought for
the proceeding below in the amount of $258,071.53 plus HST. Where the
respondent does take issue is with respect to the amount of $566,620.01 sought
by the appellant as disbursements for the proceeding below.
[3]
The single largest component of the
disbursements sought is the amount of $478,860.28 for the fees of Deloitte
& Touche, who were experts retained by the appellant. The respondent
submits that these fees are not properly supported by the material filed and
are, in any event, excessive. The first complaint was largely addressed when
the appellant subsequently filed additional support for those fees.
[4]
The fees of experts are subject to a
reasonableness test, just as are the fees of counsel. The fees of experts are
not, however, subject to further reduction based on the distinction between
substantial indemnity costs and partial indemnity costs:
3664902 Canada
Inc. v. Hudson's Bay Co. (c.o.b. Bay Department Stores)
,
(2003), 169 O.A.C.
283, at para. 17. Put another way, the fact that a party may have paid its
expert an exorbitant fee for their services does not mean that the other party
must pay that amount. The other party must only pay what the court views as
reasonable for the services provided:
Yip v. HSBC Holdings plc
, 2018
ONCA 626, 141 O.R. (3d) 641, at paras. 89, 91.
[5]
In considering the reasonableness of the expert
fees, we have taken into account the complexity of this matter as well as the fact
that the appellant was facing a multi-million dollar claim which could also
have had precedential impact, if sustained. We are also aware that the expert
fees, while emanating from one firm, actually comprised four experts within
their account. In the end result, none of the experts gave evidence because the
parties were able to come to a partial agreement on damages that obviated the
need to call the experts. Among other things, the agreement meant that the
trial judge was not called to determine if the appellant would be given leave
to call more than three experts:
Evidence Act
, R.S.O. 1990, c. E.23,
s. 12.
[6]
That said, a party is entitled to be paid appropriate
amounts for expert reports reasonably necessary for the conduct of the
proceeding, regardless of whether the expert is called to give evidence:
Harding
v. First Associates Investments Inc.
,
[2003] O.J. No. 4652, at
para. 49. We agree with that principle. The mere fact that the expert is not
called does not mean that the expert report did not contribute to the
advancement, or defence, of the claim. Indeed, an expert report may help
resolve certain issues in the proceeding and thus promote settlement, or at
least reduce the issues for trial. Indeed, that appears to have been what
happened in this case.
[7]
Nonetheless, the fact that the expert was not
called to give evidence is a factor that ought to be taken into account in
determining the reasonableness of the overall fees charged.
[8]
We view the fees charged by Deloitte &
Touche to be more than is reasonable for the other party to bear. We reach that
conclusion, in part, by noting that the expert fees allowed to the respondent by
the trial judge were about half what the appellant now claims. We also contrast
the amount of fees charged by the experts to the fees to which counsel are
entitled. While we recognize that the expert fees are, in essence, on a full
indemnity basis whereas counsel fees are on a partial indemnity basis, the size
differential is still noticeable. On that point, counsel must, of course, deal
with all aspects of the claim whereas the experts tasks are more narrowly
confined.
[9]
In the result, we award the appellant the costs
of the appeal fixed at $54,390.06, inclusive of disbursements and HST. We award
the appellant the costs of the proceeding below fixed at $700,000, inclusive of
disbursements and HST.
Doherty
J.A.
I.V.B.
Nordheimer J.A.
A.
Harvison Young J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Meekis v. Ontario, 2021 ONCA 534
DATE: 20210726
DOCKET: C66971
Juriansz, van Rensburg and
Sossin JJ.A.
BETWEEN
Fraser Meekis,
Wawasaysca Keno, Richard Rae, Michael Linklater,
Tyson Wren an infant
under the age of 18 years by his litigation guardian Fraser Meekis, Brayden
Meekis an infant under the age of 18 years by his litigation guardian Fraser
Meekis, Zachary Meekis an infant under the age of 18 years by his litigation
guardian Fraser Meekis, and Makara Meekis an infant under the age of 18 years
by her litigation guardian Fraser Meekis
Plaintiffs/Responding Parties
(Appellants)
and
Her Majesty the Queen in Right of Ontario, Wojciech Aniol,
Investigating Coroner, Michael Wilson, Regional Supervising Coroner, Dirk
Huyer,
Chief
Coroner for Ontario
Defendants/Moving Parties
(Respondents)
Julian Falconer and Mary (Molly)
Churchill, for the appellants
Sarah Valair, Hart Schwartz and Kisha
Chatterjee, for the respondents
Heard: May 6, 2021 by video conference
On appeal from the order of Justice John
S. Fregeau of the Superior Court of Justice, dated April 15, 2019, with reasons
reported at 2019 ONSC 2370, 432 C.R.R. (2d) 133.
Sossin J.A.:
OVERVIEW
[1]
On May 7, 2014, Brody Meekis, a four-year-old
boy from Sandy Lake First Nation, died of complications from strep throat. Following
an allegedly flawed coronial investigation into Brodys death, the issue in
this appeal is whether the family of Brody Meekis may proceed with an action for
damages, either in tort law against individual coroners, or under the
Canadian
Charter of Rights and Freedoms
against the province of Ontario.
[2]
Sandy Lake First Nation is a remote fly-in
Oji-Cree community located in northwestern Ontario. Like those of many remote Indigenous
and northern communities, the residents of Sandy Lake First Nation face
significant challenges in receiving various public services, such as those
offered by the Office of the Chief Coroner for Ontario (the OCCO) under the
Coroners
Act
, R.S.O. 1990, c. C.37 (the Act).
[3]
The respondent Dr. Wojciech Aniol was the
coroner assigned to investigate Brodys death pursuant to the
Coroners Act
.
Dr. Aniol did not attend in person at Sandy Lake First Nation during his
investigation. He ultimately declined to recommend an inquest into Brodys
death.
[4]
The respondents Dr. Dirk Huyer, the Chief
Coroner for Ontario, and Dr. Michael Wilson, the Regional Supervising Coroner
(North Region), were responsible for supervising Dr. Aniols investigation and
otherwise administering the
Coroners Act
in Sandy Lake First Nation at
the time of Brodys death.
[5]
The respondent Ontario, through the Ministry of
Community Safety and Correctional Services (now called the Ministry of the Solicitor
General), was responsible for provincial coronial services offered by the OCCO
under the
Coroners Act
at all relevant times.
[6]
The appellants are Brodys parents,
grandparents, and siblings. They are all residents of Sandy Lake First Nation
and have status pursuant to the
Indian Act
, R.S.C. 1985, c. I-5.
[7]
In 2016, the appellants brought a civil claim
against the respondents concerning the OCCOs investigation into Brodys death.
Their claim makes the following core allegations: (i) the nature of Dr. Aniols
investigation and his decision not to recommend an inquest, in light of known
harms arising from the long-standing pattern of inadequate and discriminatory
coronial investigations into child deaths on reserve, constituted misfeasance
in public office; (ii) Drs. Huyer and Wilson were negligent in their
supervision of Dr. Aniols investigation; and (iii) Ontario is responsible in
law for the coroners conduct, which amounted to discrimination on the basis of
race, ethnic origin, and/or on-reserve residency contrary to s. 15 of the
Charter
.
[8]
In April 2019, the respondents succeeded on
their motion to strike the appellants claim in its entirety, without leave to
amend. Pursuant to r. 21.01(1)(b) of the
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194, the motion judge concluded the appellants claim
disclosed no reasonable cause of action.
[9]
On appeal, the appellants contend the motion
judge misapplied the test on a r. 21.01(1)(b) motion and erroneously struck
their claim. They say they pleaded all the elements necessary to establish several
of the causes of action alleged. The appellants therefore urge this court to
permit their claim to proceed to trial.
[10]
For reasons that follow, I would allow the
appeal in part. In my view, the motion judge erred in striking the misfeasance
in public office and
Charter
claims. Consequently, I would
allow these elements of the appellants claim to proceed. However, I would dismiss
the appeal in all other respects.
BACKGROUND
(1)
PROCEDURAL HISTORY
[11]
On May 6, 2016, the appellants provided Ontario
with their notice of claim, pursuant to s. 7 of the
Proceedings Against the
Crown Act
, R.S.O. 1990, c. P.27.
[12]
The appellants original statement of claim was
issued in July 2016.
[13]
The appellants statement of claim was amended
on July 26, 2018 (the amended statement of claim). The amended statement of
claim is the pleading in issue on this appeal.
[14]
On September 28, 2018, the respondents brought a
motion in the Superior Court of Justice seeking the following relief: (1) an
order striking the amended statement of claim, without leave to amend, as
disclosing no reasonable cause of action, pursuant to r. 21.01(1)(b); and (2) an
order striking the amended statement of claim as an abuse of process, pursuant
to r. 25.11(c).
[15]
The motion hearing proceeded on January 15, 2019
in Thunder Bay.
(2)
THE MATERIAL FACTS AS PLEADED
[16]
I draw the facts below from the appellants amended
statement of claim. They are assumed to be true for the purposes of the r. 21 motion,
unless they are patently ridiculous or incapable of proof: see,
Hunt v.
Carey Canada Inc.
, [1990] 2 S.C.R. 959, at p. 980;
Nash v. Ontario
(1995),
27 O.R. (3d) 1 (C.A.), at p. 6;
Darmar Farms Inc. v.
Syngenta Canada Inc.
, 2019 ONCA 789, 148 O.R. (3d) 115, at para. 11, leave
to appeal to S.C.C. refused, 38915 (December 10, 2020). However, as this court
affirmed in
Darmar Farms
, at para. 11, bald conclusory statements of
fact and allegations of legal conclusions unsupported by material facts are
not assumed to be true.
(a)
The Death of Brody Meekis
[17]
Brody Meekis was born on July 16, 2009 in Sandy
Lake First Nation. By 2014, Brody had begun attending junior kindergarten,
where he enjoyed learning Oji-Cree.
[18]
On May 1, 2014, Brody began showing symptoms of
a cold, including a cough and runny nose. When these symptoms persisted for
three days, Brodys mother called the nursing station in Sandy Lake First
Nation. She was advised that it was not necessary to bring Brody in for an
examination because he did not have a fever.
[19]
On May 4, 2014, Brody complained of a sore
throat and began exhibiting signs of fever. His mother called the nursing
station that day, and once again on May 5, but was not given an appointment for
Brody.
[20]
On May 6, 2014, Brodys condition deteriorated
further. His mother decided to take him to the nursing station the following
morning without an appointment.
[21]
On the morning of May 7, 2014, Brody was
feverish, pale, and had difficulty breathing. His mother brought him to the
nursing station at 9:00 a.m., where nurses examined him.
[22]
Brody died at approximately 12:00 p.m. on May 7,
2014, of cardiac complications arising from Group A Streptococcal Infection, commonly
known as strep throat. He was four years old.
(b)
The Relevant Provisions of the
Coroners Act
[23]
This appeal concerns the duties owed by OCCO coroners
in the context of death investigations. Those duties are governed by the
Coroners
Act
. Immediately below, I will set out or describe the provisions of the
Act raised either implicitly or explicitly in the amended statement of claim.
The Chief Coroner and the Regional
Supervising Coroner
[24]
Section 3(1) of the
Coroners Act
sets
out the duties of the Chief Coroner for Ontario, which include (a)
administering the Act and the regulations, and (b) supervising, directing, and
controlling all coroners in Ontario in the performance of their duties.
[25]
Section 4(2) requires Regional Supervising
Coroners to assist the Chief Coroner in the performance of their duties in the
region.
Duty to give information
[26]
Brodys death was reported to the OCCO pursuant
to s. 10(1)(e) of the
Coroners Act
. Section 10(1)(e) requires any person
with reason to believe that a person died from an illness for which he or she
was not medically treated to immediately notify a coroner of the facts and circumstances
relating to the death.
Coroners investigation
[27]
Pursuant to s. 15(1) of the
Coroners Act
,
a report under s. 10(1)(e) triggers the coroners duty to conduct such
investigation as, in the opinion of the coroner, is necessary in the public
interest to enable the coroner to: (a) determine who the deceased was, as well
as how, where, when, and by what means they died; (b) determine whether or not an
inquest is necessary; and (c) collect and analyze information about the death
in order to prevent further deaths.
Where inquest unnecessary
[28]
If a coroner determines an inquest is
unnecessary pursuant to s. 15(1)(b) of the Act
,
s. 18(1) requires the
coroner to transmit to the Chief Coroner a signed statement setting forth
briefly the results of the investigation, and shall also forthwith transmit to
the division registrar a notice of the death in the form prescribed.
[29]
Pursuant to s. 18(7), all reported results of a coroners
investigation in which an inquest has been deemed unnecessary, including the
results of the autopsy, must be provided to the deceaseds immediate family
members upon request.
What coroner shall consider and have regard
to
[30]
Section 20 of the Act sets out three criteria which
an investigating coroner must consider in determining whether an inquest is
necessary:
When making a determination whether
an inquest is necessary or unnecessary, the coroner shall have regard to
whether the holding of an inquest would serve the public interest and, without
restricting the generality of the foregoing, shall consider,
(a) whether the matters described
in clauses 31 (1) (a) to (e) [who the deceased was, and how, when, where, and
by what means they died] are known;
(b) the desirability of the
public being fully informed of the circumstances of the death through an
inquest; and
(c) the likelihood that the jury
on an inquest might make useful recommendations directed to the avoidance of
further deaths.
Request by relative for inquest
[31]
Section 26(1) addresses the right of family
members of a deceased person to request reasons from the coroner where the
coroner determines that an inquest is not necessary. Section 26(1) provides as
follows:
Where the coroner determines that an
inquest is unnecessary, the spouse, parent, child, brother, sister or personal
representative of the deceased person may request the coroner in writing to
hold an inquest, and the coroner shall give the person requesting the inquest
an opportunity to state his or her reasons, either personally, by the persons
agent or in writing, and the coroner shall advise the person in writing within
sixty days of the receipt of the request of the coroners final decision and
where the decision is to not hold an inquest shall deliver the reasons therefor
in writing.
[32]
Section 26(2) provides that, where the final
decision of the coroner is not to hold an inquest despite a request under s.
26(1), the family member(s) of the deceased person who made the request may ask
the Chief Coroner to review that decision. Pursuant to section 26(3), the
decision of the Chief Coroner on review is final.
Good faith immunity clause
[33]
The final relevant provision is s. 53 of the
Coroners
Act
, which provides coroners with limited protection from personal liability.
I will refer to this provision throughout these reasons as the good faith
immunity clause. Section 53 provides as follows:
No action or other proceeding shall
be instituted against any person exercising a power or performing a duty under
this Act for any act done in good faith in the execution or intended
execution of any such power or duty or for any alleged neglect or default in
the execution in good faith of any such power or duty.
(c)
OCCO Guidelines for Death Investigation
[34]
On April 12, 2007, the OCCO issued the second
edition of its Guidelines for Death Investigation (the OCCO Guidelines).
[1]
[35]
According to s. 1.4(2)(b)(iii) of the OCCO Guidelines,
where a death occurs in a non-urban area and travel time to the death scene is
greater than 60 minutes, an investigating coroner "should attend all
death scenes where the deceased is a child less than 12 years of age.
[36]
If the investigating coroner is unable to attend
a death scene, the OCCO Guidelines state that he or she should call the
Regional Supervising Coroner and review the circumstances of death prior to the
body being released from the scene.
[37]
In addition, s. 3 of the OCCO Guidelines deals
with communication. In cases involving deaths of children under five, s. 3.1
advises investigating coroners to notify the Regional Supervising Coroner as
soon as possible. In all cases, the OCCO Guidelines recommends that
investigating coroners contact the next-of-kin of the deceased as soon as
possible after attending the scene, to introduce themselves, and to keep the
family informed of developments in the investigation.
(d)
The Coronial Investigation into Brodys Death
[38]
Dr. Aniol was assigned to investigate Brodys
death. Pursuant to s. 15(1) of the
Coroners Act
, Dr. Aniol was obliged
to examine Brodys body, collect and analyze information regarding his death,
and determine whether an inquest was necessary.
[39]
Dr. Aniol decided not to attend Sandy Lake First
Nation after Brodys death. He conducted his investigation from Red Lake.
[40]
Brodys body was subsequently sent to a hospital
in Kenora for autopsy. Dr. Aniol did not consult with Dr. Wilson, the Regional
Supervising Coroner, prior to having Brodys body released from the death
scene.
[41]
Dr. Aniol did not provide a reason for his
non-attendance at the death scene. Nor did he discuss his non-attendance with Dr.
Wilson or Dr. Huyer, the Chief Coroner for Ontario. Neither Dr. Wilson nor Dr.
Huyer directed Dr. Aniol to attend in Sandy Lake First Nation.
[42]
Dr. Aniol did not take a detailed statement from
any of the nurses who treated Brody before his death, nor did he fully or
accurately collect or create documentation of the circumstances surrounding
Brodys death. Rather, he directed police officers to attend Brodys home to
gather evidence for the investigation.
[43]
Dr. Aniol determined that an inquest into
Brodys death was not necessary.
[44]
Dr. Aniol did not keep the appellants informed
regarding his investigation into Brodys death.
[45]
After reviewing Brodys case, the OCCOs Deaths
Under Five Committee recommended that it be referred to the Patient Safety
Review Committee to assess potential systemic issues with northern health care
services. The respondent coroners did not refer Brodys case to the Patient
Safety Review Committee.
THE DECISION BELOW
[46]
On the respondents motion to strike, the motion
judge considered whether any of the following claims by the appellants
disclosed a reasonable cause of action within the meaning of r. 21.01(1)(b):
1)
A claim of misfeasance in public office against Dr.
Aniol (the investigating coroner) and Drs. Huyer and Wilson (the supervising
coroners);
2)
A claim in negligent supervision against the supervising
coroners;
3)
A claim that the appellants s. 15
Charter
rights were infringed, and that damages were warranted as a remedy under s.
24(1) of the
Charter
;
4)
A claim against Ontario based on the
underfunding of coronial services in the province; and
5)
A claim against Ontario based on the honour of
the Crown.
The role of the Goudge Report and the OCCO
Guidelines
[47]
In his reasons for decision, the motion judge
dealt with several preliminary issues prior to his analysis of the pleadings. Of
importance to this appeal, he found that two sources, the OCCO Guidelines and the
Goudge Report, were incorporated by reference into the amended statement of claim.
[48]
The motion judge next dealt with the merits of
the motion to strike. He struck each of the appellants claims in its entirety,
without leave to amend. I will briefly summarize his analysis with respect to
each claim.
Misfeasance in public office
[49]
The motion judge held that, read generously, the
appellants claim against the respondent coroners for misfeasance in public office
had no reasonable prospect of success. He found that none of the respondent
coroners were under any legal requirement to carry out their duties in the
manner alleged by the appellants. Therefore, the motion judge concluded it was
plain and obvious that the impugned acts and omissions could not amount to deliberate
unlawful conduct in the exercise of public functions, one of the two essential
elements unique to the tort of misfeasance.
The good faith immunity clause
[50]
Next, the motion judge found that the good faith
immunity clause in s. 53 of the
Coroners Act
was not displaced by the
allegations in the appellants amended statement of claim. Specifically, he
found that the facts pleaded by the appellants were insufficient to support a
claim of bad faith, stating as follows, at paras. 75-76:
[T]he plaintiffs submit the following facts to
support their claim:
1. Dr. Aniol made the deliberate decision
not to travel to Sandy Lake First Nation for the purpose of his investigation
following Brodys death;
2. Dr. Aniol deliberately failed to consult
with Dr. Wilson prior to allowing Brodys body to be released for autopsy in
Kenora;
3. Dr. Aniol made the deliberate decision
not to collect detailed information from the medical staff at the Sandy Lake
First Nation nursing station;
4. Dr. Aniol determined that an inquest was
not required;
5. Dr. Aniol failed in his duty to
communicate with Brodys family as to the investigation into Brodys death;
6. Dr. Aniol directed police officers to
visit the Keno/Meekis family home to make observations regarding drugs and
alcohol in the home following Brodys death;
7. When making the above noted decisions,
Dr. Aniol unjustifiably discriminated against the Keno/Meekis family on the
bases of race, ethnic origin, and on-reserve residency; and
8. Drs. Wilson and Huyer deliberately
failed to direct Dr. Aniol to attend in Sandy Lake First Nation, failed to
direct Dr. Aniol to communicate with Brodys family, and failed to ensure that
Dr. Aniol obtained detailed information from the Sandy Lake First Nation
nursing station staff.
As with the claim for misfeasance in public
office, in my opinion, the facts pleaded simply cannot support the assertions
set out in the amended statement of claim. All of the factual breaches that the
plaintiffs assert as evidence of serious carelessness or recklessness fall
within the discretionary decision making authority afforded to coroners under
the Act. The Act provides an investigating coroner with the discretion to
determine how best to conduct his or her investigation, pursuant to ss.
16(1)-(2), as long as that coroner meets his or her statutory obligations under
s. 15(1).
Negligent supervision
[51]
The motion judge reached a similar conclusion in
relation to the claim for negligent supervision, holding that the amended
statement of claim failed to plead facts which could establish a duty of care
owed by the supervising coroners to the appellants.
[52]
According to the motion judge, the lack of
direct contact between the respondent coroners and the appellants, as pleaded
in the amended statement of claim, precluded the possibility that a private law
duty of care arose between them. As such, the motion judge held the claim had
no reasonable prospect of success.
The
Charter
claim and
Charter
damages
[53]
The motion judge also found that the appellants
Charter
claim under s. 15 had no reasonable prospect of success and
struck it without leave to amend.
[54]
The motion judge characterized the appellants
discrimination claim as asserting a right to particular procedural outcomes following
a coronial investigation. According to the motion judge, as the
Coroners
Act
does not legally entitle the appellants to any such outcome, the benefit
they claimed was not provided by law and could not ground a claim under s.
15(1) of the
Charter: Auton (Guardian ad litem of) v. British Columbia
(Attorney General)
, 2004 SCC 78, [2004] 3 S.C.R. 657, at para. 3.
Therefore, he concluded there was no distinction in the way coronial services
were provided to the appellants, and that it was plain and obvious that the s.
15
claim could not succeed.
[55]
Moreover, even if the motion judge had found
that this claim met the r. 21.01(1)(b) threshold with respect to s. 15(1) of
the
Charter
, he held that the facts as pleaded were insufficient to
warrant
Charter
damages as a remedy under s. 24(1). Specifically, at
para. 139, he found that judicial review would provide an alternative remedy
sufficient to vindicate the appellants
Charter
claim as alleged:
Ernst
v. Alberta Energy Regulator
, 2017 SCC 1, [2017] 1 S.C.R. 3. The motion
judge concluded that this was not a case where I would grant
Charter
damages and struck the claim pursuant to s. 24(1), again without leave to
amend.
Underfunding and the honour of the Crown
[56]
The motion judge further held that the
appellants claims based on the honour of the Crown and the underfunding of
coronial services were not independent causes of action, and struck each of them
on this basis.
Damages
[57]
The motion judge next assessed the appellants
claim in damages for compensable psychological injuries arising from the
respondents conduct. He accepted that, assuming the facts as pleaded were
true, the appellants tort damages were potentially compensable at law: at para.
156. However, as he had already concluded that none of the appellants claims potentially
giving rise to damages had a reasonable prospect of success, he held that the
appellants claim for damages as relief also had to be struck.
Leave to amend
[58]
Finally, in support of the decision to deny the
appellants leave to amend their pleadings, the motion judge explained as
follows, at para. 163:
I have struck the plaintiffs claims because
the pleadings fail to establish a sufficient factual basis to support any of
the causes of action alleged. These are not minor deficiencies that further
amendments can remedy. The underlying legal foundations of the claims proceed
on an erroneous interpretation of the Coroners statutory obligations under
the Act. Amendments, even with further factual submissions, cannot support
the plaintiffs claims. To allow the plaintiffs leave to amend would be
inconsistent with judicial economy and the integrity of the justice
system.
ISSUES ON APPEAL
[59]
The appellants take no issue on this appeal with
the motion judges order insofar as it strikes their claims based on the honour
of the Crown and the underfunding of coronial services. I will therefore say no
more about these issues.
[60]
The appellants grounds of appeal may be
conveniently summarized and approached as follows:
1)
The motion judge erred by striking the claim in
misfeasance in public office and finding that all pleaded conduct constituted
lawful exercises of statutory discretion;
2)
The motion judge erred by striking the claim in
negligent supervision and finding that the supervising coroners did not owe the
appellants a duty of care; and
3)
The motion judge erred by striking the claim of
unjustified breach of s. 15 of the
Charter
and the claim for
Charter
damages; and
4)
The motion judge erred by finding (a) that the
facts pleaded could not overcome the good faith immunity clause, and (b) that an
investigating coroner is not a servant or agent of the Crown.
[61]
I will deal with each of the grounds above in
turn. Each engages the overarching issue of whether the motion judge properly
applied the test on a motion to strike. Accordingly, I will begin by
identifying the general principles of law applicable on an appeal arising from
a pleadings motion under r. 21.01(1)(b).
THE GOVERNING TEST AND STANDARD OF REVIEW
[62]
On a motion to strike for failure to disclose a
reasonable cause of action under r. 21.01(1)(b), the well-established test is
whether the claim has no reasonable prospect of success:
Grand River Enterprises
Six Nations Ltd. v. Attorney General (Canada)
,
2017 ONCA 526, at
para. 15;
R. v. Imperial Tobacco Canada Ltd.
, 2011 SCC 42, [2011] 3
S.C.R. 45, at para. 17;
Odhavji Estate v. Woodhouse
, 2003 SCC 69,
[2003] 3 S.C.R. 263, at paras. 14-15.
[63]
In
Imperial Tobacco
, at para. 21, the
Supreme Court emphasized that the judicial approach on motions to strike must
be generous, erring on the side of allowing novel but arguable claims to
proceed to trial, since actions that yesterday were deemed hopeless may
tomorrow succeed.
[64]
On appeal from an order made under r.
21.01(1)(b), the applicable standard of review is correctness:
Grand River
,
at para. 18;
The Catalyst Capital Group Inc. v. Dundee Kilmer Developments
Limited Partnership
, 2020 ONCA 272, 150 O.R. (3d) 449, at para. 37.
ANALYSIS
(1)
MISFEASANCE IN PUBLIC OFFICE
[65]
The amended statement of claim alleges that all
the respondent coroners are liable for the tort of misfeasance in public
office. The appellants submit that their pleadings disclose a reasonable cause
of action for misfeasance and contend that the motion judge erred in striking
this part of their claim, without leave to amend, on the basis that the pleaded
acts and omissions amounted to the lawful exercise of statutory discretion
under the
Coroners Act
.
[66]
Specifically, the appellants say they pleaded
that the respondent coroners followed a pre-determined line of conduct on the
basis that Brody was a First Nations child from a remote Indigenous community.
In finding that the respondent coroners conduct was a lawful exercise of
statutory discretion, the appellants argue the motion judge failed to consider
their pleading that the respondent coroners actions were dictated by a
discriminatory, unwritten blanket policy of non-attendance, non-communication,
and otherwise inadequate coronial service delivery in communities like Sandy
Lake First Nation.
[67]
According to the appellants, this discriminatory
fettering amounts to an improper and unlawful exercise of discretion
conducted with subjective knowledge, acquired through the Goudge Report, that
such conduct was unlawful and would likely harm the appellants, all of whom are
First Nations people living on-reserve. As such, the appellants say the claim
for misfeasance in public office does not contain a radical defect and should
not have been struck by the motion judge.
[68]
I would give effect to this submission and
permit the appellants claim of misfeasance in public office to proceed to
trial.
[69]
Before explaining my reasoning, it is helpful to
summarize the relevant legal principles regarding the tort at issue.
(a)
The Governing Principles
[70]
In
Ontario (Attorney General) v. Clark
,
2021 SCC 18
, 456 D.L.R. (4th) 361,
at para. 22, a majority of the Supreme Court summarized the tort of misfeasance
in public office in the following terms:
A successful misfeasance claim requires the plaintiff
to establish that the public official engaged in deliberate and unlawful
conduct in his or her capacity as a public official, and that the official was
aware that the conduct was unlawful and likely to harm the plaintiff.
[Citations omitted.]
[71]
This court described the purpose of the tort of
misfeasance in public office in
Freeman-Maloy v. Marsden
(2006),
79 O.R. (3d) 401
(C.A.), at para.
10
, leave to appeal refused, [2006] S.C.C.A. No. 201, as follows:
The tort of misfeasance in a public office is
founded on the fundamental rule of law principle that those who hold public
office and exercise public functions are subject to the law and must not abuse
their powers to the detriment of the ordinary citizen. As Lord Steyn put it in
Three
Rivers District Council v. Bank of England (No. 3)
, [2000] 2 W.L.R. 1220
(U.K. H.L.), at 1230: The rationale of the tort is that in a legal system
based on the rule of law executive or administrative power may be exercised
only for the public good and not for ulterior and improper purposes. The
underlying purpose of the tort of misfeasance in a public office is to protect
each citizen's reasonable expectation that a public officer will not
intentionally injure a member of the public through deliberate and unlawful
conduct in the exercise of public functions:
Odhavji
at para. 30.
[72]
The past four decades have seen a revival in the
application of the tort of misfeasance in public office, both in Canada and
abroad. The wide-ranging situations in which plaintiffs have claimed
misfeasance against various kinds of public officials illustrate that it is a
tort of great flexibility and breadth: Erika Chamberlain and Stephen G.A.
Pitel,
Fridmans The Law of Torts in Canada
(Toronto: Thomson Reuters,
2020), at p. 1099.
The elements of misfeasance in public office
[73]
Iacobucci J. set out the elements of the tort of
misfeasance in public office in
Odhavji
, at para.
32
. As summarized in
Lewis N. Klar et al.,
Remedies in Tort
(Toronto: Thomson Reuters,
2021), at §60, to succeed on a misfeasance claim, a plaintiff must show that:
1)
the defendant was a public official exercising
public functions at the relevant time;
2)
the public official deliberately engaged in an
unlawful act in their public capacity, which, as affirmed in
Clark
, at
para. 23, is typically established by proving any of(a) an act in excess of the
public officials powers, (b) an exercise of a power for an improper purpose,
or (c) a breach of a statutory duty
(the unlawful act
element)
;
3)
the public official was aware both that their
conduct was unlawful and that it was likely to harm the plaintiff, which, as
noted in
Clark
, at para. 23, may be established through actual
knowledge, subjective recklessness, or conscious disregard for the lawfulness
of the conduct and the consequences to the plaintiff (the knowledge element);
4)
the public officials tortious conduct was the
legal cause of the plaintiffs injuries; and
5)
the injuries suffered are compensable in tort
law.
[74]
The first three of these elements are unique to
the tort of misfeasance in public office, while the other two are common to
torts generally:
Foschia v. Conseil des Écoles Catholique de Langue
Française du Centre-Est
, 2009 ONCA 499, 266 O.A.C. 17, at para. 22.
[75]
I do not take the respondents to be disputing
that the coroners involved in the investigation into Brodys death were public
officials exercising public functions at the relevant times. As such, I will
focus my analysis below on the remaining four elements of the tort, and in
particular the unlawful act and knowledge elements.
A narrow window of opportunity to succeed
at trial is sufficient
[76]
While the material facts may lack detail in the
early stages of a proceeding, at the pleadings stage it is generally enough for
a plaintiff to establish a narrow window of opportunity to make out a
misfeasance claim at trial:
Granite Power Corp. v. Ontario
,
72
O.R. (3d) 194, at para. 40.
[77]
However, the tort requires more than a bald
pleading that a public official acted for an improper purpose; there must be
material facts about specific officials and their specific unlawful purpose in
acting as they did:
Trillium Power Wind Corporation v. Ontario (National
Resources)
, 2013 ONCA 683, 117 O.R. (3d) 721, at paras. 59-61.
Discriminatory conduct may satisfy the
unlawful act element
[78]
In
Castrillo v. Workplace Safety and
Insurance Board
, 2017 ONCA 121, 136 O.R. (3d) 654, at para. 45, Lauwers
J.A. found that a misfeasance claim based on an alleged improper purpose in the
exercise of a discretionary public spending power was adequate in strictly
pleadings terms. He explained that this amounted to a specific application of
the more general proposition that a statutory power must only be used for a
proper
purpose
[Emphasis added].
[79]
It is well-settled that exercising discretion
based on discriminatory considerations constitutes an improper purpose:
Baker
v. Canada (Minister of Citizenship and Immigration)
, [1999] 2 S.C.R. 817,
at para. 53. There can be no doubt that a failure to act, if based on
discriminatory considerations, is equally improper. Indeed, in his oft-cited
judgment in
Roncarelli v. Duplessis
, [1959] S.C.R. 121, Rand J.
affirmed that using ones public power to discriminate against a particular
class of persons is knowingly foreign to the proper exercise of discretionary
statutory decision-making.
[80]
In
Madadi v. Nichols
, 2021 BCCA 10, 455
D.L.R. (4th) 471, the British Columbia Court of Appeal recently considered the
adequacy of pleadings in support of a claim for misfeasance in public office
where the plaintiff alleged that a disciplinary body penalized him for the
improper purpose of discrimination. The court confirmed, at para. 72, that a
misfeasance claim grounded in part on the pleading that a public body exercised
its discretion based on discriminatory reasoning, coupled with pleas of
knowledge that the conduct was unlawful, subjective awareness of the
consequential harm to the respondent, and improper purpose was sufficient to
establish a possible cause of action for misfeasance in public office.
Failures to act may be unlawful even where
there is no positive duty to act
[81]
Additionally, this court has confirmed that
omissions by public officials may be the source of a claim for misfeasance in
public office. In
Grand River
, Epstein J.A. explicitly rejected the
argument that an omission to act cannot be unlawful without a deliberate breach
of an express statutory duty. Rather, Epstein J.A. held as follows, at para.
81:
On my reading of
the relevant paragraphs from
Odhavji
, there is no requirement for a
breach of a statutory duty to make out a claim for misfeasance in public
office. Conduct by a public officer may be unlawful even where there is no
positive duty to act, provided that the conduct was done with the intent to
harm.
Similarly, a refusal to exercise a power with a specific intent to
injure might satisfy the test for misfeasance in public office
. Here, the
respondents plead that the Ministers continuous course of conduct (including
their failure to act)
was deliberate and unlawful in the exercise of their
public functions: they knowingly acted for an improper purpose as described
above and knowingly exceeded their authority. Thus,
I reject the Crowns
argument that the misfeasance claim should have been struck because the
respondents did not plead a failure to act in the face of a clear statutory
duty
. [Emphasis added.]
The two categories of misfeasance in public
office
[82]
In
Odhavji
, at paras. 22-23, Iacobucci
J. discussed two ways in which the tort of misfeasance can arise: (a) through
conduct that is specifically intended to injure a person or class of persons,
sometimes called targeted malice (Category A); and (b) where a public
official acts with knowledge both that she or he has no power to do the act
complained of and that the act is likely to injure the plaintiff (Category
B).
[83]
In
Foschia
, at para. 24, this court
elaborated on the key distinction between Category A and Category B claims of
misfeasance in public office:
While the
constituent elements of the tort do not change depending on the Category of
misfeasance alleged, the way those elements are proven does. If the plaintiff
proves that the public official was acting for the improper purpose of
deliberately causing harm to the plaintiff, this will be sufficient to prove
both the [unlawful act] and [knowledge] elements of the tort. If, on the other
hand, the plaintiff is alleging misfeasance in the form of Category B, then it
is necessary to individually prove both the [unlawful act] and [knowledge] elements.
In proving the [knowledge] element, it is sufficient for the plaintiff to show
that the public official acted with reckless indifference to both the
unlawfulness of his or her act and the likelihood that it would injure the
plaintiff. [Citations omitted.]
(b)
Analysis
[84]
The motion judge found that the discretion
afforded by the
Coroners Act
precluded the possibility that the
appellants could show at trial that the conduct of the respondent coroners was
unlawful for the purposes of the misfeasance analysis. Specifically, the motion
judge concluded as follows, at paras. 60-61:
In my opinion, the facts pleaded simply cannot
support the assertions set out in the amended statement of claim, namely that
the Coroners engaged in deliberate unlawful conduct
in the exercise of
public functions or that they deliberately breached [their] legal duties
through [their] acts and/or omissions.
Given that the facts pleaded cannot possibly
establish deliberate unlawful conduct in the exercise of public functions by
the Coroners, one of two essential elements of the tort of misfeasance in
public office, this claim has no reasonable prospect of success.
[85]
I would disagree. As I will explain, in my view
the appellants claim discloses a reasonable prospect of success in
establishing both (i) the unlawful act element, and (ii) the knowledge element
of the tort of misfeasance in public office.
(i)
The unlawful act element
[86]
The appellants core misfeasance allegation on the
unlawful act element is that the respondent coroners exercised their discretion
to knowingly discriminate against a class of persons which included the
appellants. In my view, this may be understood as an exercise of discretion for
an improper purpose. Discretion must be exercised reasonably and, as indicated,
it cannot be exercised based on discriminatory considerations. Rather, it
should be structured by the relevant statutory factors under the applicable
legislative scheme: see,
Ojeikere v. Ojeikere
, 2018 ONCA 372, 140 O.R.
(3d) 561, at para. 63.
[87]
The motion judge characterized the appellants
claim in the following terms:
The [respondent] Coroners particular actions
and omissions, as alleged in the pleadings in support of the [appellants]
misfeasance in public office claim, include the following:
1. That Dr. Aniol made the deliberate
decision not to travel to Sandy Lake First Nation for the purpose of his
investigation following Brodys death;
2. That Dr. Aniol deliberately failed to
consult with Dr. Wilson prior to allowing Brodys body to be released for
autopsy in Kenora;
3. That Dr. Aniol made the deliberate
decision not to collect detailed information from the medical staff at the Sandy
Lake First Nation nursing station;
4. That Dr. Aniol determined that an
inquest was not required;
5. That Dr. Aniol failed in his duty to
communicate with Brodys family as to the investigation into Brodys death; and
6. That Drs. Wilson and Huyer deliberately
failed to direct Dr. Aniol to attend in Sandy Lake First Nation, failed to
direct Dr. Aniol to communicate with Brodys family, and failed to ensure that
Dr. Aniol obtained detailed information from the Sandy Lake First Nation
nursing station staff.
[88]
As noted, the motion judge found that these
allegations did not establish an unlawful act capable of leading to liability
for misfeasance in public office.
[89]
The respondents argue that this finding was
correct, since the
Coroners Act
affords coroners discretion in conducting
death investigations. A coroner is authorized to attend the scene of a death,
for example, but the Act does not
require
them to do so.
[90]
Similarly, the respondents say the motion judge
properly concluded that the investigating coroners failure to follow the OCCO
Guidelines, which merely
recommend
that coroners attend the scene when
investigating child deaths, does not constitute unlawful conduct that could
support a claim in misfeasance. The respondents emphasize that the OCCO
Guidelines are permissive, not mandatory.
[91]
I do not accept these submissions. As I will
explain, in my view, the motion judge failed to consider how the appellants
pleaded facts and allegations as to discrimination could satisfy the unlawful
act element of misfeasance.
The motion judge failed to consider
discrimination as an improper purpose
[92]
In summarizing the appellants position on
misfeasance, the motion judge appeared to consider the possibility that the
unlawful conduct underlying their claim was the exercise of statutory discretion
for an improper purpose. He acknowledged the appellants submission that the
deliberate unlawful conduct pleaded includes discrimination, and that the
allegations of discrimination included reliance on negative stereotypes about
First Nations parenting and that the inadequate coronial investigation into
Brodys death perpetuated historic disadvantages experienced by First Nations
people living on-reserve: at para. 46.
[93]
However, the motion judge failed to advert to
these pleadings or submissions in his subsequent analysis. In striking the
appellants claim for misfeasance, he made no finding on or reference to the
possibility that a discriminatory exercise of statutory discretion could
satisfy the unlawful act element of the tort.
[94]
In my view, this oversight led the motion judge
to erroneously conclude that the appellants had failed to plead facts
supporting a viable claim of liability for misfeasance in public office.
[95]
At this juncture, it is important to recall that
the question for the motion judge was not whether the appellants had
established the elements of misfeasance on the merits. Rather, the motion judge
was obliged to read the appellants misfeasance claim generously and determine
whether it was plain and obvious that the claim would fail, assuming the facts
alleged were true.
[96]
As I read it, the amended statement of claim is
premised on the core allegation that the actions and omissions of the
investigating coroner formed part of a pattern of discriminatory conduct on the
part of the OCCO in relation to Indigenous communities like Sandy Lake First
Nation. Among others, I would highlight paras. 32-33 from the amended statement
of claim:
The plaintiffs plead that the Investigating
Coroner failed to attend Sandy Lake in the context of a long-standing history
of coroners failing to attend in First Nations communities to investigate
childrens deaths. This pattern results in First Nations families being
deprived of protections afforded to other Ontario families, thereby placing
them at greater risk of harm, in violation of their
Charter
rights.
Dr. Aniol failed to perform a thorough
investigation into the death of Brody Meekis. In addition to not attending on
the death scene, Dr. Aniol deliberately did not do the following: (1) take a
detailed statement from any of the nurses involved; and (2) fully or accurately
collect or create documentation of the circumstances surrounding Brodys death.
The Plaintiffs plead that the fact that Brody and the Keno/Meekis family are
all First Nations living on-reserve in a remote First Nations community factored
heavily into Dr. Aniols deliberate decisions, actions, and/or omissions. In so
failing to perform his statutory and legal duties, Dr. Aniol knowingly
aggravated the grieving process for the families and the community at large.
[Emphasis added.]
[97]
Further, on a generous reading of para. 59(e) of
the amended statement of claim, the appellants pleaded that the respondent
coroners, like all coroners in this province, would have been aware of the
findings and recommendations of the Goudge Report, which highlighted the
harmful effects of inadequate coronial service delivery by the OCCO in remote
First Nations communities.
[98]
Indeed, in volume 3, chapter 20 of the Goudge
Report, entitled First Nations and Remote Communities, Commissioner Goudge
described at length the evidence before the Inquiry indicating that coroners
were routinely failing to attend death scenes in many remote communities,
including, but not limited to, First Nations communities. At p. 553, the Goudge
Report states as follows:
The status quo is not acceptable. Although it
is recognized by everyone that investigating coroners may frequently be unable
to attend death scenes in a timely way because of weather, distances, and
travelling logistics, it does not follow that their non-attendance should be
presumed or effectively be treated as the norm. The death investigation is
enhanced by their attendance in ways that are not always fully compensated for
by surrogates, technological substitutes, or telephone consultations. Dr.
McLellan [former Chief Coroner for Ontario] expressed the opinion that there
is no substitute for being at the scene oneself.
Equally important, the non-attendance of
coroners represents a lost opportunity for them to speak directly with the
affected families and to build relationships with communities. As conceded by
Dr. Legge [former Regional Supervising Coroner for the North] and others, that
discussion is simply not happening as it should. As a result, affected families
are frequently uninformed about the cause of death
and communities are left
with the perception that their deaths are less important than others to the
system. That was certainly the message communicated to our Inquiry by First
Nations leaders and those who work in those communities.
[99]
The amended statement of claim thus alleges a
link between the respondent coroners actions in Brodys case and the
well-documented pattern of neglect of on-reserve First Nations communities by
the OCCO, supported by the Goudge Report. Read generously, the appellants pleaded
that the respondent coroners knowingly perpetuated this pattern by deliberately
conducting and supervising an inadequate coronial investigation into Brodys
death, an investigation which ignored the findings and recommendations of the
Goudge Report and failed to meet the OCCOs own Guidelines.
[100]
Put another way, the amended statement of claim alleges that the
respondent coroners did not exercise their discretion reasonably and in
accordance with the relevant factors under the Act. Rather, the claim is that
the respondent coroners were motivated by discriminatory considerations which,
as indicated, are knowingly foreign to the proper exercise of discretionary
statutory decision-making. Although such a claim may arguably be novel and
difficult to prove at trial, in my view, these concerns do not justify driving
the appellants from the judgment seat at this early juncture.
[101]
Accordingly, I am persuaded that the facts and allegations contained
in the amended statement of claim are sufficient to provide at least a narrow
window of opportunity for the appellants to establish, on a full evidentiary
record, that the respondent coroners acted and/or failed to act for the
improper purpose of discriminating against them in the delivery of coronial
services. If proven, such an improper purpose could satisfy the unlawful act
element of misfeasance. In my view, the motion judges finding to the contrary
was in error.
(ii) The
knowledge element
[102]
According to Iacobucci J. in
Odhavji
, at para. 25, the
knowledge element may be satisfied by showing that the public official acted
with recklessness or conscious disregard as to the unlawfulness of their
conduct and the likelihood that it would injure the plaintiff.
[103]
The pleadings include a number
of allegations that the respondent coroners either knew, were reckless to, or
were careless of the potential that their conduct in Brodys case was both
unlawful and likely to harm the appellants. For example, the amended statement
of claim discloses as follows, at paras. 42, 45, and 57:
[T]he plaintiffs state that
Dr. Aniol acted with
gross or serious carelessness regarding the safety of the Keno/Meekis family
and other on-reserve members of the public, and regarding the right of the
Keno/Meekis family and other on-reserve First Nations members to
non-discrimination in the receipt of coronial services.
The plaintiffs state that
Dr. Aniol was aware or was
reckless to the fact his conduct was unlawful and likely to injure the
plaintiffs. The plaintiffs plead that the defendant is therefore liable to the
plaintiffs for misfeasance in public office.
The plaintiffs state that Drs. Wilson and Huyer acted
with gross or serious carelessness that is incompatible with good faith in
their exercise of public power under the
Coroners
Act
. In particular
Drs. Wilson and Huyer acted with gross or serious carelessness regarding the
safety of the Keno/Meekis family and other on-reserve members of the public,
and regarding the right of the Keno/Meekis family and other on-reserve First
Nations members to non-discrimination in the receipt of coronial services.
[104]
I do not agree with the
respondents submission that the appellants failed to plead circumstances from
which knowledge of unlawful conduct could be inferred. As noted, the amended
statement of claim contains material facts, including the findings and
recommendations of the Goudge Report, which in my view are sufficient at this
preliminary stage to support the above allegations of recklessness or
carelessness. As Lauwers J.A. stated in
Trillium Power
, at para. 60, the pleadings in
this case are detailed and as fact-specific as the appellant[s] can be at this
stage of the proceeding, and the allegations link to actual events, documents,
and people. The appellants cannot provide more particulars now because many of
the necessary supporting facts would be within the respondents knowledge and
control, and there has been no document production or discovery:
Trillium Power
, at para. 61.
Conclusion on the unlawful act and knowledge
elements
[105]
In sum,
in my view there exists at least a narrow window of opportunity for
the appellants to establish that the respondent coroners engaged in deliberate
and unlawful conduct, and that they were aware of, reckless to, or consciously
disregarded the possibility that their conduct was unlawful and likely to harm
the appellants.
[106]
I would therefore find that the motion judge erred in striking the
claim for misfeasance in public office without leave to amend.
The
remaining elements: causation and compensability
[107]
Beyond establishing the unlawful act and knowledge elements, the
appellants must also ultimately show that the unlawful conduct caused their
harm and that such harm is compensable in law, as is the case with all other
torts.
[108]
Even if the pleadings were sufficient to support the unlawful act
and knowledge elements of misfeasance, the respondents argue that the impugned
conduct at issue here could not lead to compensable harm. In advancing this
submission, they rely on
Wellington v. Ontario
,
2011 ONCA 274,
105 O.R. (3d) 81, at para. 31, leave to appeal refused, [2011] S.C.C.A. No. 258.
In
Wellington
, this court upheld a finding that a claim for grief and
mental distress damages arising from an allegedly inadequate police
investigation was not compensable and had no reasonable prospect of success.
[109]
I would not accept this submission. In my view, the analogy to
Wellington
is inapt.
Wellington
did not involve a claim for misfeasance. It
focused instead on an allegation of negligence arising from an investigation by
a police Special Investigations Unit. I do not view this passage from
Wellington
as in any way precluding the existence of compensable damages in a claim for
misfeasance in the circumstances of the case before us.
[110]
More broadly, the nature of the compensable damages, if any, which
may flow from a death investigation allegedly conducted inadequately for an
improper purpose is a question which should not be addressed on a pleadings
motion. Rather, compensability, as well as causation, should be determined on a
factual record capable of capturing the full scope of the alleged harm and its
attendant impact, if any, on the appellants.
Conclusion on the claim for misfeasance in
public office
[111]
For the foregoing reasons, I do not agree that it is plain and
obvious that the claim in misfeasance has no reasonable prospect of success. In
my view, the motion judge erred in finding to the contrary.
[112]
Accordingly, I would permit this part of the claim to proceed.
(2)
NEGLIGENT SUPERVISION
[113]
The amended statement of claim alleges that the supervising coroners
negligently supervised the coronial investigation into Brodys death. Of
importance, the appellants do not raise a claim in negligence against the
investigating coroner himself.
[114]
In striking this part of their claim, the appellants argue the
motion judge erred in finding it was plain and obvious that there could be no
duty of care owed by any of the respondent coroners to the appellants. The
appellants submit that, if the motion judge had correctly applied the governing
law, he would have found they had a reasonable prospect of establishing a duty
of care sufficient to ground a claim in negligent supervision against the
supervising coroners for failing to require the investigating coroner to attend
the scene, communicate with the appellants, and conduct a thorough
investigation with an eye to systemic causes underlying Brodys death.
[115]
I would not accept this submission. As I will explain, I am not
persuaded that the motion judge erred in his application of the requisite tests
to the appellants claim in negligent supervision as pleaded.
(a)
The
Anns/Cooper
Analysis
[116]
To succeed in a claim in negligent supervision at trial, the
appellants would need to establish that the supervising coroners owed them a
private duty of care that is not negated by statute. The appellants acknowledge
that such a duty of care would be novel, as it has yet to be recognized at
common law.
[117]
Therefore, as the motion judge correctly acknowledged, to determine
if such a novel duty of care could be found to exist, he was required to apply
the
Anns/Cooper
test arising from
Cooper v. Hobart
, 2001 SCC
79, [2001] 3 S.C.R. 537, at para. 39.
[118]
The
Anns/Cooper
test is applied in two stages. At the first
stage, the inquiry focuses on the relationship between the parties and asks
whether the facts disclose a relationship of proximity in which failure to take
reasonable care might foreseeably cause loss or harm to the plaintiff. If
proximity and reasonable foreseeability are established, then a
prima facie
duty of care arises:
Cooper
, at para. 22;
Deloitte & Touche v.
Livent Inc. (Receiver of)
, 2017 SCC 63, [2017] 2 S.C.R. 855, at para. 23.
[119]
At the second stage, the focus is on factors outside the
relationship between the parties, and the inquiry focuses on whether there are
policy reasons why the potential
prima facie
duty of care should not
be recognized:
Cooper
, at para. 30;
Livent
, at para. 37.
(b)
Application of the
Anns/Cooper
Test
Proximity and reasonable foreseeability
[120]
The appellants, Brodys immediate family members, submit that the
facts as pleaded disclose a relationship of sufficient proximity between them
and the respondents, such that it was reasonably foreseeable that the supervising
coroners acts and omissions would cause them harm.
[121]
More specifically, the appellants contend it was reasonably
foreseeable that the OCCOs failure to communicate with the appellants would
compound the trauma they experienced as a result of Brodys death, and that the
investigating coroners failure to attend the scene would compromise the
efficacy of the death investigation and cause emotional and psychological harm
to the family by suggesting their child is less worthy than others. As a
result, the appellants argue that it is not plain and obvious that a
prima
facie
duty of care did not arise.
[122]
The respondents disagree. They urge that the requisite proximity
between supervising coroners and family members, such as the appellants, is
missing in this context. According to the respondents, it is not the role of
coroners to conduct death investigations or inquests to advance or respond to
the private interests of the family members of the deceased.
[123]
I would accept the respondents submission regarding the first stage
of the
Anns/Cooper
test.
[124]
To be clear, in my view it is possible that a relationship of
proximity may arise based on a statutory scheme. However, in this case, the
Coroners
Act
imposes a duty on coroners to provide family members of the deceased
with the results of the death investigation only
if requested
, pursuant to
s. 18(7), and a right of family members to require reasons for a decision not
to order an inquest, a decision they may urge the Chief Coroner to reconsider,
pursuant to s. 26. The statutory provisions at issue in this case establish
public duties, but do not, on their own, establish a relationship between the
respondents and the family members of a deceased which might reasonably be
found to form the basis of a private duty of care.
[125]
Therefore, absent allegations of actual contact between the
supervising coroners and family members, in my view the motion judge was
correct to find it plain and obvious that the threshold for proximity could not
be met in this case.
Residual public policy considerations
[126]
Given my conclusion with respect to the motion judges analysis on
the first stage of
Anns/Cooper
, it is not necessary to consider
whether any
prima facie
duty would be negated for policy reasons.
(c)
Conclusion on Negligent Supervision
[127]
With respect to the respondents motion to strike the negligent
supervision claim, the motion judge concluded as follows, at para. 102:
Without foreclosing the possibility that close
and direct contact between an investigating coroner and a deceased persons
family during an investigation could give rise to a duty of care if the coroner
was seriously careless or reckless, the facts in this case as pled cannot
support the conclusion that the Coroners owed the [appellants] a duty of care.
[128]
Based on the foregoing, I see no reversible error in this
conclusion.
(3)
SECTION 15 OF THE
CHARTER
AND
CHARTER
DAMAGES
[129]
The amended statement of claim seeks damages under s. 24(1) of the
Charter
on the basis that the respondents subjected the appellants to discrimination
on the basis of race, national or ethnic origin, and/or on-reserve residency,
contrary to s. 15 of the
Charter
.
[130]
The appellants submit that the motion judge erred by striking both
the s. 15
Charter
claim and the claim for
Charter
damages
under s. 24(1). According to the appellants, the pleaded unwritten blanket
policy of coronial non-attendance on child death scenes in remote First
Nations communities is sufficient, if proven, to establish adverse differential
treatment under s. 15(1). The appellants contend that differential treatment at
the administrative level can ground a successful s. 15 claim where, as
alleged here, the impugned treatment perpetuates pre-existing disadvantage. The
appellants further submit that the motion judge incorrectly assessed whether
they had established a distinction on the merits, instead of assessing whether
their pleadings contained the requisite factual allegations of distinction.
[131]
With respect to s. 24(1), the appellants argue that the motion judge
erred in finding that their claim for
Charter
damages had no
reasonable prospect of success on the basis that judicial review is available under
the
Coroners Act
,
thereby providing an alternative remedy to
damages sufficient to vindicate their
Charter
rights. The appellants
point out that compensation for mental distress damages is unavailable as a
remedy on judicial review.
[132]
I would accept these submissions and permit the
Charter
claim to proceed. I propose to deal with the s. 15 and the s. 24(1) issues in
turn.
(a)
The s. 15
Charter
Claim
The governing principles
[133]
Section 15(1) of the
Charter
states as follows:
Every individual is equal before and under the
law and has the right to the equal protection and equal benefit of the law
without discrimination and, in particular, without discrimination based on
race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability.
[134]
Abella J., writing for a majority of the Supreme Court of Canada in
Fraser
v. Canada (Attorney General)
, 2020 SCC 28, 450 D.L.R. (4th) 1, summarized the
proper s. 15 analysis as follows, at para. 27:
Section 15(1) reflects a profound commitment
to promote equality and prevent discrimination against disadvantaged groups. To
prove a
prima facie
violation of s. 15(1), a claimant must demonstrate
that the impugned law or state action:
·
on its face or in its impact, creates a distinction
based on enumerated or analogous grounds; and
·
imposes burdens or denies a benefit in a manner
that has the effect of reinforcing, perpetuating, or exacerbating disadvantage.
[Citations omitted.]
[135]
In
Fraser
, the claimants were retired female members
of the RCMP who had temporarily participated in job sharing in order to work
reduced hours while raising their children. Their participation in this scheme
resulted in reduced pension contributions, which they were not entitled to
offset, and, consequently, reduced retirement income. The majority found that the
impugned scheme was a form of adverse impact discrimination, which violated
s. 15(1) of the
Charter
and could not be saved under s. 1.
[136]
Abella J. explained the concept of adverse impact discrimination in
the following terms, at paras. 30 and 52-53:
Adverse impact discrimination occurs when a
seemingly neutral law has a disproportionate impact on members of groups
protected on the basis of an enumerated or analogous ground. Instead of
explicitly singling out those who are in the protected groups for differential
treatment, the law indirectly places them at a disadvantage.
In order for a law to create a distinction
based on prohibited grounds through its effects, it must have a
disproportionate impact on members of a protected group. If so, the first stage
of the s. 15 test will be met.
How does this work in practice? Instead of
asking whether a law explicitly targets a protected group for differential
treatment, a court must explore whether it does so indirectly through its
impact on members of that group
A law, for example, may include seemingly
neutral rules, restrictions or criteria that operate in practice as built‑in
headwinds for members of protected groups
To assess the adverse
impact of these policies, courts looked beyond the facially neutral criteria on
which they were based, and examined whether they had the effect of placing
members of protected groups at a disadvantage. [Citations omitted].
[137]
Although recently elaborated upon in
Fraser
, the concept of
adverse impact discrimination is not new to s. 15 jurisprudence. For instance,
in
Eldridge v. British Columbia (Attorney General)
, [1997] 3 S.C.R.
624, at para. 77, La Forest J., for a unanimous court, asserted as follows:
This Court has consistently held
that
discrimination can arise both from the adverse effects of rules of general
application as well as from express distinctions flowing from the distribution
of benefits
[Section 15] makes no distinction between laws that impose
unequal burdens and those that deny equal benefits. If we accept the concept of
adverse effect discrimination, it seems inevitable, at least at the s. 15(1) stage
of analysis, that the government will be required to take special measures to
ensure that disadvantaged groups are able to benefit equally from government
services.
Analysis of the appellants s. 15 claim
[138]
The motion judge characterized the appellants
Charter
claim in the following terms:
The plaintiffs do not challenge the provisions
of the Act. They challenge the Coroners conduct in administering coronial
services pursuant to their statutory authority under the Act. The enumerated
and analogous grounds at issue are race and on-reserve residency.
The plaintiffs claim they have a right to
coronial services that are comparable to those provided to other off-reserve
members of the public. The plaintiffs assert that, because Dr. Aniol did not
attend the scene, did not communicate with the deceaseds family, and did not
properly investigate the nursing station staff, this equates to a distinction
in law under s. 15.
[139]
In my view, the appellants claim is one of adverse impact discrimination,
as defined in
Fraser
,
albeit where the impugned law is alleged
to have a discriminatory effect in its application, as in
Little Sisters
Book and Art Emporium v. Canada (Minister of Justice)
, 2000 SCC 69, [2000]
2 S.C.R. 1120.
While the motion judge did not have the benefit of
Fraser
s
helpful discussion of adverse impact discrimination, as noted, the concept is
not new.
[140]
As I will explain, in my view the motion judge erred in his s. 15
analysis in three interrelated ways: (i) failing to find that the appellants had
adequately pleaded a distinction premised on adverse impact discrimination at
the first stage of the s. 15(1) test; (ii) misapplying
Auton
to strike
the s. 15 claim on the basis that the appellants had not sought any benefit provided
by law under the
Coroners Act
; and (iii) concluding the appellants had
not pleaded sufficient particulars to ground a s. 15 claim disclosing a
reasonable prospect of success.
[141]
I shall address each of these matters in turn.
(i)
Does
the claim allege a
distinction based on a prohibited ground?
[142]
In this case, whether or not the respondents intentionally drew a
discriminatory distinction against Indigenous communities like Sandy Lake First
Nation in the exercise of statutory discretion in on-reserve death
investigations, the amended statement of claim pleaded that the respondents
conduct had this effect.
[143]
Nevertheless, the motion judge found that the appellants claim
disclosed no distinction in the way the Coroners provided coronial services
to the appellants.
[144]
I do not agree. As affirmed in
Fraser
,
at the first step
of the s. 15(1) test in an adverse impact discrimination claim, the motion
judge was required to look beyond the facially neutral rules of the
Coroners
Act
to examine whether those rules were pleaded to have been
applied by the respondent coroners in a manner which effectively disadvantaged members
of a protected group, such as the appellants.
[145]
As acknowledged by the motion judge, the amended statement of claim alleges
that by failing to conduct a thorough in-person investigation into Brodys death,
the investigating coroner did not provide the appellants with coronial services
of a comparable quality and level to those provided to off-reserve residents of
Ontario. In other words, the appellants allege that because they are First
Nations people living on a reserve, and therefore members of a group protected
by s. 15, they received differential treatment. Indeed, at para. 46(j), the
amended statement of claim alleges that the investigating coroners conduct
unjustifiably discriminated against the appellants on the basis of race,
ethnic origin, and on-reserve residency.
[146]
Again, it must be recalled that the appellants were not required to
prove
a distinction at this stage. In my view, the amended statement of claim, which
incorporates the Goudge Report and the OCCO Guidelines by reference, contains
sufficient material facts to support the allegation of a distinction based on a
prohibited ground.
[147]
Accordingly, I would conclude that the amended statement of claim discloses
a reasonable possibility that the appellants could succeed in satisfying the
first step of the s. 15(1) test with the benefit of a full evidentiary record,
and that the motion judge erred in finding to the contrary.
(ii)
Does
Auton
foreclose the
appellants s. 15 claim?
[148]
The respondents urge that the motion judge was correct to conclude that
the appellants s. 15 claim is foreclosed based on the principles articulated
by the Supreme Court of Canada in
Auton
.
[149]
In
Auton
, based on a full evidentiary record, McLachlin
C.J.C. dismissed a s. 15 claim on the basis that the benefit sought funding
for a specific type of autism therapy was not provided by law.
[150]
In the motion judges s. 15(1) analysis, he made the link to
Auton
as follows:
[The s. 15(1)] analysis is predicated on the
claimant showing that they have a right to the benefit they claim to have been
denied:
Auton
, at para. 3.
As previously noted, the Act does not require
the investigating coroner to attend the scene, communicate with the deceaseds
family, or interview particular individuals as part of his or her
investigation. Properly characterized, the plaintiffs claim that they have a
right to comparable coronial services, which
must
include these
particular procedural outcomes as part of the investigation.
Based on a plain reading of the Act, the
plaintiffs have no legal right to a particular outcome when a coroner makes a
discretionary, procedural decision over the course of the coronial
investigation. The procedural decisions involved in an investigation, including
the decision to inspect the place in which the deceased person was prior to his
or her death, are discretionary pursuant to ss. 16(1) and (2), and therefore,
the plaintiffs cannot found a s. 15 claim on being denied a benefit to which
they are not legally entitled. A deceased persons family members do not have a
legal right to the specific process of a coronial investigation.
As in
Auton
, the [appellants]
discrimination claim is based on the erroneous assumption that the Act provides
the benefit claimed: at para. 3. It does not. The lack of a benefit equally
distributed cannot ground a claim under s. 15(1). Put another way,
"[t]here can be no administrative duty to distribute non-existent benefits
equally":
Auton
, at para. 46.
[151]
In my view, the motion judges analogy to
Auton
was in
error for two reasons.
[152]
First, while the motion judge correctly identified the principle
arising from
Auton
,
in my view he mischaracterized the nature
of the appellants claim. On a properly generous reading of the amended
statement of claim, the benefit sought is not a particular outcome in the
discretionary coronial investigation into Brodys death. Indeed, I share the
motion judges view that the
Coroners Act
does not provide a statutory
right to in-person coronial attendance, an inquest, nor to any other particular
procedural outcome.
[153]
With respect, however, this misses the point. As I read the claim,
the appellants core allegation under s. 15(1) is that the way coronial
services are provided in Ontario arbitrarily and disproportionately exclude
on-reserve Indigenous communities, thereby undercutting the purpose of the
Coroners
Act
. Indeed, para. 72 of the amended statement of claim pleads as follows:
The Coroners failure to conduct a thorough
investigation perpetuates disadvantages faced by First Nations on reserve,
including but not limited to systemic disadvantages resulting from inadequate
health care services. It compounds a history of disadvantage and discrimination
in which the lives of Indigenous children were treated as less deserving of
concern and attention than the lives of non-Indigenous children, and in which
Indigenous families were not informed of the deaths of their children and/or
the circumstances surrounding the deaths of their children and/or systemic
causes contributing to their deaths.
[154]
If the investigating coroners conduct in Brodys case is proved to
be part of a blanket policy of coronial non-attendance in places like Sandy
Lake First Nation, this would amount to an effective denial of the benefit of
coronial services available elsewhere in the province. It is not plain and
obvious that such a denial could not be shown to exacerbate the pre-existing
disadvantage experienced by Indigenous peoples living on-reserve. Put another
way, requiring on-reserve Indigenous peoples to live without adequate coronial
services could arguably amount to a burden imposed on individuals of a
historically disadvantaged group, a burden which is not imposed on non-members
of that group. In my view, if established, this would be sufficient to satisfy
the second step of the s. 15(1) test.
[155]
Relatedly, the motion judge failed to consider principles applicable
to s. 15 which, in my respectful view, indicate that
Auton
is
not a bar to the appellants claim. I will provide two examples.
[156]
The first relevant principle arises from the Supreme Court of
Canadas decision in
Eldridge
. In
Auton
, at para. 35, the
court explained that the benefit sought in the case at bar was not provided
for by the law because the legislative scheme at issue did not promise funding
for non-core services, like behavioural therapy for autistic children, to all
Canadians. To illustrate this point, the court distinguished
Eldridge
as follows, at paras. 38 and 45:
Eldridge
was concerned with unequal access to a benefit that the law
conferred and with applying a benefit-granting law in a non-discriminatory
fashion
. By contrast, this case is concerned with access
to a benefit that the law has not conferred.
Had the situation been different,
the
petitioners might have attempted to frame their legal action as a claim to the
benefit of equal application of the law
This would not have been a
substantive claim for funding for particular medical services, but
a
procedural claim anchored in the assertion that benefits provided by the law
were not distributed in an equal fashion. Such a claim, if made out, would be
supported by
Eldridge
.
[Emphasis added.]
[157]
The foregoing passage from
Auton
supports my view that the
motion judges analogy to
Auton
was inapt. Unlike in
Auton
,
the appellants do not seek special services not available to the general
public. To the contrary, their claim is anchored in the assertion that the
benefits of coronial services provided under the
Coroners Act
are
not being distributed in an equal fashion. As such, read generously, the
appellants have framed their action as a claim to the benefit of equal
application to the law, as in
Eldridge
.
[158]
Contrary to the motion judges assertion, the amended statement of claim,
as I read it, does not seek to impose a non-existent benefit equally. For
example, as I have explained, on a full trial record the appellants could prove
their allegation, supported by the Goudge Report, that the OCCO had a blanket
policy of coronial non-attendance in remote First Nations communities. This potentially
could amount to an effective denial of the benefit of coronial services
delivered based on the proper exercise of statutory discretion under the
Coroners
Act
, a benefit available to non-Indigenous Ontarians living off-reserve.
[159]
Moreover, C.J. Brown J.s decision in
Mathur v. Ontario
,
2020 ONSC 6918, leave to appeal refused, 2021 ONSC 1624 (Div. Ct.) reinforces
my conclusion that the motion judge misapplied
Auton
in
striking the appellants claim. While the motion judge did not have the benefit
of
Mathur
, in my view he failed to consider and apply the established principles
articulated therein, which led him to erroneously strike the appellants s. 15
claim.
[160]
In
Mathur
, C.J. Brown J. relied on
Eldridge
in
dismissing Ontarios motion to strike an s. 15(1) claim based on adverse impact
discrimination. That claim alleged that Ontarios target for reducing
greenhouse gas emissions by 2030 violated s. 15 based on age. C.J. Brown J. was
unable to conclude that the claim had no prospect of success. In support of
that finding, she made two key points relevant to this appeal, at paras.
187-88:
First, it is acknowledged that
evidentiary
challenges for claimants may be more apparent in claims of "adverse
effect" or "adverse impact" discrimination
. To date, few
decisions of the Supreme Court have dealt with adverse effect discrimination,
perhaps because of the significant practical difficulties involved in adducing
sufficient evidence to demonstrate adverse impacts on particular groups.
However,
where adverse impact claims have succeeded under the
Charter
, they have
been based on self-evident societal patterns amenable to judicial notice, such
as the disadvantage faced by deaf persons seeking to access medical services
without the aid of sign language interpretation: see
Eldridge
. The
adverse effects of climate change on younger generations - who presumably would
have more years to live than current generations - may be considered
self-evident, especially if the Applicants are able to present evidence of
historical or sociological disadvantage that the Applicants have experienced as
a result of their age.
Second,
it is not apparent that the
Applicants cannot prove that Ontario's conduct widens the gap between the
disadvantaged group
and the rest of society
rather than narrowing it
particularly in light of the [Supreme Court of Canadas] shift to substantive,
rather than formal, equality analysis. [Emphasis added.]
[161]
Similar considerations operate here. Namely, as in
Eldridge
and other s. 15 cases discussed in
Mathur
, the appellants claim
is based on self-evident social patterns amenable to judicial notice. The
fact that Indigenous peoples living on-reserve in this province generally face
disadvantage relative to non-Indigenous Ontarians living off-reserve in terms
of access to critical public services is beyond dispute. The specific impact of
this disadvantage with respect to coronial services, which Commissioner Goudge
deemed unacceptable over a decade ago, was incorporated by reference into the
amended statement of claim through the Goudge Report.
[162]
Further, as in
Mathu
r,
in my view it is not apparent
at this early stage that the appellants will be unable to show that the
respondents alleged conduct widened, rather than narrowed, the alleged coronial
service gap between Indigenous on-reserve residents and the rest of society.
[163]
Accordingly, I would conclude that the motion judge misapplied
Auton
and incorrectly struck the appellants s. 15 claim on the basis that it sought
a benefit not provided by law.
(iii)
Does the appellants s. 15 claim provide
sufficient particulars?
[164]
The respondents urge that, even if the appellants pleadings
disclose allegations capable of supporting the s. 15 claim, the motion judge
correctly found that those pleadings lack sufficient particulars regarding the
alleged discriminatory conduct.
[165]
I do not accept this submission.
[166]
As noted by the Supreme Court of Canada in
Clark
,
at
para. 68, a case concerning the Crowns motion to strike a claim which sought
Charter
damages, a claim should be struck out only if it is certain to fail. The
court further affirmed that neither the unique nature of the facts underlying
the [plaintiffs] action nor the strength of the Crowns defence is sufficient
reason for refusing to allow a claim to move forward.
[167]
As noted, the amended statement of claim alleges that the
respondents failed to provide coronial services of a comparable quality and
level to those provided to off-reserve Ontario residents. The pleaded facts
grounding that allegation include the investigating coroners failure to attend
at the death or communicate with the appellants, contrary to the OCCO
Guidelines, and his decision not to recommend an inquest into Brodys death, despite
the findings and recommendations of the Goudge Report with respect to the historical
pattern of inequality in coronial service delivery affecting on-reserve
Indigenous and northern communities. Here, I would reiterate my view that a
generous reading of the claim must take into account the broader historical
pattern of disadvantage facing Indigenous peoples living on-reserve in northern
and remote regions of our province, which is beyond dispute.
[168]
Moreover, the amended statement of claim alleges that the
investigating coroner relied on negative stereotypes of First Nations parenting
to guide the scope and direction of the investigation, supported by the pleaded
fact that the investigating coroner directed police officers to visit the
appellants home and make observations on the presence of drugs or alcohol.
[169]
In light of the foregoing, in my view the motion judge erred in
concluding that the only fact alleged by the appellants supporting
discrimination was the investigating coroners impugned direction to the
police. This holding failed to engage with the appellants core claim of
adverse impact discrimination, arising from an alleged denial of the benefit of
equal application of the law with respect to coronial services.
Conclusion on the s. 15
Charter
claim
[170]
In my view, any one of the three errors I have identified in the
motion judges s. 15 analysis warrants appellate intervention. Collectively, those
errors reinforce my conclusion that the motion judge failed to read the
appellants s. 15 claim generously, as one of adverse impact discrimination
based on well-established historical patterns of disadvantage facing Indigenous
peoples living on-reserve in Ontario. This failure, which ran contrary to the
governing jurisprudence, led the motion judge to incorrectly strike this part
of the claim.
[171]
Accordingly, I would conclude that the motion judge erred in finding
it plain and obvious that the appellants s. 15
Charter
claim would
fail. I would allow this portion of the claim to proceed to trial.
(b)
The
Charter
Damages Claim
[172]
The respondents contend that even if the facts alleged in the
amended statement of claim are capable of establishing a
Charter
breach
of s. 15, the motion judge was correct to conclude that those facts could not
give rise to
Charter
damages as a remedy under s. 24(1).
[173]
Section 24(1) of the
Charter
provides as follows:
Anyone whose rights or freedoms, as guaranteed
by this Charter, have been infringed or denied may apply to a court of
competent jurisdiction to obtain such remedy as the court considers appropriate
and just in the circumstances.
The
Ward
framework on the
availability of
Charter
damages
[174]
In assessing this issue, I will focus, as did the motion judge, on
the Supreme Court of Canadas
Charter
damages framework in
Ward
v. Vancouver (City)
,
2010 SCC 27
, [2010] 2 S.C.R. 28. In
Ward
,
McLachlin C.J.C. set out the following four-part test governing the
availability of
Charter
damages:
1)
Has a
Charter
right been breached?
2)
Would damages fulfill one or more of the related
functions of compensation, vindication of the right, and/or deterrence of
future breaches?
3)
Has the state demonstrated countervailing
factors that defeat the functional considerations supporting a damages award, rendering
damages inappropriate or unjust?
4)
If warranted, what is the appropriate quantum of
damages?
[175]
Of importance in this pleadings appeal, the availability of
Charter
damages is an evolving area of law. As Moldaver J. stated in
Henry v.
British Columbia (Attorney General)
, 2015 SCC 24, [2015] 2 S.C.R. 214, at
para. 35:
Charter
damages
are a powerful tool that can provide a meaningful response to rights
violations. They also represent an evolving area of the law that must be
allowed to develop incrementally:
Ward
,
at para. 21. When defining the
circumstances in which a
Charter
damages award would be appropriate and just, courts must therefore
be careful not to stifle the emergence and development of this important
remedy.
The alleged
Charter
breach and
functional considerations
[176]
In the amended statement of claim, the appellants allege a
Charter
breach and contend that
Charter
damages would fulfill the
functional objective of compensation. The appellants further allege that the
respondent coroners failed to act in good faith in applying the
Coroners
Act
, such that
Charter
damages are available, notwithstanding the
constitutionality of the
Act itself.
[177]
The respondents argue that such bald, conclusory statements do not
satisfy the standard required for allegations of bad faith, and that further
particulars are needed.
[178]
As with the concern about particulars regarding the s. 15
Charter
claim, I do not find the respondents argument persuasive. In my view, the
appellants core allegation that the investigating coroner deliberately
adhered to a known discriminatory pattern of neglect in death investigations in
on-reserve Indigenous communities is sufficient to particularize the
requisite threshold misconduct engaging
Charter
damages for the
purposes of a pleadings motion.
Countervailing factors
[179]
Under
Ward
, if the first two elements of the
Charter
damages framework are established, the burden shifts to the Crown to identify
countervailing factors which could defeat any functional considerations in
support of a damages award.
[180]
The respondents urge that the motion judge correctly referred to two
such countervailing factors which they say should preclude the appellants from
seeking
Charter
damages: (i) the availability of judicial review under
the
Coroners Act
; and (ii) good governance concerns.
[181]
As I will explain, in my view neither factor is capable of
supporting the motion judges conclusion to strike the
Charter
damages
claim.
(i)
The availability of judicial review as a
countervailing factor
[182]
The availability of alternative remedies was identified in
Ward
as a factor which could justify rejecting
Charter
damages, even where
a plaintiff has otherwise established an entitlement to those damages. In
Ernst
,
Cromwell J. held that judicial review could constitute such an alternative
remedy: at paras. 32-41.
[183]
Relying on Cromwell J.s analysis in
Ernst
, the motion
judge found, at paras. 139-40, that the availability of judicial review under the
Coroners Act
provided an alternative remedy to
Charter
damages
for the appellants:
A court can order corrective action. Notably,
a court can order that an inquest take place. This would go a long way towards
compensating and vindicating the plaintiffs for alleged inadequacies in the
coronial investigation.
Judicial review would also provide a
convenient process to clarify what the
Charter
required of the
Coroners throughout the investigation and the discretionary decision making
process. This sort of clarification plays an important role in preventing
similar future rights infringements. Finally, judicial review might well have
addressed the breach much sooner and thereby significantly reduced the extent
of the breachs impact on the plaintiffs as well as vindicate their right to
equal treatment under the law pursuant to s. 15.
[184]
As the appellants point out, however, the functional consideration
of compensation focuses mainly on their personal loss: physical,
psychological, pecuniary, and harm to intangible interests. This latter type
of harm includes distress, humiliation, embarrassment, and anxiety. Judicial
review is not intended to address these types of harm, nor is there reason to
expect that the remedies available on judicial review would be effective in
doing so.
[185]
The appellants further submit that discrimination is an affront to
human dignity and self-worth and is therefore appropriately remedied by an
award of damages. In this context, judicial review, even if it resulted in a
reversal of the decision not to hold an inquest, would not provide an adequate
remedy.
[186]
I would accept the appellants submissions on this alleged countervailing
factor. In my view, it is not plain and obvious that judicial review would be
an adequate alternative remedy for the appellants in this case.
[187]
It is important to recall that the concern for alternative remedies
is not intended to limit the availability of damages, but rather to limit
duplicative claims and double-recovery. This court expanded on this point in
Brazeau
v. Canada (Attorney General)
, 2020 ONCA 184, 149 O.R. (3d) 705, at para.
43:
Ward
contemplates
concurrent claims for private law and
Charter
damages, provided an
award of
Charter
damages is not duplicative: at para. 35. If there
is another avenue to damages, a
further
award of damages under s. 24(1)
would serve no function and would not be appropriate and just: at para. 34.
Nor does Ward create a hierarchy of remedies with
Charter
remedies
coming last. A claimant is not required to show that she has exhausted all
other recourses: at para. 35. The evidentiary burden is the reverse. It is for
the state to show that other remedies are available in the particular case
that will sufficiently address the breach: at para. 35 [Emphasis in original.]
[188]
Put simply, although judicial review was available to the appellants
in this case, I see nothing in this record to suggest the relief the appellants
might have secured through judicial review would have been duplicative of a
potential
Charter
damages award. As indicated, the appellants seek
compensation for alleged personal and intangible loss arising from what they intend
to show was a discriminatory coronial investigation into the death of their
loved one. In my view, it is far from plain and obvious that the relief available
on judicial review could sufficiently address this kind of breach.
[189]
Accordingly, I would conclude that the motion judge misapplied the
test on a motion to strike in finding at this preliminary stage that judicial
review would provide an alternative remedy sufficient to vindicate the
[appellants]
Charter
claim.
(ii)
Good governance as a countervailing factor
[190]
The second countervailing consideration identified by the
respondents relates to good governance. Although it was not dispositive in
this case, the respondents submit that good governance concerns militate
against holding regulatory decision-makers like the coroners liable for
Charter
damages.
[191]
In
Ward
,
at para. 33, the court affirmed that
concerns for good governance could make a damage award inappropriate and
unjust. McLachlin C.J.C. explained this consideration, at paras. 39-40:
The rule of law would be undermined if
governments were deterred from enforcing the law by the possibility of future
damage awards in the event the law was, at some future date, to be declared
invalid. Thus, absent threshold misconduct, an action for damages under s. 24(1)
of the
Charter
cannot be combined with an action for invalidity based
on s. 52 of the
Constitution Act
, 1982
.
[T]he state must be afforded some immunity
from liability in damages resulting from the conduct of certain functions that
only the state can perform. Legislative and policy-making functions are one
such area of state activity. The immunity is justified because the law does not
wish to chill the exercise of policy-making discretion. [Citations omitted.]
[192]
Contrary to the respondents submission, I see no good governance concerns
in this case which could justify striking the appellants claim for
Charter
damages. The appellants do not challenge the
Coroners Act
itself. Therefore,
there is no potential for liability associated with the legislation itself in
the appellants claim. To the extent there is an exercise in policy-making at
issue in this appeal, it is the policy set out in the OCCO Guidelines, which urges
investigating coroners to attend the scene of death investigations involving children,
no matter how far the coroners may be from the death scene. Far from a chill
on policy-making, the potential for liability in this case may well act as a
catalyst for paying greater attention to exercises of policy-making.
Conclusion on
Charter
damages
[193]
In short, as with the s. 15 claim itself, I would conclude that the
motion judge erred in striking the appellants claim for
Charter
damages. In my view, the
Charter
damages claim is not certain
to fail and should be permitted to proceed.
(4)
GOOD FAITH IMMUNITY AND CROWN VICARIOUS
LIABILITY
[194]
The appellants raise two additional grounds of appeal, contending
that the motion judge erred by finding: (a) that the facts as pleaded could not
overcome the good faith immunity clause at s. 53 of the
Coroners Act
;
and (b) that an investigating coroner is not a servant or agent of the Crown. As
I will explain, given my analysis above, it is not necessary to resolve either ground.
(a)
The Good Faith Immunity Clause
[195]
The appellants submit that the motion judge erred by finding the
facts pleaded could not overcome the good faith immunity clause in s. 53 of the
Coroners Act
.
[196]
The motion judge directed his finding on the good faith immunity
clause to the appellants claim in negligent supervision. As I have found no
error in the motion judges striking of that portion of the appellants claim,
which relates only to the supervising coroners, it is not necessary to address his
striking of the claim under s. 53.
[197]
For greater clarity, the good faith immunity clause, whatever its
scope in relation to claims in negligence, does not, in my view, foreclose
either the claim for misfeasance in public office or the s. 15
Charter
claim.
(b)
The Investigating Coroner as Servant or Agent of
the Crown
[198]
The appellants final ground of appeal is that the motion judge
erred by finding that an investigating coroner is not a servant or agent of the
Crown.
[199]
On this point, the motion judge cited, at para. 81, case law
affirmed by this court in support of his conclusion that the Crown could not be
vicariously liable for the investigating coroners actions. He further held
that, while the Crown had conceded it could be liable for the supervising
coroners negligence, vicarious liability was precluded by his earlier finding
that the negligence claim was doomed to fail.
[200]
As indicated, the appellants make no claim in negligence against the
investigating coroner in the amended statement of claim. As such, and in light
of my view that the motion judge was correct to strike the claim in negligent
supervision, it is unnecessary to explore whether an investigating coroner is a
Crown servant or agent for the purposes of this appeal.
CONCLUSION
[201]
For reasons above, in my view the motion judge erred in striking the
claims for misfeasance in public office and breach of s. 15 of the
Charter
,
which if proven may give rise to a
Charter
damages claim.
[202]
However, I would not disturb the motion judges decision to strike the
claim for negligent supervision without leave to amend. This renders moot the
appellants related grounds of appeal regarding the good faith immunity clause
and Crown vicarious liability.
[203]
Accordingly, I would allow the appeal in part and set aside para. 1
of the motion judges order insofar as it strikes the claims in misfeasance in
public office and breach of s. 15(1) of the
Charter
, without leave to
amend.
[204]
I would dismiss the appeal in all other respects.
[205]
The parties have agreed on costs.
Released: July 26, 2021 R.G.J.
L.Sossin J.A.
I agree. R.G. Juriansz J.A.
I agree. K. van Rensburg J.A.
[1]
I note
that, while the pleadings refer to the 2007 version of the OCCO Guidelines and
this version also was relied upon in argument before this court, the motion
judge cited the 2013 version of the same document. While there are minor
differences between the two versions, those differences are not material to
this analysis. For clarity, however, I will refer to the 2007 version as the OCCO
Guidelines throughout these reasons.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Young, 2021 ONCA 535
DATE: 20210726
DOCKET: C66183
Juriansz, Jamal and Coroza JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Shauvonne Latoya Young
Appellant
Breana Vandebeek, for the appellant
Xenia Proestos, for the respondent
Heard: December 7, 2020 by video conference
On appeal from the conviction entered on
October 16, 2018 by Justice Jennifer Woollcombe of the Superior Court of
Justice, sitting with a jury.
Jamal J.A.:
A.
Introduction
[1]
On April 5, 2017, the appellant, Ms. Shauvonne
Young, was arrested at Toronto Pearson International Airport on her return from
Jamaica and charged with importing 1.9 kilograms of cocaine. Canadian Border
Services Agency (CBSA) officers found the cocaine inside four containers of
Metamucil, a fibre supplement, as soon as they opened her suitcase.
[2]
At trial, the
only issue was knowledge whether the appellant knew that she was
importing cocaine. She testified that a family friend had given her the containers
as a gift for her grandmother. She believed they contained Metamucil blended
with roots and seeds to form a Jamaican herbal remedy.
[3]
The appellant applied before trial to introduce
a hearsay statement that her late father allegedly made to her half-sister. Their
father was a cocaine addict and convicted drug dealer and trafficker with a
long criminal record. He allegedly confessed to the appellants half-sister
that
he had arranged for the drugs to be given to
the appellant and had used her to bring them back to Canada. He said he owed a
lot of money to his drug dealer and had been forced to provide them services. He
begged his daughter not to tell the appellant yet about what he had done and
promised to come to court to confess. He also said he was concerned for his own
safety. Because the appellants half-sister was concerned that telling the
appellant might endanger their father or the appellant, she complied. Less than
four months later, their father died from a cocaine and fentanyl overdose.
[4]
The application judge, Andr
é
J. (application judge), refused to admit
the statement under the declaration against penal interest exception to the hearsay
rule or under the principled approach to hearsay:
R. v. Young
, 2018
ONSC 5480. The appellant was then tried by judge and jury and convicted of importing
cocaine.
[5]
The appellant raises two grounds of appeal from
her conviction. First, she says the application judge erred by refusing to
admit the hearsay statement under either the penal interest exception to the
hearsay rule or the principled approach to hearsay and that he should have applied
a relaxed standard for the admissibility of defence evidence to avoid a miscarriage
of justice. Second, she says the trial judge, Woollcombe J. (trial judge), erred
by instructing the jury on wilful blindness as a pathway to a guilty verdict without
any air of reality to the claim that she
was
suspicious of
what was inside the Metamucil containers and deliberately
failed to inquire further.
[6]
For the reasons that
follow, I would allow the appeal and order a new trial. The application
judge misapprehended the evidence in applying the declaration against penal
interest exception to the hearsay rule. On the totality of the evidence, the
hearsay statement was admissible under that exception. Because this evidence was
critical to the appellants defence, its exclusion led to a miscarriage of
justice. It is unnecessary to address the appellants other arguments.
B.
background
(a)
The hearsay evidence
[7]
The appellants pretrial application to admit the
hearsay statement of her late father, Mr. Orville Young, was supported by the
affidavit of her half-sister, Ms. Toni Winchester. Ms. Winchester had no
criminal record and was not cross-examined on her affidavit. She made these key
points in her affidavit:
·
The appellant travelled to Jamaica to attend her
uncles memorial service and returned to Canada on April 5, 2017. On April 5, Ms.
Winchester received calls from her father, who wanted to know if she had heard
from the appellant. He was unusually persistent. Because this worried Ms. Winchester,
she called the appellant but could not reach her.
·
Ms. Winchester and the appellant had a difficult
relationship with their father. He was in and out of jail and used crack
cocaine. He lived with Ms. Winchester briefly in 2015, but they had a falling
out because of his drug use. In April 2017 she did not even know where he lived.
·
Several days after the appellant returned from
Jamaica, Ms. Winchester learned that the appellant had been arrested for
importing drugs. Ms. Winchester was surprised because she and the
appellant strongly disapproved of their fathers drug use.
·
Ms. Winchester confronted her father and asked
him to tell [her] the real deal about why he kept asking about the appellant
when she was delayed at the airport. She explained her fathers response as
follows:
He
began crying and
telling
me
that
he put her in a bad
position. He told me
that
he owed a lot of
money to his drug dealer. They had given him a large quantity of drugs, and
without money to pay them back, he was forced to provide them services. He told
me
that
he had agreed to have someone hide
drugs in a package in Jamaica while [the appellant] was there, and to use her
to bring it back to Canada. He told me that his drug dealer had promised him
that no one would ever
find out
, and that this
wasnt the first time he had done something like this. He expressed
to me
that he was afraid for his own safety now.
He specifically begged me not to tell [the
appellant] yet and promised he would attend Court for her and let the Court
know what he had done. He told me
that
he was
concerned for his own safety. I did not tell [the appellant] anything about
this
conversation at the time
. I was afraid
that
if I were to tell
her, it might cause
danger to my dad, or [the appellant]. As much as my father and I had not seen
eye to eye, I believe that if circumstances were different he would do the
right thing, come to Court, and tell the truth about what had happened.
My father was born on July 25
th
,
1964. On July [27
th
], 2017, he passed away from an overdose. It was [two]
days after his 53
rd
birthday. At his funeral in August of 2017, I
told [the appellant] for the first time what he had told me. I wish I had said
something sooner, but I never imagined that we would lose our father so soon.
[8]
The application to admit the hearsay statement
included as exhibits Mr. Youngs lengthy criminal record from 1981 to 2017,
which included at least nine convictions for drug possession and trafficking,
and a coroners report confirming that he died of a cocaine and fentanyl overdose.
(b)
The application judge refuses to admit the
hearsay statement
[9]
The application judge refused to allow the hearsay
statement to be admitted
at trial
. He found:
·
The statement was not admissible as a declaration
against penal interest because Mr. Young did not
make
the statement to
a person and in such circumstances
that
he apprehended a vulnerability to penal
consequences and that any such vulnerability was remote.
·
The statement did not meet the criteria for
admission under the principled approach to hearsay. Although the necessity
requirement was met because Mr. Young was dead, nothing about the circumstances
in which the statement was made attested to its reliability. The truth and
accuracy of the statement could not be sufficiently tested given the
circumstances in which it was made, and the circumstances in which the
statement was made did not substantially negate the possibility that the
declarant was untruthful or mistaken. It was unknown whether Mr. Young had a
motive to lie, there was reason to doubt his credibility given his long
criminal record of dishonest acts, and there was no evidence confirming the statement.
(c)
The trial
(i)
The prosecution case
[10]
The Crown argued that the appellant knew that the
Metamucil containers contained cocaine when she imported the drugs into Canada.
A CBSA agent found the drugs in her suitcase during a secondary customs
inspection. When the agent opened the suitcase, the Metamucil containers were right
on top in a black plastic bag. The containers had no security seal and were
abnormally solid. The agent opened a container and saw a layer of Metamucil on
top of a plastic bag. The substance inside the plastic bag was tested and was cocaine.
[11]
The Crown claimed that the appellants motive
was financial. It was an agreed fact that the street value of the drugs sold at
the gram level was between $155,000 and $194,000 and that a drug courier would typically
make between $1,000 and $5,000, plus expenses, or sometimes a percentage of the
product as payment instead. At the time of trial, the appellant was a 34-year-old
single mother with five children (four when she was charged), ranging in age from
18 years to 2 months, and had a $2,500 monthly mortgage payment
that
she split with her mother. Trial counsel (not
appeal counsel) put to her that having four children live with you is pretty
expensive for groceries and clothes and all the things that teenagers need and
getting an extra few thousand dollars here or there would be a big assistance
to you in helping you raise your kids and pay for your mortgage: Transcript,
October 12, 2018, at p. 96. Although the appellant agreed that money was pretty
tight, she was reluctant to agree with the suggestion that an extra few
thousand dollars would have been a big assistance, explaining that she had
family support. Crown counsel pressed the point, putting to her that [h]aving
an extra thousand or five thousand dollars given to you at that time would have
been of assistance to you: Transcript, October 12, 2018, at p. 97. Like most
people would, she agreed.
[1]
(ii)
The defence case
[12]
The appellant testified in her own defence. Her evidence
was that she flew to Jamaica on March 31, 2017 for a celebration of the life of
her uncle. He had recently died in Canada, but because many family members
could not travel from Jamaica a celebration of life was organized to take place
there on April 1, 2017. The appellant would then return to Canada the next day.
[13]
One of the appellants cousins picked her up from
the airport in Jamaica and they went to the family home. There, a man named
Haja introduced himself to her. He said he knew her parents and that she
looked a lot like her father. The appellant had not met Haja before. She later
learned his real name was Simian Elliott.
[14]
The appellant saw Haja again the next day at the
celebration of life but did not speak to him. He was talking to her family
members and seemed like a nice guy. The appellants cousins asked her to extend
her stay in Jamaica. She agreed and believed Haja may have overheard this. She later
changed her plane ticket to return on April 5.
[15]
On April 5, Haja came to the family home and
said he was happy to catch the appellant. He gave her a black plastic bag containing
four Metamucil containers and said it was for her Grandma Pat, her fathers
mother. The appellant did not think this was unusual because she said in Jamaica
people blend ginger root, beetroot, mango seed, and June plum seed with
Metamucil to ward off evil spirits and as a form of rejuvenation for the body.
The appellant looked in the plastic bag, saw the Metamucil containers, and put everything
in her suitcase. Although she did not use this herbal remedy herself, the
elderly did, so she thought her grandmother would be happy for the gift. The
appellant was not suspicious. Haja was a friend of the family and she had no
reason to distrust him. She testified that she had no idea that the containers
contained drugs.
[16]
When the appellant landed at Pearson Airport, she
was selected for secondary screening. The CBSA agent inspected her suitcase and
found the cocaine.
[17]
The appellant was permitted to introduce evidence
of a third-party suspect her father. She suggested that he had a motive, the opportunity,
and the disposition to be responsible for the importation. Her fathers lengthy
criminal record was admitted into evidence, which included many convictions for
drug possession and trafficking. It was also an agreed fact that he died from a
cocaine and fentanyl overdose.
[18]
The appellant testified that she believed her
father had arranged for Haja to transport the drugs through her without her
knowledge. She did not have a close relationship with her father. He had drifted
in and out of her life because of his drug addiction and criminal lifestyle. But
they were trying to rebuild their relationship and she had spoken to him about
her upcoming trip to Jamaica.
[19]
The appellants mother was supposed to pick her
up at the airport in Toronto. The appellant would have taken the Metamucil
containers to her Grandma Pat, where her father and several other family
members would have had access to them. The appellant believed none of these other
family members knew about the drugs. Like the appellant, they all hated drugs
because of how they had destroyed her fathers life.
[20]
After the appellant was arrested, many of her family
members contacted her, but her father did not. She tried to contact him, without
success, and felt he was ignoring her. He died on July 27, 2017.
C.
Discussion
(a)
Applicable principles for admitting hearsay
[21]
The applicable legal principles governing the admissibility
of Mr. Youngs alleged statement to Ms. Winchester are not in dispute.
[22]
All
relevant
evidence
is admissible, subject to certain exceptions, one of which is the rule against hearsay
evidence. An out-of-court statement of a declarant is hearsay if (1) the
statement is adduced to prove the truth of its contents and (2) there is no
contemporaneous opportunity to cross-examine the declarant. Hearsay evidence is
presumptively inadmissible unless it falls under an exception to the hearsay
rule:
R. v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 34-35,
42, and 56.
[23]
The Supreme Court summarized the framework governing
the admissibility of hearsay evidence in
Khelawon
, at para. 42 and
R.
v. Mapara
, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15:
(a) Hearsay evidence is presumptively
inadmissible unless it falls under an exception to the hearsay rule. The
traditional exceptions to the hearsay rule remain presumptively in place.
(b) A hearsay exception can be challenged to
determine whether it is supported by indicia of necessity and reliability,
required by the principled approach. The exception can be modified as necessary
to bring it into compliance.
(c) In rare cases, evidence falling within
an existing exception may be excluded because the indicia of necessity and
reliability
are lacking in
the particular
circumstances of the case
.
(d) If hearsay evidence does not fall under a
hearsay exception, it may still be admitted if indicia of reliability and
necessity are established on a
voir dire
.
[24]
The criteria for the declaration against penal
interest exception to the hearsay rule were distilled by Watt J.A. in
R. v.
Tash
, 2013 ONCA 380, 306 O.A.C. 173, at para. 88:
The principles that
govern
the admissibility of declarations against penal interest
are these:
i.
the declaration must be made to such a person
and in such circumstances that the declarant should have apprehended a
vulnerability to penal consequences as a result;
ii.
the vulnerability to penal consequences must not
be remote;
iii.
the declaration must be considered in its
totality, so that if, upon the whole tenor, the weight of it is in favour of
the declarant, the declaration is not against his or her interest;
iv.
in a doubtful case, a court might consider
whether there are other circumstances connecting the declarant with the crime, and
whether there is any connection between the declarant and the accused; and
v.
the declarant must be unavailable because of
death, insanity, grave illness that prevents the declarant from giving
testimony even from a bed, or absence in a jurisdiction to which none of the
courts processes extends.
R. v. Demeter
,
[1978] 1 S.C.R. 538, at p. 544;
R. v. OBrien
, [1978] 1 S.C.R. 591, at
p. 600; and
R. v. Lucier
, [1982] 1 S.C.R. 28, at pp. 32-33.
[25]
As the Supreme Court has noted, exceptions to
the hearsay rule, such as the exception for declarations against penal
interest, developed for statements carrying certain guarantees of inherent
trustworthiness, often because of the circumstances in which they were made:
R.
v. Youvarajah
, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 20.
[26]
See also Sidney N. Lederman, Alan W. Bryant
& Michelle Fuerst,
Sopinka, Lederman & Bryant:
The Law of
Evidence in Canada
, 5th ed. (Toronto: LexisNexis Canada, 2018), at
§
6.183-6.205; S. Casey Hill, David M. Tanovich
& Louis P. Strevos,
McWilliams Canadian Criminal Evidence
,
loose-leaf, 5th ed. (Toronto: Thomson Reuters, 2013), at para. 7:200.20.
(b)
Application to this case
[27]
The focus of the argument in this court was
whether the application judge erred in refusing to admit the hearsay statement as
a declaration against penal interest because it failed to meet criteria (i) and
(ii) in
Tash
. The Crown did not challenge the application judges
ruling that criteria (iii), (iv), and (v) of
Tash
were met. As the
application judge found, the entirety of the declaration was not in favour of Mr.
Youngs interest because he took responsibility for arranging to have someone
hide drugs in a package which he brought to Canada (criterion (iii)); there
were other circumstances connecting Mr. Young to the crime because he had an
extensive criminal record from 1981 to 2017 with at least nine convictions for
possession of a controlled substance and possession for the purpose of
trafficking (criterion (iv)); and Mr. Young was unavailable to testify because
he was dead (criterion (v)).
[28]
On the first disputed point whether Mr. Young
apprehended a vulnerability to penal consequences (criterion (i)) the
application judge ruled:
Regarding the first criterion, I am not
persuaded that the declaration was made to such a person and in such
circumstances that the declarant should have apprehended a vulnerability to
penal
consequences as a result
. Mr. Young
made a statement to
his daughter
who had a very difficult relationship
with him
growing up; however, he lived with her from July 2015 to November 2015 before
having a falling out due to his continued drug use.
Mr. Young must have had confidence in the fact
that his statement to Ms. Winchester would remain confidential given his
caution to her
that
she should not tell [the
appellant] about what he had said to her.
Furthermore, there
is nothing in the circumstances in which the statement was allegedly
made that Mr. Young should have apprehended a vulnerability to penal
consequences as a result
.
[29]
On the second disputed point whether Mr.
Youngs vulnerability to penal consequences was not remote (criterion (ii)) the
application judge ruled:
[I]t seems to me that the vulnerability to
penal consequences were remote given that Mr. Young told Ms. Winchester not to
tell [the appellant] about what he had stated to her. He clearly did not
contemplate any penal consequences as a result of his statement to Ms.
Winchester. To that extent, this criterion has not been met in this case.
[30]
The standard of review of the application
judges ruling is not disputed. A ruling on the admissibility of hearsay evidence
is a question of law reviewable for correctness, but factual findings that go
into that determination attract deference:
Youvarajah
, at para. 31;
R.
v. Couture
, 2007 SCC 28,
[2007] 2 S.C.R. 517
, at
para. 81;
R. v. S.S.
, 2008 ONCA 140, 233 O.A.C.
342, at paras. 29-30;
and
Hill, Tanovich & Strezos, at para. 37:100.
No deference is owed if the lower court materially misapprehended evidence
that is
central to the ultimate assessment of
the admissibility of the hearsay statement:
R. v. Dupe
, 2016 ONCA 653,
340 C.C.C. (3d) 508, at para. 50.
[31]
Here, I conclude that the application judge
materially misapprehended evidence
that was
crucial
to deciding whether to admit the hearsay as a declaration against penal
interest. He concluded that Mr. Young should not have apprehended a
vulnerability to penal consequences because he must have had confidence in the
fact that his statement to Ms. Winchester
would remain confidential
given his caution to her that she should not tell [the appellant] about what he
had said to her (emphasis added). But this finding ignores a critical sentence
in Ms. Winchesters affidavit, in which she stated that her father
specifically begged me not to tell [the appellant]
yet
and promised he
would attend Court for her and
let the Court know what he had done
(emphasis added). Thus, Mr. Young did not ask his daughter not to tell the
appellant what he had done; he asked her not to tell her
yet
. It was a
request to delay telling, not a request to never tell.
More
importantly
, the delay was to allow Mr. Young to confess his crime in
court.
[32]
This crucial part of Mr. Youngs statement which
the application judge did not address in his reasons materially changed
the nature of
the statement from one in which the
declarant had an expectation it would be kept confidential, and thus would not have
exposed him to penal consequences, to one in which the declarant only asked the
recipient to delay telling the appellant and promised to publicly confess his crime
in court. Had Mr. Young reneged on his promise, the obvious inference is that he
understood that Ms. Winchester would come forward, which indeed she did when he
died. Thus, when Mr. Youngs complete statement is considered, Mr. Young
certainly should have apprehended a vulnerability to penal consequences by
making his statement to
Ms. Winchester.
[33]
Nor was Mr. Youngs vulnerability to penal
consequences remote. Mr. Young promised to come to court to confess his crime.
This was not a vague promise to say something at some indeterminate time. The
appellant had been arrested and charged. The legal process had begun. His time
to confess would come soon.
[34]
Finally, that Mr. Youngs statement was
allegedly made to his adult daughter, albeit one with whom he had a difficult relationship,
does not detract from these conclusions. Even though Mr. Youngs statement was
to his daughter, his qualification as to timing combined with his promise to confess
in court showed that he appreciated his vulnerability to penal consequences was
real and not remote.
[35]
I conclude that the application judge materially
misapprehended the evidence relevant to criteria (i) and (ii) of
Tash
and erred in excluding the hearsay statement.
[36]
The respondent did not seek modification of the
declaration against penal interest exception or argue
that
this was a rare case where evidence falling within an existing
exception should be excluded because the indicia of necessity and reliability
are lacking in
the particular circumstances of this
case: see
Khelawon
, at para. 42;
Mapara
, at para. 15. A finding
that the evidence in this case falls within the declaration against penal
interest exception to hearsay is thus conclusive as to its admissibility, without
resort to the principled approach:
Khelawon
, at para. 60;
Mapara
,
at para. 34; and
R. v. Carty
, 2017 ONCA 770, 356 C.C.C. (3d) 309, at
para. 10.
[37]
It is also unnecessary to address the
appellants other arguments that the application judge erred by not applying a
relaxed standard to the admissibility of defence evidence or in instructing the
jury on wilful blindness as a pathway to a guilty verdict.
(c)
Conclusion
[38]
The hearsay statement was admissible under the declaration
against penal interest exception to the hearsay rule. Its exclusion impaired
the appellants right to make full answer and defence to the criminal charge
against her and led to a miscarriage of justice. I would allow the appeal on
this basis alone.
D.
Disposition
[39]
I would allow the appeal, quash the conviction, and
order a new trial.
M.
Jamal J.A.
I
agree. R.G. Juriansz J.A.
Coroza J.A. (concurring):
A.
OVERVIEW
[40]
The appellant raises the following three grounds
of appeal:
I.
Did the application judge err in concluding that
Orville Youngs statement was not a declaration against penal interest?
II.
Did the application judge err in concluding that
Mr. Youngs statement was not admissible pursuant to the principled exception
to the rule against hearsay?
III.
Did the trial judge err in leaving wilful
blindness as a route to a guilty verdict?
[41]
I have had the advantage of reviewing Jamal
J.A.s reasons. I agree with his proposed disposition of the appeal, albeit on
different grounds. My colleague would allow the appeal and order a new trial on
the first issue. While I agree that Mr. Youngs statement should have been
admitted at trial, in my respectful view, the statement was not admissible as a
declaration against penal interest.
[42]
Instead, I conclude that the application judge
erred by refusing to admit the statement pursuant to the principled exception
to the rule against hearsay. The application judges ruling discloses a
material misapprehension of the evidence. He also failed to consider the
appellants argument that the application judge should apply a relaxed standard
to the admissibility of the hearsay evidence, to avoid a miscarriage of justice
or to ensure a fair trial.
[43]
In light of the proposed disposition of the
appeal, I agree with my colleague that it is unnecessary to address the
appellants third argument.
B.
ANALYSIS
(1)
Did the Application Judge Err in Concluding that
Mr. Youngs Statement Was Not a Declaration Against Penal Interest?
(i)
Background
[44]
My colleague has thoroughly reviewed the factual
background, the principles applicable to admitting hearsay, and the criteria
for the declaration against penal interest exception to the hearsay rule
discussed by this court in
R. v. Tash
,
2013
ONCA 380
, 306 O.A.C. 173. I need not repeat that discussion. There is no
dispute that the application judge correctly outlined the applicable principles
in his ruling.
[45]
The focus of the parties arguments before the
application judge was on whether Mr. Youngs statement met the first two
criteria set out in
Tash
, at para. 88. For ease of reference, I
repeat the first two criteria for the declaration against penal interest
exception to the hearsay rule:
I.
The declaration must be made to such a person
and in such circumstances that the declarant should have apprehended a
vulnerability to penal consequences as a result; and
II.
The vulnerability to penal consequences must not
be remote.
[46]
The assumption underlying this exception is that
people do not readily make statements that admit acts contrary to their
interests, unless those statements are true. It is also essential that the
statement should be to the declarants immediate prejudice; that is, the
declarant must realize, at the time the statement is made, that it may be used
against them:
R. v. OBrien
, [1978] 1 S.C.R. 591, at pp. 599, 601;
R.
v. Kimberley
(2001), 157 C.C.C. (3d) 129 (Ont. C.A.), at para. 68, leave
to appeal refused, [2002] S.C.C.A. No. 29;
R. v. Underwood
, 2002 ABCA
310, 170 C.C.C. (3d) 500, at para. 42. As counsel for the appellant aptly put
it during her submissions before the application judge:
Its [Mr. Youngs] apprehended fear of what
Ms. [Toni] Winchester could do.
And that happens the moment he tells the information
to Ms. Winchester
. Its not something that, it doesnt, its irrelevant to
whether or not what he intends to do at some later date. [Emphasis added.]
[47]
Jamal J.A. finds that the application judge
materially misapprehended evidence because he ignored a critical sentence in
Ms. Winchesters affidavit. In this sentence, Ms. Winchester stated that Mr.
Young had specifically begged me not to tell [the appellant] yet and promised
he would attend Court for her and let the Court know what he had done. He
concludes that Mr. Young did not make a request to Ms. Winchester to never
disclose that he was responsible for the drugs, but only to delay disclosure.
According to my colleague, the crucial part of the statement not to tell [the
appellant] yet materially changed the nature of the statement from one in
which Mr. Young expected it would be kept confidential to one that only
directed Ms. Winchester to delay telling the appellant until he could publicly
confess his crime in court. He reasons that the obvious inference is that Mr.
Young understood, were he to renege on his promise to confess, that
Ms. Winchester would come forward with the information Mr. Young allegedly
told her.
[48]
I agree that the application judge did not
address Mr. Youngs specific request to delay telling the appellant. However, I
do not agree that this is a material misapprehension of the evidence permitting
this court to interfere with the application judges finding that, at the time
he made the statement, Mr. Young must have had confidence that his statement to
Ms. Winchester would remain confidential given his caution to her that she
should not tell the appellant. The application judges finding appropriately
turned on his assessment of the relationship between Mr. Young and Ms. Winchester.
Furthermore, the evidence led on the application about the nature of Mr.
Youngs concern supported the application judges conclusion that any
apprehension of penal consequences was remote.
(ii)
The Relationship Between Mr. Young and Ms.
Winchester
[49]
In his ruling, the application judge quite
properly focused on the relationship between Mr. Young and Ms. Winchester. Mr.
Young was not disclosing what he had done to a complete stranger. This was a
family member. Their relationship had to be considered. The application judge
held:
Mr. Young made a statement to his daughter
whom had a very difficult relationship with him growing up.
However, he
lived with her from July 2015 to November 2015 before having a falling out due
to his continued drug use
. Mr. Young must have had confidence in the fact
that this statement to Ms. Winchester would remain confidential, [given] his
caution to her that she should not tell [the appellant] about what he said to
her. [Emphasis added.]
[50]
I read this as the application judge holding
that Mr. Young did not apprehend any real vulnerability to penal consequences
because he was telling his own daughter to keep what he had told her
confidential. The application judge recognized that they had a difficult
relationship. But in the passage cited above, the application judge also
observed that they were not completely estranged. It is worth noting that Ms.
Winchesters affidavit referred to the fact that Mr. Young contacted her, and
that she appeared to know how to contact him.
[51]
In these circumstances, it was open for the
application judge to conclude that Mr. Young did not apprehend or believe that
Ms. Winchester would act on his confession by going to the authorities at the
time he made the statement. In other words, the core of the application judges
reasoning is that the combination of the relationship between Mr. Young and Ms.
Winchester and his direction to her to remain silent revealed that Mr. Young
did not really apprehend a vulnerability to penal consequences.
(iii)
The Nature of Mr. Youngs Concern
[52]
Nor do I agree with my colleague that the
obvious inference is that Mr. Young understood, were he to renege on his
promise to come to court and confess, that Ms. Winchester would come forward to
the authorities and expose him to prosecution.
[53]
Ms. Winchesters affidavit stated that on the
date that the appellant was scheduled to arrive from Jamaica, Mr. Young
repeatedly called Ms. Winchester to find out if the appellant had contacted
her. Ms. Winchester found this behaviour odd, since Mr. Young typically had no
interest in her or the appellants whereabouts. Ms. Winchester then tried to
contact the appellant. She was unsuccessful.
[54]
However, several days after the appellant had
arrived in Canada, Ms. Winchester found out that the appellant had been
arrested for importing drugs. She confronted Mr. Young. According to Ms.
Winchester, Mr. Young told her that he feared for his safety because his drug
dealer had forced him to assist with importing the large quantity of drugs to
Canada from Jamaica to repay a debt.
[55]
The overall tenor of Mr. Youngs statement is
that he was fearful of the drug dealer. An obvious inference from this is that
he was afraid because he had been forced to bring drugs into Canada and the
scheme had failed. It is in this context that Ms. Winchester stated in her
affidavit that Mr. Young specifically begged her not to tell the appellant yet
and promised he would attend court for her. As she put it:
He told me that he was concerned for his
own safety
. I did not tell [the appellant] anything
about this conversation at the time. I was afraid that if I were to tell her,
it
might cause danger to my dad
, or [the appellant]. [Emphasis added.]
[56]
I do not agree with my colleague that we can
infer that Mr. Young understood Ms. Winchester would go to the authorities were
he to renege on his promise to go to court. In my view, the affidavit discloses
that Mr. Young wished to keep his statement confidential until he could
disclose it in a manner that was acceptable to him, given his concerns. Ms. Winchesters
affidavit reveals that Mr. Young was afraid for his safety and Ms. Winchester
did not tell the appellant because she was afraid for both her father and
half-sister.
[57]
There was also no evidence led on the
admissibility
voir dire
that, had the appellant been told what her
father had disclosed, she would have gone to the authorities and exposed the
declarant to prosecution. Accordingly, I do not accept that the application
judge erred in finding that, in the circumstances, the vulnerability to penal
consequences was remote.
[58]
In conclusion, the suggestion that the
application judge materially misapprehended the evidence and that Ms.
Winchester would obviously go forward to the police if Mr. Young did not follow
through on his promise is not borne out by the evidence on the application. The
application judge did not err in finding that Mr. Youngs statement did not
meet the criteria set out in
Tash
. Therefore, I would not give
effect to this ground of appeal.
(2)
Did the Application Judge Err in Concluding that
Mr. Youngs Statement Was Not Admissible Pursuant to the Principled Exception
to the Hearsay Rule?
(i)
Background
[59]
The appellant advanced an alternative argument
before the application judge and repeats that argument before this court. She
contends that if Mr. Youngs statement did not fit the criteria for a
declaration against penal interest, then it was nevertheless admissible under
the principled approach to hearsay. Further, she argues that where hearsay
evidence is tendered by an accused, the court has the discretion to take a more
relaxed view of the prerequisites to admissibility.
[60]
Under the principled approach, Mr. Youngs
statement could have been exceptionally admitted into evidence if the appellant
had demonstrated that the twin criteria of necessity and threshold reliability
were met on a balance of probabilities:
R. v. Bradshaw
, 2017 SCC 35,
[2017] 1 S.C.R. 865, at para. 23;
R. v. Khelawon
, 2006 SCC
57, [2006] 2 S.C.R. 787, at para. 47.
[61]
In this case, the necessity for Mr. Youngs statement
was established by his death from a drug overdose and his resulting
unavailability for trial. The Crown did not challenge this evidence and the
parties therefore focused their arguments before the application judge on
whether threshold reliability had been met.
[62]
Threshold reliability is established when the
hearsay statement is sufficiently reliable to overcome the dangers arising from
the difficulty of testing it:
Khelawon
, at para. 49. In assessing
threshold reliability, the trial judge must identify the specific hearsay
dangers presented by the statement and consider any means of overcoming them:
Bradshaw
,
at para. 26. The hearsay dangers can be overcome and threshold reliability can
be established by demonstrating that (i) there are adequate substitutes for
testing truth and accuracy (procedural reliability) or (ii) there are
sufficient circumstantial or evidentiary guarantees that the statement is
inherently trustworthy (substantive reliability):
Bradshaw
, at para.
27.
[63]
The application judge identified the primary
hearsay danger as flowing from the fact that the truthfulness of Mr. Youngs
statement could not be tested. The statement was not written or recorded and
there were no persons present at the time the statement was made other than Ms.
Winchester. Obviously, the Crown could not cross-examine Mr. Young before the
trier of fact.
[64]
However, as mentioned above, threshold
reliability may also be established by demonstrating substantive reliability,
meaning that the statement has sufficient circumstantial guarantees of
reliability or an inherent trustworthiness. To determine inherent
trustworthiness, a court can consider the circumstances in which the statement
was made and evidence that corroborates or conflicts with the statement:
Bradshaw
,
at para. 30. The standard for substantive reliability is high, but absolute
certainty about the reliability of the statement is not required:
Bradshaw
,
at para. 31. If the statement is admitted, it remains for the trier of fact to
assess the ultimate reliability of the statement; that is, to determine
whether, and to what degree, the statement should be believed, and thus relied
on to decide issues in the case:
Bradshaw
, at para. 39.
[65]
There is also strong authority to support the
appellants argument that, where hearsay evidence is tendered by an accused, a
court should take a more relaxed view of the prerequisites to admissibility
where it is necessary to do so in order to prevent a miscarriage of justice:
Tash
,
at para. 89. This court in
R. v. Caesar
, 2016 ONCA 599, 339
C.C.C. (3d) 354 reviewed the authorities and cited the earlier decision of this
court in
R. v. Williams
(1985), 18 C.C.C. (3d) 356 (Ont. C.A.), at p.
378, leave to appeal refused, [1985] S.C.C.A. No. 168, where Martin J.A.
stated:
It seems to me that a court has a residual
discretion to relax in favour of the accused a strict rule of evidence where it
is necessary to prevent a miscarriage of justice and where the danger against
which an exclusionary rule aims to safeguard does not exist.
[66]
Blair J.A., writing for this court in
Caesar
,
then summarized the authorities in the following way, at paras. 70-71:
What I draw from these authorities is that if
the defence can point to evidence even hearsay evidence that is logically
relevant to an allowable defence, and a case can be made for adopting the
Williams
approach, the defence will be entitled to lead that evidence unless the
prejudicial effect of the evidence substantially outweighs its probative value.
Not all relevant evidence is admissible, however,
and hearsay evidence is presumptively inadmissible. Inadmissible hearsay does
not become admissible hearsay simply because it is proffered by the defence in
support of its right to make full answer and defence and because an accused is
entitled to the presumption of innocence, in my opinion. The evidence must
either fall within one of the recognized exceptions to the hearsay rule or pass
the test of the necessity/reliability analysis under the principled exception,
taking
into account the foregoing reservation regarding the exceptional circumstance
where there is some evidence of reliability, in particular, and where rigid
adherence to the strict rules of evidence would hinder a fair trial or lead to
a miscarriage of justice
. If the evidence meets one of these tests, and it
is logically relevant to a tenable defence, and its prejudicial effect does not
substantially outweigh its probative value, it is admissible. [Emphasis added.]
[67]
The question of whether Mr. Youngs statement
ought to have been admitted is a question of law. A ruling on the admissibility
of hearsay evidence, if informed by correct principles of law, is owed
deference by this court:
R. v. Blackman
, 2008 SCC 37, [2008] 2 S.C.R.
298, at para. 36. However, deference ends if the application judge materially
misapprehended evidence that is central to his ultimate assessment of the
reliability of the hearsay statement:
R. v. Dupe
, 2016 ONCA 653, 340
C.C.C. (3d) 508, at para. 50.
(ii)
The Statement Was Admissible Under a Relaxed
Application of the Principled Approach to Hearsay
[68]
In his ruling, the application judge found that
threshold reliability had not been met because, in part, there was nothing
about the circumstances in which the statement was made that attested to its
reliability.
[69]
As I read his reasons, the application judge
found that it was unknown whether or not Mr. Young had a motive to lie. The
application judge reasoned that the evidence shedding light on Mr. Youngs
motive was ambiguous and the circumstances in which the statement was made did
not negate the possibility that he was untruthful or mistaken.
If Mr. Young wanted to come to the appellants assistance,
there would have been no reason to tell Ms. Winchester to keep his confession
from the appellant. Furthermore, he personally could have chosen to contact the
authorities about his involvement in the offence with which the appellant was
charged.
[70]
The application judge also held that Mr. Young
had a history of dishonesty, as disclosed by his lengthy criminal record, and that
this was a factor to be considered in assessing the reliability of the
statement.
[71]
Finally, the application judge held that there
did not appear to be any confirmatory evidence of what Mr. Young allegedly told
Ms. Winchester, other than the fact that he reportedly made the comments on the
date of the appellants arrest.
[72]
In my view, the application judges ruling
discloses a material misapprehension of the evidence led at the pretrial
application and is therefore not entitled to the customary deference otherwise
afforded to rulings of this nature. The application judge misapprehended the
evidence about the context in which Mr. Young made the statement which,
contrary to the application judges conclusions, tended to support the
reliability of the statement. Given that this context offers some indicia of
reliability, and bearing in mind the fact that this evidence was a crucial part
of the appellants defence, the statement was admissible under the relaxed
approach to admissibility outlined in
Caesar
.
[73]
To be clear, Ms. Winchesters evidence was not,
as the application judge held, simply that Mr. Young had made comments on the
date that the appellant had been arrested. Rather, her affidavit disclosed that
Mr. Young made his statement after he had initiated contact with Ms. Winchester
by repeatedly asking her if she had heard from the appellant on the date that
the appellant was due to arrive. Ms. Winchester stated that it was several days
after the appellant had returned from Jamaica that she became aware that the
appellant had been arrested. Ms. Winchester then confronted Mr. Young and asked
him to tell her the real deal about why he kept asking about the appellant.
As I have set out above, Mr. Youngs response to Ms. Winchester demonstrated
concern and fear of his drug dealer. His proposal was to control the disclosure
of this information.
[74]
In my view, the fact that Mr. Young made the
statement immediately after Ms. Winchester confronted him with the appellants
arrest for importing cocaine; that it was Mr. Young who initiated first contact
and acted in a suspicious manner when the appellant was initially due to arrive
to Canada; and that Mr. Young was fearful of his drug dealer and begged Ms.
Winchester not to tell the appellant so that he could control the disclosure of
this information were all circumstances that supported the substantive
reliability of the statement.
[75]
The application judges misapprehension of the
evidence regarding the context in which Mr. Young made his statement also
infected his conclusion that Mr. Youngs motive was ambiguous. Ms. Winchester
stated that Mr. Young was fearful and concerned for his own safety. These
circumstances support the inference that Mr. Youngs motive to keep this
information confidential until he could reveal the scheme at the appellants
trial, was to protect both himself and the appellant from his drug dealer. I
therefore disagree with the application judge that Mr. Young may have been
lying given the alleged inconsistency between his expressed desire to help and his
request that Ms. Winchester not yet disclose this information to the appellant.
[76]
As I have explained, and contrary to the
application judges conclusions, the statement bore some indicia of
reliability. I acknowledge that, given the high standard for threshold
reliability described in
Bradshaw
, the statement would not be
admissible on a strict application of the rules. However, the application judge
also failed to address the appellants submission that he should relax the
assessment of threshold reliability, since the evidence of Mr. Youngs
statement was crucial to the only issue that was going to be litigated at
trial: the appellants knowledge. I conclude that this was a case where a
strict adherence to the rules of threshold reliability was not warranted.
[77]
This evidence was central to the defence. As my
colleague points out, at trial, the appellant was permitted to lead evidence of
Mr. Youngs propensity to commit the offence as a third-party suspect. For
example, his lengthy criminal record was admitted into evidence. It contained
entries for drug possession and trafficking. The jury was also told that he
died from a cocaine and fentanyl overdose before trial. Finally, the trial
judge explained to the jury in her charge that, if there was evidence demonstrating
that Mr. Young organized a scheme for the appellant to unknowingly commit the
offence, then that evidence, taken together with the rest of the evidence, may
leave them with a reasonable doubt about whether the appellant had the
knowledge required to convict her.
[78]
It seems to me that there is a substantial
disconnect between the application judges ruling rendering Mr. Youngs
statement to Ms. Winchester inadmissible and the fact that the appellant was
subsequently permitted by the trial judge to point to Mr. Young as a viable
third-party suspect. In my view, it was manifestly unfair to the appellant that
she was prevented from introducing the most crucial piece of evidence to
support her defence. Ms. Winchester was available to be cross‑examined
before the jury. The jury could decide whether or not to accept
Ms. Winchesters evidence that Mr. Young had made the statement after
being confronted by her, in the circumstances described in her affidavit, as
well as whether or not to believe the statement and rely on it to decide the
issue of the appellants knowledge. The probative value of Mr. Youngs
statement outweighed any prejudice to the Crown in adducing it, in light of the
viable third-party suspect defence advanced at trial.
[79]
In fairness to the application judge, the
third-party suspect application was brought later in the trial, after he had
already given his evidentiary ruling. He had not been asked to rule on the
third-party suspect application by the time of his evidentiary ruling. However,
had that successful application been brought before the application judge, it
likely would have been an important consideration in the analysis.
[80]
I would give effect to this ground of appeal.
Rigid adherence to the strict rules of evidence in this case led to an unfair
trial. The statement was admissible under the relaxed approach to the
principled exception to the hearsay rule outlined in
Caesar
.
(3)
Did the Trial Judge Err in Leaving Wilful
Blindness as a Route to a Guilty Verdict?
[81]
It is unnecessary to deal with this ground of
appeal.
C.
DISPOSITION
[82]
I agree with Jamal J.A.s proposed disposition
of this appeal. I would allow the appeal and order a new trial.
Released: July 26, 2021 R.G.J.
S.
Coroza J.A.
[1]
Outside
the presence of the jury, appellants trial counsel objected to this line of
questioning as suggesting that poverty in other words is tantamount to motive
to commit an offence: Transcript, October 12, 2018, at p. 145. The trial judge
stated that this was for the jury to decide: Transcript, October 12, 2018, at
p. 146. Because this line of questioning was not raised as a ground of
appeal, I will not address it further.
|
COUR DAPPEL DE LONTARIO
RÉFÉRENCE : Amrane c. Abraham, 2021 ONCA 536
DATE : 20210722
DOSSIER : M52655 (C68905)
La juge Thorburn (juge saisie de
la motion)
ENTRE
Tahar Amrane
Requérant
et
Carolee Abraham
Intimée
Tahar Amrane, en personne
Nicholas Rolfe, pour lintimée
Date de laudience : le 21 juillet
2021 par visioconférence
INSCRIPTION
[1]
Le requérant, Tahar Amrane, se représente lui-même.
Il présente une requête en prorogation de délai pour réviser la décision de la
juge Benotto de cette cour. Elle a rejeté la requête en prorogation pour mettre
son appel en état.
[2]
Lappel porte sur une ordonnance rejetant sa
poursuite en vertu des règles 21 et 25 des
Règles de procédure civile
,
R.R.O. 1990, Règl. 194.
[3]
La poursuite est contre Carolee Abraham, une
employée de la ville de Toronto, pour ne pas avoir fourni des services en
français. Sa déclaration se base sur la
Charte canadienne des droits et
libertés
.
[4]
La juge de première instance avait déterminé que
la poursuite navait aucune chance de succès, et était frivole et vexatoire.
[5]
La juge Benotto a rejeté la requête en
prorogation pour mettre son appel en état parce que, entre autres, un individu
ne peut être responsable des dommages en vertu de la
Charte
: voir
Vancouver
(Ville) c. Ward
, 2010 CSC 27 [2010] 2 R.C.S. 28. De plus, même si M.
Amrane avait procédé contre la ville de Toronto, une telle poursuite contre la
ville est interdite par la
Loi de 2006 sur la cité de Toronto
, L.O.
2006, c. 11, annexe A et la
Loi de 1997 sur le programme Ontario au travail
,
L.O. 1997, c. 25, annexe A
.
La juge Benotto a donc conclu que
la
justice de laffaire exige que la prorogation soit refusée.
[6]
Le requérant soumet quil ne cherche pas des
dommages, mais daméliorer laccès aux services en français. Malheureusement,
sa déclaration ne comprend quune demande pour les dommages.
[7]
En vertu du fait que la déclaration qui était
devant la juge Benotto et qui est devant moi est contre lindividu Carolee
Abraham seul, quun individu ne peut être responsable des dommages en vertu de
la
Charte,
la justice de laffaire exigeait que la prorogation soit refusée
par la juge Benotto et la demande de délai pour réviser la décision de la juge
Benotto est donc rejetée.
J.A.
Thorburn j.c.a.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Canadian Union of Postal Workers v. Bnai Brith
Canada, 2021 ONCA 529
DATE: 20210723
DOCKET: C68030
Tulloch, Nordheimer and Jamal JJ.A.
BETWEEN
Canadian Union of Postal Workers
Plaintiff/Responding Party (Respondent)
and
Bnai
Brith Canada, Michael Mostyn, Aidan Fishman
and Ran Ukashi
Defendants/Moving Parties (Appellants)
David Elmaleh and Aaron Rosenberg, for the appellants
David Migicovsky and Karin M. Pagé, for the respondent
Heard: April 7, 2021 by video conference
On appeal from the order of Justice Calum U.C. MacLeod of
the Superior Court of Justice, dated January 16, 2020, with reasons reported at
2020 ONSC 323.
Jamal J.A.:
Introduction
[1]
The appellants, Bnai Brith Canada, Michael Mostyn, Aidan
Fishman, and Ran Ukashi, appeal from the order of the motion judge dismissing their
motion to dismiss an action in defamation brought against them by the
respondent, Canadian Union of Postal Workers (CUPW), under s. 137.1 of the
Courts
of Justice Act
, R.S.O. 1990, c. C.43. Section 137.1 seeks to mitigate the
harmful effects of strategic lawsuits against public participation (SLAPPs)
lawsuits that seek to limit freedom of expression on matters of public interest
rather than to pursue
bona fide
claims:
1704604 Ontario Ltd. v.
Pointes Protection Association
, 2020 SCC 22, 449 D.L.R. (4th) 1, at para.
2. Section 137.1 is thus known as an anti-SLAPP provision.
[2]
For the reasons that follow, I would dismiss the appeal.
Background
[3]
CUPW is a public sector union. From time to time, it takes positions on
political and human rights issues. For many years it has supported a boycott of
Israeli products, known as the Boycott, Divestment and Sanctions (BDS)
movement, based on its view that Palestinians are mistreated in the occupied
territories. CUPW also participates in capacity-building projects and
cooperates with postal worker unions in other countries, including the
Palestinian Postal Service Workers Union (PPSWU).
[4]
Bnai Brith is a charitable organization that has served as a primary
grassroots voice for the Canadian Jewish community since 1875. It regularly
participates in public debate on topics that impact the Canadian Jewish
community and the broader public. Michael Mostyn is the CEO of Bnai Brith and Aidan
Fishman and Ran Ukashi were employees of Bnai Brith and authors of press
releases about CUPW that CUPW alleged were defamatory.
[5]
The relevant events are as follows.
[6]
A union member of CUPW complained to Bnai Brith about CUPWs support
for the BDS movement, which Bnai Brith views as a propaganda campaign to
delegitimize the state of Israel. Bnai Brith then conducted research on CUPWs
activities and discovered that it had worked on a joint project with PPSWU. Bnai
Brith found a Facebook page maintained by a person in a leadership role with
PPSWU containing postings in Arabic praising individuals involved in terrorist
activity against Israel. Bnai Brith also found postings on the PPSWU page
appearing to be pro-Palestinian, which Bnai Brith interpreted as implicitly
calling for the destruction of the state of Israel.
[7]
On July 26, 2018, Bnai Brith e-mailed CUPW and asked for comment on the
PPSWU Facebook posts and advised CUPW that it intended to publish a story about
CUPWs association with PPSWU. Bnai Brith asked for a response by the next day.
CUPW did not respond. On July 31, 2018, Bnai Brith published the first of two press
releases authored by Mr. Fishman and Mr. Ukashi that became the basis of CUPWs
defamation action. The first press release, entitled Canadian Postal Workers
Align with Pro-Terrorism Palestinian Union, stated that PPSWU glorified
terrorism on its Facebook page and alleged that CUPW leadership has aligned
itself with the path of violence and extremism. The second press release, published
on August 2, 2018, stated that CUPWs radical leadership has refused to
respond to our questions on why it would partner with a terror-supporting
organization and alleged that CUPWs union dues may be used to support a
foreign organization that wants to see [CUPWs Jewish and Israeli members]
murdered.
[8]
CUPW sued the appellants for defamation, alleging that the publications claimed
that it supports terrorism and that it is anti-Semitic. CUPW also alleged that the
appellants acted maliciously. The appellants responded by filing a statement of
defence and, subsequently, bringing a motion under s. 137.1 to have the action
dismissed.
The motion judges decision
[9]
The motion judge dismissed the appellants motion. He first summarized the
statutory framework for an anti-SLAPP motion under s. 137.1 and the test for
defamation at common law. He then found:
·
Using union funds to support political causes that might support
attacks on Israel is a matter of public interest. Legitimate criticism of these
practices is protected speech under anti-SLAPP legislation.
·
CUPW has a solid case for
defamation since the published words referred to CUPW by name. The appellants
claim that CUPW is motivated by racism and is using union dues improperly to
support terrorism would easily meet the test of language tending to diminish
the reputation of [CUPW] in the minds of reasonable people.
·
There are serious flaws in the
appellants defences:
-
Defence
of truth or justification:
Interacting with the PPSWU cannot be
reasonably said to be radical when official bodies like the Government of
Canada, the European Union, and the United Nations have all sponsored projects
in Gaza and the West Bank aimed at economic, justice system, or government institution-building
and capacity-building. It would be difficult to prove that CUPW supports terrorism,
violence, or anti-Semitism or that PPSWU officially supports terrorism.
Evidence showed that the Facebook posts were not by the PPSWU but by an individual.
There is thus a reasonable and distinct possibility that [the] truth and
justification [defences] will not succeed.
-
Defence
of fair comment:
There is evidence that Bnai Brith acted on
assumptions without exercising due diligence by conducting only a cursory
internet search of Facebook pages. Bnai Brith appeared to have entirely
ignored CUPWs own policies and declarations against violence and racism and in
support of a peaceful two state solution in the middle east, which may be
fatal to any fair comment defence. Bnai Briths choice to attack CUPWs
involvement with the PPSWU and to blow [the issue] out of proportion is potential
evidence of malice.
·
The task on a s. 137.1 motion is
to screen out litigation that is targeted by the legislation, which includes litigation
of questionable merit or utility brought to stifle public debate on matters of
public interest. This is a legitimate defamation action brought in
circumstances where [CUPW] should have the right to pursue a remedy. The
appellants defences raise significant issues about truth, good faith,
responsibility and malice.
Legal Framework
[10]
Subsections
137.1(3) and (4) of the
Courts of Justice Act
provide the following test
on an anti-SLAPP motion:
(3) On motion by a person against whom a proceeding is brought,
a judge shall, subject to subsection (4), dismiss the proceeding against the
person if the person satisfies the judge that the proceeding arises from an
expression made by the person that relates to a matter of public interest.
(4) A judge shall not dismiss a proceeding under subsection (3)
if the responding party satisfies the judge that,
(a)
there are grounds to believe that,
(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the
proceeding; and
(b) the harm likely to be or have been suffered by the
responding party
as a result of
the moving
partys expression is sufficiently serious that the public interest in
permitting the proceeding to continue outweighs the public interest in
protecting that expression.
[11]
The
Supreme Court of Canadas decision in
Pointes Protection
, released
after the motion judges decision, analyzed the interpretation and application
of these provisions. At para. 18, Côté J. explained how these provisions
operate:
1.
Section 137.1 places a threshold burden on the moving party (the defendant)
to satisfy the motion judge that the proceeding arises from an expression
relating to a matter of public interest.
2.
If the moving party meets this threshold burden, the burden shifts to
the responding party (the plaintiff)
to satisfy the
motion judge
that
there are grounds to believe
that the proceeding has substantial merit and the moving party has no valid
defence
, and that the public interest in permitting the proceeding to
continue outweighs the public interest in protecting the expression. If the
responding party does not meet this burden, the s. 137.1 motion is granted and
the proceeding is dismissed.
Issues
[12]
There
is no dispute that the appellants met their threshold burden to satisfy the
motion judge that the proceeding arises from expression relating to a matter of
public interest the use of union funds to take positions on the conflict in
the Middle East or to help an organization that allegedly supports attacks on
Israel.
[13]
The appellants
assert that the motion judge erred in concluding that CUPW met its burden to
resist the dismissal of the action. They say that the motion judge erred:
1.
in law and
fact in several aspects of the s. 137.1(4)(a)(ii) analysis relating to the
appellants defences to the alleged defamation; and
2.
by failing to undertake
the balancing required under s. 137.1(4)(b).
[14]
I
will address each issue in turn.
Issue #1: Did the motion judge err in the s. 137.1(4)(a)(ii) analysis?
[15]
The
appellants assert that the motion judge erred in law and in fact in concluding that
there are grounds to believe that the appellants have no valid defence in
the proceeding under s. 137.1(4)(a)(ii).
[16]
First,
the appellants claim that the motion judge applied the wrong legal test under
s. 137.1(4)(a)(ii)
when he noted, at the start of his
reasons, that [t]he defences which have been raised by B[n]ai Brith are not
certain to be successful. The appellants acknowledge in their factum that the
motion judge articulated the test differently later in [his] reasons, but
claim that the incorrect statement of law at the outset coloured the motion
judges analysis.
[17]
I do
not accept that the motion judge erred in stating the legal test under s. 137.1(4)(a)(ii).
I do not read the motion judges statement that the appellants defences are
not certain to be successful as articulating the legal test under s. 137.1(4)(a)(ii).
Read in context, that statement merely reflected his finding that there were
grounds to believe that the defences would fail or, in other words, that there
was no valid defence. As I explain below, the motion judge articulated and
applied the correct test, consistent with the Supreme Courts articulation of
it in
Pointes Protection
. The motion judge stated that CUPW had to
satisfy him that there are grounds to believe that the appellants have no valid
defence, which he explained means that a reasonable trier of fact
could
conclude that none of the pleaded defences would succeed at trial (emphasis in
original). The motion judge emphasized that [i]t is premature to determine
such a question conclusively at this preliminary stage of the litigation, and highlighted
that [t]here need only be a basis for believing these conditions may be
satisfied. The section does not require the motion judge to conclusively
determine that the claim
will
succeed nor that the defences
will
fail (emphasis in original).
[18]
The
motion judges articulation of the test under s. 137.1(4)(a)(ii) reflects the
Supreme Courts articulation in
Pointes Protection
. Côté J. stated that
s. 137.1(4)(a) asks whether the motion judge concludes from his or her
assessment of the record that there is a basis in fact and in law
to support
a finding that the plaintiffs claim has substantial merit and that the
defendant has no valid defence to the claim: at para. 42. She explained that
the no valid defence prong requires the plaintiff CUPW to show that
there are grounds to believe that the defences have no real prospect of
success: at para. 60.
[19]
I
therefore see no basis to conclude that the motion judge erred in stating the legal
test under s. 137.1(4)(a)(ii).
[20]
Second,
the appellants assert that in applying s. 137.1(4)(a)(ii) the motion judge made
several findings unavailable to him on the record, and that he erred in evaluating
the defences of justification, fair comment, and responsible communication and
in finding that the appellants may have acted with malice.
[21]
Before
addressing the appellants specific objections, I underscore that a motion
judges determination under s. 137.1(4)(a) attracts appellate deference, absent
a reviewable error:
Pointes Protection
, at paras. 41, 97;
Bent v.
Platnick
, 2020 SCC 23, 449 D.L.R. (4th) 45, at para. 77. As I will
explain, I see no reviewable error justifying appellate intervention. It was
open to the motion judge to find what he called serious flaws in the
appellants defences and thus provide grounds to believe that none would succeed.
[22]
I
will begin with the appellants argument on the defence of justification.
[23]
Once
a plaintiff makes a
prima facie
showing of defamation, the words
complained of are presumed to be false. To succeed on the defence of
justification, the defendant must lead evidence showing that the statement was
substantially true. Even if the publication is shown to contain accurate facts,
the defence will fail when the sting of the defamation is shown to be untrue:
Platnick
, at para. 107.
[24]
Regarding
justification, the appellants say that the motion judge erred by ignoring
probative evidence on a key issue and by finding that it will be difficult to show
that PPSWU officially supports terrorism. These arguments essentially ask this
court to reweigh the evidence before the motion judge. That is not this courts
role. There was a basis in the record for the motion judge to conclude that it
may be difficult for the appellants to prove justification because their statements
rested on problematic source material. As the motion judge found, the Facebook
posts that the appellants relied on for their allegation that PPSWU supported
terrorism were made not by PPSWU but by an individual. The motion judge was
thus entitled to find that there were grounds to believe that the defence of
justification would fail.
[25]
The
appellants also say that the motion judge relied on evidence not in the record
when he noted that the Government of Canada, the European Union, and even the
state of Israel have sponsored projects in Gaza and the West Bank aimed at institution
and capacity building. The motion judge made this observation partly to support
his point that CUPW merely being involved in a project with PPSWU does not mean
that CUPW is radical or aligned with any and all activities of [PPSWU]. That
point is self-evident and unassailable even without referring to the impugned
evidence. I see no reviewable error here.
[26]
The appellants
also contend that the motion judge erred by holding, without significant
analysis, that there was evidence that may be fatal to the defences of fair
comment and responsible communication.
[27]
The following
principles are relevant in considering the defences of fair comment and
responsible communication:
·
To rely on the defence of fair comment, the comment must be based
on
true
facts. If the factual foundation is
unstated or unknown, or turns out to be false, the defence is unavailable:
WIC
Radio Ltd. v. Simpson
, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 31.
·
The responsible communication defence has two essential elements:
(1) the publication must be on a matter of public interest; and (2) the
defendant must show that the publication was responsible, in that the defendant
was diligent in trying to verify the allegations, having regard to all the
circumstances:
Grant v. Torstar Corp.
, 2009 SCC 61, [2009] 3 S.C.R.
640, at para. 98;
Armstrong v. Corus Entertainment Inc.
, 2018 ONCA
689, 143 O.R. (3d) 54, at para. 28.
[28]
I do
not accept that the motion judge erred regarding these defences.
[29]
In
concluding that there were grounds to believe that the defences of fair comment
and responsible communication would fail, the motion judge stated that [w]ithout
going into the evidence in depth, he would just hit some of the highlights.
He found:
1.
CUPW
merely being involved in a project with PPSWU cannot reasonably be said to mean
that CUPW supports all of PPSWUs activities;
2.
it would
be difficult to prove that PPSWU officially supports terrorism, especially because
there was evidence that the impugned Facebook posts were not made by it; and
3.
there was evidence
that the appellants had acted on assumptions without exercising due diligence,
based on only a cursory internet search and review of Facebook pages, and apparently
ignored CUPWs own policies and declarations against violence and racism.
[30]
Each
of the above findings is grounded in the record before the motion judge. I see no
basis for this court to intervene.
[31]
Finally,
the appellants assert that the motion judge erred in stating that malice may
undermine the appellants defences. Malice may be established by reckless
disregard for, or indifference to, the truth, spite or ill-will, or any
indirect or ulterior motive:
Hill v. Church of Scientology of Toronto
,
[1995] 2 S.C.R. 1130, at para. 145;
Platnick,
at para. 136. The
appellants state in their factum that [t]o infer that an advocacy organization
may have acted with malice by following a lead and uncovering a public interest
story is not evidence of malice.
[32]
I do
not accept that the motion judge erred. To be clear, the motion judge stated
that he was not
making a finding of malice. He merely concluded that there
was evidence before him that may support such a finding, based on the
presence of an ulterior motive or recklessness about the truth of the
underlying facts, or based on an inference from the appellants conduct. He underscored
that [t]his is not a summary judgment motion and it is not appropriate to take
a deep dive into the evidence. I see no error in the motion judges approach
or conclusion.
[33]
I thus
conclude that the motion judge had a basis in the record to find grounds to
believe that the appellants defences would fail. He was entitled to find that there
was evidence that the appellants acted on assumptions without exercising due
diligence, and that this may be fatal to their defences of responsible
communication and fair comment. He was also entitled to find that there was evidence
of malice that would undermine the appellants defences.
[34]
In reaching
this conclusion, I emphasize that the motion judge did not adjudicate these defences
on the merits or find malice. All that he decided was that CUPWs defamation
action may proceed. I see no reviewable error in that conclusion.
Issue #2: Did
the motion judge err in failing to undertake the balancing required under s.
137.1(4)(b)?
[35]
The second
issue raised by the appellants asserts that the motion judge erred in law by
failing to undertake the balancing required under s. 137.1(4)(b) to determine
whether the harm likely to have been suffered by CUPW because of the
appellants expression is sufficiently serious and the corresponding public
interest in permitting the action to continue outweighs the public interest in
protecting the appellants expression. The appellants claim that the motion
judge set out but failed to apply this balancing test, which the Supreme Court
in
Pointes Protection
described as the crux or core of the s. 137.1
analysis: at para. 82. The appellants therefore say that the appeal should be
allowed and the motion remitted to a different judge to conduct the balancing.
[36]
In
the alternative, the appellants assert that even if this court performs this
balancing
de novo
on appeal, the appeal should be allowed and CUPWs
action dismissed because the harm alleged by CUPW is not serious enough to
allow the defamation action to continue. The appellants say that CUPW has
suffered only insignificant harm, if any, from the appellants expression and
has filed no evidence of any specific, provable, quantifiable harm. The appellants
add that the record shows that their expression has been chilled, because they
have not published on the subject since being served with the statement of
claim. They claim that the expression implicated is close to the core values
underlying freedom of expression and there is therefore a greater public
interest in protecting it. Finally, the appellants allege that CUPWs lawsuit presents
several
indicia
of a SLAPP. They say that it seeks to silence the
appellants from criticizing CUPW in good faith on its partnerships with
entities in the Middle East.
[37]
Respectfully,
I do not accept the appellants submissions.
[38]
I
begin by observing that it is not disputed that the motion judge correctly set
out the balancing test under s. 137.1(4)(b). He cited this courts decision in
1704604
Ontario Ltd. v. Pointes Protection Association
, 2018 ONCA 685, 142 O.R.
(3d) 161, at para. 45, affd 2020 SCC 22, 449 D.L.R. (4th) 1, which held that a
plaintiff such as CUPW alleging to have been wronged by a defendants expression
on a matter of public interest must demonstrate that the public interest in
vindicating that claim outweighs the public interest in protecting the defendants
freedom of expression. The motion judge explained that the balancing under s. 137.1(4)(b)
asks the court to consider if the harm potentially suffered by the plaintiff
is trivial or not and if it is serious to consider whether it is in the public
interest to deny the plaintiff a remedy in the name of freedom of speech.
[39]
I am
satisfied that the motion judge applied this test. There is no doubt that the
motion judge considered the harm alleged to have been suffered by CUPW to be significant.
He cited this courts decision in
Lascaris v. Bnai Brith Canada
, 2019
ONCA 163, 144 O.R. (3d) 211, leave to appeal refused, [2019] S.C.C.A. No. 147, which
allowed a defamation action against Bnai Brith to proceed when Bnai Brith
published an article alleging that the official Justice Critic of the Green
Party of Canada had used social media to advocate on behalf of terrorists who
had murdered Israeli civilians. This court held, in
Lascaris
,
that
the balance under s. 137.1(4)(b) clearly favoured the plaintiff, because
if the action proceeded and the plaintiff were to succeed, the damages to
which the [plaintiff] would be entitled could be significant.
Accusing any
person of supporting terrorists is about as serious and damaging an allegation
as can be made in these times
: at para. 40 (emphasis added). That observation
applies equally here and no doubt led the motion judge to conclude that this
was a solid case for defamation and to highlight that [w]ords suggesting
that a union is using its membership dues improperly, supports terrorism and is
motivated by racism would easily meet the test of language tending to diminish
the reputation of the union in the minds of reasonable people. I am therefore
satisfied that the motion judge found that the harm potentially suffered by
CUPW because of the appellants alleged defamation was serious.
[40]
I am
also satisfied that the motion judge weighed the serious potential harm to CUPW
against whether, in the name of freedom of speech, it was in the public
interest to deny CUPW the ability to pursue a remedy. This weighing is
reflected in the motion judges statements that his task on the motion was to
screen out litigation that is targeted by the legislation, namely,
litigation of questionable merit or utility brought to stifle public debate on
matters of public interest. Because of the potentially injurious statements against
CUPW, the evidence that Bnai Brith acted on assumptions without exercising due
diligence and that it ignored CUPWs policies against violence and racism, the
potential for finding that Bnai Brith acted with malice, and the potential
weakness of the appellants defences, the motion judge was entitled to find that
this is a legitimate defamation action brought in circumstances where the
union should have the right to pursue a remedy.
[41]
Nor
do I see any basis to conclude that the appellants speech has
indicia
of a SLAPP sufficient to materially affect the outcome of the weighing
exercise. CUPW was
prima facie
entitled to sue the individual
employees given that the evidence shows that each had direct involvement in the
authorship and publication of the allegedly defamatory statements: see
Hill
,
at para. 176. The action also did not have a chilling effect on the appellants
speech because Bnai Brith did not remove the impugned press releases from its
website after it was sued and there is evidence that Mr. Mostyn wrote an article
about CUPW after the appellants were served with the Notice of Libel.
[42]
In
conclusion, as the motion judge held, CUPWs action does not appear to [be]
the type of action the legislature contemplated should be stopped in its tracks
at this preliminary stage. The motion judge correctly stated the test and appropriately
weighed the relevant considerations. His conclusion therefore attracts
appellate deference.
Disposition
[43]
I
would dismiss the appeal, with costs to CUPW in the agreed amount of $15,000 all
inclusive.
Released: July 23, 2021 M.T.
M. Jamal J.A.
I agree. M. Tulloch
J.A.
I agree. 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 complainants 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. Gibson, 2021 ONCA 530
DATE: 20210723
DOCKET: C60448
Fairburn A.C.J.O., Watt and Huscroft JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Paul Gibson
Appellant
Brian Snell, for the appellant
Megan Petrie, for the respondent
Heard: November 3, 2020 by video conference
On appeal from the convictions
entered by Justice Michael Code of the Superior Court of Justice on February
13, 2012, and from the sentence imposed on February 1, 2013.
Watt J.A.:
[1]
The appellant, Paul Gibson, volunteered at a food bank. There he
met and befriended J.C. He learned that J.C. was a grandmother. Her
grandchildren were both boys, then seven and four years old.
[2]
Over time, the appellant became part of the boys lives. He often saw
the boys. He took them on outings. He babysat them. He bought them gifts. He
slept over at their grandmothers house and at the older boys home.
[3]
Late the following year, police arrested the appellant on six counts of
sexual offences involving both boys.
[4]
After a trial before a judge of the Superior Court of Justice, the
appellant was found guilty of sexual assault of one of the boys, R.K., and of
sexual assault causing bodily harm of the other, A.C. The Crown was successful
in having the appellant declared a dangerous offender. The trial judge imposed
a sentence of detention for an indeterminate period.
[5]
The appellant appeals his convictions of the predicate offences, the
decision declaring him a dangerous offender and the indeterminate sentence
imposed on him.
[6]
These reasons explain why I would dismiss the appeals.
The Background Facts
[7]
The indictment alleged four offences against R.K., counts of sexual
assault and sexual assault causing bodily harm and two counts of sexual
interference. Each pair of counts was alleged to have occurred over a specific
period of months, with some overlap between the periods.
[8]
The indictment also included two counts alleging offences of sexual
assault causing bodily harm and sexual interference against A.C. These counts
were also duplicative and related to the same period of time as those charged
in respect of R.K.
[9]
The trial judge found the appellant guilty on all counts. He entered
convictions of sexual assault on the count charging sexual assault causing
bodily harm against R.K. and a conviction of sexual assault causing bodily harm
on the count charging that offence against A.C. The judge entered stays of his
findings on the remaining counts as duplicative or in accordance with the rule
against multiple convictions (see
Kienapple v.
The Queen,
[1975]
1 S.C.R. 729).
The Principals and their Relationship
[10]
During
the relevant time, the appellant was a 33-year-old single man who lived in
Parkdale and worked at a printing business in Scarborough. He volunteered at a
food bank near where he lived.
[11]
J.C.
was a grandmother who visited the food bank at which the appellant volunteered.
She lived in a small apartment nearby, a few minutes away from where the
appellant lived.
[12]
S.C.
and N.C. were J.C.s daughters. R.K. lived with his mother, S.C. Their house
was about 40 minutes away from J.C.s apartment. A.C. lived with his mother,
N.C., in a small town to the east of Toronto.
[13]
Towards
the end of 2008, the appellant met J.C. at the food bank. They became friends.
Over the ensuing months, the appellant became closer to J.C. and her family.
The following summer, J.C. was spending time with her two grandsons nearly
every day. The appellant would see the boys two or three times a week. He took
them on excursions. Swimming. Bowling. The movies. Sometimes with J.C., other
times not. The appellant also babysat the boys at J.C.s apartment and at
R.K.s home. Sometimes, other adults would be present, other times, the
appellant would be alone with the boys. He usually brought candy or trinkets.
From time to time, the appellant spent the night at J.C.s apartment or R.K.s
home. He referred to R.K. as my son.
The Summer Months and Centre Island
[14]
One
day in the summer of 2009, J.C. mentioned to the appellant that she was taking R.K.
to Centre Island. The appellant asked whether he could join them with his
niece. On the day of the trip, the appellant appeared. His niece was not with
him. The appellant said his niece had other commitments. He accompanied J.C.
and R.K. to Centre Island. The appellant went on rides with R.K.
[15]
J.C.,
the appellant and R.K. returned to Centre Island a week later. The appellant
accompanied R.K. on several rides, including a number of trips on R.K.s
favourite ride, the Haunted House. On the Haunted House ride, a car travels
through the dark. R.K. testified that during this ride the appellant touched
R.K.s penis and placed R.K.s hand on the appellants penis.
[16]
J.C.
decided to get some ice cream at a concession. R.K. told his grandmother that
he needed to go to the bathroom. J.C. told him to wait until she got the ice
cream. When she came out of the ice cream stand, she did not see R.K. or the
appellant. The ice cream began melting in the cones. She then noticed R.K. and
the appellant coming from the washroom area. When J.C. asked her grandson where
he had been, R.K. responded that he had to go to the bathroom very bad and
could not wait.
[17]
Several
times over the summer, J.C. saw the appellant at her apartment and at S.C.s
house as she babysat either or both of her grandchildren. A.C. and his mother
spent much of the summer at S.C.s house. The appellant was often there. He
slept at both J.C.s apartment and S.C.s house while J.C. babysat her
grandsons.
[18]
From
time to time, J.C. left her grandsons alone with the appellant when she did
various errands. The appellant brought small gifts for the boys and took them
on outings to the movies and bowling without their grandmother.
[19]
On
the Labour Day weekend, the appellant joined the family at a rented cabin in a
campground. He swam and played mini-golf with the boys. The appellant slept
alone on a pull-out couch in the living room. One morning, A.C. was found with
the appellant on the same couch.
The Fall Months
[20]
The
appellant saw the family less frequently once the boys returned to school. He
saw them on Thanksgiving, on Halloween and at R.K.s birthday party in early
November.
[21]
Early
in the fall, R.K. complained to his mother that his bum was hurting and that
it hurt when he had to go to the bathroom. S.C. saw a rash around her sons
anus. When ointment was applied, the rash disappeared, only to reappear later.
It disappeared completely after November.
[22]
On
one occasion, the appellant and R.K. were wrestling in the living room at
R.K.s house. J.C. told them to settle down. R.K. ran at the appellant, kicked
him very hard between the legs and swore at the appellant. R.K. said, you
stupid asshole and you ugly asshole. When pressed for an explanation, R.K.
told his grandmother, Im mad.
[23]
Before
R.K.s birthday in early November, his mother, S.C., noticed a change in her
sons behaviour. He became distant and withdrawn. He was angry, fought and
talked back. His grades declined. He wet the bed and had nightmares.
[24]
The
family had a birthday party for R.K. in November. The appellant brought a
banner he had made for the occasion at the print shop where he worked. S.C.
noticed the appellant hug R.K. She thought the hug was too close and told the
appellant to stop.
The First Complaint
[25]
When
N.C. came to pick up her son the day after the birthday party for R.K., she
noticed blood in A.C.s stool. When they returned home, N.C. put A.C. in the
bathtub. He screamed hysterically. [M]y bum hurts, its itchy mummy, its
scratchy mummy. She asked what had happened. A.C. responded, Paul Number Two
put his pee pee in my bum. After composing herself, she looked at her sons
anus and saw rips and tears and redness, and she applied some appointment.
Paul Number Two was the name both boys used for the appellant.
The Second Complaint
[26]
Later
the same evening, N.C. called her sister, S.C. She explained what A.C. had said
and suggested that S.C. speak to R.K. S.C. asked R.K. whether Paul Number Two
had touched him in any way. She then told R.K. what A.C. had told his mother.
R.K. said, Mum he did it to me too, put his head down and looked away from
his mother. S.C. was shocked. She may have asked a few more questions but did
not want to discuss it further with her son.
The Evidence of R.K.
[27]
R.K.
was a ten-year-old grade five student when he testified from outside the
courtroom at trial. His video statement was admitted and marked as an exhibit.
He described Paul Number Two as having orange hair, freckles and crooked
eyes, which appeared as if they were not looking at you. (The appellant is
somewhat cross-eyed.)
[28]
R.K.
recalled that on a trip to Centre Island, Paul Number Two put his hands in
R.K.s pants, then around his pee pee as they rode together on the Haunted
House. This happened twice. Paul Number Two then took R.K.s hand and put it
in his pants beside his pee pee and on it.
[29]
After
the rides, R.K. went with Paul Number Two to the washroom. It was a
wheelchair washroom beside the public washroom. No one else was inside. The
door could be locked from the inside. Paul Number Two took R.K. to the sink,
stood behind him, pulled R.K.s pants down and put his pee pee in R.K.s
bum. While doing this, Paul Number Two said nothing. At some point, either
in the washroom or on the Haunted House ride, Paul Number Two told R.K.
that he would kill R.K.s mother if R.K. told anyone what had happened. On two
subsequent occasions when no one else was home, at J.C.s apartment and R.K.s
home, Paul Number Two pulled R.K.s pants down, got on top of him and put
his pee pee in my bum.
[30]
At
trial, R.K., unprompted, testified that Paul Number Two pulled down his
(R.K.s) pants and put his tongue on his (R.K.s) pee pee, then put his whole
mouth on R.K.s pee pee. This happened two or three times a day when they
were alone at J.C.s apartment or R.K.s house.
[31]
R.K.
acknowledged that at trial he said things that he had not said before about
what Paul Number Two had done to him. He explained that he did not feel so
shy anymore after watching his video and having his evidence at the preliminary
inquiry read to him. He also remembered incidents at the movies (Paul Number
Two put his hands down R.K.s pants) and in the washroom at a bowling alley
(Paul Number Two did it).
The Evidence of A.C.
[32]
A.C.
gave evidence outside the courtroom after promising to tell the truth. When he
testified, he was six years old and in grade one. His police interview was
admitted under s. 715.1 of the
Criminal Code
, R.S.C. 1985, c. C-46
.
[33]
In
his police interview, A.C. said that somebody hurted him by putting his pee pee
in A.C.s bum. This happened more than one time
like one hundred in R.K.s
bedroom at his house. A.C. explained that every time he moved, Paul Number
Two would start all over again.
The Appellants Explanation
[34]
In a
video-recorded interview after his arrest, the appellant acknowledged having
met J.C. when she was a customer at the food bank where he worked as a
volunteer. He met both J.C.s daughters and her grandsons and went to various
activities with the boys, sometimes with J.C., but others only with R.K. or
both boys. On some nights, he was alone with R.K. He denied seeing the boys
between Christmas 2008 and school break in the following summer. He was lonely
and never had kids in his life. He came to care about the boys, especially R.K.
[35]
The
appellant testified at trial. He admitted a Youth Court record consisting of
convictions for several counts of sexual offences. At the time of the offences
charged, he worked part-time at a printing company and volunteered at the food
bank where he met J.C. He acknowledged that he went to Centre Island once with
J.C. and her two grandsons. As a self-described ride fanatic, he went on
rides with both boys. He rode the Haunted House with R.K. several times. They
sat together. The appellant denied putting his hands down R.K.s pants on the
ride, taking him to the washroom or threatening him. He was never at Centre
Island with only J.C. and R.K. There was no ice cream shop on the island. The
familys policy about washroom visits was that either J.C. or S.C. would take
R.K. to the womens washroom.
[36]
The
appellant admitted that on many occasions he would be alone with the boys when
J.C. was out doing errands. He also testified that he had taken R.K. bowling
and to the movies in the evening. When required, the appellant would escort
R.K. to the washroom, but did not enter the stall with him. During the summer
of 2009, the appellant would sometimes stay at S.C.s house on weekends. He
would spend time alone with R.K. in his bedroom, and at other times, with both
boys playing videogames. He agreed that on the camping trip at the end of the
summer, A.C. got into bed with him because he was cold. About ten minutes
later, N.C. appeared and told her son to get out of bed.
[37]
The
appellant came to regard R.K. as his son. R.K. referred to the appellant as
his dad. The appellant tried to downplay this relationship, but a very strong
bond developed between them. The appellant treated A.C. in a similar way, but
their relationship was not the same as between the appellant and R.K.
[38]
The
appellant denied any sexual impropriety with either R.K. or A.C.
The Assault
[39]
The
appellant gave evidence that he last saw R.K. and A.C. at R.K.s birthday party
in early November 2009. He was expected to get R.K. a flat-screen television
for his birthday, but he brought a smaller gift instead. The appellant was
alone with A.C. in the living room when he stayed over that night. He denied
any sexual contact with him.
[40]
According
to the appellant, S.C. invited him to her house about two weeks after the
birthday party. She wanted him to babysit while she attended a concert. He
agreed. When he arrived, S.C. and A.C.s biological father were there. A.C.s
father punched the appellant in the face and said were going to talk. A
struggle followed. S.C. stabbed the appellant in the shoulder with a knife.
A.C.s father said, [Y]ou want to fuck [A.C.]. S.C. said, [Y]ou want to fuck
the children. The appellant lost his shirt in the ensuing struggle, along with
his jacket and sweater. His lip was split. He escaped, took a taxi to the
subway and went to his employers home in Scarborough.
[41]
S.C.
denied having seen the appellant after R.K.s birthday party and having invited
him to her home to babysit.
The Medical Evidence
[42]
Physical
examinations were conducted on both A.C. and R.K. Anal fissures and redness
surrounding the anal area were visible on A.C. with some redness in R.K.s anal
area. These are non-specific findings and neither confirm nor refute the
possibility of sexual abuse.
The Appeal from Conviction
[43]
I
turn first to the appeal from conviction.
The Grounds of Appeal
[44]
The
appellant urges three grounds of appeal on his challenge to the convictions
entered at trial. He says that:
i.
the trial judge erred in failing to resolve a conflict in the evidence;
ii.
the trial judge erred in his use of circumstantial evidence; and
iii.
a miscarriage of justice occurred because trial counsel provided
ineffective assistance to the appellant in responding to the charges.
I will consider these grounds as follows.
Ground #1: Failure to Resolve a Conflict in the Evidence
[45]
A
brief reference to the evidence on which this complaint is grounded will
provide the background necessary to evaluate its merits.
The Essential Background
[46]
In
general terms, the error alleged has to do with evidence about an incident in
November 2009 involving the appellant, S.C. and A.C.s biological father. The
only witness who gave direct evidence about this incident was the appellant.
S.C. denied any contact with the appellant after R.K.s birthday party in
November 2009. A.C.s biological father did not testify at trial.
[47]
According
to the appellant, R.K.s mother, S.C., called him (the appellant) the weekend
following R.K.s birthday and asked whether he could babysit. S.C. wanted to go
to a concert. The appellant agreed. When he arrived thinking he was going to
babysit, S.C. and A.C.s biological father were there. They attacked him.
A.C.s biological father punched the appellant in the face. S.C. stabbed him in
the shoulder. Each accused the appellant of sexual impropriety with the
children.
[48]
S.C.
denied seeing the appellant after R.K.s birthday party. She did not call the
appellant after the birthday party or invite him to her home to babysit.
[49]
Both
the appellants mother and his employer confirmed injuries to the appellants
body and his distraught state.
The Reasons of the Trial Judge
[50]
In
his written reasons, the trial judge said the principal relevance of the
appellants employers evidence was to explain his post-offence conduct and to
cast light on the conduct of the family members after the birthday party and
before they went to the police about a week later.
[51]
The
trial judge concluded that the appellants post-offence conduct did not assist
him in assessing the appellants credibility as a witness at trial. The judge
considered this evidence and evidence about the appellants Youth Court record
as an explanation for the appellants failure to go to the hospital, the police
or his home in Parkdale near J.C. The judge concluded:
It is not necessary to make definitive findings as to who was
involved in the confrontation and exactly what happened. I am satisfied that a
confrontation of some kind happened. The defence witnesses have reliably
testified that Gibson had a bloody lip, he had lost his jacket, he was
distraught, and he immediately told his mother and his employer about a confrontation
with [C.]s family members. This all occurred on November 21, 2009. In the
circumstances, it was understandable that Gibson would feel trapped and would
turn to his employer and to his family, and not to the police. Indeed, P.C.
Vieiras forceful reliance on Gibsons prior Youth Record during the police
interview on November 29, 2009, tends to confirm Gibsons view that the police
would use his prior convictions against him. I edited out this part of the
interview, with the Crowns consent, on the basis that it was irrelevant and
prejudicial.
The Arguments on Appeal
[52]
The
appellant contends that there was no serious dispute that S.C. was involved in
the assault on him following R.K.s birthday. It necessarily follows that her
evidence denying any involvement was a lie. This demonstrated her willingness
to commit perjury to put herself in a better light. That she was willing to do
so and actually did so was a relevant factor for the trial judge to consider in
assessing her credibility and the reliability of her evidence.
[53]
The
trial judge erred, the appellant says, in failing to consider S.C.s perjury on
this issue as a relevant factor in assessing her credibility and the
reliability of her evidence. Instead, he accepted that the confrontation
occurred, but made no finding about S.C.s participation or the effect of false
testimony about it on her credibility. It was incumbent on him to do so, rather
than simply accept S.C.s evidence at face value.
[54]
The
respondent points out that a trial judge is not legally obliged to resolve
every conflict in the evidence that arises at trial. The appellants allegation
is a claim that the trial judge misapprehended the evidence adduced at trial.
He failed to consider an item of relevant evidence S.C.s perjury on the
issue of her credibility. But the appellant must do more than simply point to a
misapprehension of evidence. He must also establish a link or nexus between the
misapprehension and an adverse result at trial. This is a stringent standard,
one that the appellant has failed to meet.
The Governing Principles
[55]
The
principles that control our decision on this issue are well known. They are in
no need of elaboration. A handful of brief points will suffice.
[56]
First,
findings on credibility are notoriously difficult to dislodge on appeal. They
are subject to deference and resistant to appellate interference in the absence
of palpable and overriding error:
R. v. R.E.M.
, 2008 SCC 51, [2008] 3
S.C.R. 3, at paras. 28, 32;
R. v. Dinardo
, 2008 SCC 24, [2008] 1
S.C.R. 788, at para. 26;
R. v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R.
621, at paras. 10, 20; and
R. v. Plehanov
, 2019 BCCA 462, 383 C.C.C.
(3d) 473, at para. 52, leave to appeal refused, [2020] S.C.C.A. No. 489.
[57]
Second,
a trial judge is under no obligation to resolve every conflict in the evidence
adduced at trial:
R.E.M
., at para. 20;
R. v. Slatter
, 2018 ONCA
962, 369 C.C.C. (3d) 112, at para. 102; and
R. v. Stark
(2004), 190
C.C.C. (3d) 496 (Ont. C.A.), at para. 12.
[58]
Third,
a misapprehension of evidence includes, but is not limited to, a failure to
consider relevant evidence and a failure to give proper effect to evidence
adduced at trial:
R. v. Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont.
C.A.), at p. 218.
[59]
Fourth,
to determine whether an allegation of misapprehension of evidence has rendered
a trial unfair and caused a miscarriage of justice, a reviewing court must
examine the nature and extent of the misapprehension and its significance to
the verdict rendered in light of the requirement in our law that a verdict must
be based exclusively on the evidence adduced at trial. The misapprehension must
be at once material and occupy an essential place in the judges reasoning
process leading to a finding of guilt:
Morrissey
, at p. 221;
R. v.
Doodnaught
, 2017 ONCA 781, 358 C.C.C. (3d) 250, at para. 72.
[60]
Fifth,
the standard set for a misapprehension of evidence to warrant appellate
reversal is stringent. An error in the assessment of the evidence will amount
to a miscarriage of justice only where striking it from the judgment would
leave the trial judges reasoning on which the conviction was based on unsteady
ground:
Doodnaught
, at para. 73, citing
R. v. Sinclair
, 2011
SCC 40, [2011] 3 S.C.R. 3, at para. 56.
The Principles Applied
[61]
I
would not give effect to this ground of appeal.
[62]
For
discussion purposes, I accept that a trier of fact is entitled to consider in
their assessment of a witness evidence that the witness has given false
evidence on a particular issue or subject. Indeed, lay triers of fact are so
instructed when advised about how they are to assess the evidence given during
a trial.
[63]
The
principal issues at the appellants trial were twofold. Did the offences
alleged actually take place? And did the appellant commit them? The evidence
which forms the subject of this ground of appeal was central to neither of
those issues. Rather, it resided on the periphery of the controverted issues.
[64]
Relatedly,
this is not a case in which the misapprehension relates to the substance of the
evidence and that misapprehension is relied on to establish the appellants
guilt. The fault here is said to be in failing to consider an item of evidence
an alleged lie about a witness extrinsic misconduct in assessing that
witness credibility and the reliability of her evidence. The trial judge was
keenly aware of the problems associated with S.C.s testimony. He commented
during closing submissions that S.C. was not the most reliable witness in the
world.
[65]
Further,
the law imposes no obligation on a trial judge to demonstrate that they have
appreciated every aspect of every piece of relevant evidence. Nor are they
required to resolve every conflict in the evidence, especially those that are
not material and do not occupy a central place in the reasoning process leading
to the verdict.
[66]
This
ground of appeal fails.
Ground #2: Improper Use of Circumstantial Evidence
[67]
The
second ground of appeal takes aim at the trial judges use of circumstantial
evidence to confirm the direct evidence of the complainants. The alleged error
does not require any additional reference to the evidence, only a brief
illustration from the reasons of the trial judge.
The Reasons of the Trial Judge
[68]
The
appellant focuses on a single paragraph of the trial judges lengthy reasons.
However, to be fair and faithful to the obligation to read the reasons as a
whole, the two paragraphs immediately following the impugned passage should be
included:
I appreciate that all of the above items of circumstantial
evidence, if analyzed separately, are open to some innocent explanation. The
unusual evidence of association and opportunity, for example, is said to be
explained by the fact that Gibson was very lonely after the death of his
father, according to the defence evidence. The anal rash may have been due to
constipation or some other innocent source of irritation, as the SCAN unit
report warns. The evidence of [R.K.]'s anger towards Gibson, and his change of
behavior in the fall, may have been caused by Gibson's failure to get [R.K.] a
flat screen television, or some other unknown but innocent cause, according to
the defence evidence.
The proper way to analyze these potential explanations for each
piece of circumstantial evidence is not piecemeal, in isolation from the other
evidence. Rather, they are to be assessed together and in the context of all
the evidence. Furthermore, the individual items of evidence are not to be
subjected to the standard of proof beyond reasonable doubt, which applies to
the essential elements of the offences and to the verdicts. As Taschereau J
.
put it, speaking for six members
of the Court in
R. v. Cot
é
(1941), 71 C.C.C. 75 at 76 (S.C.C.):
It may be, and such is very often the case, that the facts
proven by the Crown, examined separately have not a very strong probative
value; but all the facts put in evidence have to be considered each one in
relation to the whole, and it is all of them taken together, that may
constitute a proper basis for a conviction.
When the entire body of circumstantial evidence is considered
together, and is considered together with [R.K.]s own internally compelling
testimony, I am satisfied that the innocent explanations for individual items
of evidence should be rejected. See:
R. v. Morin
,
supra
at
205-211;
R. v. Bouvier
(1984), 11 C.C.C. (3d) 257 at 264-6 (Ont.
C.A.), affd. 22 C.C.C. (3d) 576 n (S.C.C.);
R. v. J.M.H.
, 2011 S.C.C.
45;
R. v. Morin
(1992), 76 C.C.C. (3d) 193 at 200 (S.C.C.);
R. v.
Lynch
,
Malone and King
(1978), 40 C.C.C. (2d) 7 at 19 (Ont.
C.A.).
In conclusion concerning [R.K.]s account, I found his
testimony internally credible and reliable. In addition, there is a substantial
amount of external circumstantial support for his account. In short, I believed
his testimony, even after approaching it with caution and after looking for
support from other credible and reliable evidence.
The Arguments on Appeal
[69]
Despite
the absence of any common law or statutory rule requiring corroboration of the
unsworn evidence of child witnesses, the trial judge concluded that he had to
approach the evidence of R.K. and A.C. with caution. Each gave direct evidence
which, if accepted, proved the offences charged. The trial judge considered
that, absent some supporting evidence, it would not be safe to ground a
conviction on the evidence of A.C. on its own.
[70]
The
trial judge recognized, the appellant notes, that the only evidence potentially
confirmatory of the testimony of the complainants was circumstantial in nature.
However, according to the appellant, the trial judge lost sight of the
fundamental principle that circumstantial evidence may only be used to convict
a person where guilt is the only rational inference that arises from that
evidence. More narrowly, the trial judge relied on the equivocal SCAN evidence
about the significance of anal fissures in children as confirmatory of the
complainants testimony. This evidence lacked any inculpatory force. It was
non-specific in the sense that anal fissures were common in non-abused
children, not unique to those who had been abused in the manner alleged here.
It follows, the appellant contends, that the trial judge erred in relying on
this evidence as confirmatory of the complainants allegations. This error
requires a new trial.
[71]
The
respondent rejects any suggestion of error.
[72]
According
to the respondent, it was open to the trial judge to conclude, in the
circumstances of this case, that the evidence of the complainants should be
approached with caution. The trial judge also correctly recognized that the
potentially confirmatory evidence was circumstantial in nature.
[73]
Where
an offence, or an essential element of an offence, falls to be proven wholly or
substantially by circumstantial evidence, the respondent continues, each item
of circumstantial evidence need not bear the entire burden or meet the required
standard of proof. It is the whole of the evidence, often greater than the sum
of its individual parts, that must discharge the burden and meet the standard
of proof.
[74]
The
respondent says that, in isolation, individual items of circumstantial evidence
are often equivocal. They give rise to more than one inference, not all of them
inculpatory. But that does not make them irrelevant for consideration on a
particular issue. It is the cumulative force of the evidence that is important
and controlling. Here, the SCAN evidence confirmed rips and tears around A.C.s
anus. The SCAN report confirmed fissures. It confirmed redness around R.K.s
anus at the time S.C. and J.C. noticed an unusual rash there. The trial judge
recognized the limitations on the SCAN evidence. He was entitled to find, on
the evidence as a whole, that the complainants accounts of anal penetration by
the appellant were confirmed.
The Governing Principles
[75]
Some
principles about the nature of circumstantial evidence and its use as proof of
facts in a criminal case help resolve this claim of error.
[76]
First,
circumstantial evidence is all about inferences. Individual items of
circumstantial evidence give rise to a range of inferences. The available
inferences must be reasonable according to the measuring stick of human
experience. That there may be a range of inferences available from an
individual item of circumstantial evidence does not render the item of evidence
irrelevant or neutralize its probative value:
R. v. Calnen
, 2019 SCC
6, [2019] 1 S.C.R. 301, at para. 112,
per
Martin J. (dissenting, but
not on this point), citing
R. v. Smith
, 2016 ONCA 26, 333 C.C.C. (3d)
534, at para. 77.
[77]
A
second point concerns the standard of proof required where proof of the offence
or one or more of its essential elements depends wholly or substantially on
circumstantial evidence. In such a case, an inference of guilt drawn from
circumstantial evidence must be the only reasonable inference available on that
evidence:
R. v. Villaroman
, 2016 SCC 33, at paras. 30, 32-34.
[78]
Third,
the standard of proof applies to the evidence taken as a whole, not to each
individual item of circumstantial evidence:
R. v. Morin
, [1988] 2
S.C.R. 345, at pp. 359, 362. See also
R. v. Morin
, [1992] 3 S.C.R. 286,
at p. 295-96.
[79]
Finally,
where proof of an essential element or the offence charged depends wholly or
substantially on circumstantial evidence, it is the cumulative effect of all
the evidence, taken together, each item in relation to another and the whole,
that must be considered in determining whether the standard of proof has been
met:
C
o
te
v. The King
(1941), 77 C.C.C. 75 (S.C.C.),
at p. 76.
The Principles Applied
[80]
I
would not accede to this ground of appeal.
[81]
First,
this is not a case in which guilt or an essential element of any offence charged
fell to be established entirely or substantially based on circumstantial
evidence. Each complainant gave direct evidence which, if believed, established
the essential elements of each offence charged beyond a reasonable doubt.
[82]
Second,
the issue to which the circumstantial evidence in controversy was directed was
not guilt or an essential element of any offence with which the appellant was
charged. The evidence in issue was among several items of evidence offered to
confirm the testimony of the complainants, whose evidence the trial judge
concluded required a cautious approach. It did not have to implicate the
appellant in any offence charged. Its role was to ensure the trier of facts
faith in the reliability of the complainants account. It was not an essential
element of the offence, carried no burden and was not subject to any standard
of proof.
[83]
Third,
the argument advanced is at odds with the nature of circumstantial evidence and
its use as a means of proof. Circumstantial evidence is all about inferences.
Each item of circumstantial evidence gives rise to a range of inferences. That
it does so is the very essence of circumstantial evidence. This does not mean
it ceases to be relevant or loses its probative value. Each item of
circumstantial evidence is but a link in the chain of proof. It is not itself required
to bear the whole burden or satisfy the legal standard of proof.
[84]
Finally,
a review of the reasons of the trial judge clarifies that it was the report of
the redness or injury to the anus that was confirmed by the SCAN report. The
rips and tears around A.C.s anus were confirmed by the presence of fissures,
R.K.s rash by observations of redness. The trial judge acknowledged the
limitations on this evidence and did not make improper use of it.
Ground #3: Ineffective Assistance at Trial
[85]
This
is the principal ground of appeal against the convictions of the predicate
offences. It alleges errors and omissions by trial counsel in pre-trial
preparation and in the conduct of the trial.
[86]
Our
evaluation of this ground of appeal is based on the trial record supplemented
by the affidavits of the appellant, his mother and trial counsel; and
transcripts of the cross-examinations conducted on those affidavits. To better
understand the nature of the appellants complaints, some additional background
is necessary.
The Essential Background
[87]
Trial
counsel was called to the Bar in Ontario in 1994, about 18 years before the
appellants trial began. She practised in East Asia for five years and returned
to Ontario in 1999.
[88]
Trial
counsel was a sole practitioner. She practised out of her home. She had no
staff to assist her. Her practice included family, criminal, mental health and
child protection cases. When she represented the appellant, she had conducted
fewer than five criminal trials, two of which were in the Superior Court of
Justice.
[89]
After
the appellant had been convicted, trial counsel was unsure whether she should
continue as counsel during the sentencing proceedings. She had never
represented anyone in dangerous offender proceedings. And she was not qualified
under Legal Aid Ontario (LAO) rules to act as defence counsel in dangerous
offender proceedings.
[90]
The
appellant wanted trial counsel to continue to advocate on his behalf in the
sentencing proceedings. His purpose, he insisted, was to get her back before
the court where she could own up to the mistakes she had made in her conduct of
his trial. Trial counsel was not the first lawyer about whom the appellant had
claimed incompetence. A previous lawyer had royally messed up his defence.
And another lawyer was stupid, stupid, stupid.
[91]
The
appellant signed a direction that he wished trial counsel to continue as his
lawyer in the dangerous offender proceedings. LAO agreed that she could do so,
provided that she had senior criminal counsel to whom she could turn for
advice. Trial counsel consulted senior criminal counsel once for the purposes
of the dangerous offender proceedings.
[92]
The
appellant advances several discrete grounds which he says cumulatively
establish the pervasive incompetence of trial counsel. The several subheadings
which follow endeavour to capture the essence of the various complaints.
The Defence Theory
[93]
Trial
counsels theory of the case was that A.C. may have been sexually assaulted,
but that the perpetrator was an unknown third party, not the appellant. In
respect of R.K., the theory was that R.K. had not been abused but rather had
lied that he had been because of suggestions or pressure from family members.
Trial counsel did not think that a childs mother could imagine the events
alleged and instill such an idea in her children.
[94]
Trial
counsel cross-examined A.C.s mother, N.C., about other men who had contact
with A.C. during the period alleged in the indictment, as well as about A.C.s
use of the descriptive Paul Number Two. She confronted N.C. with her
preliminary inquiry testimony that A.C. had said someone had put their pee pee
in his bum.
[95]
Trial
counsel also cross-examined R.K.s mother, S.C., about other men who were in
her home where the alleged abuse occurred at the time of the allegations, as
well as their appearance. This included S.C.s then boyfriend, who shared the
same first name as the appellant. Trial counsel also confronted the
officer-in-charge of the investigation that police had not interviewed any
other males who were present in R.K.s home at the time the offences were
alleged to have been committed there.
[96]
In
closing argument, trial counsel made detailed submissions on the identity of
the alleged assailant.
The Cross-Examination of Crown Witnesses
[97]
The
appellant alleges that trial counsel failed to adequately cross-examine the
principal Crown witnesses at trial.
R.K.
[98]
R.K.
initially denied having been sexually abused by the appellant when he was first
asked about it by his mother. He provided no details about any abuse when
interviewed by police, but he elaborated expansively at trial. There, trial
counsel focused on the fact, nature and extent of these elaborations and
suggested they were fabricated. Trial counsel also cross-examined R.K. about
being questioned by his mother, S.C., after she told him about A.C.s
disclosure. R.K. did not remember his mothers questioning but did admit that
he gave evidence about new things at trial. He denied that the new things
were influenced by anything his mother, aunt or grandmother had said.
[99]
Trial
counsel acknowledged that she did not cross-examine R.K. about his trip to
Centre Island with his grandmother and the appellant, although, the appellant
says, this trip was central to the allegations against the appellant. Counsel
did not visit the scene and did not apply to re-open the case when apprised of an
email exchange between the appellants mother and Centre Island ticket sales
about the washroom and other facilities on Centre Island. (More on this below,
at paragraphs 123-26.) Nor did she ask R.K. about kicking the appellant in the
groin or being hugged by him at the birthday party.
[100]
The appellant also
complains that trial counsel elicited prejudicial evidence about instances of
sexual assault when the appellant took R.K. to the movies and bowling. Evidence
had already been adduced in the appellants police interview and from J.C. and
S.C. that the appellant had taken R.K. to the movies and bowling. Trial counsel
used this first-time disclosure at trial of abuse on these outings to
demonstrate R.K.s malleability and testimonial unreliability.
A.C.
[101]
The appellant
complains that trial counsel did not ask any questions of A.C., such as what
his mother or aunt had said to him about the incidents or how often he had
talked to his mother about them.
[102]
A.C. was six years old
when he testified after promising to tell the truth. His evidence consisted of
his s. 715.1 statement, which he eventually adopted after having initially
failed to recall having made it. His examination-in-chief is contained in about
two pages of transcript.
[103]
Trial counsel did not
cross-examine A.C., and thus did not ask him about anything his mother or aunt
had said to him about the appellant or any of the allegations.
J.C.
[104]
Trial counsel
cross-examined J.C. about her conversations with the complainants and her
observations of the rash on R.K.s buttocks and when she had seen it. Counsel
also cross-examined J.C. about what she told police when interviewed and apparent
inconsistencies between her evidence at trial and her testimony at the preliminary
inquiry.
[105]
The appellants principal
complaint in connection with trial counsels cross-examination of J.C. is that
she asked questions about a drawing done by R.K. about which J.C. had been
asked in her examination-in-chief by the Crown. This complaint was not included
in the appellants affidavit. The questioning occurred as trial counsel queried
J.C. on her conversations with R.K. about his allegations.
[106]
The trial judge
characterized J.C.s testimony about the drawing as confusing. It was not listed
as a factor in the rejection of the appellants evidence.
S.C.
[107]
The appellants principal
complaints about trial counsels cross-examination of S.C. are that she did not
question S.C. about her involvement in the assault on the appellant and on the
likely collusion between S.C. and her sister, N.C., after A.C.s initial
disclosure of abuse by the appellant. Both of these issues, the appellant says,
affected S.C.s credibility and the reliability of her evidence.
[108]
In cross-examination,
trial counsel elicited evidence that S.C.s testimony about R.K.s rash emerged
for the first time at trial, and that her testimony about the appellants
conduct in hugging R.K. at the birthday party emerged only at the preliminary
inquiry and not her initial police interview. She also challenged S.C.s memory
of her contact with the appellant after A.C.s initial disclosure. During a
colloquy in closing submissions, the trial judge observed that [S.C.]s not
the most reliable witness in the world.
[109]
In her evidence, S.C.
denied any contact with the appellant after the birthday party when trial
counsel asked her about it in cross-examination.
N.C.
[110]
The appellants
complaint about trial counsels cross-examination of N.C. is that she did not
properly explore the extent to which N.C. had spoken with her sister, S.C.,
about the allegations. The appellant also says counsel failed to use N.C.s
admission that her memory was affected by post-traumatic stress disorder,
especially in relation to the issues relevant at trial, to challenge her
evidence.
[111]
Trial counsel
challenged N.C.s recollection of various events, including the relationship
between A.C.s disclosure and R.K.s birthday party.
The Evidence of the Appellants Mother
[112]
Patricia Lahey is the
appellants mother. She testified as a defence witness at trial. The
appellants complaints about trial counsels handling of her evidence are
essentially twofold. Trial counsel did not adequately prepare Ms. Lahey to give
evidence at trial. And counsel compounded this error by eliciting damaging
evidence about the nature of the appellants relationship with the complainants
and inadmissible hearsay and lay opinion evidence.
[113]
Trial counsel
explained that Ms. Lahey had been in the courtroom throughout the trial. They
had spoken regularly. Trial counsel discussed the decision to call her as a
witness with the appellant and he agreed that she should give evidence. Trial
counsel reviewed the general nature of the questions that she would ask Ms.
Lahey, but not the specific questions. Ms. Laheys testimony corroborated the
appellants evidence about the assault after the birthday party, his denials of
the allegations and his mental state after his fathers death which related to
his motive for befriending the complainants families.
[114]
Ms. Lahey testified
that she was concerned about the closeness of the relationship between the
appellant and the boys and how it would be viewed given his previous
convictions for sexual offences. The trial judge made it clear that neither the
appellants criminal record nor the inadmissible evidence assisted in resolving
the case. The more damaging evidence in connection with the appellants
credibility was that he lied not only to his mother, but also to his employer
(who also testified as a defence witness) about never being alone with the
complainants. This evidence was elicited during cross-examination.
Preparation of the Appellant for Trial
[115]
The appellant
complains that trial counsel did not adequately prepare him for trial. She did
not meet with him on a sufficient number of occasions and for a sufficient
amount of time, review the disclosure with him or prepare him to testify.
[116]
The appellant and
trial counsel differed significantly on the number of occasions and the
circumstances in which they met. The appellant said they met six to ten times,
almost always at the courthouse. The meetings were very brief. He acknowledged
a vague recollection of the number of the meetings.
[117]
For her part, trial
counsel docketed 25 meetings with the appellant, with over half of them taking
place at the jail. Nine were before or during trial. There may have been more.
The meetings were invariably of at least an hour, although counsel acknowledged
that the hours she docketed included a portion of her travel time and the
period required to clear security at the jail.
[118]
The appellant gave
evidence that trial counsel was reluctant to bring the video statements for him
to review, although she did so once. Trial counsels recollection was that she
did not review the videos with the appellant. Some of them, which included the
police interviews with the adults, were not transcribed. In the four months she
had to prepare for trial, counsel reviewed the disclosure and the evidence
adduced at the preliminary inquiry with the appellant, who appeared aware of
the case he had to meet. The appellant also had a different lawyer previously.
[119]
The appellant and
trial counsel also differed in their recollections about preparing the
appellant to testify at trial.
[120]
The appellant claimed
that he told trial counsel of his decision to testify at the end of the day
before he began to give his evidence. Trial counsel did not prepare him in any
way, nor ask for an adjournment so that she could do so.
[121]
The trial record shows
that the case for the Crown was at or near completion on a Friday. Before
adjourning proceedings for the weekend, the trial judge confirmed with defence
counsel that she would be ready to begin the defence on the following Monday.
Her dockets confirmed that she had two meetings, totalling six hours, with the
appellant during the intervening weekend.
[122]
Trial counsel said she
advised the appellant that he could but did not have to testify. She told him
to tell the truth and not be argumentative. In his affidavit, the appellant
denied any discussions with trial counsel on giving evidence in his own
defence. When cross-examined, he admitted that he and trial counsel decided
together that he would be testifying.
The Centre Island Emails
[123]
R.K. described a
washroom on Centre Island as a place in which the appellant sexually assaulted
him. The events occurred at the sink in a wheelchair access washroom beside the
main washroom. The washroom door could be locked from the inside. J.C.
confirmed that the appellant took R.K. to the washroom on Centre Island.
[124]
The appellant
testified that it was virtually impossible for him to have taken R.K. to the
washroom because there was a strict policy that R.K.s mother, aunt or
grandmother would always take him to the womens washroom. The appellant also
denied that this could have occurred while J.C. was waiting in line to buy ice
cream because there was no ice cream sold on the island.
[125]
About six months after
the appellant had been convicted, but before completion of the dangerous
offender proceedings, Ms. Lahey had an email exchange with someone at Centre
Island ticket sales. She sought information about wheelchair washrooms and the
sale of frozen treats on the island. The exchange confirms that there is a
wheelchair accessible washroom with a sink on the island and that frozen treats
are sold on the island. The information sought about washroom doors related to
the main door of public washrooms open to everyone, not wheelchair accessible
facilities. The public washroom doors can only be locked by staff.
[126]
Trial counsel did not
consider applying to re-open the proceedings after conviction based on this
evidence. She was unsure about the significance of the email and in any case
considered that the issue could be raised on appeal.
The Third-Party Records Application
[127]
About a month before
the scheduled trial date, trial counsel sought and obtained an adjournment so
that she could bring a third-party records application. She sought Childrens
Aid Society (CAS) records relating to both complainants and to N.C. On the
return date of the motion, trial counsel had filed no materials, had served the
Crown only that day and had failed to issue a subpoena to the recordholder.
[128]
About a week later,
trial counsel indicated that she wished to amend her original application to
limit it to the records of only one of the complainants. In another two weeks,
she sought an expanded group of records. The materials still had not been
properly filed. A subpoena was never issued. The application failed.
[129]
Trial counsel confirmed
that this was her first third-party records application. She did not seek
advice from more experienced counsel.
The Arguments on Appeal
[130]
The appellant
acknowledges that the onus is on him to establish, on a balance of
probabilities, the facts on which his claim of ineffective assistance is
grounded; that trial counsels representation was incompetent; and that the
incompetent representation resulted in a miscarriage of justice because it
rendered the trial proceedings unfair or resulted in an unreliable verdict. In
this case, the appellant says, trial counsels incompetent representation not
only rendered trial proceedings unfair, but also resulted in an unreliable
verdict.
[131]
In combination,
several trial incidents and some related out-of-court deficiencies provide the
factual backdrop for the claim of incompetent representation. A flawed defence
theory which assumed the truth of A.C.s account and mounted a minimal challenge
to the evidence of R.K., and a failure to assiduously pursue any suggestion of
third-party participation. This precluded presentation of the most obvious
defence available on the evidence. That defence was that N.C. had
misinterpreted and overreacted to A.C.s complaint, jumped to an unwarranted
conclusion and, with her sister, mutually reinforced the idea of sexual abuse
until they and their children became convinced that it was true.
[132]
In addition, the
appellant says, trial counsel not only failed to challenge the credibility and
reliability of the Crowns witnesses, but also elicited testimony from them
that was damaging to the defence case. She asked R.K. no questions about Centre
Island, allegedly kicking the appellant in the groin or the alleged birthday
hug. Then, she elicited evidence about assaults on the outings to the movies
and bowling. A.C. was not cross-examined, and thus no evidence was adduced
about any conversations his mother and aunt had with him. Counsel introduced
damaging testimony from J.C. about R.K.s drawing and made no real inquiry into
the credibility or reliability of either N.C. or S.C., including, but not
limited to, questions about their discussions about the allegations with each
other and the children.
[133]
Further, the appellant
continues, trial counsel failed to properly prepare Ms. Lahey and himself for
trial. She also elicited inadmissible evidence from Ms. Lahey about her opinion
that the appellant was innocent and evidence that threatened to put the
appellants character in issue. Counsel did not adequately review the
disclosure with the appellant, met with him an insufficient number of times,
gave him inadequate advice about testifying, failed to properly prepare him to
testify and began to adduce evidence about the details of his criminal record
until stopped from doing so by the trial judge.
[134]
This accumulation of
omissions, together with the failure to bring a third-party records application
and to seek re-opening of the proceedings when made aware of the email about
the facilities at Centre Island, compromised the fairness of the appellants
trial and the reliability of the verdict rendered at its conclusion.
[135]
As did the appellant,
the respondent begins with the test we are to apply in our adjudication of the
claim. The test is stringent. We are to proceed from a strong presumption that
counsels conduct falls within, not beyond, a wide range of reasonable
professional judgment. The standard is reasonableness, not perfection.
Hindsight has no place in the evaluation, which is a function of the
circumstances of the case. Nor are we to test counsels performance by the fact
or through the lens of the judges reasons for judgment.
[136]
The respondent says
that our analysis must begin with a consideration of the issue of prejudice.
This component requires the appellant to show that had trial counsel conducted
the case as it is now said she should have done, there is a reasonable
probability that the verdict rendered would have been different. Or, the
appellant must show that counsels incompetence deprived him of a fair trial.
[137]
In the respondents
submission, the appellant has mischaracterized trial counsels approach to the
case at trial. She did not assume that the allegations had to be true. The
position advanced at trial was that A.C. may have been sexually assaulted, but
not by the appellant. R.K. had not been abused but made allegations of abuse
because of suggestions or pressure from family members. Unlike what is now said
to be the most obvious defence, the position taken at trial was viable, had
evidentiary support and accorded with common sense. By contrast, the appellants
submission that N.C. had misinterpreted A.C.s disclosure, and then, with her
sister, convinced their children that they had been abused by the appellant is
at once unhinged from the evidence at trial and at odds with common sense. That
defence would not have been viable.
[138]
Trial counsel
developed her theory of the case at trial. She cross-examined N.C. about other
men, A.C.s use of the descriptive Paul Number Two and apparent inconsistencies
between N.C.s testimony at the preliminary inquiry and at trial about A.C.s
initial disclosure to her. She cross-examined R.K.s mother, S.C., about other
men in her home where the allegations occurred and their appearance, including
her then boyfriend who was also named Paul. And she elicited evidence from the
investigating officer, who acknowledged that police had not interviewed any
other males who were present at the complainants home during the period of the
allegations.
[139]
The respondent
counsels a cautious approach in any review of cross-examination strategies. The
appellant must establish a reasonable probability, not a meagre possibility,
that a different cross-examination strategy would have resulted in a different
verdict. The mere fact that different counsel would have chosen a different
cross-examination strategy, especially with the benefit of hindsight and the
trial judges reasons, does not mean that what happened at trial was inadequate.
[140]
In her
cross-examination of R.K., the respondent says, trial counsel focused on the
principal weakness and main inconsistency in his evidence. At first, R.K.
denied being abused by the appellant. He provided no details of any abuse when
interviewed by police. Yet at trial, his account was rich in detail. R.K.
admitted as much but denied counsels suggestion that his account had been
influenced by his mother, his aunt or his grandmother.
[141]
The appellants
complaint that in cross-examining R.K., trial counsel elicited prejudicial
evidence about R.K.s trips to the movies and bowling with the appellant is
unavailing. This was not new evidence. The appellant acknowledged these outings
in his police interview. Both J.C. and S.C. testified to the same effect. The
cross-examination was in service of a reasonable trial strategy demonstrating
the malleability of R.K.s account by adding, for the first time at trial, that
sexual abuse had taken place at both these venues. That the strategy did not
ultimately succeed does not render counsels questioning incompetent.
[142]
The respondent
disputes the appellants contention that trial counsel ought to have
cross-examined A.C. about what his mother or aunt said about the incidents or
how often he talked to his mother about them. A.C. was six years old when he
testified at trial. For all practical purposes, his evidence was his video
interview admitted under s. 715.1 of the
Criminal Code
, a video which he
made when he was four years old. Initially, A.C. did not even recall making the
video. His examination-in-chief occupied two pages of transcript. The record
reveals no basis to suggest that cross-examination of A.C. would have elicited
evidence favourable to the appellant.
The Governing Principles
[143]
The test for
establishing ineffective assistance of trial counsel is not in dispute. The
appellant must establish the factual foundation for the claim, incompetence of
counsel and miscarriage of justice resulting from such incompetence. With
respect to the incompetence of counsel element, there is a strong presumption
that trial counsels conduct fell within the wide range of reasonable professional
assistance. The onus is on the appellant to rebut this presumption. The
analysis is conducted without the benefit of hindsight. See
R. v. Ramos
,
2020 MBCA 111, at paras. 119-20, affd 2021 SCC 15.
The Principles Applied
[144]
I would not give
effect to this ground of appeal.
The Family Members
[145]
The appellant says
that trial counsel prejudiced his case by asking questions about a drawing J.C.
had testified in-chief that R.K. drew.
[146]
This complaint, about
which there is no mention in the appellants affidavit filed in support of his
ineffective assistance of counsel allegation, is unavailing. The questioning
occurred when trial counsel was exploring with J.C. her conversations with R.K.
about his allegations of sexual abuse. The trial judge characterized the
exchange as confusing and attached no significance to it in assessing R.K.s
evidence or in weighing the appellants testimony.
[147]
In respect of S.C.,
the appellant contends that trial counsel failed to challenge the witness
credibility and reliability, devoted much of her cross-examination to the
absence of a doctors name on a medical report, failed to question her about her
involvement in an assault on the appellant after R.K.s birthday, and omitted
to probe S.C. about possible collusion with her sister.
[148]
A review of trial
counsels cross-examination of S.C. does not support this aspect of the claim
of ineffective assistance.
[149]
Trial counsel pointed
out that S.C.s evidence about the appellant hugging R.K. at the birthday party
first emerged in her testimony at trial. She also established the unreliability
of S.C.s memory about her contact with the appellant after A.C.s disclosure.
Her lengthy cross-examination of S.C. contained only one page about the absence
of the doctors name from the medical report. She asked questions about
collusion among family members and S.C.s contact with the appellant after
R.K.s birthday party. That the witness remained steadfast in her denials
affords no evidence of incompetence.
[150]
Nor does the record
support the assertion of incompetence in the cross-examination of N.C. N.C. had
made it clear that after A.C.s disclosure, she did not want to discuss the
allegations with anyone or even hear about them. Trial counsel challenged and
succeeded in showing that N.C.s memory of the time at which various events
occurred was unclear.
[151]
Whether considered
singly or in combination, I am not persuaded that the impugned
cross-examinations compromised trial fairness or the reliability of the verdict
the trial judge rendered.
The Evidence of the Appellants Mother
[152]
The appellant says
that trial counsel did not adequately assess the risk of calling the
appellants mother, Ms. Lahey, as a defence witness and, having decided to call
her, failed to adequately prepare her to testify.
[153]
The decision to call
Ms. Lahey as a witness was made after discussion with the appellant and with
his agreement. Ms. Lahey confirmed the appellants account about the injuries
he suffered in the post-birthday altercation with S.C. and A.C.s biological
father. Similar evidence was given by the appellants employer, whose testimony
is not said to bear the badge of incompetence. Ms. Lahey confirmed the
appellants repeated denials of impropriety and provided a benign motive for
him befriending the complainants families.
[154]
As with almost any
witness, there were risks associated with the testimony of Ms. Lahey. Her
warning of the appellant about the dangers of a close relationship with the
complainants given his prior record of sexual offences against children. But
the experienced trial judge was keenly aware of the irrelevance of Ms. Laheys
views and made no use of them, or the appellants prior record, in finding the
case for the Crown proven beyond a reasonable doubt.
[155]
The more damaging blow
to the appellants credibility came from evidence that he had lied not only to
his mother, but also to his employer about never having been alone with the
complainants. However, this was but one of myriad factors the trial judge cited
for rejecting the appellants evidence. That a witness may give some evidence
adverse to the interest of the calling party is a risk with many, if not most,
witnesses. The decision to call such a witness is a judgment call rather than
evidence, much less proof, of incompetence.
Preparation of the Appellant for Trial
[156]
The crux of the
appellants complaint about his dealings with trial counsel has to do with
preparation for trial. Insufficient meetings with counsel. Inadequate review of
disclosure. Tepid advice about the decision to testify and meagre preparation
in advance of his testimony. He also assails counsels elicitation from the
appellant of the details of his prior criminal convictions.
[157]
The evidence conflicts
about the number of meetings between trial counsel and the appellant. To the
extent that the evidence conflicts, I accept the evidence of trial counsel. The
appellant has a vague recollection of six to ten meetings, each very brief,
and most of which occurred at the courthouse. By contrast, trial counsel
docketed 25 meetings, over half of them at the jail where the appellant was
detained pending trial. Nine of the meetings, perhaps more, were before or
during the trial. The jail meetings were an hour or more, although a portion of
the time involved travel and passing through security at the jail.
[158]
Although the appellant
alleges inadequacy in counsels review of Crown disclosure with him, he does
not claim unfamiliarity with the disclosure or a deficient understanding of the
case he had to meet. Trial counsel gave evidence that she reviewed the
disclosure with him, as well as the transcript of the preliminary inquiry,
where all witnesses necessary to establish guilt had testified and been
cross-examined by prior counsel. He also had a contested bail hearing, where
some of the case against him was previewed.
[159]
In his affidavit, the
appellant admitted that he told trial counsel of his decision to testify at the
end of the day before he began to give evidence. Trial counsel, he said, did
not prepare him in any way, nor did she ask for an adjournment so that she
could do so.
[160]
The appellants
recollection of these events is at odds with the trial record and the evidence
of trial counsel. The transcripts show that the Crowns case was at or near its
completion on a Friday. Before adjourning court for the weekend, the trial
judge asked, and trial counsel confirmed, that she would be ready to start the
defence case the following Monday. Trial counsel gave evidence that she had two
meetings with the appellant at the jail during the intervening weekend to
prepare him to testify at trial.
[161]
Further, the appellant
assails the strength of trial counsels advice that he should testify. This alleged
deficit in counsels conduct falls on barren ground. The appellant did testify.
Manifestly, any advice he received was sufficiently forceful to persuade him to
do so. He does not suggest that he ought not to have testified or that he was misled
about his options. He says he made the decision himself as it was his to do.
[162]
The single deficiency
urged as reflecting incompetence in connection with the introduction of the
appellants testimony relates to his answers to questions about his criminal
record. Doubtless, counsel should have explained what was permissible and what
was not, but the responses were harmless. This was a judge-alone trial. The
trial judge had already heard evidence about the appellants criminal history
on a pre-trial application to exclude his police interview as evidence. In his
reasons, the trial judge explained that the appellants dated criminal record played
no role in his assessment of the appellants credibility.
The Pre- and Post-Trial Applications
[163]
The final aspect of
the appellants allegation of ineffective assistance focuses on two applications,
one before trial, the other after verdict. One bungled, the other not made.
[164]
Trial counsel made
several attempts to obtain third-party records at the outset of trial. The
records sought varied. But procedural flaws predominated. Lack of timely
notice. Improper service. No subpoena issued to the recordholders. No supporting
materials filed.
[165]
Trial counsel had
never brought such an application in any other case and plainly did not know
how to go about it. However, the record lacks any evidence that can explain how
the records sought would have assisted the appellant in his defence. The
dangerous offender proceedings concluded in 2013, the trial a year earlier, in
2012. The notice of appeal was filed in 2015. In these circumstances, I am not
prepared to infer prejudice from the mere fact of procedural ineptitude.
Despite the amount of time that has passed, there is no evidence that the
records sought would have assisted the appellant at trial, nor an explanation as
to how the records would have assisted.
[166]
The other allegation of
incompetence focuses on events that occurred after the appellant had been
convicted, but before the dangerous offender proceedings had entered the
hearing phase.
[167]
At issue here is
whether trial counsel was incompetent because she failed to apply to re-open
the defence case after conviction based on the information obtained about
Centre Island washroom facilities and the availability of frozen treats, as
described in an email exchange between Ms. Lahey and Centre Island ticket sales.
The email exchange took place about six months after the trial judge had
released his reasons for judgment finding the appellant guilty on all six
counts in the indictment. Trial counsel did not make an application to re-open
the defence case. When cross-examined about her failure to do so, she appears
to have considered that the issue could more probably be the subject of an
appeal.
[168]
For two principal
reasons, the appellants argument that counsel should have applied to re-open
the case based on the email exchange fails. The first has to do with the test
that governs applications to re-open the defence case after verdict. The second
concerns the nature of the evidence in issue.
[169]
The test for re-opening
the defence case after findings of guilt have been made and convictions entered
is more rigorous than the test that applies when the same application is made before
an adjudication of guilt. This is so because a more exacting standard is
required to protect the integrity of the criminal trial process, including, but
not only, the enhanced interest in finality:
R. v. Kowall
(1996), 108
C.C.C. (3d) 481 (Ont. C.A.), at p. 493, leave to appeal refused, [1996]
S.C.C.A. No. 487. See also
R. v. M.G.T
., 2017 ONCA 736, 357 C.C.C.
(3d) 109, at paras. 47-49.
[170]
The criteria to be met
when fresh evidence is tendered on appeal provide helpful guidance to judges asked
to permit re-opening of the defence case after verdict. These criteria
summarized as admissibility, cogency and due diligence posed insurmountable
obstacles to the evidence at issue here. The contents of the exchange, in
particular the response from ticket sales, was hearsay. It lacked cogency. And
it could have been discovered with the exercise of due diligence at trial.
[171]
In addition, this
evidence would not have assisted the appellants case. The evidence was
somewhat ambiguous, as it consisted of partial and indirect responses to Ms.
Laheys questions, which were themselves ambiguous. The appellant proposes an
interpretation of the evidence which would be exculpatory. Nonetheless, the evidence
confirmed the existence of a wheelchair accessible washroom equipped with a
sink. It also substantiated the availability of ice cream and related frozen
products on the island. Thus, the evidence contradicted the two principal
reasons the appellant claimed that the incident on Centre Island could not have
happened as R.K. alleged.
Disposition of the Appeal from Conviction
[172]
In the result, I would
dismiss the appeal from conviction.
The Appeal from the Dangerous Offender Finding
[173]
In the alternative, the
appellant challenges the finding that he is a dangerous offender, as well as
the indeterminate sentence imposed. Each ground of appeal he advances relates
to the trial judges conclusion that the Crown had proven each of the elements
essential to a finding of dangerous offender status beyond a reasonable doubt.
[174]
Some additional
background about the evidence adduced at the hearing will help to place the
submissions of errors in their proper setting.
The Essential Background
[175]
The Crown relied on
ss. 753(1)(a)(i) and (b) as the basis for the dangerous offender finding. The
predicate offences on which the application was grounded were those proven at
trial. In addition, the Crown adduced evidence of the appellants early
correctional history; opinion testimony from two psychiatrists; evidence from a
federal parole officer experienced with high-risk offenders on various forms of
conditional release; and the victim impact statement from N.C. on behalf of the
complainants and their families.
The Appellants Background
[176]
The appellant is the
middle child. His family was dysfunctional. He was 33 years old at the time of
the offences and 36 years old at sentencing. His mother, Ms. Lahey, moved to
Nova Scotia in 1998. The appellant was then living with his girlfriend. Later,
the relationship ended. The appellants father died unexpectedly in 2009. His
death had a profound effect on the appellant.
[177]
When the appellant was
14, the CAS became involved with his dysfunctional family. He incurred several
convictions for offences committed in 1992 and 1993, when he was 15 or 16 years
old. Except for the first offence in 1992, all the offences were committed with
an older co-accused, who had abused the appellant. The circumstances of these
offences were not established in court records. The Crown relied on police
synopses to establish the conduct that underpinned the convictions and conceded
that some of the records were not particularly reliable. The trial judge was
satisfied that the synopses were reliable as to the dates of the offences, the
ages of the parties and the general nature of what happened.
[178]
In 1992, when the
appellant was 15 or 16 years old, he had anal intercourse with a 13-year-old
boy whom he had known for some time. He admitted having done so when testifying
at his bail hearing on the predicate offences.
[179]
When the appellant was
16, he and his 22-year-old co-accused enticed a young boy into a room where
there was a mattress on the floor. When the co-accused began to unzip the young
boys fly, the boy became scared. The incident ended.
[180]
In 1993, when he was
16, the appellant and the same co-accused tried to persuade an 11-year-old boy
to come to a room where they would perform various sexual acts. The boy
refused. Nothing else happened.
[181]
The final incident
also occurred when the appellant was 16. He and the same co-accused enticed an
11-year-old boy into a car at a swimming pool. They drove to the appellants
apartment building. The co-accused had oral sex with the boy. The appellant
watched. At his bail hearing on the predicate offences, the appellant admitted
being in the car with the co-accused and the boy, and he admitted entering a
room with a mattress on the floor (in his apartment building). He claimed that
he left before any sexual acts occurred.
[182]
The first three
offences resulted in convictions for invitation to sexual touching, the last, a
conviction for abduction of a child under 14. The offences occurred 16 years before
the predicate offences and were resolved on pleas of guilty. No convictions were
entered in the intervening years.
The Expert Evidence
[183]
The Crown appointed Dr.
Derek Pallandi, a forensic psychiatrist, to conduct an assessment of the
appellant under s. 752.1 of the
Criminal Code
. One of the grounds of
appeal challenges the trial judges reliance on Dr. Pallandis report in
concluding that the appellant is a dangerous offender.
[184]
Dr. Pallandi diagnosed
the appellant as a pedophile with several psychopathic traits which were not
present to the degree necessary for a formal diagnosis of psychopathy.
Pedophilia is a lifelong condition which is not curable. Available treatments
include behavioural and pharmacological therapy, which may provide some
controls. However, where, as here, an offender denies not only the offences,
but also an underlying sexual preference for children, there are serious
obstacles to treatment. And pharmacological intervention requires an offenders
consent, which is usually not, and in this case is not, forthcoming. The same
denials pose an additional risk factor.
[185]
Dr. Edward Sowa is
also a forensic psychiatrist. He counselled the appellant during the custodial
sentence the appellant received in Youth Court for the 1993 convictions. Dr.
Sowa made minimal progress with the appellant, whom he described as boastful,
manipulative and prone to exaggeration. The appellant had no interest in
pharmacotherapy.
[186]
Both Dr. Pallandi and
Dr. Sowa considered the appellant at high risk to re-offend. From age 18, the
appellant has had an entrenched sexual preference for young children.
The Trial Judges Findings
[187]
The trial judge was
satisfied beyond a reasonable doubt that the Crown had established that the
appellant was a dangerous offender under ss. 753(1)(a)(i) and (b) of the
Criminal
Code
. He also concluded that no sentence less than an indeterminate term
of imprisonment would adequately protect the public. The evidence did not show
that there was a reasonable expectation that a lesser measure would adequately
protect the public.
The Grounds of Appeal
[188]
The appellant alleges
three errors in the trial judges analysis leading to his conclusion that the
appellant is a dangerous offender. The alleged errors are in:
i.
improperly
evaluating and unduly relying on the opinion evidence of the psychiatrists;
ii.
finding a
pattern of repetitive behaviour; and
iii.
misapprehending the
evidence of Ms. Lahey.
Ground #1: Undue Reliance on Evidence of Psychiatric Opinion
[189]
The appellants first
challenge is to the trial judges evaluation of and reliance on the expert
opinion evidence given by the two forensic psychiatrists, Dr. Pallandi and Dr.
Sowa. Some additional background will help to elucidate the nature of the
complaint.
The Essential Background
[190]
Included in the
materials Dr. Pallandi reviewed in reaching his conclusion were police synopses
of the circumstances underlying the appellants previous convictions; records
of CAS involvement with the appellants family and of the appellants treatment
as a youthful sexual offender; and information about the gross number of
charges levied against the appellant, including those that did not result in
convictions.
[191]
In addition, both
forensic psychiatrists assumed that in the 16 years between his Youth Court convictions
and those of the predicate offences, because of the nature of pedophilia and
the appellants committed sexual preferences, he likely committed other similar
offences.
The Reasons of the Trial Judge
[192]
In his lengthy written
reasons, the trial judge:
i.
rejected
Dr. Pallandis assumption that the appellant committed further sexual offences in
the gap between the youth and adult convictions;
ii.
assigned
no weight to Dr. Pallandis speculation about a number of unverified victims
based on information contained in CAS records; and
iii.
criticized Dr.
Pallandi for failing to consider any positive aspects in the appellants
history.
[193]
In a similar way, the
trial judge did not rely on the impermissible speculation of Dr. Sowa that
because of the appellants deeply ingrained sexual preferences for young
children, it was hard for him (Dr. Sowa) to accept that, in the 16 years
between convictions, the appellant did not commit other sexual offences.
[194]
The trial judge
expressed his conclusions on the likelihood of future re-offending in these
terms:
Taking all the above analysis and findings into consideration,
I am satisfied that the Crown has proved the future conduct element of s.
753(1)(a) and (b) beyond reasonable doubt, that is, the likelihood of
inflicting severe psychological damage
through failure in the future to
restrain his
behaviour and the likelihood of causing injury, pain or other
evil
through failure in the future to control his
sexual impulses. In
particular, I rely on the following proved facts:
·
the assessments by Dr. Sowa and the J.D. Griffin Centre
therapists in 1994, concerning Gibsons entrenched sexual preferences at age
eighteen, his ability to minimize, rationalize and engage in cognitive
distortions about his offending behaviour, his poor prospects for treatment,
and his high risk to re-offend;
·
the confirmation of these assessments in 2009, when he
deliberately acted out in the same manner and committed the predicate offences;
·
the rational planning and premeditation involved in Gibsons
gaining access to and grooming of the two young victims, deliberately creating
opportunities for himself to re-offend;
·
the cognitive distortions that he again utilized, while
committing these offences and when rationalizing them afterwards;
·
his inability to restrain his behaviour, even when warned by his
mother, who is the one person in the world who is closest to him and who he
undoubtedly cares for;
·
the ongoing repetition of the predicate offences, in relation to
two separate victims, indicating that these were not isolated or situational
offences;
·
the diagnosis of pedophilia, the fact that it is a life-long
condition with no cure, and the limited treatments available to ameliorate its
risks;
·
the complete refusal by Gibson to acknowledge his sexual
preference for children, and to engage in treatment, and the resulting
exacerbation of his risk of re-offending.
In all these circumstances, I am satisfied that present
existence of the likely or probable risk of re-offending, in the s. 753 sense
and as explained in
Lyons
and
Knight
, has been proved beyond
reasonable doubt. Gibson, therefore, meets the test for a dangerous offender
designation. The requisite threat to the life, safety or physical or mental
well being of other persons has been proved, pursuant to s. 753(1)(a), and the
essential elements of the s. 753(1)(b) test have also been proved.
The Arguments on Appeal
[195]
The appellant contends
that neither Dr. Pallandi nor Dr. Sowa approached their assessments in a
scientific and unbiased way. Their risk assessments were based in part on an
assumption of undetected and uncharged offences over the intervening years.
Although the trial judge challenged both experts for their reliance on
unsubstantiated offences, he nonetheless accepted their evidence in reaching
his conclusion about the likelihood of future recidivism. This was critical to
his determination that the appellant was a dangerous offender. Reliance on the
opinions of these experts in these circumstances, conclusions based in part on
outdated science on the link between denial and the risk of recidivism, was
unreasonable and warrants a new hearing.
[196]
The respondent
characterizes the trial judges approach to the impugned evidence as at once
fair and cautious. He did not rely on any aspect of the opinions founded on
hearsay or impermissible speculation. It is commonplace, the respondent says,
for experts to rely on second-hand information. To the extent they do so, this
affects the weight a trier of fact may assign to their testimony. Their
opinions are not inadmissible as a result. Their ultimate reliability is for
the trier of fact to decide, and that determination is entitled to deference on
appeal.
[197]
Here, the respondent
continues, the expert evidence was relevant to establish the appellants
diagnosis, to assess the risk of future recidivism and to determine whether
some form of treatment could control that risk in the community. The trial
judge was required to and did ensure that the opinions he relied on were not
contaminated by reliance on unproven allegations. He used the psychiatric
evidence within permissible limits in a critical, rigorous and fair-minded way.
His conclusion is entitled to deference.
[198]
The respondent argues
that in determining whether there was a likelihood of future re-offending,
the appellants insight into his offending cycle and his commitment and
amenability to required treatment are critical factors. Denials of guilt and
failures to accept responsibility are relevant to treatability and future risk.
The trial judge properly considered them here.
[199]
The appellants
argument that the court erred by relying on outdated science, the respondent
submits, should be rejected. This argument, which is based solely on an
academic article, is raised for the first time in this court. The article was
not put to either expert at sentencing. Nor was it made an exhibit at trial. It
should have been, but was not, the subject of a fresh evidence application in
this court. In its current form, it is of no value in our decision on this
appeal.
The Governing Principles
[200]
The principles
governing the admissibility and use of expert opinion evidence are well known
and need not be restated here. Some brief points will suffice.
[201]
Expert opinion
evidence which otherwise qualifies for reception is not excluded simply because
it is based in part on second-hand information:
R. v. Lavallee
, [1990]
1 S.C.R. 852, at p. 893.
[202]
The second-hand
evidence is admissible to show the information on which the opinion is based. But
this evidence is not proof of the underlying facts on which the opinion is
based:
Lavallee
, at p. 893.
[203]
As long as there is
some admissible evidence to establish the foundation for the experts opinion,
the experts evidence remains available for consideration by the trier of fact.
However, the more the expert relies on facts that are not otherwise established
in the evidence, the less weight the trier of fact may attach to the expert
opinion:
Lavallee
, at pp. 893, 896. See also
R. v. Wilband
,
[1967] S.C.R. 14, at p. 21.
[204]
In addition to these
basic principles, specific mention should be made of the relevance of denials
of offending conduct, lack of insight, and treatability in dangerous offender
proceedings.
[205]
The amenability of a
prospective dangerous offender to treatment and the prospects for success of
treatment are factors worthy of consideration on the issue of future control of
the risk of recidivism:
R. v. Little
, 2007 ONCA 548, 225 C.C.C. (3d)
20, at para. 40, leave to appeal refused, [2008] S.C.C.A. No. 39, citing
R.
v. Johnson
, 2003 SCC 46, [2003] 2 S.C.R. 357, at paras. 33-36.
[206]
Evidence of the
offenders future treatment prospects is relevant at the designation stage of
the dangerous offender analysis. In other words, this evidence is relevant to
the question of whether an offender should be designated a dangerous offender:
R.
v. Boutilier
, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 42.
[207]
Although courts must
be chary of using a perceived lack of remorse as evidence of future
dangerousness, the failure of an offender to accept responsibility for their
conduct may be a factor where treatment may be necessary to control future
dangerousness:
R. v. Levert
(2001), 159 C.C.C. (3d) 71 (Ont. C.A.), at
para. 40. See also
Little
, at paras. 43-44.
[208]
A final point concerns
the admissibility of fresh evidence on an appeal from a decision in dangerous
offender proceedings under Part XXIV of the
Criminal Code
. Simply put,
fresh evidence may be received in these appeals, provided it meets the
Palmer
criteria of admissibility, cogency, and due diligence:
R. v. Sipos
,
2014 SCC 47, [2014] 2 S.C.R. 423, at paras. 28-29, 42-44;
M.G.T
., at
para. 49.
The Principles Applied
[209]
A combination of
factors persuades me that this ground of appeal should be rejected.
[210]
The first has to do
with the nature of the ground itself.
[211]
The appellant does not
challenge the admissibility of the expert opinion evidence. The submission is
that the trial judge erred in relying on this evidence in concluding that the
appellant was a dangerous offender. Pared to its core, the submission is that
the trial judge erred in the weight he assigned to this evidence. But the
assessment of the weight to assign to individual items of evidence and to the
evidence as a whole falls squarely within the exclusive domain of the trial
judge as the trier of fact. The trial judges conclusions on these issues are
entitled to deference in this court, absent a misapprehension of evidence, the
application of an erroneous legal principle, or a palpable and overriding
error.
[212]
In this case, the
trial judge was keenly aware of the limitations inherent in the expert opinion
evidence, principally hearsay and speculation about further offences. Nothing
said or left unsaid in his reasons can support a conclusion of error in his
assessment of the probative value of this evidence.
[213]
Second, the trial
judges reliance on evidence of the appellants denials of the offending
conduct and his resistance to treatment were relevant factors for the trial
judge to consider on the issue of treatability, and hence properly taken into
account at both the designation and disposition phases of the proceedings.
[214]
The appellants
submission that the expert evidence was flawed because it was based on
outdated science is unavailing. Its source is an academic article that was
not put to either forensic psychiatrist in the sentencing proceedings. In the
absence of a successful application to introduce fresh evidence on appeal, it is,
in no sense, evidence in these proceedings. Further, tendered here on an
application to introduce fresh evidence, it could not satisfy the admissibility
requirement, and it was clearly available by the exercise of due diligence.
Finally, even if this evidence were admitted, the lack of context provided for
the academic article prevents this court from assessing its significance in the
academic discourse. This court is not in a position to assess the articles
potential significance to the law on the link between denial and the risk of
recidivism.
[215]
This ground of appeal
fails.
Ground #2: The Pattern Requirement
[216]
The appellant
challenges the trial judges finding that the evidence established the pattern
of behaviour required for designating the appellant as a dangerous offender
under ss. 753(1)(a)(i) and (b) of the
Criminal Code
. The nature of the
argument advanced does not require further reference to the evidence adduced.
An excerpt from the trial judges reasons affords sufficient background for the
discussion that follows.
The Reasons of the Trial Judge
[217]
The trial judges
conclusion on this issue appears in the following passage in his written
reasons:
Gibson has obviously committed the necessary predicate offence
under both statutory routes as he has been convicted of sexual assault.
Furthermore, there is a common sense inference that, when he committed the
numerous sexual assaults on R.K. and A.C., Gibson showed a failure to restrain
his
behaviour under the s. 753(1)(a) route, as well as a failure to control
his
sexual impulses under the s. 753(1)(b) route. See:
R. v. Sullivan
(1987), 37 C.C.C. (3d) 143 at paras. 21 and 31-3 (Ont. C.A.). Ms. Choi submits
that the requisite pattern has not been proved, because these predicate
offences are Gibsons first adult convictions and there is a sixteen year gap
since his 1993 Youth Court convictions. However, the present offences were
strikingly similar. Furthermore, they involved two separate victims and ongoing
periods of gaining access and similar grooming, followed by an ongoing series
of similar assaults on both victims. The course of conduct revealed by these
adult offences alone, leaving aside the 1993 Youth Court convictions for now,
shows a present existing pattern of conduct in the above two statutory
senses.
The Arguments on Appeal
[218]
The appellant says
that the analysis required under both ss. 753(1)(a)(i) and (b) includes proof
of a pattern of conduct by the offender. Here, the trial judge found the required
pattern exclusively based on the predicate offences. This was an unreasonable
finding.
[219]
In this case, the
appellant contends, both complainants were assaulted in the same context, in the
same places and in the same manner. Both convictions were treated as one
transaction even though the conduct alleged extended over a period of three to
four months.
[220]
Further, the appellant
continues, the appellants dated Youth Court convictions were incapable of
establishing a pattern when compared to the convictions for the predicate offences.
The youth convictions involved very different circumstances, including the
involvement of an older and dominating co-accused who abused the appellant. The
circumstances of these offences are unclear in large measure because of the unreliability
of the records offered in proof.
[221]
The respondent joins
issue with the appellant. The trial judge was right to find the necessary
patterns established based on the predicate offences. The evidence revealed
repeated assaults on two complainants over the same extended period of time. The
assaults occurred at different times. None involved both boys at the same time.
Reliance on the single transaction cases assessing the propriety of alleging
several incidents as a single count in an indictment is misplaced.
[222]
What is important for
the purpose of establishing a pattern, the respondent says, are similarities
in the conduct, not the number of offences or convictions. Here, there were
striking similarities in the offences sufficient to establish the required
pattern. Two convictions of strikingly similar predicate offences can sustain a
finding of the requisite pattern.
The Governing Principles
[223]
It is uncontroversial
that two incidents may constitute a pattern, provided they disclose a
sufficient degree of similarity:
R. v. Hogg
, 2011 ONCA 840, 287 O.A.C.
82, at paras. 40, 43;
R. v. Byers
, 2017 ONCA 639, at paras. 20-23.
[224]
The pattern
requirement in ss. 753(1)(a)(i) and (b) is not based exclusively on the number
of offences. It is also rooted in the elements of similarity in the offenders
behaviour:
R. v. Langevin
(1984), 11 C.C.C. (3d) 336 (Ont. C.A.), at
pp. 348-49. See also
R. v. Knife
, 2015 SKCA 82, 460 Sask. R. 287, at
para. 67, leave to appeal refused, [2015] S.C.C.A. No. 382.
[225]
Section 581(1) of the
Criminal
Code
enacts a rule of criminal pleading. As a general rule, each count in
an indictment must refer to a single transaction. The term transaction is not
synonymous with incident, occurrence or event. A single transaction may
include separate acts that are successive and cumulative and which comprise a
continuous series of acts forming one transaction:
R. v. Hulan
,
[1970] 1 C.C.C. 36 (Ont. C.A.), at p.
45;
R. v. Selles
(1997), 116 C.C.C. (3d) 435 (Ont. C.A.), at p. 444.
The Principles Applied
[226]
I would not accede to
this ground of appeal.
[227]
The trial judge put to
one side the appellants earlier offences, which resulted in convictions in Youth
Court and a sentence of nine months in open custody. He found the necessary
pattern established based on the predicate offences. Those offences involved
two complainants to whom the appellant had ongoing access for several months.
They involved grooming, followed by strikingly similar offences, including anal
intercourse.
[228]
The statutory
requirements demand proof of a pattern of behaviour, not a pattern of offences
or convictions. In its ordinary, everyday sense, a pattern refers to an
arrangement or order discernible in, among other things, objects, actions or
ideas. As used in s. 753(1), a pattern refers to actions, not thoughts. The
required pattern is based not solely on the number of offences, but also on the
elements of similarity in the offenders behaviour. This is what the trial
judge found based on evidence that provided a full measure of support for the
finding.
[229]
The appellants reliance on the authorities interpreting the
single transaction requirement in s. 581(1) of the
Criminal Code
is
misplaced. Those authorities are concerned with the sufficiency of a criminal
pleading, not with whether a pattern emerges from an offenders behaviour over
time such that it satisfies an essential element at the designation stage of
dangerous offender proceedings.
[230]
No serious issue is
taken with the principle that two strikingly similar incidents, or series of
incidents, can sustain a finding of a pattern of behaviour for the purposes of
s. 753(1)(a), or that a single incident can meet the requirements of s. 753(1)(b):
Boutilier
, at para.
102,
per
Karakatsanis
J. (dissenting in part, but not on this point);
Langevin
, at p. 348.
[231]
Finally, even if the
behaviour involved in the predicate offences cannot be the exclusive source to
furnish the pattern requirement in s. 753(1)(a) because of the reference to of
which the offence for which he or she has been convicted forms a part, the
inclusive language in s. 753(1)(b) makes it clear that the behaviour revealed
in the predicate offences can sustain the burden. The trial judge found the
appellants behaviour also met the requirements of s. 753(1)(b).
[232]
This ground of appeal
fails.
Ground #3: Misapprehension of Evidence of the Appellants Mother
[233]
The final ground of
appeal duplicates a complaint made on the appeal from conviction a
misapprehension of the evidence of the appellants mother, Ms. Lahey.
[234]
The evidence in
controversy has been summarized earlier and need not be repeated. Likewise with
the principles that control our decision when misapprehension of evidence is
urged as a ground of appeal.
[235]
A brief reference to
the arguments advanced in this court will provide the background essential to
understanding the alleged error.
The Arguments on Appeal
[236]
The appellant reminds
us that Ms. Lahey testified that she was concerned about the nature of the
appellants involvement with the complainants families. Her concern was not
that the appellant was abusing the boys, but rather how the nature of his
contact with them might be construed because of his prior offending history. As
a result, Ms. Lahey told her son to back off in this relationship. The
appellant rejected her advice.
[237]
The appellant says the
trial judge misapprehended this evidence by improperly using it to shore up his
finding of future risk of recidivism. And he also mischaracterized her concern
as related to actual conduct, rather than outward appearances, as she
testified.
[238]
The respondent rejects
any suggestion that the trial judge misapprehended this evidence. He properly
described its substance and made no error in its use.
[239]
The trial judge was
not concerned about the reasons Ms. Lahey gave for warning the appellant about
the nature of the relationship with the complainants and their families. What
the trial judge saw as significant was that, despite the warning, the appellant
lacked sufficient control over his sexual urges, so that he re-offended. This
evidence was relevant to future dangerousness since it tended to show that a
type of behavioural restraint, moral suasion, had no effect as behavioural
control.
[240]
In any case, the
respondent continues, reliance on this evidence was not material to the finding
of future dangerousness. That finding was fully supported by the appellants
diagnosis as a pedophile, the actuarial and clinical assessments about the
risks, and his offending history.
The Governing Principles
[241]
The principles that
govern our determination of alleged misapprehensions of evidence have been
canvassed in paragraphs 56-60. There is no need to repeat them here.
The Principles Applied
[242]
I would reject this
ground of appeal.
[243]
After concluding that
the Crown had established beyond a reasonable doubt that the appellant had been
convicted of a serious personal injury offence and had engaged in the pattern
of behaviour required under s. 753(1)(a)(i) and the conduct required under s.
753(1)(b), the trial judge turned to the future conduct requirement.
[244]
The trial judge
recognized that the future conduct was all about the likelihood and nature of
recidivism. The expert evidence established the significant risk of sexual
offence recidivism of the required gravity. The experts diagnosed the appellant
as a pedophile, a lifelong condition with no known cure. The limited treatments
to ameliorate its recidivistic risks do not assist the appellants case, either
because he rejects them outright (pharmacological intervention) or because his
denials pose insurmountable barriers to even modest success (behavioural therapy).
[245]
The brief reference to
the appellants rejection of his mothers warning in the context of the efficacy
of moral suasion as a behavioural restraint was neither misplaced nor material
to the trial judges conclusion on the issue. Its removal from the analysis
would not leave the ultimate finding on shaky ground.
Disposition of the Appeal from the Dangerous Offender Finding
[246]
In the result, I would
dismiss the appeal from the dangerous offender finding, as well as the
indeterminate sentence imposed.
Disposition
[247]
For these reasons, I
would dismiss the appeal in its entirety.
Released: July 23, 2021 JMF
David Watt J.A
I agree. Fairburn A.C.J.O.
I agree. Grant Huscroft J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Morgan, 2021 ONCA 531
DATE: 20210723
DOCKET: C63977
Watt, Roberts and Zarnett JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Patricia Morgan
Appellant
Breana Vandebeek, for the appellant
Tom Lemon and Eli Lo Re, for the
respondent
Heard: April 21, 2021 by video
conference
On appeal from the conviction entered on
May 17, 2017 by Justice Irving W. Andr
é
of the Superior
Court of Justice, sitting with a jury.
REASONS
FOR DECISION
[1]
The appellant appeals her conviction for the
importation of just over one kilogram of cocaine that she had ingested in the
form of about 127 capsules. At issue is the voluntariness of the video
statement that she gave to an RCMP officer following her arrest at Pearson
International Airport. She submits the statement was not voluntary because it
was made under oppressive circumstances and in exchange for an improper
inducement.
[2]
For the reasons that follow, we dismiss the
appeal.
Factual background
[3]
The appellant had ingested the cocaine capsules while
in Jamaica before her return to Toronto on July 12, 2014. On arrival at Pearson
International Airport at around 7:00 p.m., she spoke briefly with Canada Border
Services Officer (BSO) Cullen and answered routine questions. She told him
that she had gone down to Jamaica with her children about three weeks before
but was returning alone and that she was employed by an airline. BSO Cullen
referred the appellant to secondary inspection where he searched her bags and
asked the appellant further standard questions about the packing and contents
of her bags. The appellant confirmed the bags were hers and that she had packed
them and was aware of their contents. She provided further information about
her employment, income, children, the purchase of her airline ticket, and her stay
in Jamaica. BSO Cullen did not record his communications with the appellant.
[4]
At 9:18 p.m., BSO Cullen turned custody of the
appellant over to BSOs Walker and
Woloszanskyj
who
provided a secondary caution. She was moved to a search room and a pat-down
search was conducted. She contacted duty counsel at 9:28 p.m., first leaving a
message and then speaking with counsel at 9:58 p.m. At 10:03 p.m., a strip
search was conducted. BSOs Walker and Woloszanskyj engaged the appellant in
conversation but did not record it. BSO Walker testified that this was general
conversation and casual
sitting, chatting.
[5]
Over the course of the next ten hours, the
appellant was watched carefully. She was given food and water. She was given
her sweater from her carry-on bag. She was asked on several occasions whether
she wished to provide an x-ray or go to the hospital. She refused. She
requested an opportunity to speak with duty counsel again at about 1:24 a.m.
and spoke with counsel some ten minutes later. At about 3:33 a.m., the
appellant passed the first sample of suspected cocaine and was placed under
arrest. She was again given her rights to counsel and provided with a third opportunity
to consult with counsel, which she accepted. She was asked again if she wanted
to go to the hospital. She refused. At 4:42 a.m., BSO Walker requested the
assistance of EMS and at 4:48 a.m. the EMS attendants arrived and assessed the
appellant who again refused to go to the hospital.
[6]
The appellant remained in the custody of BSOs
Walker and Woloszanskyj until 7:44 a.m. on July 13, 2014. At that point, she
was transferred into the custody of RCMP Constables Castrillon and Edwards. Cst.
Castrillon read the appellant her rights to counsel and gave a primary and
secondary caution. At 8:08 a.m., the appellant was taken to the hospital by
Cst. Edwards for an assessment to ensure she was fine. During the appellants
time in hospital, Cst. Edwards engaged the appellant in casual conversation. At
one point in the conversation, Cst. Edwards observed that, while she had no
power over the appellants release, Canadian citizens without criminal records
were typically released on bail. Cst. Edwards testified that she impressed upon
the appellant that only the courts could rule on the appellants release. These
conversations were not recorded and Cst. Edwards took limited notes.
[7]
The appellant was examined and cleared by
medical personnel who discharged her back into custody at 1:03 p.m. She was
transported back to the airport. There, the appellant was provided with
additional opportunities to consult with counsel, which she declined. She was
lodged in a dry cell with a bench, mattress, blankets, food and water so that
she could pass the remaining pellets.
[8]
Starting at 6:49 p.m., the appellant gave a
videotaped statement to Cst. Edwards. Prior to giving the statement, the
appellant was given another opportunity to speak with counsel, which she
declined. Cst. Edwards spoke to the appellant before taking her statement but
without taking notes. However, the video recording captured a portion of this
exchange, including Cst. Edwards statement that youll go in front of a judge
or [justice of the peace], and at some point youll be released. We discussed
that earlier right?. Cst. Edwards then added at that point youll get your
luggage back. The appellant proceeded to give a statement in which she gave
information about her involvement in the importation scheme.
[9]
After the appellant had given the video
statement, and at her request, Cst. Edwards placed her childrens
passports into her luggage for safekeeping until the appellants release. Cst.
Edwards again told the appellant that the issue of her release was up to the
courts, and that she would be provided her luggage and the passports upon
release. When the appellant was released three days later, she attended at the
police station and was given her passport and her luggage with her childrens
passports.
First trial and mistrial
[10]
The first trial took place before Barnes J.
sitting with a jury. The Crown brought a preliminary application to establish
the voluntariness of four sets of statements made by the appellant, including:
1) her statements to BSO Cullen, 2) her statements to BSOs Walker and
Woloszanskyj, 3) her statements to Csts. Castrillon and Edwards before the
video, and 4) the videotaped statement. BSOs Walker and Woloszanskyj and Csts.
Castrillon and Edwards testified on the voluntariness
voir dire
. The
appellant also testified. In reasons reported at 2017 ONSC 432, Barnes J.
concluded that there was an inadequate record of the first three sets of
statements made by the appellant to BSOs Cullen, Walker and Woloszanskyj and
that those statements would not be admitted. Barnes J. determined that the video
statement made to Cst. Edwards was voluntary and admitted it.
[11]
The first trial ended in a mistrial because of the
late Crown disclosure of Cst. Edwards disciplinary history: in 2011, she had
been reprimanded for having improperly used her special clearance pass to
expedite her sons passage through the airport.
Second trial and conviction
[12]
The second trial proceeded before Andr
é J.,
and a second voluntariness
voir dire
was held
to determine the admissibility of the appellants video statement. The Crown no
longer sought to admit the appellants other statements ruled inadmissible by
Barnes J. The parties agreed that the transcripts of the evidence of BSOs
Walker and
Woloszanskyj and Cst. Castrillon would be admitted
into evidence at the
voir dire
to obviate the need for those officers
to testify again. Cst. Edwards testified at the
voir dire
. The
appellant did not testify on the second
voir dire
nor was the
transcript of her evidence on the
voir dire
from the first trial put
into evidence. The trial judge determined that the appellants video statement
was voluntary and admitted it into evidence.
[13]
At trial, the appellant contested the Crown case.
She testified that she had ingested the cocaine under duress. She was convicted
by the jury.
Analysis
[14]
It is well established that to render admissible
a statement made by an accused to a person in authority the Crown need only
adduce some evidence that the alleged statement was made and prove beyond a
reasonable doubt that the statement was voluntary. Voluntariness requires that
the statement is made without fear of prejudice or hope of advantage and that
it represents the product of an operating mind that has not been overborne by
oppressive and inhumane circumstances or police trickery. See:
R. v.
Spencer
, 2007 SCC 11, [2007] 1 S.C.R. 500, at paras. 11-15;
R. v.
Oickle
, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 47-67;
R. v.
Gauthier
, [1977] 1 S.C.R. 441, at p. 448;
R. v. Moore-McFarlane
(2001),
160 C.C.C. (3d) 493, at paras. 53-54.
[15]
Here there is no question about the threshold
reliability of the recording of the appellants video statement. The appellant challenges
its voluntariness. She says the trial judge erred in failing to find that the video
statement was given under oppressive circumstances because she was not
permitted to sleep and was deprived of her blood pressure medication in the
almost 24 hours that preceded the giving of the video statement. She argues the
trial judge should have disregarded the officers evidence about the circumstances
surrounding the video statement because of their failure to make proper notes
of their conversations with her and the inconsistencies among their accounts.
[16]
We are not persuaded by these submissions.
[17]
The trial judge was entitled to accept the officers
evidence concerning their treatment of and interactions with the appellant
while she was in their custody. It is of no moment that Barnes J. had ruled
some of the appellants other statements to be inadmissible at the first trial
due to the inadequacy of the officers notes. At the second trial, the Crown no
longer sought to prove the admissibility of those utterances that Barnes J. had
already determined were insufficiently documented, and the officers notes and
recollections were adduced simply to establish the circumstances surrounding
the appellants videotaped statement. The parties agreed to admit the
transcripts of the officers evidence of these circumstances, and the appellant
elected not to testify on the
voir dire
. It was open to the trial
judge to rely on the officers evidence of the context leading up to the
videotaped statement, even if such notes had been insufficient to establish the
admissibility of the appellants other statements at the first trial.
[18]
The trial judge thoroughly reviewed the
circumstances surrounding the appellants video statement, including that the officers
regularly checked on the appellant to ensure that she was well and did not
require medical attention. These actions were reasonable and necessary to monitor
the appellants health; she had ingested about a kilogram of cocaine and was at
risk of suffering grave consequences if any of the pellets broke open while in
her system.
[19]
Importantly, there was no evidence before the
trial judge that the appellant was exhausted or ill and could not voluntarily
give her statement. Indeed, the appellants discharge from hospital belies this
suggestion. Moreover, the evidence of the officers and the video statement
itself support the trial judges conclusion that there was no evidence that a
lack of sleep created an oppressive situation. The appellant did not complain
of hunger, fatigue or any other condition, and seemed alert and responsive. Nor
was there any evidence that the appellant had requested her blood pressure
medication or that it was refused. The unchallenged evidence of the officers was
that the appellant did not request her medication but, if she had done so, it
would have been given to her. She does not allege that she was threatened or subjected
to harsh, aggressive, or overbearing interrogation. Indeed, after the
voir
dire
, the appellant agreed at trial that Cst. Edwards was nice to her and
not the sort of officer that you expect when you get arrested.
[20]
At all times the appellant was treated with
respect and concern about her physical wellbeing. She was given numerous
opportunities to speak with counsel and did so on three occasions. At no time,
including on the video statement, did she indicate that she did not wish to speak
to Cst. Edwards. As the trial judge correctly concluded, there was no evidence
of any oppressive circumstances or that the statement was not the product of an
operating mind. The trial judge properly distinguished the appellants case
from the distinctively different factual circumstances in
R. v. Ebanks
,
2012 ONSC 3887, where incriminating statements were extracted in an atmosphere
of threats and oppression that did not exist in the present case.
[21]
The appellant submits that the trial judge erred
in failing to find that she was given an improper inducement in exchange for
her statement. She says that as an inducement for her video statement, Cst.
Edwards promised that she would be released and her luggage, which contained
her childrens passports, would be returned to her. She argues that the trial
judge erred in failing to reject Cst. Edwards evidence as incredible and
unreliable because of her disciplinary history and her failure to make notes of
their conversations.
[22]
We disagree. Again, the appellant has not
identified any error. Rather, she complains only of the trial judges
assessment and weighing of the evidence. It was open to the trial judge to
accept Cst. Edwards evidence about her conversations with the appellant and
her denial that any inducement was given in exchange for the video statement.
The trial judge was aware of Cst. Edwards disciplinary history but was not
obliged to discount her evidence because of it. With respect to the isolated
passages from the video statement on which the appellant relies as evidence of
inducement, the trial judge, correctly in our view, did not interpret them in
the way urged by the appellant. Significantly, as the trial judge noted, Cst.
Edwards clearly stated on the video statement that it was not up to her but the
courts to determine when the appellant would be released and could retrieve her
passport and her luggage with her childrens passports.
[23]
A trial judges finding of voluntariness is
essentially a factual one requiring a contextual analysis of the particular
circumstances surrounding the making of the statement in issue. A disagreement
with the trial judge regarding the weight to be given to various pieces of
evidence is not grounds to reverse a finding on voluntariness. Absent a legal
error in determining the test for voluntariness or a palpable and overriding
error of fact, the trial judges finding of voluntariness is subject to
considerable appellate deference:
Spencer
, at paras. 16-17;
Oickle
,
at paras. 22 and 71;
R. v. M.D.
, 2012 ONCA 841, 293 C.C.C. (3d) 79, at
para. 42;
R. v. Othman
, 2018 ONCA 1073, 371 C.C.C. (3d) 121, at
para. 11. We see no such error here.
Disposition
[24]
For these reasons, the appeal is dismissed.
David
Watt J.A.
L.B.
Roberts J.A.
B. Zarnett
J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Wiseau Studio, LLC v. Harper, 2021 ONCA 532
DATE: 20210723
DOCKET:
M52634
, M52157 & M52464 (C68580)
Doherty, Pepall and Trotter JJ.A.
BETWEEN
Wiseau Studio, LLC and Tommy Wiseau d.b.a.
Wiseau-Films
Plaintiffs/Defendants by Counterclaim (Appellants)
and
Richard Harper, Fernando Forero McGrath, Martin
Racicot d.b.a. Rockhaven Pictures, Room Full of Spoons Inc., Parktown Studios
Inc. and Richard Stewart Towns
Defendants/Plaintiffs by Counterclaim (Respondents)
No one appearing for the appellants
Matthew Diskin and Meredith Bacal, for the respondents
Heard: In writing
A motion by the respondents for an order dismissing the
appeal.
REASONS FOR DECISION
[1]
On June 2, 2021, this panel affirmed that part of the order of Thorburn
J.A., dated January 15, 2021, requiring the appellants to post security for
costs of the trial and the appeal as a condition precedent to proceeding with
the appeal. The security was to be posted by July 7, 2021. The order further
provided that the respondents could move
ex parte
in writing before
this panel for an order dismissing the appeal if the security was not posted by
July 7, 2021.
[1]
[2]
The appellants have commenced an application for leave to appeal to the
Supreme Court of Canada from our order requiring security for costs. The
appellants also sought a stay of the order requiring security for costs pending
its application for leave to appeal to the Supreme Court of Canada. The stay
was refused by Fairburn A.C.J.O. on July 7, 2021.
[3]
This panel also received correspondence from counsel for the appellants
on July 7, 2021, indicating the appellants could not comply with the security
for costs order and seeking a stay of that order. The appellants were advised
that any motion to stay or vary this courts order had to be made on proper
notice and in accordance with the applicable rules. As of July 19, 2021, no
motion had been brought.
[4]
The security for costs order has not been complied with by the
appellants. We see no reason not to dismiss the appeal for want of compliance
with that order. The appeal is dismissed.
[5]
The respondents are entitled to the costs of this motion and any costs
associated with the appeal. We fix those costs at $5,000, inclusive of
disbursements and relevant taxes.
Doherty J.A.
S.E. Pepall J.A.
G.T. Trotter J.A.
[1]
The material filed by the respondents did not include a copy
of the formal order made by this panel on June 2, 2021. If that order has not
been taken out, the respondents should do so forthwith.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Bayford v.
Boese, 2021 ONCA 533
DATE: 20210722
DOCKET: C67599
Doherty,
Nordheimer and Harvison Young JJ.A.
BETWEEN
Brenda Bayford
Plaintiff (Respondent)
and
Brian Boese
, Kaitlyn Boese, Alexander Boese,
Erin McTeer and Michelle McTeer
Defendants (Appellant)
Earl A. Cherniak, Q.C., Ian M.
Hull and Doreen Lok Yin So, for the appellant
Taayo Simmonds, for the
respondent
Heard: in writing
On appeal
from the judgment of Justice Sylvia Corthorn of the Superior Court of Justice,
dated October 1, 2019.
COSTS ENDORSEMENT
[1]
On June 22, 2021, we released our decision in
which we allowed the appeal in this matter and dismissed the respondents
action. We invited written submissions regarding the costs of the appeal. The
parties have agreed that the appellant should have his costs of the proceeding
below and that those costs should be referred to the trial judge for assessment.
[2]
We have now received and reviewed the written
submissions of the parties. The appellant seeks his costs of the appeal on a
full indemnity basis in the amount of $113,500. He also seeks an order that, to
the extent that the respondent is unable to satisfy the order for payment of
costs of the trial and appeal, the appellant be entitled to recover the balance
of the costs assessed from the Estate of Brian Boese.
[3]
The basis for the appellants request for costs
on a full indemnity basis arises from the fact that the case put forward by the
respondent at trial, and accepted by the trial judge, was that the Will in
question, signed by the testator, was purportedly witnessed by two individuals.
As found by this court, that was not the true state of affairs. In fact, the
two individuals had signed as witnesses after the testator had passed away. The
appellant says, in essence, that the respondent attempted to perpetrate a fraud
upon the court.
[4]
We accept that a finding of fraud, or attempted
fraud, may justify an award of costs on an elevated scale. Such a finding would
be subsumed in the principle that costs on a substantial indemnity basis may be
awarded "where there has been reprehensible, scandalous or outrageous
conduct on the part of one of the parties":
Young v. Young
, [1993]
4 S.C.R. 3, at p. 134;
Mars Canada Inc. v. Bemco Cash & Carry Inc.,
2018 ONCA 239, 140 O.R. (3d) 81, at para. 43.
[5]
On that point, however, we would reiterate the
note of caution expressed in
Net Connect Installation Inc. v. Mobile Zone
Inc.,
2017 ONCA 766, 140 O.R. (3d) 77, at para. 8, that there is a
significant and important distinction between full indemnity costs and
substantial indemnity costs. This court added:
Substantial 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. It follows that
conduct worthy of sanction would have to be especially egregious to justify the
highest scale of full indemnity costs.
[6]
This principle, though, will normally apply to
the trial proceedings, not to the appeal proceedings. There was no conduct by
either party on the appeal that would fall within the above principle. Any
finding regarding the conduct of the respondent, and its proper effect on costs,
is thus a matter for the trial judge to consider when she assesses the costs of
the proceedings below.
[7]
That said, there is nonetheless an impact on the
appeal proceedings from the nature of the evidence and the findings of the
trial judge. Because the trial judge accepted the version of events advanced by
the respondent, the appellants task on appeal was an onerous one. He was
required to establish that the trial judge had made palpable and overriding
errors of fact, including accepting the respondents, and the attesting
witnesses, evidence. The significant task facing the appellant is a factor to
consider in determining a reasonable amount for the costs of the appeal.
[8]
We also accept that, to the extent that the
costs of the appeal, or of the trial, may not be satisfied by the respondent,
the appellant ought to be able to recover those costs from the Estate. This
litigation was, at least in part, caused by the testators failure to complete
his intended new Will as directed by his lawyer. Assuming that the testator
intended to proceed as outlined in the new Will, his failure to have that Will
fully and properly executed led to this litigation. The blended costs award,
in which a portion of costs is payable by the losing party and the balance is
payable out of the estate, is applicable in this case:
Sawdon Estate v.
Watch Tower Bible and Tract Society of Canada
, 2014 ONCA 101, 119 O.R. (3d)
81, at para. 99. This is also a fair result since the actions of the appellant
have benefitted the other beneficiaries of the Estate of Bruce Boese.
[9]
In the result, we award the appellant the costs
of the appeal fixed at $50,000, inclusive of disbursements and HST. The
appellant is also awarded his costs of the trial. Those costs are referred to
the trial judge for assessment. To the extent that the costs of the appeal, or
of the trial, are not satisfied by the respondent, the appellant may recover
those costs from the Estate of Bruce Boese.
Doherty J.A.
I.V.B. Nordheimer J.A.
A. Harvison Young J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Florence v. Benzaquen, 2021 ONCA
523
DATE: 20210722
DOCKET: C68305
Fairburn A.C.J.O., MacPherson
and Gillese JJ.A.
BETWEEN
Jared Florence, Dana Florence,
Brody
Florence, Cole Florence and Taylor Florence, by their Litigation Guardian, Dana
Florence
Plaintiffs (
Appellants
)
and
Dr. Susan Benzaquen
and Dr. Jon Fenton Roy Barrett
Defendants (
Respondent
)
Duncan Embury and Daniela M. Pacheco, for the
appellants
J. Thomas Curry, Brendan F. Morrison and Sean M.
Blakeley, for the respondent
Heard by video conference: February 23, 2021
On appeal from the order of Justice Darla
A. Wilson of the Superior Court of Justice, dated April 14, 2020, with reasons
reported at 2020 ONSC 1534.
Gillese J.A.:
[1]
Is it settled law, in Ontario, that a physician does
not owe a duty of care to a future child for alleged negligence that occurred pre-conception?
The answer to that question is determinative of this appeal.
I.
OVERVIEW
[2]
Dana Florence began taking Serophene, a
fertility drug, in early July 2007. She was 25 years old and had been
attempting to conceive for only a few weeks. By the end of July, Ms. Florence was
pregnant. On January 1, 2008, at 26 weeks gestation, she gave birth to triplets:
Brody, Cole, and Taylor (the
Appellants
). As a result of
having been born prematurely, the Appellants have serious disabilities.
[3]
In 2011, Ms. Florence and her husband, Jared
Florence, together with the Appellants
[1]
(collectively, the
Plaintiffs
) commenced this action in
which they claim against Dr. Benzaquen (the
Respondent
) in
negligence (the
Action
).
[2]
The Respondent was Ms. Florences gynecologist from 2004-7 and had prescribed
the Serophene.
[4]
In the Action, the Plaintiffs claim that Ms.
Florence was not given all the information necessary to make an informed
decision about the use of Serophene. Specifically, they allege that she was not
advised of the significant risk of conceiving multiple fetuses, the associated risks
which include premature birth of the babies, and the resulting potential for
significant neurological and developmental injuries to them. They further
allege that the Respondents prescription of Serophene was contraindicated and
failed to take into account Ms. Florences age, the very short time that
she and her husband had been trying to conceive, and other clinical indicators
which suggested that the use of Serophene was unreasonable in the circumstances.
They plead that if Ms. Florence had been aware of the significant risks
associated with multiple births, she would not have taken Serophene.
[5]
In the Action, the Appellants assert that they
brought it in their own right. Below and on appeal, the Appellants argue that
their case is not predicated on the issue of their mothers informed consent.
Rather, they assert that the Respondent owed a concurrent duty of care to their
mother and to them to not prescribe to their mother a contraindicated and
potentially dangerous medication (Serophene) that the Respondent knew, or ought
to have known, could cause harm not only to Ms. Florence but also to them.
[6]
In her statement of defence, the Respondent denies
the allegations, maintaining that a proper history was obtained, informed
consent was given, and prescribing Serophene was appropriate.
[7]
The Respondent brought a motion pursuant to r.
21.01(1)(b) of the
Rules of Civil Procedure
,
R.R.O. 1990, Reg.
194, to strike the Appellants claims before trial (the
Motion
).
[8]
In her reasons (the
Reasons
),
the motion judge concluded that the Appellants claims are not recognized at
law and, thus, they have no viable cause of action. Accordingly, by order dated
April 14, 2020, she granted the Motion and struck the Appellants claims.
[9]
The Appellants overarching position on appeal is
that their case is factually different from those decided to date in Ontario
and the novel duty of care they assert has wide implications of public
importance. They argue that they should be afforded the opportunity to present
a full factual and evidentiary record at trial before the court decides whether
their claims should be recognized at law. They say only a trial will enable the
court to conduct a comprehensive
Anns
analysis to determine
whether a duty of care was owed in the specific circumstances of this case, and
that a full record is necessary for the court to consider the prolific
prescription of fertility drugs, and the serious consequences borne by the
public healthcare system and taxpayers as a result. They contend that, in any
event, the motion judge erred in her limited-form
Anns
analysis
and that had she performed it correctly, she would have determined that their
claims should be decided at trial. The Appellants refer to the motion judges
analysis as a limited-form
Anns
analysis to distinguish it
from the full analysis that would be possible if the issue were decided at
trial.
[3]
[10]
The Respondents overarching position on appeal
is that it is settled law, in Ontario, that a physician does not owe a duty of
care to a future child for alleged negligence that occurred pre-conception. In
any event, however, the Respondent submits that the motion judge correctly applied
binding precedent in striking the Appellants claims.
[11]
In my view, the motion judge correctly decided
the Motion. For the reasons that follow, I would dismiss the appeal.
II.
THE MOTION JUDGES REASONS
A.
Rule 21 and timing of the Motion
[12]
The motion judge began by stating the relevant
parts of r. 21 and the principles that apply on such motions. Rule 21 enables a
party to move for the determination of a question of law raised by a pleading,
where that determination may dispose of all or part of the action or
substantially shorten the trial, or to strike out a pleading on the ground that
it discloses no reasonable cause of action. On r. 21 motions:
a)
the judge must take as true the facts as pleaded;
b)
the moving party must prove assuming the facts pleaded are true
and proven that it is plain and obvious there is no reasonable cause of
action; and
c)
the threshold for success is high: the claim as
pleaded must have no possibility of success.
[13]
Quoting from
R. v. Imperial Tobacco Canada
Ltd.
, 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 19, the motion judge observed
that striking claims with no reasonable prospect of success is a valuable
housekeeping measure essential to effective and fair litigation. It unclutters
the proceedings, weeding out the hopeless claims and ensuring that those that
have some chance of success go on to trial. She added that having a r. 21 motion
heard before trial enables the defendant to know the case it must meet and the plaintiff
to know what evidence it must marshal, at trial.
[14]
The motion judge expressed her view that r. 21
motions should be heard at the earliest date. Such motions are intended to
dispose of claims that have no chance of success because they have no basis in
law. It is preferable that they be decided well in advance of trial so that the
issues for adjudication are clarified at an early stage, and time and expense
is not wasted on developing and defending such claims. There is no advantage to
delaying this Motion until trial an evidentiary record is not necessary since
the Motion is determined on the pleadings.
B.
The law on wrongful life cases
[15]
The motion judge described a claim for wrongful
life as one asserted by the child for a pregnancy that results in birth defects
and where the child argues that, but for the negligence of the doctor, the child
would not have been born.
[16]
The motion judge then discussed the relevant
caselaw, beginning with
Dobson (Litigation Guardian of) v. Dobson
,
[1999]
2 S.C.R. 753, in which the Supreme Court held no duty of care could or should
be imposed on a pregnant woman to her fetus or subsequently born child.
[17]
Next, the motion judge discussed
Lacroix (Litigation
Guardian of) v. Dominique
, 2001 MBCA 122, 202 D.L.R. (4th) 121, leave to
appeal refused, [2001] S.C.C.A. No. 477. In
Lacroix
, a claim was
brought because of abnormalities to a child caused by epilepsy medication the
mother had taken while pregnant. The Manitoba Court of Appeal described the
case as one of wrongful life because, had the mother known the effect of the
medication, she either would not have taken it while pregnant or she would not
have become pregnant; thus, the child would not have been born. The court did
not recognize an action for wrongful life. It followed the reasoning in
McKay
v. Essex Area Health Authority
, [1982] Q.B. 1166 (Eng. C.A.), and held
that a doctor did not owe a future child a duty of care to not prescribe a
medication to the mother because the imposition of such a duty would
immediately create an irreconcilable conflict between the duty owed by the
doctor to the child and that owed to the mother: at para. 39. In
Lacroix
,
the court also said that claims based on the imposition of a duty on doctors to
a future child are contrary to public policy because it would be impossible to
assess damages.
[18]
The motion judge then summarized three Ontario
appellate decisions discussed later in these reasons:
Bovingdon (Litigation
Guardian of) v. Hergott
, 2008 ONCA 2, 88 O.R. (3d) 641, leave to appeal refused,
[2008] S.C.C.A. No. 92;
Paxton v. Ramji
, 2008 ONCA 697, 92 O.R. (3d)
401, leave to appeal refused, [2008] S.C.C.A. No. 508; and,
Liebig v.
Guelph General Hospital
, 2010 ONCA 450, 321 D.L.R. (4th) 378.
C.
Application of the law to the facts of this case
[19]
To decide the Motion, the motion judge began by examining
the nature of the claims advanced in the pleadings. She observed that the Appellants
brought the Action in their own right pursuant to the provisions of the
Family
Law Act
, R.S.O. 1990, c. F.3. She said it was unclear how their claims
could be so asserted
.
[20]
The motion judge accepted the pleadings as true
for the purposes of the Motion: the Respondent was negligent in prescribing
Serophene to Ms. Florence because it was unreasonable and unnecessary; Ms.
Florence was not provided with information concerning the risks of multiple and
premature births, and the resultant injuries to the babies associated with
taking the medication; and, Ms. Florence took the prescribed fertility drug
which resulted in her becoming pregnant with triplets who were born with very
serous disabilities because of the prematurity of their birth.
[21]
The motion judge observed that the allegations
of negligence against the Respondent all relate to her care and treatment of
Ms. Florence there was no pleading of a duty owed to the triplets by the [Respondent]
in any capacity.
[22]
She noted that Ms. Florence can maintain a claim
in negligence against the Respondent and that it is settled law that a child,
once born alive, can sue for injuries as a result of negligence committed while
in the womb.
[4]
[23]
However, the motion judge stated, in this case
there was no injury to the fetus arising from a negligent act because
conception had yet to take place. Accepting that the medication ought not to
have been prescribed to Ms. Florence and it was an act of negligence to do so,
the medication itself did not cause the birth defects or neurological injuries
to the Appellants. According to the pleadings, Serophene increased the
likelihood of multiple births and premature delivery, which resulted in the
Appellants impairments.
[24]
The motion judge concluded that the Appellants
claims are that they would not have been born had the negligence not occurred,
making them a case which the courts have described as wrongful life claims.
[25]
The motion judge accepted the Appellants
assertion that this court has not said that a wrongful life claim could never
be successful. She pointed to para. 73 of
Bovingdon
, where Feldman
J.A., writing for this court, said it was unclear whether the courts would
necessarily dismiss every claim for wrongful life and to determine whether the claims
of unborn children can be maintained, it is necessary to decide in each case
whether the doctor owed a duty of care to the future child. If such a duty has
been previously found to exist, the court is to apply standard negligence law.
If not, the court must undertake an
Anns
analysis.
[26]
Because the relationship in the pleadings in
this case has not been recognized as giving rise to a duty of care, the motion
judge undertook the two-part
Anns
test which she described as
follows. First, is there a relationship of proximity between the two parties in
which a failure to take reasonable care might foreseeably cause loss or harm to
a party? If so, then a
prima facie
duty of care arises. Second,
are there policy reasons why the
prima facie
duty of care should
not be recognized?
[27]
Relying on para. 75 of
Paxton
, the
motion judge said that for legal proximity to exist, the relationship between
the doctor and unborn child must be both close and direct. In
Paxton
,
the court found that the relationship was indirect: the doctor could not provide
recommendations to, nor take instructions from, a future child. The motion
judge found, for the reasons given in
Paxton
, that the relationship in
this case lacks the necessary proximity to establish a
prima facie
duty
of care.
[28]
Relying on the reasoning in
Bovingdon
and
Paxton
,
the motion judge said that to impose a duty of
care on the doctor to the unborn children, in addition to the doctors duty of
care to the mother, could create a conflict of interest in terms of the
treatment offered to the woman and place the doctor in an impossible position
because of competing duties owed.
[29]
The motion judge rejected the Appellants
argument that their case is distinguishable from
Bovingdon
, which was
solely an informed consent case. She said that the additional claim of
negligence asserted against the Respondent did not change the analysis to be
undertaken in determining whether a duty of care was owed to the unconceived
children. She found the Appellants case to have very similar facts to those in
Bovingdon
, in which this court concluded that the doctor owed no duty
of care to future children to not cause them harm in prescribing fertility
drugs to the mother.
[30]
The motion judge said the policy considerations set
out in
Paxton
on the second branch of the
Anns
test concerning
womens autonomy and the potential for conflicting duties on the doctor were
present in this case.
[31]
The motion judge concluded that no duty of care to
the Appellants, as unconceived babies, should be recognized. She stated that this
court has rejected wrongful life claims and the lower courts are bound by that
jurisprudence. In her view, this court has closed the door on cases arising
from the prescription of fertility drugs that result in premature births.
[32]
Because the motion judge viewed the law to be
clear that the Appellants claims could not succeed, there was no need to wait
until trial to determine whether the claims were viable. Accordingly, she
granted the Motion and dismissed the Appellants claims without leave to amend.
III.
THE ISSUES
[33]
The Appellants submit that the motion judge erred
in:
1.
failing to apply the limited-form
Anns
test
[5]
to the facts of this case;
2.
her application of
Bovington
and
Paxton
; and
3.
characterizing their claims as ones for
wrongful life and categorically denying them.
IV.
THE STANDARD OF REVIEW
[34]
The parties are agreed that this court is to
review the motion judges decision on a standard of correctness.
V.
THIS COURTS CASELAW
[35]
The primary task on this appeal is to determine
whether the motion judge properly adhered to this courts jurisprudence.
Consequently, before addressing the issues, it is necessary to carefully examine
the decisions of this court in
Bovingdon
,
Paxton
, and
Liebig
.
Bovingdon
[36]
A doctor prescribed a fertility drug to Ms.
Bovingdon. She became pregnant with twins and gave birth to them prematurely.
The twins were profoundly disabled as a result of their premature birth. Ms.
Bovingdon, her husband, the twins, and other family members sued the doctor claiming
that he failed to provide Ms. Bovingdon with all the information necessary
to make an informed decision whether to take the fertility drug. The jury found
the doctor negligent for failing to provide Ms. Bovingdon with the necessary information.
The jury further found that had she been given that information, Ms. Bovingdon would
not have taken the fertility drug.
[37]
The trial judge ruled that the twins claims
were not wrongful life claims and the doctor owed them a duty of care. Because
he breached that duty by failing to give their mother the necessary
information, the trial judge held that the twins were entitled to recover
damages in their own right.
[38]
On appeal to this court, the trial judge was
found to have erred: the doctor did not owe a duty of care to the twins and
they had no claims to advance.
[39]
In reaching this conclusion, Feldman J.A.,
writing for the court, rejected the two-category approach used by other courts
in deciding whether claims of future children should be recognized. Under the
two-category approach, claims by children born with disabilities are divided
into two categories: those in which the abnormalities were caused by the
wrongful act or omission of another and those in which, but for the wrongful
act or omission, the child would not have been born. The latter category has
been termed wrongful life claims. While Feldman J.A. viewed the twins claims
as falling into the category of wrongful life claims, she said that the
two-category approach was not a helpful analytical basis for assessing such
claims because the facts can lead to a child being placed in either or both
categories. For example, in
Lacroix
, because it was the epilepsy drug
that caused the injury to the fetus, the cause of action could be viewed (as it
was) as one for wrongful life but it could also be viewed as one where the act
of the doctor in prescribing the drug caused the damage. Instead of placing a
claim in one of the two categories, Feldman J.A. directed the courts to use the
normal analysis of tort liability because the real question is whether the
doctor owed a duty of care to the future child in the circumstances of the
case.
[40]
In
Bovingdon
, Feldman J.A. concluded that
the doctor did not owe a duty of care to future children not to cause them harm
by prescribing the fertility drug to the mother. The doctor owed a duty of care
only to the mother to provide her with sufficient information to make an
informed decision whether to take the fertility drug; so long as that was done,
the decision whether to take the drug was entirely that of the mother.
[41]
Justice Feldman viewed policy analysis as
supporting her conclusion: a co-extensive duty of care to a future child would
create a potential conflict of interest for the doctor, given the doctors duty
to the mother. The policy of ensuring that womens choice of treatment be
preserved further supported her conclusion that the doctor owed no legal duty
to the future children.
[42]
Justice Feldman stated, at para. 73 of
Bovingdon
,
that it is undecided whether the Ontario courts would necessarily dismiss every
claim for wrongful life. She added that a proper consideration of that question
would require the court to address the policy issue of whether such claims
should exist in our law.
Paxton
[43]
In
Paxton
, a doctor prescribed Accutane,
an acne medication, to the mother of the appellant child on the understanding
that she could not get pregnant while taking the medication. The doctors
understanding shared by the mother was based on the appellants father having
had a vasectomy four and a half years earlier, which had been successful up to
the time the mother became pregnant with the appellant. The appellant, her
parents, and her siblings sued the doctor.
[44]
The trial judge found that the doctor owed a
duty of care to the appellant pre-conception to not prescribe Accutane to her
mother without taking all reasonable steps to ensure the mother would not
become pregnant while taking the medication. However, the trial judge found
that the doctor met the standard of care by relying on the fathers vasectomy
as an effective form of birth control. Accordingly, the trial judge dismissed
the appellants action against the doctor.
[45]
The appellant appealed to this court. Justice
Feldman, writing for the court, agreed that the appellants action against the
doctor should be dismissed but did so because she concluded that the doctor did
not owe a duty of care to the future child. She stated that, rather than
deciding whether the appellants claim was for wrongful life, the court should determine
whether the doctor owed the future child a duty of care in accordance with the
Anns
test.
[46]
In
Paxton
, Feldman J.A. concluded that the
potential for harm to a fetus while
in utero
from exposure to
Accutane is reasonably foreseeable. However, the doctor and future child were
not in a sufficiently close and direct relationship to make it fair and just
that the doctor should owe a duty of care to the future child. The relationship
was necessarily indirect: the doctor could not advise or take instructions
from a future child.
[47]
Justice Feldman also viewed policy
considerations as militating against a finding of proximity. She pointed to the
prospect of conflicting duties if the doctor were found to owe a duty of care
to the future child as well as the mother, noting that these conflicting duties
could well have an undesirable chilling effect on doctors.
[48]
Justice Feldman further found that residual
policy considerations at the second stage of the
Anns
analysis
make it unwise to impose such a duty of care. In addition to the policy issues she
identified in the first stage of the analysis, Feldman J.A. said that recognizing
such a duty would interfere with the doctors existing legal obligation to the
patient, which includes the womens right to abort a fetus. Imposing a duty of
care on a doctor to a future child would interfere with the exercise of that
right.
Liebig
[49]
Kevin Liebig suffered injuries during childbirth
resulting in cerebral palsy. He, his parents, and other family members brought
an action claiming against the hospital where he was born and the physicians
and nurses who provided care up to and including his delivery. The plaintiffs
claimed that Kevins injuries were caused by negligence (or breach of contract)
immediately before and during the delivery process. The defendants refused to
admit they owed a duty of care to Kevin in relation to his delivery. As a
result, the plaintiffs brought a r. 21 motion for a declaration, before trial,
that the defendants owed Kevin such a duty. The motion was granted, and the defendants
appealed to this court.
[50]
A five-person panel dismissed the appeal based
on well-established law: an infant, once born alive, can sue for damages
sustained as a result of the negligence of healthcare providers during labour
and delivery. While this was sufficient to resolve the appeal, because the
central point of contention between the parties related to
Bovingdon
and
Paxton
,
the court went on to discuss those decisions.
[51]
The court noted that both
Bovingdon
and
Paxton
dealt with the situation in which a doctor prescribed drugs to
a woman who was not pregnant at the time. In
Bovingdon
, the drug was a
fertility drug that increased the likelihood of bearing twins and, by
extension, the risk of complications associated with the birth of twins. In
Paxton
,
the drug was intended to treat the womans acne but could harm a fetus if
conception were to occur while it was being taken.
[52]
At para. 11 of
Liepig
, this court said
that cases such as
Bovingdon
and
Paxton
involve claims which have
been characterized as claims for wrongful life.
It affirmed the direction in
Bovingdon
and
Paxton
that a court should proceed not by deciding whether to
recognize a claim for wrongful life but, instead, by conducting an analysis of whether
a doctor owed a separate duty of care to a future child. The concluding
sentence in para. 11 of
Liebig
is particularly significant to
this appeal so I set it out in full:
Both
Bovingdon
and
Paxton
hold that there is no duty of care to a future child if the
alleged negligence by a healthcare provider took place prior to conception.
Issue #1: Did the motion judge err in failing
to apply the limited-form
Anns
test to the facts of this
case?
[53]
The Appellants arguments relating to the motion
judges
Anns
analysis are commingled in Issues #1 and #2. I
will address their primary submission on Issue #1 and deal with the others in
my analysis of Issue #2.
[54]
The Appellants primary submission on Issue #1 is
that the
Anns
analysis must begin with an accurate
characterization of the proposed duty of care and the motion judge failed in
that regard. They argue that the correct characterization of the proposed duty of
care is as follows: the Respondent owed the Appellants a duty of care to not
prescribe a clinically contraindicated fertility drug to their mother. Instead
of examining the specific proposed duty of care that they asserted, the Appellants
say the motion judge mischaracterized their claims as predicated on informed
consent.
[55]
I do not accept this submission.
[56]
At para. 55 of the Reasons, the motion judge dealt
with the Appellants assertion that their claim could be distinguished from
Bovingdon
which was solely an informed consent case because of their additional
allegation of negligence. She correctly identified the Appellants additional allegation
as the prescription of the fertility drug to Dana Florence was contraindicated
given her particular situation (the
additional allegation
).
[57]
The motion judge said that the difference
between the Appellants claims and those of the twins in
Bovingdon
was
a distinction without a difference because the additional allegation did not change
the analysis necessary to determine if a duty of care was owed to the
unconceived children. I agree.
[58]
The Appellants argument on this issue conflates
three related, but distinct, legal concepts: negligence, duty of care, and the
obligations that arise from owing a person a duty of care.
[59]
It is trite law that for a claim in negligence
against a doctor to succeed, the plaintiff must establish that: the doctor owed
the plaintiff a duty of care; the doctor breached the standard of care; and,
the plaintiff suffered damages as a consequence of the breach.
[60]
In this case, there is no question that the
doctor-patient relationship between the Respondent and Ms. Florence gave rise
to a duty of care. In fulfilling that duty of care, among other things, the
Respondent was obliged to give Ms. Florence the information necessary for her to
make an informed decision whether to take medications that the Respondent
prescribed to her. On the pleadings, the Respondent allegedly breached the
standard of care by failing to give Ms. Florence the information necessary to
make an informed decision whether to take Serophene and by prescribing Serophene
to Ms. Florence when it was contraindicated.
[61]
The duty of care the Respondent owed to her
patient, Ms. Florence, cannot be conflated with the Respondents obligation to meet
the standard of care that she owed Ms. Florence. The additional allegation is
relevant to whether the Respondent breached the standard of care; it is not relevant
to whether she owed Ms. Florence a duty of care.
[62]
For the same reason, the additional allegation is
not relevant to whether the Respondent owed the Appellants, as unconceived
babies, a duty of care. A consideration of the
Anns
analysis demonstrates
this.
[63]
To decide whether to recognize a novel duty of
care, the court must conduct the two-stage
Anns
analysis. In
the first stage, the court determines whether a
prima facie
duty
of care should be recognized based on the reasonable foreseeability of harm and
whether the proposed relationship is sufficiently close and direct. Policy
considerations that affect the relationship are also considered in the stage
one analysis. If the stage one analysis leads to the
prima facie
conclusion
that a duty of care should be recognized, the court moves to the second stage.
In the second stage, the court determines whether, despite having found a
prima
facie
duty of care, there are residual policy reasons to reject
such a duty.
[6]
[64]
The focus of the
Anns
analysis is
on the relationship between the parties at the relevant time. In this case, as the
motion judge correctly recognized, the Appellants claims rest on the purported
relationship between the Respondent and them, as unconceived babies, when the
Respondent prescribed Serophene to their mother. That was the relationship which
had to be examined, using the
Anns
analysis, to determine
whether the Respondent owed the Appellants a duty of care.
[65]
The additional allegation is not part of the
proposed relationship. It is an alleged breach of the standard of care. That
is, it is an allegation that the Respondent fell below the standard of care either
by prescribing Serophene to Ms. Florence or by failing to give Ms.
Florence the necessary information so she could make an informed decision
whether to take the Serophene. As I have explained, a consideration of the
additional allegation would be undertaken only if the court had found that the Respondent
owed the Appellants, as unconceived babies, a duty of care.
Issue #2: Did the motion judge err in her application
of
Bovington
and
Paxton?
[66]
The Appellants primary submission on Issue #2
is that the motion judge erred in concluding their claims were not viable in
law based on
Bovingdon
and
Paxton
. They argue that the
motion judge over-relied on the superficial similarities between this case
and
Bovingdon
and, as a result, failed to conduct a meaningful
Anns
analysis. They point to the factual distinction between their claims that
prescribing Serophene to Ms. Florence was contraindicated and those in
Bovingdon
and
Paxton
where the prescribed medication was appropriate
(the
factual distinction
). According to the Appellants, there
is no prospect of the doctor owing conflicting duties so the concerns
identified in
Bovingdon
and
Paxton
are
inapplicable.
[67]
I do not accept this submission.
[68]
As I explain in Issue #1, the factual
distinction is a distinction without a difference for the purpose of
determining whether the Respondent owed the Appellants, as unconceived
children, a duty of care. Further, the similarities between this case and
Bovingdon
are far from superficial. I agree with the motion judge that the claims
made in
Bovingdon
are very similar to those in this case for
the purposes of the
Anns
analysis. In both, the doctor
prescribed a fertility drug to the mother, allegedly having failed to provide
her with sufficient information to make an informed decision whether to take
the drug. While there is the additional allegation in this case, as I have explained,
it is not relevant to whether the Respondent owed the Appellants, as
unconceived babies, a duty of care its relevance is to whether by prescribing
Serophene, the Respondent breached the standard of care she owed to Ms.
Florence.
[69]
Nor are the similarities between this case and
Bovingdon
and
Paxton
superficial. In all three, the proposed duty of
care was precisely the same: at the time that the doctor prescribed the medication
to the mother, did the doctor owe the unconceived baby or babies a duty of
care?
[70]
Furthermore, having correctly viewed the
Appellants claims as raising similar considerations in the duty of care
analysis to those in
Bovingdon
and
Paxton
, the motion
judge made no error in heavily relying on the reasoning in those cases. That
reliance does not mean the motion judges analysis was superficial or lacking.
Once she correctly concluded there was no meaningful difference between this
case and
Bovingdon
and
Paxton
in terms of the duty of care
analysis, the principle of
stare decisis
required the motion
judge to adhere to those cases and apply the legal principles they established.
[71]
Further and in any event, the motion judge conducted
a meaningful
Anns
analysis. She accepted the Appellants contention
that their claims met the reasonable foreseeability requirement in stage one:
doctors who are considering prescribing a fertility medication should
reasonably have the mothers unconceived children in their contemplation. To
raise a
prima facie
duty of care, however, the relationship
between the Respondent and the Appellants, as unconceived babies, must also be
sufficiently proximate that is, the relationship must be sufficiently close
and direct. Following the reasoning at para. 75 of
Paxton
, the motion
judge found that it was not: the doctor cannot take instructions from nor
advise an unconceived child. The motion judge also pointed to the policy
considerations identified at para. 76 of
Paxton
,
which inform
the stage one analysis and militate against finding a duty of care: such a duty
could create a conflict of interest in terms of the treatment offered to the
woman and could place the doctor in an impossible position because of the
competing duties owed.
[72]
The Appellants contend that there would be no
conflicting duties owed by the doctor in this case because the duty owed to Ms.
Florence and the Appellants was one and the same: to not prescribe
contraindicated and potentially dangerous medications. This argument arises
from the same misunderstanding I identified in Issue #1. There is no duty of
care to not prescribe contraindicated medication. Whether the medication is
contra-indicated is not relevant when the court is determining whether the
doctor owes a duty of care to unconceived babies as well as to the mother when
the doctor is prescribing fertility medication.
[73]
In any event, the Appellants contention is
misguided. The conflict of interest consideration is part of the policy
analysis in the stage one
Anns
analysis. Policy considerations are
necessarily general in nature. In general, doctors would be placed in a
conflict of interest position if they owed a duty of care to their patient and
to that patients future, unconceived children. While there might be situations
in which no such conflict arises in respect of a particular medication or
treatment, that does not derogate from the validity of the general policy
concern that doctors would be placed in an unworkable position due to the
inherent conflict of interest that would arise if they were found to owe a duty
of care both to their patient and that patients future children. The motion
judge made no error in concluding that such a concurrent duty of care would
place the doctor in an impossible position.
Issue #3: Did the motion judge err in characterizing
the Appellants claims as ones for wrongful life and categorically denying them?
[74]
The Appellants submit that, instead of applying the
Anns
analysis to determine if it was plain and obvious their
claims were not actionable, the motion judge struck them simply because they
are wrongful life claims. In making this submission, the Appellants rely on the
following statement at para. 60 of the Reasons: The appellate court in Ontario
has rejected wrongful life claims, and the lower courts are bound by this
jurisprudence (the
Impugned Statement
).
[75]
I do not accept this submission.
[76]
The motion judge expressly acknowledged that this
court has not said that a wrongful life claim could never be successful (para.
47 of the Reasons). She also referred to Feldman J.A.s comment, at para. 73 of
Bovingdon
, that it is undecided whether the courts of this province would
necessarily dismiss every claim for wrongful life.
[77]
Further, as I explain above on Issue #2, the
motion judge followed the dictates of this court and determined whether the Appellants
claims are viable by conducting the
Anns
analysis. In
conducting that analysis, she carefully and thoughtfully examined this courts
relevant jurisprudence.
[78]
Accordingly, when the Impugned Statement is read
in context, it is clear that it was simply the motion judges view of Ontarios
appellate jurisprudence coupled with her recognition that, as a lower court,
she was obliged to follow that jurisprudence. She struck the Appellants claims
not because she labelled them wrongful life claims but because, after
conducting the
Anns
analysis, she found it was plain and obvious
those claims are not viable in law.
VI.
THE BROADER ISSUES
[79]
The above analysis addresses the specific issues
identified by the Appellants and explains why, in my view, the motion judge correctly
applied the
Anns
analysis and
determined that it is plain
and obvious the Appellants claims cannot succeed. However, I have yet to
address the parties overarching positions on appeal. I now deal with each in
turn.
[80]
The Appellants overarching position is that they
should be afforded the opportunity to present a full factual and evidentiary
record at trial before the court decides whether their claims should be
recognized at law. They point to the factual difference between their case and
the decided cases:
Bovingdon
and
Paxton
were solely
informed consent cases whereas their claim is also based on the allegation that
the prescribed medication was contraindicated. Further, the Appellants contend,
the duty of care they assert has wide implications of public importance relating
to the prolific prescription of fertility drugs, and the serious consequences
borne by the public healthcare system and taxpayers as a result. In their
submission, only a trial will enable the court to conduct a comprehensive
Anns
analysis, including due consideration of those policy concerns, to
determine whether the Respondent owed them a duty of care in the specific
circumstances of this case.
[81]
I do not agree that a trial is necessary for the
court to decide whether the Appellants claims should be recognized at law. The
motion judge made no error in striking the Appellants claims before trial, without
an evidentiary record.
[82]
Rule 21 motions are intended to dispose of
claims that have no chance of success because they have no basis in law. They
are argued and decided strictly on the pleadings. In this case, there can be no
further material facts that might emerge at trial which could alter the legal
reality of the Appellants claims. The motion judge took the Appellants claims
as pleaded, at their highest, and determined that it was plain and obvious that
their claims are not viable in law because the Respondent could not owe them a
duty of care, as unconceived babies, when prescribing fertility medication to
their mother. I agree. That determination flows from this courts jurisprudence;
a full evidentiary record is not needed to determine the question of law raised
on this pleadings motion.
[83]
I conclude on the Appellants overarching
submission by recalling the point that the Supreme Court made at para. 19 of
Imperial
Tobacco
: striking claims with no reasonable prospect of success is
essential to effective and fair litigation. It unclutters the proceedings,
weeds out hopeless claims, and ensures that claims with some chance of success
go to trial. Both plaintiffs and defendants benefit because they understand the
parameters of the case and they can focus their efforts on viable claims. Rule
21 also serves an access to justice purpose: keeping litigants focussed on
viable claims in civil litigation leads to reduced trial time, and a lessening
of the associated costs, both human and financial.
[84]
The Respondents overarching position on appeal
is that, in Ontario, it is settled law that a physician does not owe a duty of
care to a future child for alleged negligence that occurred pre-conception.
[85]
I begin by observing that, based on
Bovingdon
,
it is settled law in Ontario that a physician owes no duty of care to future
children when prescribing fertility drugs to the mother. That, however, does
not address the broader proposition of law which the Respondent asks this court
to affirm.
[86]
Against that broad proposition, the Appellants
point to para. 73 of
Bovingdon
, where Feldman J.A. said that it is
undecided whether the courts of this province would necessarily dismiss every
claim for wrongful life and that a proper consideration would require the
courts to address the policy issue of whether such claims should exist in our
law. And, at para. 32 of
Paxton
, Feldman J.A. reiterated that
where the proposed duty of care is novel, the court must conduct the
Anns
analysis to determine whether such a duty of care should be recognized.
[87]
However, at para. 11 of
Liebig
,
a
five-person panel of this court stated that both
Bovingdon
and
Paxton
hold that there is no duty of care to a future child if the alleged
negligence by a healthcare provider took place prior to conception (the
Statement
).
As a member of the panel that decided
Liebig
, I agreed with the
Statement then and I agree with it now.
[88]
I recognize that the Statement in
Liebig
is
obiter
.
Liebig
was decided on the settled law
principle that an infant born alive may sue for damages sustained as a result
of the negligence of healthcare providers during labour and delivery.
Nonetheless, the Statement reflects the considered opinion of a five-person
panel of this court.
[89]
Further and importantly, the
Anns
analysis
conducted by the motion judge in this case shows that, based on this courts
jurisprudence, the claims by unconceived babies against physicians for alleged
negligence that occurred pre-conception will necessarily result in a
determination that the claims are not viable in law. While the reasonable
foreseeability requirement will normally be met, the policy considerations at
both the first and second stages of the
Anns
analysis militate
against finding such a duty of care. Those same proximity and policy
considerations exist whenever the proposed duty of care by a future child is
based on a physicians alleged negligence that occurred pre-conception.
[90]
Stare decisis
is the policy of the courts to stand by
precedent and not disturb settled points of law. Once a principle of law has
been held to be applicable to a certain state of facts, the courts are to
adhere to that principle, provided the facts of the case before them are
substantially the same. Accordingly, in my view, in Ontario, it is settled law
that a physician does not owe a duty of care to a future child for alleged
negligence that occurred pre-conception.
VII.
DISPOSITION
[91]
For these reasons, I would dismiss the appeal with costs to the
respondents fixed at the agreed-on sum of $15,000, all inclusive.
Fairburn A.C.J.O. (dissenting):
A.
Overview
[92]
My colleagues reasons, at para.
1, commence with the following helpful question:
Is it settled law, in Ontario,
that a physician does not owe a duty of care to a future
[7]
child for alleged negligence
that occurred pre-conception?
[93]
In my view, the determinative
question on this appeal is slightly different. This difference, however, is
important because it leads to a different conclusion about the correct disposition
of this appeal. I would pose the question as follows:
Is it settled law, in Ontario,
that
there are no circumstances in which a physician could
owe a duty of care to a future child for alleged negligence that occurred
pre-conception?
[94]
As I will explain, on my reading
of the relevant caselaw, the existing jurisprudence leaves open the possibility
that there could be circumstances in which a physician would owe a duty of care
to a future child for alleged negligence that occurred pre-conception: see
Bovingdon
v. Hergott
, 2008 ONCA 2, 88 O.R. (3d) 641, leave to appeal refused, [2008]
S.C.C.A. No. 92;
Paxton v. Ramji
, 2008 ONCA 697, 92 O.R. (3d) 401, leave
to appeal refused, [2008] S.C.C.A. No. 508; and
Liebig v. Guelph General
Hospital
, 2010 ONCA 450, 321 D.L.R. (4th) 378.
[95]
As I will also explain, I
respectfully disagree that this case is necessarily on all fours with
Bovingdon
.
Remaining focused on the fact that this is an appeal from the dismissal of a
claim under r. 21 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg.
194, in my view, it is arguable that this case is distinguishable from
Bovingdon
because, unlike in
Bovingdon
, the fertility drug in this case is said to
have been contraindicated. While I agree with my colleague that whether a
drug is contraindicated or not is relevant to the issue of standard of care,
as I will explain, it may also be relevant to whether there exists a duty of
care and, more specifically, to the question of proximity.
[96]
Given that it is not plain and
obvious that the claim of Brody, Cole, and Taylor Florence, the appellants,
will fail, their claim should not have been struck under r. 21 of the
Rules
of Civil Procedure
. Therefore, I would allow the appeal and order that the
matter proceed to trial.
B.
the pleadings and the word contraindication
[97]
My colleague sets out a helpful
review of the legal underpinnings and policy rationale for the operation of r.
21 of the
Rules of Civil Procedure
. I have nothing to add to that
review. Rule 21 motions are indeed essential to the administration of justice,
ensuring that only those matters that should go to trial do go to trial: see
R.
v. Imperial Tobacco Canada Ltd.
, 2011 SCC 42,
[2011] 3 S.C.R. 45, at para. 19
.
[98]
As we must on a r. 21 matter, I
accept as true the facts as pleaded in the Amended Statement of Claim of the
appellants and Dana Florence, the appellants mother. Those facts include that
Dr. Susan Benzaquen, the respondent, prescribed Serophene to the appellants
mother. Serophene is a fertility drug that increased the chances of carrying
multiple fetuses, which in turn increased the chances of premature births and
of serious health-related complications for any children who survived after
childbirth. That is the precise chain of events that occurred in this case. The
appellants were conceived in multiples, born prematurely, and, as the motion
judge noted, it is not disputed that they have serious disabilities as a
result of their premature birth.
[99]
The Amended Statement of Claim
essentially alleges two types of negligent conduct by the respondent: (1) the
failure to provide the appellants mother with all of the information
necessary to make a considered and informed decision regarding the use of
Serophene; and (2) the recommendation and prescription of Serophene that
was contraindicated under the circumstances.
[8]
[100]
I understand the appellants to be
using the term contraindicated to mean that, in light of the particular
circumstances involved, no non-negligent physician could have prescribed the
fertility drug in the first place. While it seems only logical that there could
be different degrees of contraindication in the medical sphere, without the
benefit of expert evidence at a trial, I would not venture down that path. For
now, this being an appeal from the dismissal of a claim under r. 21 of the
Rules
of Civil Procedure
, and without the benefit of trial evidence, I would
simply note my understanding of the pleadings at their highest: that under the
circumstances of this case, no physician acting in a non-negligent manner
could have prescribed Serophene to the appellants mother. In other words, that
the alleged contraindication meant that the respondent should not have
prescribed Serophene to the appellants mother, without exception or
qualification.
[101]
I wish to make clear at the outset
that these reasons are directed only at the second form of alleged negligent
conduct: the allegation involving the prescription of a contraindicated
fertility drug. As for the first alleged form of negligence, the failure to
provide the appellants mother with all of the necessary information to make an
informed decision, I join suit with my colleague and the motion judge. If this
were a case only about informed consent, then this courts jurisprudence
primarily
Bovingdon
would make it plain and obvious that the
appellants claim could not succeed. Therefore, it is only the second form of
alleged negligent conduct that these reasons are addressing: that it was
negligent to prescribe Serophene in the first place because it was
contraindicated under the circumstances.
[102]
Regarding the particular
circumstances of this case, the pleadings suggest that the respondent failed to
conduct appropriate tests, examinations, and diagnostic evaluations to
determine whether or not [the appellants mother] in fact had anovulatory
cycles, or any other conditions that may have caused concern regarding her
intended conception. The pleadings also refer to the following circumstances
that could point toward the contraindicated nature of Serophene in this case:
the relative youth of the appellants mother; the very short time that she had
been attempting to conceive; and other indicators present in
[
the appellants
mothers
]
clinical condition which suggested that the use of Serophene was
unreasonable under the circumstances.
[103]
As my colleague notes, the
appellants assert that the respondent owed a concurrent duty of care to their
mother and to them to not prescribe to their mother a contraindicated and
potentially dangerous fertility drug that the respondent knew, or ought to have
known, could cause harm not only to their mother but also to them.
C.
ANALYSIS
[104]
Before turning to the relevant
caselaw from this court, it is helpful to recall the tort law principles
defining a duty of care.
[105]
At stage one of the
Anns/Cooper
test, the court will consider whether there is a
prima facie
duty of
care:
Anns v. Merton London Borough Council
,
[1977] UKHL 4, [1978] A.C. 728;
Cooper v. Hobart
, 2001 SCC 79, [2001] 3 S.C.R. 537.
For there to be a
prima facie
duty of care, both proximity and
reasonable foreseeability of the harm must be established:
Cooper
, at
paras. 30-31. In
1688782 Ontario Inc. v. Maple Leaf Foods Inc.
, 2020 SCC
35, 450 D.L.R. (4th) 181, the Supreme Court of Canada had the following to say
about proximity, at para. 31:
A party may seek
to base a finding of proximity upon a previously established or analogous
category ([
Deloitte & Touche v. Livent Inc. (Receiver of)
, 2017 SCC
63, [2017] 2 S.C.R. 855], at para. 28). But where no established proximate
relationship can be identified, courts must undertake a full proximity analysis
in order to determine whether the
close and direct
relationship which
this Court has repeatedly affirmed to be the hallmark of the common law duty of
care exists in the circumstances of the case (
ibid
., at para. 29; [
Saadati
v. Moorhead
, 2017 SCC 28, [2017] 1 S.C.R. 543], at para. 24;
Cooper
,
at para. 32). [Emphasis in original.]
[106]
Where there is no established or
analogous category, the court will undertake a full proximity analysis. To
determine whether a close and direct relationship exists, courts must examine
all relevant factors arising from the relationship between the plaintiff and
the defendant:
Deloitte & Touche v. Livent Inc. (Receiver of)
, 2017
SCC 63, [2017] 2 S.C.R. 855, at para. 29. Relevant factors include
expectations, representations, reliance, and the property or other interests
involved, as well as any statutory obligations:
Deloitte
, at para. 29.
The court will also focus on broad considerations of policy arising from the
particular relationship between the plaintiff and the defendant at stage one of
the
Anns/Cooper
analysis:
Edwards v. Law Society of Upper Canada
,
2001 SCC 80,
[2001] 3 S.C.R. 562, at
para. 9
.
[107]
At stage two of the
Anns/Cooper
test, the court will consider whether, despite finding a
prima facie
duty of care, there are residual policy reasons that justify rejecting a duty
of care:
Edwards
, at para. 10. These are not concerned with the
relationship between the parties, but with the effect of recognizing a duty of
care on other legal obligations, the legal system and society more generally:
Cooper
,
at para. 37.
[108]
I turn now to this courts
decisions in
Bovingdon
,
Paxton
, and
Liebig
, which I
conclude determine that this case should proceed to trial.
(1)
This Courts Jurisprudence
(a)
The
Bovingdon
Decision
[109]
My colleague, at para. 85 of her
reasons, maintains that
Bovingdon
resolves this case: based on
Bovingdon
,
it is settled law in Ontario that a physician owes no duty of care to future
children when prescribing fertility drugs to the mother. While I accept that
Bovingdon
has resolved most fertility drug cases, I do not agree that
Bovingdon
is
quite as far reaching as is suggested in my colleagues reasons.
[110]
In
Bovingdon
, the mother
was prescribed the fertility drug Clomid. The fertility drug led to the
conception of twins and their premature birth, which left them with serious
disabilities. The jury concluded that the doctor was negligent for failing to
provide the necessary information to the mother, and that had she been told of
all the risks, she would not have taken the fertility drug. The trial judge
ruled that, as a matter of law, the doctor owed a duty of care not only to the
mother but also to the future twins, such that they were entitled to damages in
their own right.
[111]
On appeal, this court concluded
that the trial judge erred and that the doctor did not owe a duty of care to
the future twins. Feldman J.A., who authored the decision, rejected the
two-category approach that has been used by other courts when deciding whether
claims of future children should be recognized: (1) claims where the
disabilities were caused by the wrongful act or omission of another; and (2)
those where, but for the wrongful act or omission, the child would not have
been born: see
Lacroix (Litigation Guardian of) v. Dominique
, 2001 MBCA
122, 202 D.L.R. (4th) 121, at para. 24, leave to appeal refused,
[2001] S.C.C.A. No. 477
. Claims falling within the latter category had historically been termed
wrongful life claims. Many courts had historically rejected such claims on
the basis that attempting to compensate a person for being alive is contrary to
public policy. Feldman J.A. rejected this categorical approach and instead
analyzed the claims through the normal analysis of tort liability:
Bovingdon
,
at para. 61.
[112]
Before analyzing
Bovingdon
to explain why I do not see it as dispositive of the question on appeal, I
pause to comment upon the use of the term wrongful life. It finds its genesis
in early jurisprudence and appears to have become a shorthand way of referring
to those cases involving claimants who were conceived often as a result of the
alleged negligent act. Despite its common usage to this day, I do not use this
term. In my respectful view, it fails to accurately capture and can
inadvertently distort the true nature of the claims advanced by children born
with disabilities that are caused by a physicians alleged negligent acts.
[113]
These childrens claims are not
based on the fact of their birth but on the fact of their life-altering
disabilities. The true essence of what are often referred to as wrongful life
claims is not that the claimants are alive but that the claimants have been
encumbered by profound life-altering disabilities. This case makes the point.
The appellants claim is not wound up in some kind of objection that they were
born and are now here living among us. Rather, their claim reflects that they
are individuals, like the rest of us, who have been encumbered with significant
disabilities requiring extraordinary care and services including assistance
with all activities of daily living, as stated in their Amended Statement of
Claim.
[114]
Coming back over to
Bovingdon
,
Feldman J.A. rejected the previous binary approach that led to the dismissal of
all claims where, but for the alleged negligent act, the child would not have
been born. In place of that approach, Feldman J.A. insisted upon conducting a
proper
Anns/Cooper
analysis.
[115]
The preponderance of expert
evidence at the trial in
Bovingdon
established that prescribing Clomid
to a woman in Ms. Bovingdons circumstances met the standard of care, as long
as she understood the risks of conceiving multiples, prematurity, and
consequent possible damage. In these circumstances, it was the mothers choice
to make, and the focus was upon whether the mother was given adequate
information to make an informed choice.
[116]
Therefore, unlike this case, the
fertility drug in
Bovingdon
was not contraindicated:
Bovingdon
,
at para. 59. Indeed, while explaining why the doctor owed no duty of care to
the future twins in
Bovingdon
, Feldman J.A. contrasted the situation
before her with a situation where a drug may be contraindicated, at paras.
68-69:
Because the doctors duty with
this type of drug is only to provide information sufficient to allow the mother
to make an informed choice, it cannot be said that the children have a right to
a drug-free birth. Nor can the doctor owe a duty to the children that is
co-extensive with his duty to the mother. To frame the duty in that way is to
overlook the fact, as discussed above, that the choice is the mothers; she is
entitled to choose to take the drug and risk conceiving twins without
considering their interests. If she does, the children have no complaint
against her or the doctor.
In contrast,
where a drug is contraindicated for a pregnant woman, the standard of care for
the doctor may be either not to prescribe the drug or to ensure that the woman
is taking all appropriate precautions to prevent pregnancy
.
[Emphasis added.]
[117]
Feldman J.A. then explained that
as a matter of policy, a doctor cannot owe a co-extensive duty of care to a
future child where the standard of care simply requires a doctor to give a
woman the information necessary to make an informed decision about how to
proceed, such as taking a fertility drug:
Bovingdon
, at para. 71.
[118]
Importantly, while concluding that
in the circumstances of this case
, there could be no breach of duty to
the twins and no right for them to claim damages, Feldman J.A. left open the
question as to whether in different circumstances, a doctor may owe a duty of
care to a future child:
Bovingdon
, at para. 74 (emphasis added). Feldman
J.A. made it clear in
Bovingdon
, at para. 73, that she was deciding the
case narrowly, specifically noting that it is undecided whether the courts in
Ontario would necessarily dismiss every claim where, but for the wrongful act
or omission, the child would not have been born. Feldman J.A. went on to note
that considering that question would
require
the court to address the policy issue of whether such claims should exist in
our law
:
Bovingdon
, at
para. 73 (emphasis added).
[119]
Because the issue was obviated
in
Bovingdon
, though, there was no need to resolve the broader issue. As
Feldman J.A. put it in
Bovingdon
, at para. 73:
In this case, the issue is
obviated because I have found that although the doctor breached his duty of care
to the mother to give her full information to allow her to make an informed
decision whether to take Clomid, he owed no duty of care to the unborn children
when prescribing Clomid to a woman who wished to become pregnant
.
[120]
Therefore, I read
Bovingdon
as having expressly left open the question as to whether courts would reject
all claims by future children where the alleged negligence occurred
pre-conception.
Bovingdon
therefore leaves open the following question
in this case: could a doctor owe a duty of care to a future child in
circumstances where a contraindicated drug, including a contraindicated
fertility drug, is prescribed?
[121]
In my view, the difference between
a drug being indicated and a drug being contraindicated could have a
serious impact on determining whether a physician owes a duty of care to a
future child. That is why there needs to be a trial where the issues of
contraindication can be explored with the assistance of expert evidence.
[122]
If it turns out to be true that no
physician could have prescribed Serophene in the circumstances of this case,
then the concerns over conflicting duties, as expressed in
Bovingdon
,
fall away because the future mother and future childrens interests would
align.
[123]
The potential for conflicting
duties was a significant concern in
Bovingdon
and a central reason to
find that there was no proximity and no duty of care owed to the future child:
Where the standard of care on the doctor is to ensure that the mothers
decision is an informed one, a co-extensive duty of care to a future child
would create a potential conflict of interest with the duty to the mother:
Bovingdon
,
at para. 71. In contrast, where the standard of care on the doctor is not to
prescribe a drug at all, as opposed to making sure the mother is in a position
to make an informed decision, then the co-extensive duty of care to a future
child arguably does not create a potential conflict of interest with the duty
to the mother.
[124]
Another very real concern
expressed in
Bovingdon
was that the mothers right to choose would be
undermined by imposing a duty of care on the doctor to the future twins. To be
clear, I agree that the law must protect a womans absolute right to make
informed choices about her own body, including informed choices about what
drugs to consume. As Feldman J.A. put it in
Bovingdon
, at para. 68:
[T]he choice is the mothers; she
is entitled to choose to take the drug and risk conceiving twins without
considering their interests. If she does, the children have no complaint
against her or the doctor.
[125]
This case, however, is arguably
different than
Bovingdon
precisely
because
of the importance of a
womans choice. Here, it is alleged that the fertility drug may have been
contraindicated, such that it never ought to have been prescribed to the
appellants mother as it was unreasonable to do so under the circumstances.
If the evidence at trial bears this out, then there was no choice for the
appellants mother to make. In that scenario, the choice given by the respondent
is no choice at all, since the fertility drug should never have been
prescribed. Therefore, choice is no longer relevant to imposing a co-extensive
duty of care on the respondent to both the appellants and their mother.
[126]
I accept that there may be downsides
to defining a doctors duty of care based on the fact of contraindication.
However, in my view, this is an issue to be decided at trial, informed by
expert evidence evidence about the extent and nature of the alleged
contraindication in this case.
[127]
Accordingly, at this juncture of
my reasons, I wish to reinforce that my observations are squarely rooted in the
fact that this is an appeal from a dismissal of the appellants claim under r.
21 of the
Rules of Civil Procedure
. It is within that context that I
respectfully disagree that it is plain and obvious, based on
Bovingdon
,
that a physician could never owe a duty of care to future children when
prescribing contraindicated fertility drugs to the mother. I am not saying
that a doctor will owe that duty of care. I am saying that a trial is necessary
to determine that question in this case because, in my view,
Bovingdon
has not only not resolved the issue but it has explicitly left the issue open
for future consideration.
(b)
The
Paxton
Decision
[128]
Moreover, I do not read this
courts later decision in
Paxton
as closing the door that was left open
in
Bovingdon
.
[129]
In
Paxton
, the trial judge
concluded that the doctor owed a duty of care to the future child of a woman of
childbearing potential seeking Accutane for the treatment of acne. Accutane is
a teratogenic drug that may cause birth defects if taken during pregnancy.
Because of this, the drug manufacturer had developed a Pregnancy Protection
Mainpro-C Program that doctors are to implement before prescribing Accutane to
women of childbearing potential, in order to try to ensure they will not become
pregnant while taking the drug. In
Paxton
, the doctor had discussed with
the woman the necessity that she not become pregnant while taking the drug. He
had also determined that her husband had an effective vasectomy four and a half
years prior and that the patient had no other sexual partners. He had also
given her a pregnancy test that came back negative, following which the patient
began to take the drug. In short, Accutane was a drug that doctors were
specifically permitted to prescribe to women if they took a number of necessary
precautions.
[130]
Once again, this court overturned
the trial judges decision on the basis that the doctor owed no duty of care to
the future child.
[131]
As in
Bovingdon
, Feldman
J.A., who also authored
Paxton
, reiterated that the question is not
whether the claim should be characterized as one for wrongful life. Rather,
the court should apply a normal tort analysis, including a proper duty of care
analysis.
[132]
In determining that the claim did
not fall within, and was not analogous to, a recognized duty of care, Feldman
J.A. considered prior case law, including
Bovingdon
. Interestingly, Feldman J.A. specified that the duty
of care question left open was where, as in the case now before us, it was
alleged that the drug was contraindicated, albeit in the context of a
teratogenic drug.
She noted in
Paxton
, at
para. 52, the question left open in
Bovingdon
:
The court left open the question whether
a doctor would owe a duty of care to a future child where the drug being
prescribed to the female patient was contraindicated during pregnancy and would
cause damage to a fetus
.
[133]
Importantly, Feldman J.A. also
confirmed in
Paxton
, at para. 53, that it is an open question in Canada
whether a doctor can be in a proximate relationship to a future child who was
not yet conceived at the time of the impugned conduct:
Having reviewed
these authorities, I believe it is fair to say that
there is no settled jurisprudence
in Canada on the question whether a doctor can be in a proximate relationship
with a future child who was not yet conceived or born at the time of the
doctors impugned conduct
. The Supreme Court of Canada has not had the
opportunity to address the issue. The proposed duty of care thus does not fall
within an established category of relationship giving rise to a duty of care.
[Emphasis added.]
[134]
Having concluded that the claim
did not fit within an existing or analogous category, Feldman J.A. undertook a
full
Anns/Cooper
analysis.
[135]
While Feldman J.A. concluded that
the proximity requirement was not met in
Paxton
, I do not read her
decision as resolving once and for all what
Bovingdon
left open.
[136]
In
Paxton
, Feldman J.A.
explained at stage one of the
Anns/Cooper
analysis that policy
considerations militated against a finding of proximity in the circumstances
involved in that case.
[137]
First, Feldman J.A. came back to
the concept of conflicting duties, which she said could have an undesirable
chilling effect on doctors: the doctor could be put in an impossible conflict
of interest between the best interests of the future child and the best
interests of the patient in deciding whether to prescribe a teratogenic drug or
to give the patient the opportunity to choose to take such a drug:
Paxton
,
at para. 66. As I have already suggested, the situation may be different where
a drug or other treatment is contraindicated, and so the question is not
about informed choice but about whether the drug should have been offered in
the first place.
[138]
Second, as another policy
consideration, Feldman J.A. noted that a doctors relationship with a future
child is necessarily indirect, as the doctor acts by providing advice and information
to the mother. Again, whether this consideration would come into play where a
drug is contraindicated is arguable. As I will explain below, the fact that
the doctor acts by providing advice and direction to the mother does not
necessarily preclude a proximate relationship between the doctor and the future
child in circumstances involving contraindicated drugs.
[139]
Feldman J.A. also found that
residual policy considerations at the second stage of the
Anns/Cooper
test made the imposition of the proposed duty unwise. In particular, she found
that recognizing a duty of care by a doctor to a future child of a female
patient would affect the doctors existing legal obligation to the patient.
[140]
I recognize and accept these real
and important residual policy considerations that arise in a case like
Paxton
.
However, they do not necessarily resolve the particular issues in this case. In
my view, it remains an open question as to whether the same policy
considerations necessarily apply in a situation where a drug is
contraindicated and the potential for conflicting duties to the mother and
future child is at least arguably foreclosed.
[141]
On my reading of
Paxton
, it
does not determine that a physician could never owe a duty of care to a future
child who was not yet conceived at the time of the impugned conduct. Concluding
this section of my reasons, I would simply reinforce what I said about the
impact of
Bovingdon
on this appeal. I am not saying that a doctor will
owe that duty of care. I am saying that a trial is necessary to determine that
question in this case because, in my view,
Paxton
has not only not
resolved the issue, but it has explicitly left the issue open for future
consideration.
(c)
The
Liebig
Decision
[142]
The respondent cites to para. 11
of
Liebig
to argue that this court has determined that no duty of care
is owed to a future child. I do not agree with this broad interpretation of
Liebig
.
[143]
For ease, I reproduce para. 11 of
Liebig
here:
Cases in the vein of
Bovingdon
and
Paxton
, which involve claims made by infants yet to be
conceived at the time the alleged negligence occurred, have been characterized
as and rejected by other courts as claims for wrongful life: see
Lacroix (Litigation guardian of) v. Dominique
(2001), 202 D.L.R. (4
th
) 121
(Man. C.A) leave to appeal denied
[2001]
S.C.C.A. No. 477
;
McKay v. Essex Area
Health Authority
, [1982] 1 Q.B. 1166 (Eng. C.A.). In
Bovingdon
and
Paxton
,
however, this court held that the wrongful life approach ought not to be
used. The court proceeded not by determining whether to recognize a claim for
wrongful life, but by conducting an analysis of whether a doctor owed a
separate duty of care to a future child.
Both Bovingdon and
Paxton hold that there is no duty of care to a future child if the alleged
negligence by a health care provider took place prior to conception
.
[Emphasis added.]
[144]
My colleague agrees with that
statement, and I do as well. That is precisely what
Bovingdon
and
Paxton
held
in those specific cases
.
[145]
In my view, the statement made in
Liebig
,
at para. 11, must be read in light of the specific issue in
Liebig
.
Liebig
was a case about whether a child who was injured immediately before and during
the delivery process could bring a claim against the medical professionals who
allegedly acted negligently during that process. The trial judge held that the
child could bring such a claim.
[146]
The hospital, the physicians, and
the nurses in
Liebig
argued that
Bovingdon
and
Paxton
had
changed the very long and well-established line of cases holding that an
infant, once born alive, may sue for damages sustained as a result of the
negligence of health care providers during labour and delivery.
[147]
In a brief judgment, a five-judge
panel of this court rejected that argument and upheld the decision below. The
child was permitted to proceed with the claim. I read para. 11 of
Liebig
as explaining why
Bovingdon
and
Paxton
changed nothing in
relation to that already established duty of care to children who are born
alive following negligent acts committed during the delivery process.
[148]
The reference at para. 11 of
Liebig
to the fact that
Bovingdon
and
Paxton
held that there is no duty of care to a future child if the alleged negligence
by a health care provider took place prior to conception is an accurate
summary of those cases. That is indeed what they decided in the context of the
specific factual circumstances of those cases. That observation was sufficient
to refute the suggestion in
Liebig
that somehow the result of
Bovingdon
and
Paxton
was to overturn the labour and delivery line of cases in
which there clearly is a duty of care to the baby as well as to the mother.
[149]
In my view, what
Liebig
did
not do, and actually could not do in a case that affirmed the duty of care owed
by a doctor to the baby in the context of labour and delivery, was foreclose
what
Bovingdon
, at para. 73, specifically acknowledges was left
undecided and what
Paxton
specifically left open: whether a doctor
can be in a proximate relationship with a future child who was not yet
conceived or born at the time of the doctors impugned conduct:
Paxton
,
at para. 53. In other words,
Liebig
should not be read as resolving what
Bovingdon
and
Paxton
purposely left open for future
determination.
[150]
My understanding of the
Liebig
decision is reinforced by the passages that follow para. 11 of
Liebig
,
including the courts caution, at para. 13, that both
Paxton
and
Bovingdon
have to be read in the light of their precise facts, the issues they
addressed, and in a proper legal context. Further, the court gave the
following caution, which is apposite to this case, at para. 19 of
Liebig
:
Cases may well arise that do not
fit neatly under any of the established principles and, on occasion, the
established principles may appear to be in conflict. This situation is
characteristic of the common law, which does not provide a comprehensive,
over-arching theory of liability that is capable of deciding every case or
dealing with every possibility or contingency. Principles emerge, take shape
and are reconciled on the basis of fact and context-specific judicial
decisions, aided by scholarly commentary.
A common law
court should be cautious about laying down principles or rules that are not
required to decide the case before it and ordinarily should limit itself to the
requirements of the case at hand
[.] [Emphasis added; citations
omitted.]
[151]
This passage from
Liebig
captures my position in this case. While it may be that after a full trial, and
a consideration of the facts and the context of this case, it will be
determined that the respondent owed no duty of care to the appellants, the
appellants should nevertheless be permitted to proceed to trial to have the
matter determined on the facts and the context of this case.
D.
The Proximity Analysis
[152]
Before concluding, I will briefly
respond to my colleagues comments on proximity.
[153]
My colleague accepts the motion
judges
Anns/Cooper
analysis as correct. The motion judges reasons for
concluding that there was not a proximate relationship between the respondent
and the appellants include that a doctor cannot take instructions from or advise
the future child. I do not accept the suggestion that the proximity between a
physician and the future child is necessarily broken for that reason. If that
were enough to break the relationship of proximity, then
Liebig
and
cases like
Liebig
are wrongly decided as a physician cannot advise or
seek instructions from a baby in the delivery process either: see
Liebig
,
at paras. 6-7;
Crawford v. Penney
(2003), 14 C.C.L.T. (3d) 60 (Ont.
S.C.), at para. 210, affd (2004), 26 C.C.L.T. (3d) 246 (Ont. C.A.), leave to
appeal refused,
[2004] S.C.C.A. No. 496;
Commisso v. North York Branson Hospital
(2003), 168 O.A.C. 100 (C.A.), at paras. 21-23;
Winnipeg Child and Family Services (Northwest Area) v.
G. (D.F.)
, [1997] 3 S.C.R. 925, at
para. 21
.
[154]
The motion judge also pointed to
the fact that imposing a duty of care could create a conflict of interest,
putting the doctor in an impossible position because of competing duties owed.
As I have discussed, such a concern may fall away if the drug is contraindicated,
in the sense that it ought never have been prescribed to the future mother.
[155]
I would also note, not in an
effort to resolve the proximity analysis but to demonstrate it is worth a
closer look, that other common law jurisdictions have recognized a duty of care
owed by a physician to the future child of the physicians patient. In
X and
Y (By Her Tutor X) v. Pal
,
[1991]
NSWCA 302, 23 N.S.W.L.R. 26
, an
Australian case, physicians failed to diagnose the patients syphilis, which
caused physical and developmental disabilities for her future child. The court
found that the physicians owed a duty of care not only to the mother but to all
those in the class of persons put at risk of harm by the negligent conduct of
the physicians. This included the future child who was not conceived at the
time of the initial negligent act. The mothers initial physician should have
foreseen that the failure to exercise due care in respect of the mother could
have led to harm to children later born to her:
X and Y
, at p. 42. As the
court found, those potential children were within the category of persons to
whom the doctor was in a relevant relationship of proximity:
X and Y
,
at p. 44. See also Erin L. Nelson, Prenatal Harm and the Duty of Care (2016)
53:4 Alta. L. Rev. 933, at p. 949.
E.
CONCLUSION
[156]
In conclusion, I do not read
Bovingdon
,
Paxton
, and
Liebig
as settling conclusively that there could
never be any circumstances in which a physician owes a duty of care to a future
child where the alleged negligence takes place prior to conception. As I have
explained, I read those decisions as explicitly leaving the door open even if
just a crack to the possibility that such a duty could exist.
[157]
I also do not accept the narrower
proposition that, based on
Bovingdon
, it is settled law in Ontario that
a physician could never owe a duty of care to future children when prescribing
fertility drugs to the mother. I respectfully part ways with my colleagues
view that whether a drug is indicated or contraindicated represents a
factual distinction without a difference, one that cannot possibly inform a
relationship of proximity between the respondent and the appellants. While I
would not suggest at this stage that it is a distinction with a dispositive
difference, I would say that the matter needs to be explored with the benefit
of a full record at trial, including expert evidence to amplify upon the
concept of contraindication.
[158]
Thus, on my reading of the relevant caselaw, it cannot
be said that the claim of the appellants, who are all individuals in their own
right, has no chance of success. Therefore, I would allow the appeal, set aside
the dismissal of the claim on the r. 21 motion, and order that this matter
proceed to trial.
Released: July 22, 2021
[1]
As minors, the Appellants claims are brought by their
mother, in her role as their litigation guardian.
[2]
The Action was commenced by Notice of Action issued March
25, 2011. It was originally brought against Dr. Benzaquen and Dr. Barrett. Dr.
Barrett was the obstetrician who managed Ms. Florences pregnancy. On June 4,
2018, the Action was dismissed, on consent, as against Dr. Barrett.
[3]
To the extent that the Appellants suggest that this court indicated,
at para. 24 of
Haskett v.
Equifax Canada Inc. et al.
,
224 D.L.R.
(4th) 419
(Ont. C.A.), that something other than the two-stage
Anns
analysis must be applied to determine whether a duty of
care will be recognized, I disagree. This court affirms, at para. 24 of
Haskett
, that the
two-stage
Anns
analysis must be applied on a r. 21 motion to determine
whether it is plain and obvious that no duty of care can be recognized. If it
is not plain and obvious, then the action can proceed, and the issue will be
determined at trial.
[4]
The motion judge relied on
Montreal
Tramways Co. v. Léveillé
, [1933] S.C.R. 456, and
Liebig
.
[5]
See para. 9 above for t
he meaning the Appellants ascribe to
this term.
[6]
Syl Apps Secure Treatment
Centre v. B.D.
,
[2007] 3 S.C.R. 83;
Paxton
, at para. 33.
[7]
Like
my colleague, for the purposes of this decision, I will use the term future
child to refer to a child who is not yet conceived at the time of the alleged
negligence but who is later born alive.
[8]
I
pause here to note that these allegations sit somewhat uneasily together, the
first resting on an implicit suggestion that prescribing Serophene was an
available option
in the circumstances,
and the second resting on the explicit suggestion that Serophene should
never have been an available
option in
the first place.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. McRae, 2021 ONCA 525
DATE: 20210722
DOCKET: C66363
Rouleau, Pepall and Roberts
JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
John McRae
Appellant
Matthew R. Gourlay, for the appellant
Andreea Baiasu, for the respondent
Heard: March 18, 2021 by video
conference
On appeal from the conviction entered on
June 14, 2018 by Justice Robert N. Beaudoin of the Superior Court of Justice,
sitting with a jury, and from the sentence imposed on June 20, 2018, with
reasons reported at 2018 ONSC 4035.
Rouleau J.A.:
OVERVIEW
[1]
The appellant stabbed his son causing his death. He
was convicted of second-degree murder and sentenced to life imprisonment with a
parole ineligibility period of 12 years. He appeals both conviction and
sentence. For the reasons that follow, I would dismiss the appeal.
FACTS
[2]
At the time of the murder, the appellant, then 70
years old, and his son Michael, 51 years old, had for some time been living
together in an apartment with a third roommate, Alain Chaput. The father and
son relationship was a rocky one. Both struggled with substance abuse and had
prior criminal records.
[3]
On the day of the incident, July 7, 2015, the
appellant began drinking at noon. Around 2:00 p.m., Mr. Chaput met the
appellant at a bar, where they drank together. When they returned to the
apartment, the appellant and Michael had a confrontation in the backyard. The
appellant approached Michael and angrily confronted him about his failure to
pay his share of the rent. This sparked an exchange of threats and insults with
both men uttering threats to kill each other one day. Michael pushed the
appellant down twice and the appellant hit Michael with small punches.
[4]
Following this exchange, Mr. Chaput and the
appellant went to a pub across the street, returning home around 5:45 p.m. Mr.
Chaput ate dinner and went back to his room.
[5]
A few minutes later, the appellant knocked on Mr.
Chaputs door and asked Mr. Chaput to call 911 because he had just stabbed his
son. Mr. Chaput called 911 and asked for an ambulance at 6:40 p.m.
[6]
The appellant had stabbed Michael twice in the
upper abdomen with a butcher knife, each time plunging the knife to the hilt
about 20 cm deep. He also cut the front of Michaels neck, leaving a 15 cm long
gash. That cut, however, was only a superficial injury. Death was caused by the
stab wounds to the abdomen. Emergency surgery could not save Michaels life and
he was pronounced dead at the hospital at 9:35 p.m. that same night.
[7]
There were several descriptions as to how the
murder had been committed. Mr. Chaput testified that, immediately after the
stabbing, when he asked the appellant what had happened, the appellant answered:
I just stabbed
him. I was fed up with him. Hes keeping pushing me around, threaten to kill me
and all that bullshit. Just fed up. I went there to stab him so I seen him, he
was full of blood.
[8]
Upon his arrest, the appellant told the police: I
came home. He kicked the shit out of me. I said, Im not going to stand for it
no more. Then, as he was being escorted by the police out of the building, a
neighbour asked the appellant: Why did you do it? The appellant replied: He
deserved it.
[9]
The next day, the appellant was interviewed by
police at the station. He described what happened as: Nothing happened. Just I
come home and he was sitting out in the back drinking and that there and I
flipped. And he pushed me down a couple of times and I said well Ill get you
back. Later the appellant confirmed that he stabbed Michael when he was asleep
because I wanted my revenge I guess. He further recalled that Michael woke up
after being stabbed and asked: What are you doing that for? Toward the end of
the police interview, the appellant said: I just snapped. Thats why I should
see a psychiatrist or something.
[10]
Eight months after the stabbing, on April 29, 2016, the appellant met
with Dr. Helen Ward, a forensic psychiatrist, and spoke with her about the
stabbing. He said that he went to his bedroom at 6:00 or 7:00 p.m. and pretended
to be asleep for 20 minutes when Michael came in and said Ill kill you, you
old bastard, a threat which he had uttered before. The appellant remained in
bed and waited until Michael was quiet. He then grabbed a knife from the block
on top of the fridge and went over to Michael who was lying on the couch on his
back, his eyes partially shut, and stabbed him once in the stomach. He told Dr.
Ward that Michael then opened his eyes and said: What are you doing? to which
the appellant replied: I am putting an end to the argument. He then stabbed
Michael again. The appellant added: and I think I cut his throat. I just
couldnt take it no more, just had my fill of it.
[11]
When the appellant saw Dr. Ward again on October 21, 2017, he told her that
he remembered having an argument with Michael about the rent, and nothing else
after that until he told Mr. Chaput to call the police. The appellant said that
he was very drunk and did not remember Michael uttering any threat, and that he
did not remember stabbing Michael.
[12]
At trial, the appellant gave a different version. He said that he did
not remember going to the pub for a second time, and that the next thing he
remembered after the argument about the rent was Michael kicking open his
bedroom door and saying: Youre gonna die tonight you old bastard. The
appellant then looked for the baseball bat he used to keep in his bedroom, but
it was gone. He went to the kitchen and grabbed the knife because he was
scared. Michael had gone into the living room and was lying on the couch
watching television. The appellant testified that he approached Michael who
stood up and called his father: a rotten something and then thats when I shoved
a knife in him. It was fast and he fell down on the couch. And then I went over
to [Mr. Chaputs] door. The appellant described the situation as it was
either kill or be killed. He acknowledged not mentioning Michaels threat to
kill him when interviewed by the police because I was so used to it. I thought
it was normal.
[13]
The trial judge charged the jury on self-defence and intoxication, as
requested by the defence. The defences position was that the history of the
relationship between the appellant and his son was crucial to understanding the
July 7 killing, which the defence urged the jury to see as an act of
self-defence after years of elder abuse and escalating violence. The Crowns
position was that the appellant stabbed his son with the intention to kill him,
committing second-degree murder. The appellant was fed up with his son and his
sons lifestyle. He was angry and killed him as revenge for the backyard
confrontation, not to defend himself.
[14]
Neither the Crown nor defence made any serious reference to the partial
defence of provocation. The only mention of it came in passing from the trial
judge who, during the pre-charge conference, noted that: There is no evidence
of provocation so I eliminated references to provocation from the rolled-up
charge. Neither counsel objected.
[15]
During deliberations, the jury asked a question about how anger may
raise a reasonable doubt as to the
mens rea
for murder. Specifically,
the jury indicated that they were having an issue with the evidence of anger
may raise
[sic]
a reasonable doubt
whether, when he unlawfully killed Mike McRae, John McRae had either state of
mind required for murder. In discussing the appropriate response, both the
Crown and defence acknowledged that the defence of provocation did not arise in
this case. They agreed that the trial judge should repeat the rolled-up charge
for the jury, specifying that: anger is not a defence; anger only in
combination with the other factors and on consideration of all the evidence
that youve heard is for you to consider as whether or not he had either states
of mind to commit the offence of murder.
[16]
The jury returned a verdict of guilty for second-degree murder and the
appellant was sentenced to life imprisonment with a parole ineligibility period
of 12 years.
GROUNDS OF APPEAL
[17]
The appellant raises four grounds of appeal as follows:
1.
the trial judge erred in failing to charge the
jury on provocation;
2.
the trial judge erred in dismissing the
appellants
Scopelliti
and
Corbett
applications
;
3.
the trial judge erred by giving a special hearsay
caution; and
4.
the trial judge erred in his sentencing of the
appellant by relying on the appellants position of trust as an aggravating
factor and in imposing a parole ineligibility period of 12 years.
ANALYSIS
(1)
Did the trial judge err in failing to charge the
jury on provocation?
[18]
The appellant argues that there was an air of reality to the partial
defence of provocation and that the trial judge erred in failing to charge the
jury on it. The fact that provocation was not specifically raised by counsel
did not absolve the trial judge of his duty in that regard.
[19]
Under s. 232 of the
Criminal Code
, R.S.C. 1985, c. C-46, provocation
provides a partial defence to an accuseds unlawful conduct in killing another
human being where the killing is perpetrated as a result of a sudden event
triggering a loss of self-control:
R. v. Tran
, 2010 SCC 58, [2010] 3
S.C.R. 350, at paras. 9-12;
R. v. Thibert
, [1996] 1 S.C.R. 37, at
para. 4. The defence consists of both objective and subjective elements. There
must have been a wrongful act or insult sufficient to deprive an ordinary
person of the power of self-control, the objective element, and the accused
must have acted upon that insult on the sudden and before there was time for
the accuseds passion to cool, the subjective element:
Tran
, at para.
10, citing
Thibert
, at para. 4. The appellant correctly notes that a
2015 amendment to s. 232, which now requires that the provocative act also
constitute an indictable offence punishable by five or more years imprisonment,
does not apply in this case because the amendment came into force after the
charged conduct:
R. v. Singh,
2016 ONSC 3739, at paras. 43-44, citing
R.
v. Bengy,
2015 ONCA 397, 325 C.C.C. (3d) 22.
[20]
According to the appellant, the defence of provocation had an air of
reality in light of his evidence about what Michael had said to him prior to
the stabbing. He testified that Michael had called him names and said he would die
tonight. Such a threat can, the appellant submits, constitute provocation.
Further, an act of provocation is not considered in isolation, but rather in
the context of the course of events that led up to it, including the
relationship between the parties.
[21]
In this case, the context is one of a long abusive relationship between
two men, including a confrontation earlier in the day. In the appellants
submission, the jury was entitled to accept the appellants trial evidence that
he flipped after Michael came into his room to threaten him and call him
names. After being threatened while he lay on his bed, the appellant got up,
went into the kitchen where he retrieved the knife and, upon confronting
Michael, was insulted once again. This combination of threat and insult was, the
appellant argues, sufficient to deprive an ordinary person of the power of
self-control and, accordingly, satisfies the objective portion of the test for
provocation.
[22]
As for the subjective element of the defence, the appellant
acknowledged that he was angry, but he also testified that he was scared. He
argues that as long as there was some evidence that he acted in sudden response
to provocation, the subjective element required for the defence of provocation
had an air of reality and should have been left with the jury.
[23]
The appellant further submits that trial counsels failure to ask for a
provocation instruction did not relieve the trial judge of his obligation to
leave the defence with the jury. It is an error of law not to leave provocation
with the jury if the defence has an air of reality:
R. v. Cinous
, 2002
SCC 29, [2002] 2 S.C.R. 3, at para. 51. On the facts of this case, the appellant
argues that the jury could have been persuaded, or at least left with a
reasonable doubt, that an ordinary person in the accuseds circumstances would
have lost control when Michael made his final taunting threat. Furthermore, the
air of reality was evident from the jurys question.
[24]
I disagree. It is well established that in considering whether a
defence has an air of reality, the accused is entitled to the most favourable
view of the evidence. It is assumed that the evidence relied upon by the
accused is true. However, a mere assertion by the accused is not sufficient to
put a defence to the jury:
Cinous
, at para. 98.
[25]
As explained by McLachlin C.J. in
R. v. Pappas
, 2013 SCC 56,
[2013] 3 S.C.R. 452, at paras. 24 and 26:
An air of reality cannot spring from what
amounts to little more than a bare, unsupported assertion by the accused,
which is otherwise inconsistent with the totality of the accuseds own evidence:
R. v. Park
, [1995] 2
S.C.R. 836, at para. 35,
per
LHeureux-Dub
é J.
Defences supported
only by bald assertions that cannot reasonably be borne out by the evidence,
viewed in its totality, should be kept from the jury.
As I will explain, the record in this
case supports neither the presence of the required objective nor subjective
elements of the defence.
(a)
No air of reality to the objective element
[26]
The nature of the threat in this case is not such that an ordinary
person would be deprived of self-control. Accepting the appellants evidence
that Michael came to the appellants bedroom door and told him Ill kill you,
you old bastard or Youre gonna die tonight you old bastard, there is no
evidence that this threat was accompanied by any physical assault or intention
to follow through. In fact, after the alleged statement was made, Michael
simply walked away. He went back into the living room, opened a beer, lay on
the couch and started watching television. An ordinary person would not be
deprived of self-control by a mere threat of future harm in those
circumstances.
[27]
Placing this threat in context is of no assistance to the appellant. By
all accounts, the relationship between the appellant and his son was plagued by
mutual insults and threats of violence for years without any significant
injuries to either party. In other words, even steeped in the hostile dynamic of
that relationship, an ordinary person would not lose self-control, as they
would not have been shocked by the insult, nor would they have any reason to
think that Michael was going to inflict immediate physical harm.
[28]
As for the utterances the appellant claims that Michael made when the
appellant came toward him carrying the knife, namely calling the appellant a
rotten something and saying what do you want you old bastard, these were
obvious and predictable reactions to the appellants confrontational conduct. Michaels
utterances lacked the element of sudden shock required to cause an ordinary
person to lose self-control. Michael did not draw a weapon or make any
aggressive gesture toward the appellant in the living room. His statements to
the appellant were unsurprising given the fact that he was being confronted at
knifepoint. A properly instructed jury acting reasonably could not have been
persuaded that Michaels conduct was sufficient to deprive an ordinary person
of the power of self-control, nor could it have left the jury with a reasonable
doubt.
(b)
No air of reality to the subjective element
[29]
In my view, the subjective element of the air of reality test has not
been made out on the record. Specifically, the appellants evidence in this
case does not provide a basis upon which the jury could believe or entertain a
reasonable doubt that he lost self-control and that he acted on the sudden, stabbing
Michael before there was time for his passion to cool. At no point did the
appellant suggest that he lost the power of self-control or that he killed
Michael in the heat of passion.
[30]
When considered in the context of the whole of the evidence, the
appellants evidence about his motivation for the killing to the effect that he
snapped or flipped after Michael came into his room and threatened him is
insufficient to give an air of reality to the defence of provocation. Even
accepting the appellants evidence that he snapped or flipped, this
isolated evidence is ripped from the context of the rest of the evidence and
does not satisfy the subjective element of the test:
R. v. Doucette
,
2015 ONCA 583, 328 C.C.C. (3d) 211, at para. 31.
[31]
In this case, it is apparent that the stabbing, when viewed in the
context of all the evidence at trial, was not a sudden reaction on the
appellants part. Although the appellant testified that there were only seconds
between the threat and the stabbing, his own evidence shows that, after the
threat, he took the time to look for the baseball bat he usually kept in his
room, could not find it, and decided to go to the kitchen for a knife. He then
went over to the couch where he confronted Michael. He not only stabbed him
twice but went on to inflict a 15 cm cut to Michaels throat. The isolated
statements that he snapped or flipped are inconsistent with the appellants
principal narrative as to how the murder was committed and are insufficient to
give an air of reality to the defence of provocation. Viewed in the entire
context of this case, the subjective element, acting on the sudden, is lacking.
[32]
The appellant argues that the present case is similar to
R. v. Gill
,
2009 ONCA 124, 241 C.C.C. (3d) 1 and
R. v. Angelis
, 2013 ONCA 70, 296
C.C.C. (3d) 143. In both of those cases, this court held that provocation
should have been left with the jury because the Crown, in arguing that the
accused had acted out of anger, implicitly acknowledged that there was some
evidence of provocation. In the appellants submission, the same argument was
made by the Crown in this case, that is, that the appellant was fed up and
angry at Michael and that was why he killed him.
[33]
In my view,
Gill
and
Angelis
are quite different. In
those cases, there was an undisputed element of suddenness in the sense that
the appellant became enraged immediately before or during the fatal
confrontation with the deceased. By contrast, in this case, the Crown did not suggest
that the appellant was animated by sudden anger immediately before stabbing
Michael to death. Instead, the Crown pointed to the appellants long-standing
frustration and seething anger with Michael, which was aggravated by the
confrontation hours earlier in the backyard. The stabbing was neither sudden nor
immediate.
[34]
In the final analysis and considering the totality of the evidence in
this case, the trial judge and all counsel at trial correctly concluded that there
was no air of reality to the suggestion that the appellant killed Michael in a
sudden fit of anger before he had time to regain control. The trial judge did
not err in failing to put the defence of provocation before the jury.
(2)
Did the trial judge err in his
Scopelliti
and
Corbett
rulings?
[35]
At trial, the appellant brought applications to adduce evidence of Michaels
criminal history pursuant to
R. v. Scopelliti
, (1981), 63 C.C.C. (2d)
481 (Ont. C.A.) and to exclude evidence of his own criminal history pursuant to
R. v. Corbett
, [1988] 1 S.C.R. 670.
[36]
On the
Scopelliti
application, the
appellant argued that Michaels prior history of violent and criminal behaviour
with the appellant and others was
relevant to the
appellants claim of self-defence. The
Scopelliti
application was brought before the defence had called its case, but
the appellant undertook that he would testify and provided a short will-say
statement. He further acknowledged that if the
Scopelliti
application was granted
and evidence of Michaels violent criminal behaviour admitted, he would have no
basis upon which to resist the admission of his own criminal record. In
essence, he argued that in the interest of fairness, the jury should receive a
complete picture of both protagonists, including their violent and criminal
history.
[37]
The
Corbett
application
was argued during a break in the appellants testimony in chief. The appellant
opposed the introduction of his criminal record by the Crown on the basis that
his convictions were dated and that the crimes involved did not speak to
credibility. He argued that the introduction of his criminal record could only
give rise to impermissible propensity reasoning.
[38]
On the
Scopelliti
application, trial judge ruled that the
evidence of Michaels
prior acts of violence that were
known to the appellant was relevant and admissible. However, where the
appellant had no direct knowledge of the prior acts of violence, the evidence
would be excluded. He limited the
Scopelliti
application in this way
on the basis that the appellants testimony about Michaels aggression did not
open the door wide to all of Michaels past disreputable conduct.
[39]
In his ruling on the
Corbett
application, the trial judge
noted that the appellant had already introduced a substantial portion of his
own criminal record through his testimony in chief. Because the appellant was
the only surviving party to the final confrontation with Michael, his
credibility would be central to the case and the jury should be presented with
a complete picture, accompanied by the appropriate instruction. The trial judge
therefore permitted the Crown to cross-examine the appellant on his criminal
record without restriction.
[40]
The appellant challenges both rulings. In the appellants submission, the
trial judges
Scopelliti
ruling was wrong and prejudiced the
appellants defence because a significant quantity of evidence pertaining to
Michaels violent disposition was never heard by the jury. This included
Michaels full criminal record, evidence of violence toward his former
girlfriend that the appellant was unaware of and the evidence of a police
officer about a February 2015 violent interaction between Michael and the
police that occurred when the appellant was not present. In the appellants
submission, all of this evidence was clearly relevant to self-defence. Its
probative value exceeded any prejudice it might cause.
[41]
The appellant also maintains that the trial judges error was
compounded by his giving a cautionary midtrial instruction to the jury in which
he told the jury that Michaels extraneous misconduct was irrelevant.
[42]
As for the
Corbett
application, the appellant submits that,
because he excluded Michaels criminal record, it was an error for the trial
judge to then deny the appellants
Corbett
application and permit the
Crown to cross-examine the appellant on the entirety of his criminal record.
[43]
I would not give effect to these submissions. As submitted by the
Crown, even if the ruling on the
Scopelliti
application was an error,
the jury ended up hearing substantially all of the evidence of Michaels violent
history that the defence first sought to adduce through the
Scopelliti
application
. The
Scopelliti
ruling
had no significant impact on the outcome of the trial and cannot be said to
have occasioned a substantial wrong or miscarriage of justice. Accordingly, to
the extent of any error in the trial judges
Scopelliti
ruling, I
would apply the curative proviso, as urged by the Crown.
[44]
The appellant was allowed to testify that he and Michael committed a
robbery together and that Michael went on to commit robbery of a liquor store
and of a Dairy Queen. He also testified about Michaels fight with a police
officer at a liquor store. Michaels former girlfriend testified to having been
threatened by Michael should she take their daughter away, that the threats
were getting out of hand and that he was getting more violent. Finally, the
fact that Michael had been to the penitentiary came out in evidence, and his
criminal record appears to have been put in as an exhibit at trial, possibly,
as the Crown suggests, as an inadvertent attachment to the appellants criminal
record. The appellant simply suffered no prejudice as a result of the
Scopelliti
ruling.
[45]
I also agree with the Crown that, in the context of this case, the
trial judges midtrial instruction to the jury concerning Michaels extraneous
misconduct would have had no effect on the appellants claim of self-defence.
The main hurdle for the appellants self-defence claim was not that Michael would
utter threats and become verbally abusive when drunk. There was plenty of
evidence to that effect. The difficult issue was whether the appellants act of
stabbing Michael in response to the threat was reasonable in the circumstances
where Michael had left and returned to the living room to watch television. Even
on the most favourable view of the appellants evidence, Michael was not the
aggressor at the time of the stabbing. Evidence that Michael had robbed a
liquor store, been belligerent with the police or had verbally threatened his
girlfriend would have had no impact on the jurys assessment of the
reasonableness of the appellants reaction purportedly in self-defence.
[46]
Finally, given that the evidence of Michaels bad character and
criminal conduct was heard by the jury, I see no error nor any prejudice arising
from the trial judges dismissal of the
Corbett
application. The jury
received a warts and all picture of both father and son, as the defence had
originally sought. The exclusion of the appellants criminal record would have
resulted in an imbalance. I would not give effect to this ground of appeal.
(3)
Did the trial judge err by giving a special
hearsay caution?
[47]
The appellant argues that the trial judge erred by characterizing Michaels
utterances on the day of the murder as hearsay and by instructing the jury that
it should treat them with special caution because Michael was not under oath or
available for cross-examination. The appellant places particular emphasis on
the following passage from the trial judges jury charge:
First, you have to decide what, if anything,
Michael McRae said to John McRae. In deciding whether Michael McRae said these
things, or any of them, you should use your common sense. Take into account the
condition of Michael McRae and of the witnesses at the time of the
conversation, the circumstances of when the conversation took place, and
anything else that may make the witnesss story more or less believable.
If you find that the witness has reliably
reported any or all of what Michael McRae said, you may use those parts of the
witnesss testimony to help you decide the case. Do not use what you conclude
the witness has not do not use what you conclude that the witness has not
reliably reported.
You should be cautious when you determine how much or how little you
rely on this evidence and of what you find Michael McRae said to any witness to
decide this case. It may be less reliable than other evidence that has been
given. Michael McRae was not under oath or affirmation. He did not promise to
tell the truth. You did not see or hear Michael McRae testify, although you
heard his voice on the 911 call. He could not be cross-examined here like the
other witnesses who testified before you
.
[Emphasis added by appellant.]
[48]
The appellant explains that Michaels utterances were not adduced for
the truth of their content, so the hearsay rule was inapplicable. It did not
matter if the threats issued by Michael were true in the sense that they would
have actually been carried out. What mattered was whether the appellant perceived
them as being serious. The threats gave support to the appellants claim of
self-defence.
[49]
In support of this submission, the appellant relies on
R. v. Delellis
,
2019 BCCA 335. In that case, as here, the accused claimed self-defence. The
deceased was a drug dealer who had threatened the accused about a week prior to
the incident. The evidence of threats made by the deceased was given by the
accuseds girlfriend and, in his charge to the jury, the trial judge cautioned the
jury about the limitations of this evidence. The caution was due to the lack of
cross-examination. The trial judge urged the jury to consider [the evidence]
carefully before giving [it] the weight you think it deserves and specified
that [e]ven if you find that [the witness] accurately reported the statements
made to her by [the deceased], you must still determine whether [the deceased]
was being truthful at the time.
[50]
The Court of Appeal in
Delellis
held that the trial judges
instruction amounted to reversible error notwithstanding the lack of a defence
objection. The issue according to the Court of Appeal was not whether the
threat was truthful but whether it was in fact made. In undermining the ability
of the defence to rely on this important evidence, the instruction amounted to
reversible error.
[51]
In my view, on the facts of this case, the cautionary instruction did
not undermine the appellants defence. The parties at trial agreed that
Michaels statement should be treated as admissible hearsay and they approved
of the proposed jury instruction in that regard. It is not at all clear that a
detailed instruction on the non-hearsay-purpose use of those statements would
have assisted the appellant. The trial judge would have been required to remind
the jury that Michaels statements may or may not have been true. This would in
turn emphasize that we do not know if Michael meant to carry out the threat and,
in fact, that he had never carried out earlier threats. The warning would call
into question both the sincerity and the reasonableness of the appellants
apprehension of harm.
[52]
Moreover, the present case is distinguishable from
Delellis
as
the impugned hearsay instruction did not undermine the jurys assessment of the
appellants claim of self-defence. First, the instruction concerned Michaels
statements in the afternoon before the murder and the statements made by
Michael that could be overheard when Mr. Chaput made the 911 call. The
instruction did not specifically concern the threat made in the evening at the
bedroom door, which was the basis of the appellants self-defence argument. Second,
and more importantly, the jury in this case was not instructed that they first
had to determine whether Michaels afternoon threats were true before
considering them for the benefit of the appellant. The trial judges focus was
on the fact of Michaels threats rather than their veracity:
If you find that
the witness has reliably reported any or all of what Michael McRae said, you
may use those parts of the witness testimony to help you decide the case.
Do not use what you conclude the witness has not reliably
reported
.
[53]
The trial judge then added a standard warning to the effect that
Michael was not present at trial, did not testify under oath and did not
promise to tell the truth. This added caution was not an invitation to discount
Michaels statements if the jury determined they were untrue. The trial judge
immediately returned to the issue of whether the witness reporting Michaels
words could be believed:
In deciding how
much or little of a witnesss testimony about what Michael McRae said you will
believe and rely upon, you might ask yourselves questions such as: Would the [witness]
have any reason to make up the story about what Michael McRae said? Might the
witness be mistaken about what Michael McRae said, or might the witness have
put his or her own interpretation on what Michael McRae said?
[54]
Crucially, the trial judge did not take the additional step, like the
trial judge in
Delellis
, of adding: [e]ven if you find that [the
witness] accurately reported the statements made to her by [the deceased], you
must still determine whether [the deceased] was being truthful at the time.
[55]
Further, the trial judges later instructions on self-defence made no
reference to the earlier hearsay instruction. Self-defence was not made
dependent on the truth of Michaels threats. Rather, the jury was properly
instructed that the appellant was entitled to be mistaken in his belief about
Michaels threatened use of deadly force.
[56]
The jury charge on self-defence contained a review of the relevant
evidence, including the history of verbal abuse, threats and fights between
Michael and the appellant, Michaels threat during the afternoon confrontation
and the appellants testimony that, shortly before 6:40 p.m., Michael
threatened to kill him later that night. None of the evidence in this portion
of the charge was qualified or discounted in any way as a result of Michaels
statements being hearsay. Accordingly, the instruction did not undermine the
defences ability to rely on self-defence in this case.
(4)
Did the trial judge err in sentencing?
[57]
The appellant argues that the trial judge erred in finding that the
aggravating factor set out at s. 718.2(a)(iii) of the
Criminal Code
applied because Michael was dependent on the appellant and the appellant stood
in a position of trust towards Michael. Further, in the appellants submission,
the trial judge erred in exercising his discretion in setting the parole
ineligibility period at 12 years for this 73-year old offender, who was in poor
health.
[58]
I see no basis to interfere with the sentence imposed. As found by the
trial judge, this was a cruel and horrific murder. The appellant stabbed his
son, who was apparently sleeping, twice in the abdomen, plunging the butcher
knife up to the hilt each time. There was no clear expression of remorse from
the appellant who, upon arrest, suggested that his son deserved it.
[59]
As for the finding that the appellant stood in a position of trust, this
court has generally not insisted upon a narrow approach to the interpretation of
s. 718.2(a)(iii). See
R. v. Orwin
, 2017 ONCA 841, at paras. 54
and 57;
R. v. Hamade
, 2015 ONCA 802, at paras. 28-30, and
R. v.
C.R.
, 2010 ONCA 176, at paras. 84-86. In this case, Michael was very
dependent on his father, with whom he had lived most of his adult life. There
is no question that it was by exploiting an element of trust that the appellant
was able to kill his son while he was in a vulnerable position, lying on the
couch in their shared apartment.
[60]
The trial judge considered the appellants age and poor state of health
and, weighing these together with other relevant factors, exercised his
discretion to set the parole ineligibility at 12 years. I see no error in that
regard.
CONCLUSION
[61]
For these reasons, I would dismiss the conviction and sentence appeals.
Released: July 22, 2021 P.R.
Paul Rouleau J.A.
I agree S.E. Pepall J.A.
I agree L.B. Roberts J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R.F. v. J.W., 2021 ONCA 528
DATE: 20210722
DOCKET: C68225
Juriansz, van Rensburg and
Sossin JJ.A.
BETWEEN
R.F.
Applicant (Appellant)
and
J.W.
Respondent (Respondent)
Ken Nathens and Denniel Duong, for the
appellant
Kirsten Hughes, Mackenzie Dean and Darryl
Willer, for the respondent
Heard: May 7, 2021 by video
conference
On appeal from the order of Justice Mary
Jo McLaren of the Superior Court of Justice, dated February 26, 2020, with
reasons reported at 2020 ONSC 1213.
van
Rensburg J.A.:
OVERVIEW
[1]
The parties R.F. and J.W.
[1]
are former spouses and the
parents of two children, who are now 15 and 11 years old. After 14 years of
marriage, they separated in 2014, and divorced in 2017. Both remarried.
Although they were able to agree on an equal time-sharing arrangement after
their separation, ultimately they became involved in high conflict litigation.
[2]
The appeal is from a judgment following a 16-day
trial that took place in September 2019. A final order with reasons for
decision was released on February 26, 2020. The trial was primarily concerned
with parenting time and decision-making responsibility in relation to the
parties children and child support.
[2]
[3]
The trial judge concluded that it was in the
best interests of the children for the parties to have shared parenting time on
an alternating weekly time-sharing schedule and for the respondent father to
have final decision-making responsibility for the children after consultation
with the appellant mother. The trial judge fixed the parties income for child
support purposes for 2018, dismissed the claim for a retroactive adjustment of
support, ordered set-off child support to be paid by the mother, commencing
March 1, 2020 (with the requirement that the father provide an income analysis
from a chartered accountant every two years for the preceding two years,
commencing in 2021), and s. 7 expenses to be shared proportionate to the
parties incomes.
[4]
The mother appeals both the parenting and child
support provisions of the trial judges final order. She asserts that the trial
judge made reversible errors in her approach to and consideration of the
evidence respecting parenting of the children, in the determination of the fathers
income for child support purposes (and the sharing of s. 7 expenses), and in
failing to order the father to pay support arrears.
[5]
The mother also seeks to introduce as fresh
evidence in this appeal her affidavit setting out changes and events [that]
have transpired since the judgment under appeal was made.
[6]
For the reasons that follow, I would dismiss the
appellant mothers motion to introduce fresh evidence and, except for one issue
that I would remit to the trial judge, the appeal.
THE FRESH EVIDENCE MOTION
[7]
The mothers proposed fresh evidence is her affidavit,
which speaks primarily to events concerning the children since the date of the
trial and the final order under appeal. The father opposes the motion, but if
the mothers affidavit is admitted, he asks the court to consider his own
affidavit that sets out his post-trial observations, and attaches as exhibits
the interim reports of the therapist who was appointed on consent at the
conclusion of the trial, Lourdes Geraldo,
[3]
and of the childrens individual therapist.
[8]
Evidence about the circumstances prevailing
since the date of an order under appeal is not, strictly speaking, fresh evidence
that would meet the test for admission under
R. v. Palmer
, [1980] 1
S.C.R. 759, at p. 775, or
Sengmueller v. Sengmueller
(1994), 17 O.R.
(3d) 208 (C.A.). As Benotto J.A. observed in
Goldman v. Kudelya
, 2017
ONCA 300, the
Palmer
criteria are more flexible where an appeal
involves the best interests of a child, in order to provide the court with
current information about the condition, means, needs, circumstances and well‑being
of the child. However, she cautioned that [t]he more flexible approach to the
Palmer
test in custody matters is not an opportunity for parents to continue an
affidavit war: at para. 28. Except for one agreed upon fact, the parties
contradictory affidavits were not admitted as fresh evidence in
Goldman.
[9]
Similarly, in the present case the proposed
fresh evidence speaks to events since the trial, and in particular after the
parenting regime provided for in the order under appeal was implemented. The mothers
affidavit repeats and continues themes from the trial: that the father is
responsible for the deterioration in his relationship with the children, and
that he is ignoring the childrens best interests. The mother asserts that,
contrary to the trial judges findings, events since the date of the final
order demonstrate that the father is the primary source of conflict between the
parties. She recounts incidents with the children that suggest that they are
doing less well under the equal time-sharing regime, and she objects to the fathers
decision to prevent the children from attending in-person dance classes due to
COVID-19 restrictions.
[10]
I agree with the father that the matters raised
in the proposed fresh evidence were either considered by the trial judge at
first instance or are matters that are being addressed through the therapy that
was ordered by the trial judge on consent at the conclusion of the trial. In a
further attendance on November 18, 2020 (to deal with issues of cell phone use
and dance registration), the trial judge ordered the parties, through counsel,
to arrange a further attendance to speak to the matter in 2021, among other
things to advise the court of the status of therapeutic assistance provided by
Ms. Geraldo.
[4]
It is in this context that Ms. Geraldos interim report will be considered.
[11]
Although the best interests of the children are
engaged in family law appeals of final parenting orders, an appeal is not the
place to address ongoing conflict between the parties arising out of the order
under appeal. There is a strong interest in finality, not only for the parties,
but for the children. This is especially the case where the parties have been
involved in years of high-conflict litigation, culminating in a lengthy trial. The
order under appeal must be treated as a final order, unless there are
demonstrated errors meeting the exacting standard of review on appeal. As this
court has emphasized in other cases, the proper place for new evidence about
changed circumstances if in fact the threshold of material change can be met
is a motion to change before the court that has original jurisdiction, and not
in the context of an appeal: see e.g.,
Katz v. Katz
, 2014 ONCA 606, 324
O.A.C. 326, at para. 75;
Myles v. Myles
, 2019 ONCA 143, at para. 7;
and
Gagnon v. Martyniuk
, 2020 ONCA 708, 50 R.F.L. (8th) 266, at para.
3.
[12]
Generally, where information about a childs
current circumstances is properly considered on appeal, it must be such that it
would reasonably be expected to have changed the outcome in the court below:
Childrens
Aid Society of Oxford County v. W.T.C.
, 2013 ONCA 491, 308 O.A.C. 246, at
para. 43;
Ojeikere v. Ojeikere
, 2018 ONCA 372, 140 O.R. (3d) 561,
at para. 48. In this case the proposed fresh evidence could not reasonably have
changed the outcome of the trial. The mothers affidavit speaks to the
circumstances following the trial judges order, after equal parenting was
implemented, and the father assumed decision-making responsibility for the
children. The challenges faced by the children and their relationship with their
father were front and centre at the trial, and it is not surprising that there
would be some difficulties in the transition. The parties recognized, as early
as September 2019, the benefits of therapy with Ms. Geraldo, which is
ongoing, and which will be the subject of a further attendance before the trial
judge this year. This is the appropriate forum for the consideration of Ms.
Geraldos interim report.
[13]
For these reasons I would dismiss the motion to
admit fresh evidence.
THE PARENTING DECISION
(1)
Brief Background
[14]
At the time of separation in 2014 the parties
two children were eight and four years of age. For the first two years the
parties operated under a
de facto
equal alternating weekly time-sharing
arrangement with the children, sometimes referred to as week about, which
they arranged first on their own, and then with the assistance of a parenting
coordinator.
[15]
The mother commenced proceedings in November
2016, seeking, among other things, sole custody of the children
(decision-making responsibility), primary residence of the children, and child
support. The father sought joint or sole custody (decision-making
responsibility), primary residence and child support.
[16]
As the litigation progressed, the parties
remarried each to a spouse with their own children. Their conflict escalated.
As the trial judge observed, both parties contributed to this high conflict
case. Each contacted the Catholic Childrens Aid Society (the CCAS) more than
once with serious allegations that were never verified. Unfortunately, during
the years of litigation the parents also took steps that subjected the children
to many interviews with various professionals. They (and the mothers partner,
K.) exchanged emails and messages that contributed to the conflict.
[17]
In 2017, pursuant to a consent order, a custody
and access assessment was performed by John Butt, a registered marriage and
family therapist. His report (the 2017 Parenting Plan Report) recommended a
joint/parallel parenting arrangement for the children, with primary residence
with the mother and time with the father one night during the week and every
second weekend, and shared holiday and vacation time. These recommendations
were incorporated into the temporary consent order of Mazza J. dated August 17,
2017, which was in place at the date of trial. Mr. Butt had started work on an
updated report, however he could not complete it or attend at trial due to
illness. The 2017 Parenting Plan Report and his clinical notes for the updated
report were admitted in evidence at trial on consent.
[18]
At trial each party sought an order for sole custody
(decision-making responsibility) and primary residence of the children. By the
end of the trial, the mother asked for an order further reducing the fathers parenting
time.
[19]
The evidence at trial consisted of the testimony
of 15 witnesses, including 6 professionals who had dealings with the family,
and the business records of Mr. Butt, the Hamilton CCAS and Hamilton
Police Services.
(2)
Standard of Review
[20]
The scope of appellate review in family law
matters, including those involving parenting orders is intentionally narrow. This
approach promotes finality in family law litigation and
recognizes the importance of the appreciation of the facts by the trial judge:
Van de Perre v. Edwards
, [2001] 2 S.C.R. 1014,
at para. 11, citing
Hickey v.
Hickey
, [1999] 2 S.C.R. 518, at paras. 10, 12.
[21]
The trial judges order must only be disturbed
where there are demonstrated errors meeting the exacting standard of review on
appeal. An appeal in a case involving parenting time and decision-making responsibility
(as in any case on appeal to this court) is not an opportunity for a retrial.
Deference
is owed to the decision of the trial judge, particularly after a lengthy trial.
As the Supreme Court noted in
Van de Perre
, [c]ase
by case consideration of the unique circumstances of each child is the hallmark
of the process
.
Intervention on appeal is warranted only
where there is a material error, a serious misapprehension of the evidence or
an error of law:
at para. 13.
(3)
Alleged Errors of the Trial Judge: The Parenting
Order
[22]
The mother contends that the trial judge erred
in her determination that the parties would have shared parenting time on an
alternating weekly time-sharing schedule and that the father would have sole
decision-making responsibility for the children.
[23]
She makes three main arguments:
·
First, the trial judge erred in law by failing
to give effect to the childrens views and preferences, including those set out
in the 2017 Parenting Plan Report and Mr. Butts more recent clinical notes. In
a related argument, she says that the trial judge overlooked the childrens
legitimate reasons for preferring to live with their mother (and her spouse)
because she failed to properly consider Mr. Butts evidence;
·
Second, the trial judge erred in her treatment
of evidence of the parties alternative lifestyle and other pre-separation
conduct, including in her conclusion that this evidence affected the mothers
credibility, but not the credibility of the father; and
·
Third, the trial judge erred in permitting the father
to change the childrens family doctor.
(4)
Discussion
[24]
I would not give effect to any of these grounds
of appeal. No reversible error has been demonstrated in the final order
respecting the parenting of the children. As I will explain, it is apparent
from a review of the trial judges lengthy and detailed reasons that she considered
all of the evidence at trial, she made all necessary findings of fact
including that both parties were good and loving parents to the children and
she assessed the parties credibility in the context of determining which of
the parties was more likely to encourage the others relationship with the
children. This was a very important factor in this high conflict case, where
the childrens relationship with their father had deteriorated over time.
[25]
In arriving at her decision, the trial judges
focus was without question on the best interests of the children. Consistent
with the new legislative provisions on allocating parenting time, she
recognized that children should have as much time with each parent as is
consistent with their best interests.
[5]
The trial judge was concerned about how the children had come to align
themselves with their mother. She observed that their relationship with their
father had deteriorated, in part, because of the actions of the mother, and she
was concerned that, if sole decision-making responsibility were awarded to the mother,
the children would become more entrenched in their determination not to see
their father, which was not in their best interests.
[26]
The trial judge also reasonably concluded that
it would not be appropriate to allocate decision-making between the parents:
neither party suggested this option, both parties expressed that it would not
work, and the trial judge observed that, if areas of decision-making were
divided, undoubtedly they would overlap and conflict would result. While the mothers
evidence was that she had done nothing to discourage the relationship between
the children and their father, the trial judge found the father to be more
credible than the mother on this point, and she determined that he would be the
party most likely to promote a relationship with the other parent. For those
reasons, she ordered equal time-sharing, with decision-making responsibility to
the father.
The trial judges treatment of the childrens
views and preferences
[27]
Turning to the first ground of appeal of the
parenting order, I do not agree that the trial judge ignored the evidence of
the childrens views and preferences, including what was contained in Mr.
Butts 2017 Parenting Plan Report and the notes he took of his discussions with
the children in July 2018. Nor do I agree that the trial judge erred in finding
the children had aligned themselves with their mother, or that she overlooked the
legitimate reasons for the children to prefer their mothers home.
[28]
Several witnesses reported that, based on
conversations with the children and their observations, the children preferred
the home environment with their mother and her new spouse to the environment at
their fathers home. They also reported that there was conflict between the
children and the fathers spouse, D.
[6]
[29]
The trial judge noted that a significant part of
the mothers case at trial related to the childrens views and preferences, and
she recited the evidence in her reasons. The trial judge explained why she
considered such evidence to be of limited value in this case: it was not obtained
through a professional whose job it was to consider the independence of the
views, and to look for external influences. The potential for influence was
noted by Mr. Butt, who observed that the childrens views and preferences,
although consistent with the observations he made, could not reasonably be
deemed to be fully independent and should be cautiously considered.
[30]
The trial judge concluded that she was not
inclined to rely on the expressed views and preferences of the children, other
than to make time sharing a week about rather than giving the father the
majority of the time, which would be too contrary to what the [children] would
like, and what they are used to. She concluded that the children had likely
been influenced by their mother, and that they had become increasingly aligned
with her.
[31]
In so concluding, the trial judge considered the
evidence of the mothers witnesses that they never heard the mother speak
negatively about the father, and that she promoted a relationship between the
children and their father. However, the trial judge also referred to evidence at
trial that contradicted this assertion. What was squarely before the trial
judge was whether the deterioration of the childrens relationship with their
father which was reflected in their stated preference to live only with their
mother and her partner, K. was, as was alleged by the mother, the natural
result of the fathers conduct (as well as that of his spouse at the time, D.).
Ultimately the trial judge concluded that the evidence at trial did not support
this conclusion.
[32]
This conclusion was open to the trial judge on
the evidence. She reasonably concluded that the childrens views had not been
ascertained independently and that the children had become increasingly aligned
with their mother against their father.
The trial judges treatment of the parties
pre-separation conduct evidence
[33]
This takes us to the mothers second ground of
appeal of the parenting order: that the trial judge erred in her assessment of
the evidence of the parties alternative lifestyle before separation: their
involvement in a swingers club and sexual infidelities. The mother asserts
that the trial judge, after finding that this was irrelevant past conduct,
wrongly took the evidence into consideration as affecting the mothers credibility
and not the fathers. She asserts that one particular aspect of the evidence,
the father having retained nude photos of her, ought to have been considered as
family violence, which is a relevant factor in determining a childs best
interests under s. 24(4) of the
Childrens Law Reform Act
, R.S.O. 1990, c. C.12
.
[34]
There was a lot of evidence about the parties pre-separation
alternative lifestyle. The thrust of the mothers evidence, which was
contradicted by the fathers account, was that she was not a willing
participant in many of these activities, including an incident resulting in
nude photos of her with another man, and on a girls weekend photos that
ended up in the fathers possession. Unfortunately, and unnecessarily in my
view, a great deal of time at trial was devoted to the parties contradictory evidence
about these events and allegations. It is also unfortunate that, despite her
conclusion that the evidence was not ultimately relevant to the parenting
orders, the details of this evidence were recounted at length in the trial
judges reasons.
[7]
[35]
At para. 347, the trial judge noted that she was
very mindful of the fact that none of these activities prevented the parties
from entering into a joint custody arrangement with an equal timesharing that
was arranged with the help of a qualified parenting coordinator and which
lasted for over two years. She concluded:
Give[n] the ability of the parties to
initially overlook these activities, and the contradictory evidence, I cannot
say that these activities have impacted either partys ability to parent. As
such they are not something that helps or hurts the claims made by either party
with the exception of credibility, which I will address. I am also mindful that
both parties appear to be in stable new relationships now, and have been for a
few years. Both have re-married.
[36]
The trial judge stated that she made no
determination as to who was the instigator of the trips to the swingers club
or whether it was a mutual decision, and that neither this nor the mothers extra-marital
relationship was a factor in her decision. In addition to a lack of independent
evidence, there [was] no reason to believe that the children were affected in
any way: at para. 360.
[37]
I see no error in the trial judges conclusion
that the evidence about the parties pre-separation lifestyle would not affect her
decision on parenting, except in the sense she described as relevant to credibility.
[38]
First, the trial judge did not err in failing to
find that the fathers retention of nude photos of the mother was an incident
of family violence. This was not the argument at trial; rather the mothers
counsel referred to s. 162.1 of the
Criminal Code
(making it an
offence to knowingly publish an intimate photo of someone without their consent).
The trial judge reasonably concluded that this provision was not relevant: there
was no suggestion that the photos were made available to anyone other than
private individuals and no witnesses were called to say they saw them. One
witness said the father offered to show some photos to her, but the father denied
this. The trial judges treatment of the evidence about the nude photos was
appropriate. She noted that, although the mother was understandably upset
that the father kept the photos, there was contradictory evidence about how
they came to be, and there was no evidence at trial that they had been shared
by the father, although she accepted that he had told people about them. The
trial judge also appropriately observed that there was no reason why the photos
should not be destroyed.
[39]
Nor in my view did the trial judge err in her
limited consideration of the alternative lifestyle evidence, including the
evidence about the photos, to assess credibility. She had to determine which of
the two parents was more likely to encourage a relationship with the other. She
concluded that the father would be more likely to facilitate contact with the
mother than the reverse. In arriving at this decision, she identified certain aspects
of the mothers testimony that lacked credibility: that the father had harassed
her and her adult friends into taking nude photos of themselves on their
girls weekend; that the complimentary comments in greeting cards she wrote to
the father were written, not because they reflected her feelings, but because it
was expected; and that the mother was forced by the father to travel by cab to
another mans house for sex and photos, contrary to what appeared in the mothers
own explicit text messages. By contrast, the trial judge stated that she did
not find specific areas where the father lacked credibility on substantive
issues, and she was more inclined to accept his evidence overall.
[40]
The trial judges assessment of credibility is
entitled to deference. It is supported by the evidence and reveals no
reversible error.
The fathers ability to change the childrens
family doctor
[41]
Finally, I see no merit in the mothers argument
that the trial judge erred in permitting the father to change the childrens
family doctor. The trial judge stated that, since the father was going to have
custody (decision-making responsibility), it was not unreasonable for him to
change the family doctor. The trial judge noted that while she did not doubt
the family doctors sincerity (the family doctor had testified as a witness at
trial for the mother and recounted detailed conversations with the children
about their preference for their mothers home), the father might want to start
with someone new, who had not had the history of hearing the childrens
complaints about the father and his spouse. The trial judge, who had the
benefit of hearing and considering all the evidence, provided a sensible reason
for refusing the mothers request that the children remain with their current
family physician. There is no reason to interfere.
CHILD SUPPORT
[42]
From October 1, 2017 until August 1, 2019 the father
had been paying the mother $1,416 per month voluntarily based on an estimated annual
income of $100,000. He stopped paying child support one month before trial. At
trial both parties sought retroactive adjustments to child support. The mother asserted
that she was owed child support for 2017, 2018 and 2019 based on the father
having earned more than $150,000 in each of those years. The father argued that
he had overpaid child support and was entitled to repayment over time given that
the children were with him more than 40% of the time between October 2017 and
August 2019.
[43]
The trial judge ordered support on a set-off
basis from March 1, 2020 based on her determination of the 2018 income for the mother
of $152,314.81 and of the father of $93,341. Although she fixed child support
going forward based on the parties 2018 incomes, she ordered the father to
provide an income analysis from a chartered accountant every two years for the
preceding two years, commencing in 2021 (for 2019 and 2020).
[44]
The trial judge refused to make any retroactive
adjustments to child support. She acknowledged the parties contradictory
calculations of the amount of time the children had spent with their father.
Noting that the court has discretion and the child support is the right of the
child, she observed that both parties knew the time‑sharing schedule when
child support was agreed to, and that if the father had the children over 40%
of the time, she was not prepared to say that he had no obligation to pay child
support. She concluded that the estimated income of $100,000 was close to what
the father actually earned, and it was a fair amount under all the circumstances.
She concluded: I will use my discretion and leave child support on a
retroactive basis, in the amount that was agreed to.
[45]
The mother asserts that the trial judge made two
errors in her determination of child support: the first relates to the calculation
of the fathers income for child support purposes for 2018. The second is that
the trial judge erred by failing to award retroactive support for the six-month
period from September 2019 to February 2020.
The fathers 2018 income for child support
purposes
[46]
With respect to the fathers income, the mother makes
the same arguments on appeal that were rejected at first instance. She says
that, in determining the fathers income for 2018, no deduction ought to have
been allowed for his rental and home office expenses. She contends that the trial
judge ought to have included in the fathers income the amount that was allowed
as a deduction for rent and home office expenses plus gross up for taxes (an
amount exceeding $6,000), as well as pre-tax corporate earnings ($50,114.62). She
seeks to impute income of over $150,000 to the father for 2018 (and for the
preceding year, 2017).
[47]
I would not give effect to this argument. The
trial judge accepted the opinion of the fathers expert, R. Andrew MacRae, a
chartered accountant and business valuator, who provided an income report for
the year 2017 and testified at the trial. Mr. MacRaes opinion was that,
although the fathers line 150 income for 2017 was $84,000, he had an income of
$90,000 for child support purposes. Adopting the same approach, the fathers
income for 2018 for child support purposes was $93,341. The trial judge
accepted Mr. MacRaes calculation and rationale for adding back the sum of $6,431
for certain personal expenses that had been included in corporate deductions
for meals and entertainment, telephone, travel, rent and home office expenses, with
a gross up at 34%. And, although she acknowledged that there was a good
argument that retained earnings should be included in the determination of income
for support purposes, the trial judge elected not to attribute pre-tax
corporate income in 2018 as there were substantial losses in 2017 and the father
had been drawing on his cash reserves and line of credit to pay himself his
monthly draw. The trial judge accepted Mr. MacRaes opinion that the prior
years losses had to be considered as part of the analysis. His evidence was
not seriously challenged and the mother provided no professional opinion to
the contrary. There is no reason to interfere with the trial judges
determination of the fathers income for 2018.
The child support arrears from September 2019
to February 2020
[48]
Second, the mother argues that the trial judge
erred by failing to order the father to pay arrears of child support in respect
of a six-month period. She seeks payment of support for the period between
September 1, 2019 and February 1, 2020. The father paid no child support during
this period.
[49]
The mother points to the fact that the father
was paying child support of $1,416 per month based on the parenting regime that
was in place up to trial, which continued until the end of February 2020, when
the new equal time parenting arrangements ordered by the trial judge were put
in place. The fathers last child support payment was made in August 2019. The father
renews the argument made at trial that he had overpaid child support because
the children were living with him more than 40% of the time. This argument
however had been rejected by the trial judge in refusing the fathers request
for a retroactive adjustment to child support.
[50]
Although the final order states that there is no
adjustment to child support as of February 29, 2020, the trial judges reasons do
not address the question of child support for the six-month period between
September 2019 and February 2020. I would remit the issue of child support for
this period to the trial judge in the particular circumstances of this case, in
which the parties are to reattend before the trial judge in any event to
address the status of the therapeutic assistance provided by Ms. Geraldo.
DISPOSITION
[51]
For these reasons I would dismiss the motion to
introduce fresh evidence and, except for the one issue I would remit to the
trial judge, the appeal. If the parties are unable to agree on costs, the court
will receive written submissions limited to three pages each exclusive of any
costs outline, with no right of reply. The respondents submissions are to be served
and filed within 15 days of these reasons and the appellants submissions
within ten days thereafter.
Released: July 22, 2021 R.G.J.
K.
van Rensburg J.A.
I
agree. R.G. Juriansz J.A.
I
agree. Sossin J.A.
[1]
I have
chosen to initialize the parties names in the title of proceedings and this
decision at the parties request and to protect the childrens privacy, given
the particularly sensitive nature of the evidence in this case.
[2]
Pursuant
to amendments to the
Divorce Act
,
R.S.C. 1985, c. 3, which came into effect on March 1, 2021, custody and
access terminology has now been replaced by terms such as decision-making
responsibility, parenting time and contact.
Section 35.4 of the Act
deems a person who had custody of a child by virtue of a custody order to have
parenting time and decision-making responsibility and a spouse or former spouse
who had access by virtue of a custody order to be a person to whom parenting
time has been allocated.
[3]
Ms.
Geraldo was appointed on consent of the parties at the conclusion of the trial
on September 26, 2019 to facilitate any and all therapeutic interventions,
therapies and approaches to ensure a balanced relationship as between the
children and the parties. The order also provided for the termination of any
other counselling or therapy involving the children and prohibited further
therapy without it being part of the process undertaken by Ms. Geraldo and
specifically recommended by her.
[4]
The
parties attended before the trial judge in accordance with paras. 34-35 of her
final order that directed she would remain seized of the issue of the
therapeutic interventions, and adjourned the issue of mobile phone use for the
children, and any time limits for the childrens activities.
[5]
See
Childrens Law Reform Act
,
R.S.O. 1990, c. C.12, s. 24(6) and the
Divorce Act
, s. 16(6).
[6]
The
proposed fresh evidence discloses that the father has since separated from D.
[7]
It is
unclear why it was necessary to have 16 days of evidence in this trial,
including a great deal of evidence that the trial judge concluded was
irrelevant to the issues she had to determine. A trial judge has an important
role in determining as the trial progresses the relevance of the evidence which
is led: see e.g.
R. v. Forrester
,
2019 ONCA 255, 375 C.C.C. (3d) 279, at para. 16;
Burton v. Howlett
, 2001 NSCA 35, at para.
15;
Canada (Attorney General) c.
JTI-MacDonald Corp.
, 2012 QCCA 2017, at para. 8. There is also a concern
about the length and style of the trial judges reasons in this case, which
include a
seriatim
review of the
evidence of each witness, and many details that are not only embarrassing to
the parties but reveal medical and other confidential information about the
children. Setting out the detailed evidence of each witness in the reasons for
judgment is typically unhelpful: see
Welton
v. United Lands Corporation Limited
, 2020 ONCA 322, at paras. 56-63. And
the inclusion of confidential information that is unnecessary to the
determination of the case should be avoided. As the Supreme Court noted
recently, [proceedings] in open court can lead to the dissemination of highly
sensitive personal information that would result not just in discomfort or
embarrassment, but is an affront to the affected persons dignity:
Sherman Estate v. Donovan
, 2021 SCC 25,
at para. 7.
|
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 complainants 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. K.C., 2021 ONCA 401
DATE: 20210610
DOCKET: C67856
Fairburn A.C.J.O., Jamal and
Coroza JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
K.C.
Appellant
Geoff Haskell, for the appellant
Samuel Greene, for the respondent
Heard: October 26, 2020
On appeal from the conviction entered by
Justice J. Christopher Corkery of the Superior Court of Justice, on August 1,
2019, and from the sentence imposed on October 17, 2019.
Jamal J.A. (dissenting):
A.
introduction
[1]
The appellant, K.C., was convicted following
trial by judge alone of sexual assault and sexual interference of two young sisters,
D. and S., and of invitation to sexual touching of D. The abuse was alleged to
have occurred between February 2008 and August 2015, when the complainants were
in the care of the appellant and his wife, J.C. The appellant was sentenced to
five years in prison.
[2]
The appellant now appeals his conviction and seeks
leave to appeal his sentence. On the conviction appeal, he submits that the
trial judge erred by dismissing his application for third-party records of the Ontario
Childrens Aid Society (CAS) and in making credibility determinations. On the
sentence appeal, he asserts that the trial judge erred in evaluating the mitigating
and aggravating factors for sentence and by not explaining the reason for rejecting
his submission for a three to four-year sentence.
[3]
For the reasons that
follow, I would dismiss the conviction appeal, grant leave to appeal
the sentence, and dismiss the sentence appeal.
B.
background
(a)
The complainants
[4]
The complainants, D. and S., are sisters. Beginning
in 2006 or 2007, the appellant and his wife looked after them periodically, initially
as paid caregivers and later without payment. They continued to look after the
complainants until 2015.
[5]
D. testified that the appellant began sexually abusing
her when she was about 8
years old
or younger.
S. testified that he began sexually abusing her when she was 9 years old and
continued to do so until she was 11 years old.
[6]
D. and S. were about 15
½
and 14 years old at the preliminary inquiry and about 17 and 15
years old at the trial.
(b)
The CAS investigation
[7]
For almost a decade, the complainants went back
and forth between their parents home and the home of the appellant and his
wife. The complainants often stayed with the appellant and his wife for long
weekends, holidays, and summers.
[8]
In August 2015, when D. and S. were about 13 and
12 years old, the appellant and J.C. complained to the CAS that the
complainants parents home was unsafe.
[9]
What led to the CAS complaint was disputed. The appellant
and J.C. testified that the complainants had objected to the poor living conditions
at their parents home and had said that they wanted to stay permanently with
the appellant and J.C. The appellant and J.C. referred to notes reflecting this
perspective written by the complainants before their CAS interviews. The complainants,
however, testified that J.C. made them write those notes to prepare for the
interviews and pointed to language that only an adult would use.
[10]
The CAS interviewed the complainants in August
2015. The CASs records of those interviews and the CASs follow-up was the
focus of the third-party records application.
[11]
At both the preliminary inquiry and
trial,
the complainants testified that they lied to
the CAS during the interviews. They explained that J.C. was eavesdropping from
the next room, so they told the CAS what J.C. told them to say they lied
about the degrading conditions in their parents home. They testified that they
did not tell the CAS that the appellant sexually abused them. At the
preliminary inquiry, D. testified that she did not disclose the abuse
because J.C. was listening in the next room and she would get mad at me if I
told anything of that. S. testified that she did not do so because the
appellant and J.C. scared me and they used to always tell us
what happens in
this house stays in the house
they were very scary. They scared me.
[12]
Because the complainants did not disclose the
sexual abuse to the CAS, no criminal investigation was
launched
at that time
. The CAS concluded that the complainants parents home was
safe and directed that the complainants be returned to them. The complainants
never stayed with the appellant and J.C. again.
(c)
The complainants allegations of sexual abuse
[13]
About a year after the complainants returned to
their parents home, they told their mother that the appellant had sexually
abused them. In early September 2016, their mother went to the police. Each
complainant gave a videotaped statement to the police, which they adopted at
the preliminary inquiry and trial:
·
D. told the police that the appellant would
enter the complainants shared bedroom and bed at night. She said the appellant
touched her breasts and the outside and inside of her vagina and once tried to
remove her underwear and force his penis into her vagina. He only stopped when
she kicked him away. She also said he once made her put his penis into her
mouth and told her to [s]uck it like a lollipop. She said this incident
happened in the basement of the appellants home.
·
S. told the police that the appellant touched
the outside of her vagina and once tried to remove her shorts, but she resisted
by rolling onto her stomach.
[14]
At the preliminary inquiry and trial, both
complainants elaborated on their videotaped statements and disclosed more
incidents of sexual abuse:
·
D. testified about an incident when she woke up
in the basement to the appellant watching pornography on television. She said
the appellant moved towards her, put his dick on [her] face, and ejaculated
on her face. He then mov[ed] [his penis] all over [her] face. She disclosed other
incidents of the appellant forcing her to engage in oral sex on him, although
she acknowledged that she had told the police this had happened only once. She explained
she did not disclose all the abuse to the police because she had tried to block
out painful memories and found it difficult to discuss these issues.
·
S. also recalled waking up to the appellant
watching pornography but was scared, froze, and eventually fell asleep.
(d)
The trial judges ruling dismissing the third-party records
application
[15]
At the start of the trial, the appellant applied
for production of the CAS records relating to its interviews of the complainants
in August 2015 and any follow-up from those interviews, which occurred more
than a year before the complainants told their mother about the abuse and the
appellant was charged. The complainants and their mother opposed the
application.
[16]
On the application, the appellant accepted that
the complainants did not disclose the sexual abuse to the CAS but submitted that
the CAS records were essential for him to make full answer and defence. He claimed
that
the records were likely relevant to impeach
the complainants credibility and to show
that
they
had fabricated the allegations of sexual abuse after the CAS investigation. He claimed
the records would allow him to compare the complainants testimony at the
preliminary inquiry about what they allegedly told the CAS with what the CAS recorded.
He argued there was an evidentiary basis to seek the records because at the
preliminary inquiry the complainants admitted that they had lied to the CAS and
said that they are suggestible because they suffer from fetal alcohol syndrome.
[17]
In oral reasons, the trial judge dismissed the
application. He concluded that the records were not likely relevant to an issue
at trial
and held that it was not necessary
in the interests of justice for them to be disclosed to him for review. He ruled
that the complainants admission
that
they had
lied to the CAS about the living conditions of their parents home was not
sufficient for the court to review those records.
(e)
The reasons for conviction and sentence
[18]
The trial judge reviewed the evidence of the
four witnesses who testified: the complainants, the appellant, and his wife.
[19]
The trial judge noted inconsistencies in the
complainants evidence but overall was impressed by their testimony and found
them to be credible and reliable. He found that although both complainants said
they suffered from fetal alcohol syndrome, this did not affect their reliability.
Both complainants testified in a way he found compelling, candid, sincere, and
believable. Their evidence was measured and the detail which they provided
of what transpired in their young lives was persuasive. They acknowledged
where there was an inconsistency and explained where their memory was not clear.
There was no evidence of exaggeration or fabrication. The trial judge found no
evidence of collusion between the complainants and concluded that they had no
motive to fabricate the allegations against the appellant more than a year
after leaving his home for the last time.
[20]
In their testimony, the appellant and J.C. denied
the allegations outright, but the trial judge found them to be neither credible
nor reliable. He viewed their attempts to address the several inconsistencies
in their evidence as inadequate. He did not believe the appellants evidence or
accept his denials. He also found that aspects of J.C.s evidence made no
sense and highlighted his concern that J.C. seemed aware of the complainants evidence
as to where the sexual abuse occurred, suggesting she may have breached a court
order excluding witnesses.
[21]
Based on all the evidence, the trial judge found
the appellant guilty beyond a reasonable doubt and convicted him of the offences
with which he was charged. The trial judge sentenced him to consecutive sentences
of 3
½
and 1
½
years for the offences against D. and S.,
respectively, for a total sentence of 5 years.
C.
analysis
[22]
I will address the following three issues:
1.
Did the trial judge err by dismissing the application
for third-party records in the possession of the CAS?
2.
Did the trial judge err in making his findings
of credibility?
3.
Did the trial judge err in imposing a five-year
sentence?
Issue #1: Did the trial judge err in dismissing the application for
third-party records in the possession of the CAS?
(a)
Introduction
[23]
The appellants first ground of appeal asserts
that the trial judge erred in dismissing his application for third-party records
in the possession of the CAS. To address this ground, I will first outline the
statutory scheme for producing third-party records for sexual offences. I will
then address the claimed errors in the trial judges analysis. As I will
explain, although I agree with the appellant that the trial judge erred in part
of his analysis, I conclude he did not err in dismissing the application.
(b)
The statutory scheme
[24]
Sections 278.1 to 278.91 of the
Criminal
Code
, R.S.C. 1985, c. C-46, govern the production to an accused of a
record in a prosecution for a sexual offence
listed
in
s. 278.2. Under this statutory scheme, which was
found
to be
constitutional in
R. v. Mills
, [1999] 3 S.C.R. 668, Parliament
sought to recognize the prevalence of sexual violence against women and
children and its disadvantageous impact on their rights,
and to reconcile fairness
to complainants with the rights of the accused:
Mills
, at para. 59;
R.
v. McNeil
, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 30.
[25]
The records subject to this scheme are defined
broadly in s. 278.1 as any form of record containing personal information for
which there is a reasonable expectation of privacy, including:
medical, psychiatric, therapeutic,
counselling, education, employment,
child welfare
, adoption and social
services
records
, personal journals and diaries, and records containing
personal information the production or disclosure of which is protected by any
other Act of Parliament or a provincial legislature, but does not include
records made by persons responsible for the investigation or prosecution of the
offence. [Emphasis added.]
[26]
By identifying certain records in s. 278.1,
Parliament wanted to avoid a case‑by-case reappraisal of the need to
protect categories of records that could be presumed to be subject to a reasonable
expectation of privacy. Absent evidence from the accused to the contrary, a
trial judge may assume that a reasonable expectation of privacy attaches to the
categories of records enumerated in s. 278.1:
R. v. Clifford
(2002),
58 O.R. (3d) 257 (C.A.), at para. 49;
McNeil
, at para. 32; and
Mills
,
at para. 99.
[27]
A two-stage process applies under this
statutory scheme: (i) disclosure to the judge (s. 278.5); and (ii) production
to the accused (s. 278.7):
Mills
, at para. 53.
(i)
Disclosure to the judge
[28]
At the first stage, under s. 278.5 the judge may
order the record holder to produce the record to the court for review by the
judge if the judge is satisfied that: (a) the application was made
in accordance with
ss. 278.3(2) to (6); (b) the
accused has established that the record is likely relevant to an issue at
trial or to the competence of a witness to testify; and (c) the production of
the record is necessary in the interests of justice.
[29]
Likely relevance in s. 278.5 is a threshold
higher than the threshold for Crown disclosure under
R. v. Stinchcombe
,
[1991] 3 S.C.R. 326, where relevance means may be useful to the defence:
Mills
,
at para. 45. However, the threshold for likely relevance is not an onerous
burden: see
Mills
, at paras. 46, 124 and 126;
R. v. Batte
(2000),
49 O.R. (3d) 321 (C.A.), at paras. 65 and 76. Under s. 278.5, likely
relevance requires a
reasonable possibility
that the information is
logically probative to
an issue at trial or the competence of a witness to
testify
:
Mills
, at para. 45 (italics added; underlining in
original), citing
R. v. OConnor
, [1995] 4 S.C.R. 411, at para. 22,
per
Lamer C.J. and Sopinka J. (dissenting, but not on this point);
R. v.
L.M.
, 2014 ONCA 640, 122 O.R. (3d) 257, at para. 37.
[30]
Section 278.3(4) lists eleven assertions that,
on their own, cannot meet the likely relevance threshold: s. 278.3(4);
Mills
,
at para. 52. These assertions include, for example, that the record relates to
medical or psychiatric treatment, therapy or counselling that the complainant
or witness has received or is receiving (s. 278.3(4)(b)); that the record
relates to the incident that is the subject-matter of the proceedings (s.
278.3(4)(c)); that the record may disclose a prior inconsistent statement of
the complainant or witness (s. 278.3(4)(d)); and that the record may relate
to the credibility of the complainant or witness (s. 278.3(4)(e)).
[31]
An accused may nevertheless rely on these
assertions if there is an evidentiary or informational foundation to suggest
that they may be related to likely relevance:
Mills
, at para. 120. The
accused must point to case specific evidence or information to show that the
record is likely relevant to an issue
at trial
or
the competence of a witness to testify:
Mills
, at para. 120.
[32]
However, just because an accused provides case-specific
evidence or information to support an assertion in s. 278.3(4) does not mean that
the likely relevance standard is met. That determination remains subject to the
trial judges ultimate discretion:
Mills
, at para. 120.
[33]
In deciding whether to order disclosure to the
judge, the judge must also determine whether disclosure is necessary in the
interests of justice: s. 278.5(1)(c). In doing so, the judge must weigh
the accuseds right to make full answer and defence against the complainants
rights to privacy, personal security, and equality based on the factors in s.
278.5(2):
Mills
, at paras. 53, 85 and 126. These factors
are as follows
:
(a)
the extent to which the record is necessary for the accused to make
a full answer and defence;
(b) the probative value of the record;
(c) the nature and extent of the reasonable
expectation of privacy with respect to the record;
(d) whether production of the record is based
on a discriminatory belief or bias;
(e) the potential prejudice to the personal
dignity and right to privacy of any person to whom the record relates;
(f) societys interest in encouraging the
reporting of sexual offences;
(g) societys interest in encouraging the
obtaining of treatment by complainants of sexual offences; and
(h) the effect of the determination on the
integrity of the trial process.
[34]
As explained in
Mills
, at para. 101,
[t]he balancing process required at the first stage ensures that records are
not needlessly or casually produced to the court for review.
(ii)
Production to the accused
[35]
If the first stage is met, the record is disclosed
to the judge for review. At the second stage, the judge reviews the record
in the absence of
the parties to determine whether
it should be produced to the accused and may hold a hearing if necessary: ss.
278.6(1)-(2).
[36]
The judge may order the record produced to the
accused, subject to conditions, if, after reviewing the record, the judge is
satisfied that the record is likely relevant to an issue at trial or to the
competence of a witness to testify and its production is necessary in the
interests of justice: s. 278.7(1).
[37]
In making this determination, the judge must again
consider the salutary and deleterious effects of production on the accuseds
right to make full answer and defence and on the rights to privacy, personal
security, and equality of the complainant or witness or any other person to
whom the record relates based on the factors in s. 278.5(2): s. 278.7(2);
Mills
,
at para. 54.
(c)
The appellants arguments
[38]
The appellant asserts that the trial judge erred
in dismissing the third-party records application by concluding that the
appellant had not established the records were likely relevant and that disclosure
to the judge was not necessary in the interests of justice. I will address
each
argument in turn
.
(i)
Did the trial judge err in concluding that
the records were not likely relevant?
[39]
The appellant argues that the trial judge misinterpreted
the scope and purpose of s. 278.3(4) of the
Criminal Code
. He also submits
he provided case-specific evidence or information to establish the likely
relevance of the CAS records to challenge the complainants credibility because
the complainants admitted at the preliminary inquiry
that
they had lied to the CAS.
[40]
I agree with the appellant on these points.
[41]
The trial judge erroneously interpreted the list
of eleven assertions in s. 278.3(4) of the
Criminal Code
as a
prohibited list of grounds that cannot be relied on to support production of
third-party records, even if there is case-specific evidence or information to
show that the records are likely relevant to an issue
at
trial
or the competence of a witness to testify.
[42]
In his oral ruling on the third-party records
application, the trial judge
first
set out ss.
278.3(4)(d) and (e), which stipulate that assertions that the record may
disclose a prior inconsistent statement of the complainant or witness or that
the record may relate to the credibility of the complainant or witness are on
their own insufficient to establish that the record is likely relevant to an
issue
at trial
or to the competence of a
witness to testify. He then stated that although the appellant had
established that the records related to credibility and inconsistency, that
could not meet the likely relevance standard because this conclusion was
precluded by ss. 278.3(4)(d) and (e). He stated:
In this case, the accused has not established that
beyond credibility and inconsistency
, the material contained in the
records would relate in any other way to the allegations before the Court.
In
my view, this is precisely the possible evidence that is precluded by sections
278.3(4)(d) and (e)
. [Emphasis added.]
[43]
As explained at para. 31 above,
the trial judges interpretation of ss. 278.3(4)(d)
and (e) is wrong in law. The assertions in s. 278.3(4) are only not
sufficient on their own to establish likely relevance they do not preclude
the disclosure of third-party records to the judge when there is case-specific
evidence or information to show that the records are likely relevant to an
issue
at trial
or the competence of a witness
to testify:
Mills
, at para. 120.
[44]
Even so, the
trial judges finding that the appellant had established that the
records relate[d] to credibility and inconsistency is supported on the
record before him and strongly suggests that he would have found the records
met the likely relevance standard but for his error in interpreting s. 278.3(4).
[45]
The Crown, however, asserts that the appellant
did not establish the likely relevance of the CAS records because the
complainants already admitted at the preliminary inquiry
that
they lied to the CAS. The Crown states in its
factum that plumbing the precise details of the complainants statements to
CAS on this collateral issue could provide nothing of value beyond that which
the defence already had.
[46]
I do not agree with the Crowns submission that
the appellant failed to meet the likely relevance threshold.
[47]
The following settled legal principles are not in
dispute:
·
Case-specific evidence establishing that the records
relate to a complainants credibility
at trial
may
meet the likely relevance threshold: see
McNeil
, at para. 33;
R.
v. Bradey
, 2015 ONCA 738, 127 O.R. (3d) 721, at para. 82;
L.M.
,
at para. 37; and
Batte
, at paras. 53 and 64.
·
To meet the likely relevance threshold on a
matter potentially relevant to the complainants credibility, the accused must establish
a reasonable possibility that the records contain information not already
available to the defence
or information useful for impeachment
: see
R.
v. Sutherland
(2001), 156 C.C.C. (3d) 264 (Ont. C.A.), at para. 14
(emphasis added), leave to appeal refused, [2002] S.C.C.A. No. 21; see also
Batte
,
at para. 75 (the records contain information which is not already available to
the defence
or has potential impeachment value
) (emphasis added); and
L.M.
,
at para. 37.
[48]
Here, the appellant established a reasonable
possibility that the CAS records had potential impeachment value. As already
noted, the trial judge himself found that the appellant had established that
the CAS records related to credibility, but he erroneously concluded that disclosure
to him was precluded based on a misinterpretation of s. 278.3(4).
[49]
The trial judges finding that the appellant
established that the CAS records related to the complainants credibility was
amply supported by the record and attracts appellate deference, despite his
error of law in applying the likely relevance standard. The appellant adduced
case-specific evidence or information that the records were likely relevant to
the complainants credibility through
the complainants
admissions at the preliminary inquiry
that
they
had lied to the CAS during their interviews in August 2015. This evidence established
a reasonable possibility that the CAS records would have potential impeachment
value because they would allow a comparison of what the CAS recorded with what
the complainants testified they told the CAS. The potential impeachment value of
the CAS records was therefore not speculative. As trial counsel for the
appellant stated on the application for production, the appellant was seeking
verification of what the complainants actually said to the CAS because they
now acknowledged that they lied to the CAS. Trial counsel stated that [t]his
is an attempt to challenge the [complainants] credibility regarding the
evidence that the [complainants] have actually given about statements theyve
made to CAS. The complainants admissions at the preliminary inquiry thus provided
an evidentiary basis for a reasonable possibility that the CAS records would be
logically probative of the complainants credibility, and met the likely
relevance standard.
[50]
As noted above, the
Crown nevertheless asserts that the CAS records could provide
nothing of value beyond that which the defence already had because the
complainants had already admitted at the preliminary inquiry that they lied to
the CAS. Moreover, the Crown notes that there was no suggestion that the
records contained any information about the allegations against the appellant,
as the complainants stated that they never told the CAS that the appellant
sexually abused them.
[51]
These considerations do not undercut the
conclusion that the appellant had established a reasonable possibility, based
on case-specific evidence, that the records contained information useful for
impeachment. Even so, the points raised by the Crown are important. That the
defence already knew that the complainants lied to the CAS and that the records
contain no allegations of sexual abuse against the appellant should be
considered in weighing whether disclosure is necessary in the interests of
justice. Similarly, that the records contain no allegations of sexual abuse
against the appellant means that the records may have low probative value and
did not form part of the case he had to meet, factors that may be considered in
weighing whether disclosure to the judge is necessary in the interests of
justice. As I explain below, these are significant considerations that weigh against
disclosure to the
judge in this case
.
[52]
I would add that the Crowns approach puts the appellant
in an impossible situation: he needs case-specific evidence to establish the likely
relevance of the records for impeachment, but the Crown says that same evidence
undercuts his claim of likely relevance.
[53]
I conclude that the trial judge erred in
determining that the CAS records were not likely relevant. The appellant
provided case-specific evidence to establish a reasonable possibility that the
CAS records had potential impeachment value.
[54]
Before turning to consider whether disclosure of
the CAS records to the judge was necessary in the interests of justice, I
wish to acknowledge that since preparing these reasons I have had the benefit
of reading the reasons of my colleague Fairburn A.C.J.O. While I respectfully
disagree with how she applies the statutory test and the governing jurisprudence
for production of third-party records, I will not address our disagreements point
by point as I believe my reasons, read as a whole, already explain our points
of difference.
[55]
I would note, however, that my colleague concludes
that the appellant established the likely relevance of the CAS records partly
on the basis that there is a reasonable possibility that they would show the
complainants motive to fabricate the allegations of sexual abuse against him.
Respectfully, I do not agree. Before this court, neither the appellants factum
nor his oral argument addressed or even mentioned motive to fabricate as a
basis for the likely relevance of the CAS records, nor was this issue mentioned
in the Crowns factum or oral argument. Instead, the appellant raised, and the
Crown addressed, only the arguments that I have considered above. In these
circumstances, I prefer to reach my conclusion on likely relevance based on
the parties submissions to this court.
[56]
I now turn to consider the appellants arguments
on whether disclosure of the CAS records to the judge was necessary in the interests
of justice.
(ii)
Did the trial judge err in concluding that disclosing
the CAS records was not necessary in the interests of justice?
[57]
The appellant submits that the trial judge erred
in interpreting and applying the standard of whether it was necessary in the interests
of justice to disclose the CAS records to the judge by: (1) mischaracterizing the
records sought as therapeutic counselling records; (2) failing to consider the
appellants right to full answer and defence, in balancing the appellants
right to full answer and defence against the complainants rights to privacy,
personal security, and equality based on the factors in s. 278.5(2); and (3)
conflating likely relevance with necessary in the interests of justice.
[58]
I do not agree with these submissions.
[59]
First, although the trial judge cited case law referring
to therapeutic records as one type of highly private record often found in the
possession of child welfare authorities, he did not suggest that all records held
by a child welfare authority are necessarily therapeutic or counselling records
or that the records here were therapeutic or counselling records. He understood
that the appellant was not seeking therapeutic or counselling records: on the application,
the appellants trial counsel
confirmed that she
sought only records relating to the interviews in August of 2015 and any
follow-up from that and no other involvement of this family and,
specifically, not records of counselling being provided to the complainants or
any member of this family.
[60]
I also see no error in the trial judges
conclusion that the CAS records sought here attracted a high expectation of
privacy, even though they were not therapeutic or counselling records. Parliament
specifically listed child welfare records as a class of records that
presumptively attract a reasonable expectation of privacy, whether or not they
relate to counselling or therapy. Records in the possession of child welfare authorities
can be multifaceted and often involve documentation regarding counselling
and therapy (
R. v. J.B.
, 2013 ONSC 481, at para. 28), but they need
not do so to warrant high privacy protection.
[61]
In this regard,
I agree with the reasons expressed by Katarynych J. in
R. v.
T.F.
, 2009 ONCJ 656, [2009] O.J. No. 5802, at paras. 93-121, for rejecting
the proposition that child welfare records attract lesser privacy protection
when they do not relate to the childrens counselling or therapy. As Katarynych
J. explained, child welfare records, even when not relating to counselling or
therapy, can overarch the whole of a foster childs life in foster care and include
particularly
intrusive documentation of very personal information: para. 97. They can reach
much deeper into a foster childs life and times than records of a course of
therapy, and therefore deserve similar privacy protection to thoughts laid
bare during a course of therapy: at para. 110. Trust-like relationships
developed by children with child welfare authorities can be a powerful
endorsement of that childs worth and a key to the childs growth and
development within the foster care system: at para. 111. As Katarynych J. observed,
[a] foster childs trust and communication to persons who have earned [the
childs] trust are deserving of protection. The communications within those
trust-like relationships emerge from the trust, and establishing trust is tough
in foster care: at para. 114.
[62]
Applications for production of child welfare
records implicate not only the privacy but also the equality of the affected
children because those childrens lives have been heavily documented by child
welfare authorities:
Mills
, at para. 92; see also
R. v.
Medwid
, [2008] O.J. No. 4614 (S.C.), at para. 21. Through no fault of
their own, such children are at risk of being treated with less dignity and as
less worthy of respect and consideration than other children whose lives have
not been heavily documented by the state.
[63]
I therefore reject the appellants contention that
the trial judge misunderstood
the nature of
the
CAS documents
at issue
or
that
those documents were entitled to lesser
protection than counselling records.
[64]
Second, I see no basis to accept the appellants
claim that the trial judge ignored the appellants right to make full answer
and defence in balancing that right with the complainants rights to privacy,
personal security, and equality based on the factors in s. 278.5(2). The trial
judge noted that he had to be satisfied that the records are likely relevant
to an issue at trial and that production is necessary in the interest of
justice. He then said that he had given specific consideration to the
criteria set out in sub-section 278.5(2) of the
Criminal Code
and
278.3(4) of the
Criminal Code
. He cited from
Mills
, at para.
61, which directs that the rights to be balanced include full answer and
defence, privacy, and equality. Finally, he discussed the very high privacy
rights attaching to CAS records and concluded that, although the complainants
had admitted that they lied to the CAS, investigating the records to determine
the extent of their lies is insufficient for this Court to review the records.
The trial judges explicit statement and his process of analysis refute the claim
that
he ignored the appellants right to make full
answer and defence.
[65]
In effect, the
trial judge ruled that because the complainants had admitted they
lied to the CAS, the appellant had what he needed to challenge the
complainants credibility without invading their privacy and equality rights.
Whether the information sought from the third-party records is available from
other sources is a proper consideration to weigh in determining whether
disclosure is necessary in the interests of justice: see s. 278.5(2)(a);
Clifford
,
at para. 65. In
Clifford
, at para. 65, Rosenberg J.A. noted that [l]ikely
relevance is not the sole consideration in ordering disclosure of third-party
records to the judge and that s. 278.5 permits the judge to take into
account a broader range of interests, including the privacy rights of the complainant
and whether the information sought from [the third-party records] could be
obtained from other sources.
[66]
Although the trial judges oral reasons are
brief and somewhat conclusory, I read them as having determined that the CAS
records affected the appellants right to make full answer and defence only
marginally and that any impact was substantially outweighed by the impact
disclosure would have on the complainants rights to privacy and equality. The
records had limited impact on the appellants right to full answer and defence
because: (i) the records were of relatively low probative value as they related
to CAS interviews more than a year before the complainants first alleged that
the appellant had sexually abused them; and (ii) the appellant already had what
he needed to challenge the complainants credibility arising from those
interviews because the complainants admitted at the preliminary inquiry
that
they had lied to the CAS.
[67]
The trial judges approach reflected the
observations in
Mills
, at para. 131, that [w]here the privacy
right in a record is strong and the record is of low probative value or relates
to a peripheral issue, the judge might decide that non-disclosure will not
prejudice the accuseds right to full answer and defence and dismiss the
application for production. Because the records to which the appellant sought
access were not part of the case he had to meet, the complainants significant privacy
and equality rights weighed more heavily in the balance: see
Mills
, at
para. 71. I therefore see no error in the trial judges conclusion. It attracts
deference
on appeal:
Sutherland
, at
para. 13.
[68]
Third, I reject the appellants assertion that
the trial judge conflated the likely relevance threshold and the necessary
in the interests of justice analysis. His argument relies on the following
passage of the trial judges reasons, which he says shows the trial judge based
his conclusion on necessary in the interests of justice
entirely
on his conclusion that the appellant had
failed to establish likely relevance:
The accused has
not satisfied me
that apart
from the possibility that the records would contain inconsistent statements by
the complainants
that the records are relevant to an issue at trial.
Accordingly
,
I am not satisfied that production of the records is necessary in the interest
of justice
. Accordingly, the accuseds application is dismissed.
[Appellants emphasis.]
[69]
The appellant submits
that
this passage shows that the trial judge saw likely relevance as a
prerequisite to meet the interests of justice threshold.
[70]
I do not agree. Although I accept
that
this passage is poorly worded, I am satisfied
that the trial judge considered whether disclosure was necessary in the
interests of justice and weighed the factors
listed
in
s. 278.5(2) which is what he said he did. The trial judges reasons show
that
he weighed the extent to which the record is
necessary for the accused to make a full answer and defence (s. 278.5(2)(a)),
the nature and extent of the reasonable expectation of privacy with respect to
the record (s. 278.5(2)(c)), and the potential prejudice to the personal
dignity and right to privacy of any person to whom the record relates (s. 278.5(2)(e)).
He concluded that the significant impact of disclosure on the complainants
rights to privacy and equality outweighed any minimal impact on the appellants
right to full answer and defence. I see no basis to interfere with that conclusion.
[71]
My colleague highlights that at trial the centrality
of the CAS investigation played out exactly as the defence said it would on the
third-party records application, though she notes this is not relied on to show
why it was necessary in the interests of justice for the trial judge to review
the records. The third-party records application must be reviewed on the basis of
the information available to the trial judge at the time of the application. The
appellant could have renewed the application as the trial unfolded:
Mills
,
at para. 145;
Clifford
, at paras. 57, 64 and 67. He chose not to do
so. In any event, the appellants right to make full answer and defence to the
charges against him and to respond to the case he had to meet was not
compromised. He received a fair trial.
[72]
I therefore conclude that the trial judge did
not err in refusing to order disclosure of the CAS records to the judge for
review. I would dismiss the appellants first ground of appeal.
Issue #2: Did the trial judge err in making his credibility findings?
[73]
The appellants second ground of appeal challenges
the trial judges credibility findings, alleging uneven scrutiny of the
evidence, insufficiency of reasons, and failure to reconcile inconsistencies in
the complainants evidence. He asserts that the trial judge attacked his and
his wifes credibility mainly because they failed to remember immaterial details
but ignored material inconsistencies between the complainants evidence.
[74]
Given how trial judges must evaluate the credibility
of child witnesses and the appellate deference owed to their credibility
findings,
each of these arguments
faces
significant hurdles on appeal.
[75]
The applicable legal principles are not in
dispute:
·
Courts should adopt a common-sense approach when
evaluating the credibility of child witnesses:
R. v. W.(R.)
, [1992] 2
S.C.R. 122, at p. 134. Although the credibility of a child witness should be
carefully assessed, a flaw in the evidence of a child witness should not be
given the same effect as would a similar flaw in the testimony of an adult:
R.
v. B.(G.)
, [1990] 2 S.C.R. 30, at p. 55. Inconsistencies, especially on
peripheral matters like time and location, should be considered in
the context of
the age of the
witness at the time of the events
to which the
witness is testifying:
W.(R.)
, at p. 134;
R. v. A.M.
, 2014
ONCA 769, 123 O.R. (3d) 536, at para. 11.
·
Appellate courts
give
significant deference to
credibility findings. Assessing credibility is a
difficult and delicate subject, often defying precise and complete verbalization.
Trial judges enjoy a unique position and the inestimable advantage of seeing
and hearing the witnesses in evaluating their credibility:
R. v. Wadforth
,
2009 ONCA 716, 247 C.C.C. (3d) 466, at para. 66; see also
W.(R.)
, at
p. 131. The Supreme Court recently underscored that a trial judges findings of
credibility deserve particular deference and that in our system of justice
the trial judge is the fact finder and has the benefit of the intangible impact
of conducting the trial:
R. v. G.F.
, 2021 SCC 20, at para. 81.
·
An argument based on uneven scrutiny of the
evidence is difficult to make successfully. Credibility findings are the
province of the trial judge and attract significant appellate deference. Appeal
courts view this argument with skepticism because it is often little more than
a thinly-veneered invitation to reassess on appeal the credibility
determinations made at trial:
R. v. Chanmany
, 2016 ONCA 576, 338
C.C.C. (3d) 578, at para. 26, leave to appeal refused, [2017] S.C.C.A. No. 88;
R.
v. Bartholomew
, 2019 ONCA 377, 375 C.C.C. (3d) 534, at para. 30. Although a
majority of the Supreme Court in
G.F.
expressed serious reservations
about whether uneven scrutiny is a helpful or independent ground of appeal, the
court did not decide the point: at paras. 100-1.
·
Where a case turns largely on determinations of
credibility, the sufficiency of the reasons should be considered in light of
the deference afforded to trial judges on credibility findings. Rarely will the
deficiencies in the trial judges credibility analysis, as expressed in the
reasons for judgment, merit intervention on appeal:
R. v. Dinardo
,
2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26; see also
G.F.
, at
paras. 68-82.
·
A trial judge need not review and resolve every
inconsistency in a witness evidence, but they should address and explain how
they resolved major inconsistencies in the evidence of material witnesses:
A.M.
,
at para. 14.
[76]
When I evaluate the appellants arguments
against these principles, I am not persuaded that appellate intervention
is warranted.
[77]
First, I reject the appellants argument that
the trial judge erred by doubting the appellants credibility based on the
appellants inconsistent evidence about a bus stop incident in May 2016, nine
months after the complainants had returned to their parents home. The
appellant gave this evidence in chief in response to a question about why the
complainants might have fabricated the allegations of abuse against him. He
said he and his wife stopped at S.s bus stop and called her over to their car.
He said she was crying and said her parents were saying the appellant and his
wife were bad and evil people and she felt like her parents were brainwashing
her. After giving this evidence, the appellant was impeached on cross-examination.
He had told the police in his videotaped statement
that
he ran into S. at the bus stop, but
at trial
he admitted this was not true and he and his wife had gone to the bus
stop specifically to see S., even though in 2015 he had been told by the
complainants mother to have no further contact with them. He also acknowledged
that he had intentionally withheld information from the police during his police
statement about what S. had said at the bus stop to see if it was useful
within
the court.
[78]
The appellant says that the trial judge erred in
treating this evidence as going to his credibility rather than his reliability.
He claims the evidence had nothing to do with the allegations of sexual abuse. I
disagree.
[79]
The evidence on the bus stop incident occurred
at a critical moment in the trial when the appellant was presenting his theory
of the complainants motive to fabricate. The appellant was impeached on that
evidence and he admitted that he had misled the police and intentionally withheld
information from them. This evidence thus spoke directly to his credibility. The
trial judge determined that the appellants evidence gave him great concern
and was confused at best, and wholly inconsistent, at worst. I see no error
in the trial judge relying on this evidence to evaluate the appellants credibility.
[80]
I also disagree with the appellants claim
that
this evidence was immaterial to the sexual
abuse allegations. The evidence spoke to the appellants credibility, the
central
issue at trial
. The trial judge could
consider that the appellant had been successfully impeached when trying to explain
the complainants motive to fabricate and his reason for intentionally withholding
information from and misleading the police.
[81]
Second, the appellant claims that the trial
judge improperly found him not credible in part by relying on inconsistencies
in his wifes evidence. Those inconsistencies related to when the appellant and
his wife had tenants in their basement and when the appellant stopped storing
his work clothes in the room where the complainants slept.
[82]
I agree that the trial judge disbelieved aspects
of the evidence of the appellants wife. He noted that she changed her evidence
when advised of her husbands evidence about when the appellants clothes were
no longer stored in the complainants room and he found her evidence made no
sense. He found [m]ore troubling her awareness of the complainants in-court
testimony about the abuse having taken place in the basement, despite an order
excluding witnesses. However, I do not read the trial judges reasons as having
rejected the appellants denials based on having rejected his wifes evidence. Instead,
the trial judge properly addressed the wifes evidence because that was part of
the defence evidence before him. Far from disclosing error, the trial judge was
simply weighing the evidence of all the witnesses in deciding whether he had a
reasonable doubt as to the appellants guilt.
[83]
Lastly,
the appellant asserts that the trial judge failed to address material
inconsistencies in the complainants evidence. He accepts that the trial judge said
he was [s]ensitive to the inconsistencies in their evidence but claims that
his analysis of the complainants credibility was generic and vague.
[84]
I do not accept this submission. The trial judge
amply explained his basis for believing the complainants evidence. After comprehensively
reviewing their evidence, he explained that their detail[ed] and measured
accounts were persuasive partly because they acknowledged where there was an
inconsistency and explained where their memory was not clear. He found no material
inconsistencies relating to the sexual abuse allegations. Both complainants testified
that they were sexually abused by the appellant over several years. Both said
he came into their room at night, touched their arms and legs, and sometimes
touched their vaginas. Both said he did this when retrieving his clothes for
work the next day. And both recalled an incident in the basement when he was
watching pornography on the television.
[85]
The trial judges reasons explain why he
accepted the complainants evidence that the appellant had sexually abused them,
why he rejected the appellants denials, and why the evidence
as a whole
did not leave him with a reasonable
doubt. The trial judge examined the complainants evidence under a common-sense
approach, mindful that they were recounting events that happened when they were
young children and that any frailties in their evidence related to peripheral,
not core, issues.
[86]
I therefore conclude that the trial judge made
no error in his credibility assessments. The appellants arguments on uneven
scrutiny and insufficiency of reasons amount to mere disagreement with the
credibility findings. The trial judge
was entitled to
disbelieve
the appellants denials of the abuse and his reasons amply
permit appellate review. I would dismiss this ground of appeal.
[87]
I would therefore dismiss the conviction appeal.
Issue #3: Did the trial judge err in imposing
a five-year sentence?
[88]
Finally, on the sentence appeal, the appellant submits
that the trial judge erred in his treatment of certain mitigating and
aggravating factors and failed to articulate the basis for rejecting the
defences position on sentence.
[89]
I would not give effect to these submissions.
[90]
An appellate court can interfere with a sentence
in only two situations: (1) if the sentence is demonstrably unfit; or (2) if the
sentencing judge made an error in principle that had an impact on the sentence:
R. v. Friesen
, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 26;
R. v.
Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 41, and 44; and
R.
v. Suter
, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 24.
[91]
The appellant does not argue that the five-year
sentence imposed for the serious sexual offences against two young complainants
was demonstrably unfit. Instead, he asserts that the trial judge made several
errors of principle that warrant appellate intervention.
[92]
First, the appellant asserts that the trial judge
improperly discounted the appellants prospects for rehabilitation and failed
to give effect to mitigating factors because he noted that the appellants positive
antecedents were not at all unusual for sexual offenders in these
circumstances.
[93]
I do not accept this argument. The trial judge
did consider the appellants positive antecedents as mitigating factors. He
noted that the appellants presentence report spoke well of him, he was a contributing
member to his family and community, and he had no criminal record. But the
trial judge gave these factors less weight, as he was entitled to do, because sexual
misconduct involving children often occurs in private and will not be reflected
in the offenders reputation in the community. As the trial judge appropriately
noted, citing
R. v. G.W.
, 2017 ONSC 3149, at para. 27, often those
who commit such deplorable, deviant, self-gratifying sexual acts upon children
as he has in private present as trustworthy and respectable publicly. I see no
error in that approach.
[94]
Second, the appellant asserts that the trial judge
erred by highlighting as an aggravating factor that the complainants were much
younger than 18 years of age. The appellant says that because he was sentenced
for convictions under ss. 151 and 152 of the
Criminal Code
, which
require the Crown to establish that the victim was under 16 years of age, [t]he
fact that the victims were children cannot be an aggravating factor.
[95]
I do not accept this submission. In
Friesen
,
the Supreme Court stated that [t]he age of the victim is also a significant
aggravating factor.
[C]hildren who are victimized at a younger age must endure
the consequential harm of sexual violence for a longer period of time than
persons victimized later in life: at para. 134. The court held that the
specific age of the victim is relevant to both the gravity of the offence and the
degree of responsibility of the offender because the power imbalance between
children and adults is even more pronounced for younger children: at paras.
134-35. The court also ruled that the moral blameworthiness of the offender is
enhanced when the victim is particularly young and is thus even more vulnerable
to sexual violence: at para. 135.
[96]
It was thus entirely proper for the trial judge
to consider as an aggravating factor that the complainants were young children when
the appellant sexually abused them, beginning when they were less than 10 years
of age. The trial judge was also entitled to find that the complainants had [nowhere]
to turn while they lived with the appellant and his wife. As the Supreme Court
has recognized, younger children are often helpless without the protection and
care of their parents their dependency is usually total:
Friesen
,
at para. 134, citing
R. v. Magoon
, 2018 SCC 14, [2018] 1 S.C.R. 309,
at para. 66.
[97]
Third, the appellant notes that the trial judge did
not refer to the defences position on sentence, not even in passing. The defence
had sought a sentence in the range of three to four years. The appellant
asserts that the trial judges failure to mention the sentence sought by the
appellant resulted in a sentence that lacked sufficient analysis and now
frustrates appellate review.
[98]
I disagree. The reasons must be read alongside
the submissions of counsel, which clearly articulated the appellants position
on sentence. Read as a whole, the reasons sufficiently explain why the
appellant was sentenced to five years in prison given the prevailing case law. The
sentence imposed heeded the strong message sent by the Supreme Court in
Friesen
,
that sexual offences against children are violent crimes that wrongfully
exploit childrens vulnerability and cause profound harm to children, families,
and communities: at para. 5. The Supreme Court directed that sentences for sexual
assaults against children must increase and that mid-single digit
penitentiary terms are normal and upper-single digit and double-digit
penitentiary terms are neither unusual nor reserved for rare or exceptional
circumstances: at paras. 5, 114.
[99]
As a result, the reasons permit effective
appellate review:
R. v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, at
para.
25;
R. v. J.J.R.D.
(2006), 215 C.C.C.
(3d) 252 (Ont. C.A.), at paras.
53-54, leave to appeal
refused, [2007] S.C.C.A. No. 69.
[100]
I therefore see no basis to intervene with the sentence.
D.
disposition
[101]
I would dismiss the conviction appeal, grant leave to appeal the
sentence, and dismiss the sentence appeal.
M.
Jamal J.A.
Fairburn A.C.J.O.:
A. Overview
[102]
I have reviewed the reasons written by my colleague. I agree with my
colleagues conclusions concerning the trial judges credibility findings and
the sentence appeal. Respectfully, however, I do not agree with my colleagues
determination of the third-party records issue.
[103]
I accept my colleagues helpful articulation of the legal principles
governing third-party record applications, and I have nothing to add. I also
accept the manner in which the trial judges error has been described in my
colleagues reasons. I read the trial judges reasons as suggesting that s.
278.3(4)(e) of the
Criminal Code
, R.S.C. 1985, c. C-46, precludes
access to third-party records that are relevant only to a question of
credibility. This is not so.
[104]
As early as
R. v. Mills
, [1999] 3 S.C.R. 668,
the
law has provided that where there exists case specific evidence or information
to show that the record in issue is likely relevant to an issue at trial or the
competence of a witness to testify, the statutory threshold of likely
relevance under s. 278.5(1)(b) of the
Criminal Code
, which is the
first step of the first stage of the third-party records analysis,
may
be within reach:
Mills
,
at para. 120;
R. v. L.M.
, 2014
ONCA 640, 122 O.R. (3d) 257, at paras. 36-37. Therefore, while a mere
assertion that a record is likely relevant to an issue catalogued under s.
278.3(4) of the
Criminal Code
is insufficient to reach the necessary
statutory threshold, case specific evidence or information justifying that
assertion permits a finding of likely relevance, even where it pertains
strictly to a question of credibility:
R. v. Batte
(2000), 49
O.R. (3d) 321 (C.A.),
at para. 75.
[105]
My first point
of departure from my colleagues reasoning relates to the manner in which the
likely relevance of the Ontario Childrens Aid Society (CAS) records should
be articulated. When properly characterized, the likely relevance of the CAS
records leads to my second point of departure, as I find that it was necessary
in the interests of justice for the trial judge to review the CAS records.
[106]
For the reasons
that follow, I would set aside the convictions and order a new trial based
solely on the third-party records issue.
B. THE Likely Relevance OF THE CAS RECORDS
[107]
The case specific evidence informing the likely relevance of the CAS
records can be traced to two sources: (1) a series of notes admittedly
handwritten by one of the complainants, S., contrasting the unbearable
conditions in the complainants parental home with the supposedly wonderful
conditions in the home of the appellant and his wife; and (2) the
viva voce
testimony of the complainants and their mother at the preliminary inquiry.
[108]
My colleague maintains, at para. 49 of his reasons, that the likely
relevance of the CAS records arises from the reasonable possibility that they
would have potential impeachment value because they would allow a comparison
of what the CAS recorded with what the complainants testified they told the
CAS. Respectfully, while the CAS records would certainly provide the
opportunity for conducting this comparative exercise between what the
complainants testified to and what they said on an earlier occasion, that could
be said for many third-party records applications. In my view, something more
is required to cloak the records in likely relevance. In this case, that
something more came from S.s handwritten notes and the evidence elicited at
the preliminary inquiry.
(1)
The Handwritten Notes
[109]
The handwritten notes were written by one of the complainants, S.,
in preparation for the interviews with the CAS. At the preliminary inquiry, S.
claimed to have written those notes at the behest of and with the assistance of
the appellants wife. The defence counsel used the content of the handwritten
notes at the preliminary inquiry to question the complainants during
cross-examination.
[110]
There was a stark contrast between what was contained in the notes
and the sexual abuse that was reported only after the CAS investigation was
complete and the complainants had returned to live at their parental home.
Among other things, the notes suggested that the complainants were emotionally
and physically abused in their parental home. They also suggested that the
complainants were called highly derogatory names in that home, none of which
are necessary to repeat in these reasons. In a different series of handwritten
notes titled What goes on in the [parental] house!, S. also suggested that
she and her sister were forced to take naked photos of their mother. S. also
wrote that she was scared to go [to the parental] home because they will keep
and abuse me again and again.
[111]
Conversely, the handwritten notes suggested that the appellant and
his wife made the complainants feel safe and that they had been with them for
10 ½ yrs [sic] and have yet seen [
sic
] them yell punch hit sware [
sic
]
or
abuse us in any way
(emphasis added). The
notes also referenced the fact that the appellant and his wife would take
care of the complainants and support [them] all the way.
[112]
There is no dispute that the notes were written at a time when the
sexual assaults, which had been allegedly occurring over many years, were said
to be still taking place. Indeed, the indictment framed the offences as
occurring between February 1, 2008 and August 31, 2015. The CAS investigation
was commenced in August 2015.
(2)
The
Viva Voce
Testimony from the Preliminary Inquiry
[113]
The complainants and their mother testified at the preliminary
inquiry. Their testimony formed the second piece of case specific evidence
demonstrating the likely relevance of the CAS records.
[114]
The defence counsel went into the preliminary inquiry armed with
S.s handwritten notes. The complainants were then questioned about what they
had said to the CAS worker. They admitted to telling the CAS worker about the
abusive conduct they said they were enduring in the parental home. They also
admitted that they said nothing to the CAS worker about the sexual abuse
perpetrated in the appellants home. Indeed, both complainants admitted that
they had told the CAS worker that they did not want to return to their parental
home, as they wished to reside with the appellant and his wife.
[115]
While admitting they had said those general things to the CAS
worker, the complainants attempted to distance themselves from those statements
at the preliminary inquiry. The reversal of their position was dramatic. At the
preliminary inquiry, both complainants said that they actually did not want to
reside with the appellant and his wife. They suggested that some of the things
they told the CAS worker were lies. In the case of D., she admitted that she
knew that what she said could carry consequences, including that she could
have been removed from her parental home.
[116]
The complainants offered multiple explanations for why they said
that they lied to the CAS worker, including that: (1) they had been
brainwashed by the appellants wife into saying what they said; (2) S.
admitted that she has a history of exaggerating and would sometimes cry wolf
and lie; (3) D. admitted that she has memory problems; and (4) D. and the
complainants mother testified that both complainants had fetal alcohol
syndrome, with D. testifying that this condition made her gullible
[and]
easy to play with. As well, both complainants suggested that the appellants
wife, whom they said they were afraid of, was surreptitiously listening in on
the CAS interviews from a different room in the appellants home, making it
harder for them to tell the truth to the CAS worker.
[117]
The complainants mother also testified at the preliminary inquiry.
She explained how it first came to be that the complainants started staying with
the appellant and his wife. The relationship commenced as one involving paid
respite care for the complainants because their parents were struggling with so
many children, many of whom had significant needs. It eventually turned into a
more long-term relationship, one where the complainants had come to refer to
the appellant and his wife as Papa and Nana and would frequently go stay at
their home, including for long periods of time.
[118]
The mother acknowledged also being swept up in the CAS investigation.
She maintained that the allegations were unfounded. She further claimed that
the complainants had told her that they made those allegations because the
appellant and his wife had promised them electronics and shopping trips. The
mother also maintained that the appellant and his wife wanted the complainants
to be in their home to help with housework and grocery shopping.
[119]
The complainants mother expressed the view that the appellant and
his wife were using the CAS to attempt to keep her children: they were using
Childrens Aid to to keep my children. She admitted: I was angry. I was
upset. I was hurt. I wanted my girls home.
[120]
It was only after the CAS investigation was complete, and the
complainants had been back in the parental home for about a year, that they
raised the sexual assault allegations for the first time.
(3)
The Appellants Third-Party Records Application
[121]
The appellant argued at the third-party records application that the
CAS records were relevant to two issues at trial: (1) to impeach the
credibility of the complainants; and (2) to support the argument that the
complainants had a motive to fabricate the allegations of sexual assault
following the CAS investigation.
0F
[1]
The
complainants and their mother were represented by counsel during the
third-party records application, and they opposed the production of the CAS
records. The Crown who appeared at the third-party records application took no
position.
[122]
At the third-party records application, the appellant pointed out
that the complainants apparently went from expressing their desire to live with
the appellant and his wife to claiming that they had been seriously sexually
abused by the appellant in that home for many years. The only thing that had
changed between the CAS investigation and the reporting of the allegations to
the police was that the complainants had returned home to live with their
parents.
[123]
As the defence counsel put it in the third-party records
application, [s]uddenly, after CAS completes their investigation, the complainants
completely change their story about their experiences with the [appellant and
his wife]. The defence said that the records would reveal exactly what was
said to the CAS worker by the complainants, and those details could be used to
underscore the complete change [in] their story. In addition, the defence
argued that the records would provide better insight into the scope of the CAS
investigation, thereby underscoring the motive to fabricate that was said to
arise from the mothers anger over the fact of the CAS investigation.
(4)
Analysis of the Likely Relevance of the CAS
Records
[124]
In my view, the CAS records were likely relevant to the issues of
credibility and motive to fabricate. The CAS investigation stood at the heart
of the appellants defence, and the CAS file on the matter constituted the only
independent record of what actually happened in the investigation and what the
complainants actually said to the CAS worker.
[125]
The defence should not have been required to rely upon the testimony
of the complainants for an accurate recounting of what they told the CAS
worker. Whether they lied to the CAS or not was not the question requiring
resolution on the third-party records application. While the complainants said
they lied to the CAS worker, maybe they did lie or maybe they did not lie. That
would be a question for the trier of fact.
[126]
The sole question for the resolution of the first step of the first
stage of the third-party records analysis likely relevance was whether
there was a reasonable possibility that the information contained in the
records would be logically probative to an issue at trial:
Mills
, at
para. 45, citing
R. v. OConnor
, [1995] 4 S.C.R. 411, at para. 22, per
Lamer C.J. and Sopinka J. (dissenting, but not on this point). In my view, the
CAS records were logically probative for exactly the reasons the defence
counsel said at the third-party records application. Perhaps most powerfully,
there was more than a reasonable possibility that they would contain
statements made to a CAS worker that were the exact opposite of what the
complainants were going to testify to at trial. In my view, the defence should
not have had to rely upon the complainants, who candidly acknowledged having
some difficulty with truth-telling, to catalogue the things that they said to
the CAS worker.
[127]
While I do not suggest for a moment that statements of that nature
cannot coexist with conditions of sexual abuse, and indeed they sometimes will,
this does not undermine the fact that such statements can be logically
probative of issues of credibility and reliability. Therefore, I see the likely
relevance of the CAS records in this case as extending well beyond having some
potential impeachment value arising from inconsistencies that may materialize
through a comparative exercise between the CAS records and what the
complainants testified they told the CAS.
[128]
Moreover, the entire CAS investigation was said to be the catalyst
for a motive to fabricate. As Doherty J.A. said in
Batte
, 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.
[129]
There is no magic in the use of the term motive to fabricate
because, at its core, it just means that there exists a reason for why someone
might lie. The trial judge dealt with the motive to fabricate/reason to lie
defence position in his ruling, the ruling appealed from, referencing the fact
that: The defence argues on this application that the mother may have
manipulated [the complainants] out of anger and frustration as a result of the
CAS investigation. There was an evidentiary foundation for that position, as
reflected in the transcript of the mothers testimony from the preliminary
inquiry, which transcript formed part of the record placed before the trial
judge during the third-party records application, and which transcript the
parties agree is properly part of the record on appeal.
[130]
As the appellant argued in his factum and in oral submissions on
appeal, the evidentiary foundation on the third-party records application,
including the preliminary inquiry evidence, demonstrates the major concerns
about [the complainants] reliability and credibility. In this regard, the
appellant emphasized in his factum on appeal the following passage from the
trial judges ruling:
In their preliminary inquiry evidence, the
complainants testified that they spoke well of [the appellant] and his wife and
poorly about their mothers home.
Then, when the CAS investigation was
completed,
the complainants suddenly and completely changed their story
,
raising new allegations against [the appellant]
. [Emphasis in the
appellants factum.]
[131]
The completely changed
their story language, located in the trial judges reasons, and emphasized by
the appellant on appeal, is the very foundation of the fabrication argument at
trial and on appeal: that the complainants fabricated the allegations only
after returning to their mothers home. Given the complainants
acknowledgements that they had some difficulty with the truth, including that
S. had a history of exaggerating and lying and that D. is gullible
[and] easy to play with
, there was also an evidentiary foundation
for this position. That evidentiary foundation was reinforced by their mothers
testimony, acknowledging that, given their fetal alcohol syndrome, the
complainants were like sponges and would sometimes tell lies, as people could
put words in their mouths.
[132]
Coming to understand
the depth of the complainants mothers anger over the CAS investigation was
critical to the defence counsels theory regarding a motive to fabricate.
Without the CAS records, the defence was deprived of the most accurate insight
into the factual underpinnings motivating that anger.
[133]
In my view, the CAS records easily passed
the likely relevance threshold under s. 278.5(1)(b) of the
Criminal Code
.
C. THE PRODUCTION OF THE CAS RECORDS IS Necessary in
the Interests of Justice
[134]
My colleague, at para. 66 of his reasons, characterizes the trial
judge as having found that the CAS records affected the appellants right to
make full answer and defence only marginally and that any impact was
substantially outweighed by the impact disclosure would have on the complainants
rights to privacy and equality. For the purposes of these reasons, I am
prepared to accept this characterization of the trial judges finding. My
colleague endorses the trial judges reasoning and conclusion on this point.
Respectfully, I do not.
[135]
I take no issue with the strong privacy interests contained in the
CAS records and have nothing to add to my colleagues helpful review of the
legal authorities on this point. In these reasons, I have kept squarely in mind
the privacy, personal security, and equality of children who come into contact
with the CAS, many of whom already come from highly marginalized and difficult
circumstances:
Mills
, at para. 92;
R. v. A.M.
, 2008 CanLII
59561 (Ont. S.C.), at para. 21. As Wein J. noted in
A.M.
, at para. 21,
those who come into contact with the CAS are at risk of having their lives
documented, which places an already marginalized group at a further
disadvantage by making them the subject of additional scrutiny. I agree with
that important observation, and I endorse the view that CAS records must be
carefully guarded. Even so, they cannot be guarded at all costs.
[136]
Section 278.5(2) of the
Criminal Code
provides a
list of many factors to be taken into account when determining whether the trial
judge should review the third-party records after the issue of likely relevance
has been determined in the affirmative. While the nature and extent of the
reasonable expectation of privacy with respect to the record and the
potential prejudice to the personal dignity and right to privacy of any person
to whom the record relates are factors under ss. 278.5(2)(c) and (e) of the
Criminal
Code
, there are others. For example, s. 278.5(2)(a) requires the judge to
take into account the extent to which the record is necessary for the accused
to make a full answer and defence. All of these factors and more are to be
considered when determining whether it is necessary in the interests of justice
that the likely relevant third-party records should be produced to the trial
judge for review.
[137]
As I read my colleagues decision, at para. 66, the first reason
given to explain why the appellants ability to make full answer and defence
was outweighed by the complainants rights to privacy and equality is that the
CAS records only had a relatively low probative value.
[138]
The difference between third-party records that are found to be
likely relevant, yet of only low probative value, is a nuanced one. I need
not delve into that distinction because, in my view, the CAS records were not of
low probative value. To the contrary, and for the reasons already expressed,
the CAS records stood at the other end of the probity spectrum. The preliminary
inquiry evidence demonstrated that there was a near certainty that the CAS
records would contain reliable, independent evidence of what was said to the
CAS worker, which would stand in opposition to what the complainants would
testify to at trial. There was also a near certainty that the CAS records would
contain reliable, independent evidence about the CAS investigation itself,
something that would further inform the defence counsels allegation of a
motive to fabricate.
[139]
The second reason given by my colleague, at para. 66 of his reasons,
to explain why it was unnecessary in the interests of justice for the trial
judge to review the CAS records is that the appellant already had what he
needed to challenge the complainants credibility arising from those [CAS]
interviews
because the complainants admitted at the
preliminary inquiry that they had lied to the CAS
(emphasis added).
[140]
Respectfully, I do not agree with this reasoning because, in my
view, it does not grapple with the true relevance of the CAS records. The fact
that the complainants testified at the preliminary inquiry that they had lied
to the CAS worker was not relevant to whether there was a reasonable
possibility that the information contained in the CAS records would be
logically probative to an issue at trial:
Mills
,
at para. 45,
citing
OConnor
, at para. 22,
per
Lamer C.J. and Sopinka J.
(dissenting, but not on this point). While the complainants evidence regarding
their lies to the CAS worker and their reasons for having lied would no doubt
weigh heavily in the assessment of their credibility at trial, that evidence
did not serve to neutralize the probative value of what was very likely to be
found in the CAS records. To suggest otherwise is the equivalent of saying that
the complainants should be believed when they say they lied to the CAS worker.
However, what if they told the truth to the CAS worker and were later lying at
the preliminary inquiry about having not told the truth? Surely that was an
issue for the trier of fact to sort out at trial.
[141]
This is not a case where the defence was grasping at straws about
what might be in the CAS records. It is a case where everyone knew that the CAS
records likely contained references to what the complainants told the CAS
worker, and that those things would stand as the antithesis to what they would
testify to at trial. All the defence needed were the actual CAS records, which
would have provided the most accurate look into the CAS investigation and the
most precise description of what the complainants actually told the CAS worker.
[142]
In short, the defence should not have been required to rely on the
evidence of the complainants to recount with accuracy the things they said to
the CAS worker or the circumstances surrounding the CAS investigation, both of
which went to the very core of the appellants defence. This is particularly
true given that the complainants had an admittedly difficult relationship with
the truth.
[143]
Accordingly, in my view, the appellant did not already have what he
needed to challenge the complainants credibility because the complainants
admitted that they had lied.
[144]
Along these same lines, while I do not rely upon the trial record
itself for the purposes of explaining why it was necessary in the interests of
justice for the trial judge to review the records, it is worthy of mentioning
that the centrality of the CAS investigation played out exactly as the defence
counsel said it would at trial. So much so that the only thing missing from the
trial were the actual CAS records that would have provided the most accurate
account of the circumstances surrounding the investigation.
[145]
Even the trial Crown appreciated the relevance of the CAS
investigation to the appellants defence, asking the complainants questions
about the following topics:
How the CAS became involved;
Why they had lied to the CAS worker about the
conditions of their parental home and of the home of the appellant and his
wife;
Whom they spoke to at the CAS, the name of the
CAS worker who interviewed them, and the spelling of her name;
The locations where the interviews with the
CAS worker took place and who was present at those interviews; and
Why they no longer stayed at the home of the
appellant and his wife after August 2015, which was the month that coincided
with the CAS investigation.
[146]
Notably, both the
appellant and his wife testified at trial, denying having coached the
complainants to lie to the CAS. They also denied being involved in the
preparation of S.s handwritten notes. While the appellants wife admitted at
trial that she took the initial steps to get the CAS involved, she testified
that she did so in consultation with a lawyer and only because the complainants
were making so many concerning allegations about their parental home
environment.
[147]
Again, this was not
your typical third-party records application. There was nothing collateral or
peripheral about the CAS investigation or the records recording that
investigation. Considered in its entire context, and as informed by how the
trial unfolded, the CAS investigation was central to the appellants defence at
trial. Consistent with how it was argued at the third-party records
application, the appellants defence played through as expected. The only thing
they did not have were the actual CAS records that would have provided an
accurate look into what was actually said and what actually happened in that
CAS investigation.
[148]
In my view, it was necessary in the
interests of justice for the trial judge to move to the second stage of the
third-party records analysis and review the CAS records.
D. The Second Stage OF THE THIRD-PARTY RECORDS
ANALYSIS
[149]
The respondent argues that if this court finds a reversible error in
the trial judges approach to the third-party records application, then rather
than sending the matter back to a new trial, this court ought to receive and
review the CAS records that were filed as a sealed exhibit at trial and conduct
the second stage of the third-party records analysis. Only after that determination
is made could this court decide whether a new trial is necessary.
[150]
The respondent is proposing that we use this courts power under s.
683(1)(a) of the
Criminal Code
to order the production of the sealed
CAS records. While there is some authority for this court to conduct such an
exercise, I would decline to do so here: see
R. v. Bradey
, 2015 ONCA
738, 331 C.C.C. (3d) 511, at paras. 72-74, 104-12.
[151]
In my view, the likely relevance of the CAS records is clear in this
case, as are the interests of justice. The trial judge should have looked at
the CAS records, and the second stage of the analysis should have unfolded in
accordance with the statutory scheme.
[152]
I have little doubt that, subject to editing, the CAS records would
have been released, in light of the evidence given at the preliminary inquiry
and the central focus of the appellants defence at trial. Considering the
entire context of this case, to embark upon the second stage of the analysis at
this point would only serve to slow the new trial down.
E. disposition
[153]
I would set aside the convictions and order a new trial. Presumably,
if the parties and the Superior Court of Justice were in agreement, the issue
involving the third-party records could proceed directly to the second stage of
the analysis at the new trial.
Released: J.M.F. June 10, 2021
Fairburn
A.C.J.O.
I
agree. Coroza J.A.
[1]
The appellants Notice of Application sought all records of the
[CAS] in relation to [the complainants mother] and [the complainants]. During
oral submissions at the third-party records application, the defence counsel
narrowed the application, targeting only the records related to the interviews
conducted in August 2015 and any follow-up from those interviews. The defence
counsel acknowledged that if, by chance, the CAS records contained reference
to other involvement with the complainants or their family, that this was not
something that the defence was seeking to have disclosed.
|
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 complainants 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: Abdulle (Re), 2021 ONCA 524
DATE: 20210721
DOCKET: C68952
Watt, Pardu and Trotter JJ.A.
IN THE MATTER OF: Abdi-Aziz F. Abdulle
AN APPEAL UNDER PART XX.1 OF THE
CODE
Abdi-Aziz F. Abdulle, in person
Michael Davies, as
amicus curiae
Natalya Odorico, for the respondent,
Her Majesty the Queen
Marie-Pierre T. Pilon, for the
respondent, Person in Charge of Brockville Mental Health Centre
Heard: June 30, 2021 by
videoconference
On appeal from the disposition of the
Ontario Review Board, dated December 8, 2020, with reasons dated December 23,
2020.
REASONS
FOR DECISION
[1]
Mr. Abdulle appeals from a disposition of the
Ontario Review Board dated December 8, 2020, maintaining a detention order but
permitting a transfer Mr. Adbulle requested to the Royal Ottawa Mental Health
Centre.
[2]
The appellant submits that the Board erred in
failing to grant him an absolute discharge. He indicates that, if granted an
absolute discharge, he will continue to take the long-acting medication which
has been prescribed for him.
[3]
Amicus
advances
three arguments.
1.
The Board erred in giving any weight to reasons
for decision of this court on a previous appeal stating that a previous Board
panels finding on the same issue were both logical and reasonable on the
record before it.
2.
The Board erred in giving any weight to the
perceived vigour with which the appellants counsel argued for an absolute
discharge.
3.
He submits that the conclusion that the appellant
constituted a significant threat to public safety was unreasonable. The Board
did not engage in a robust analysis of the factors favoring the appellant and
its reasons are conclusory.
A.
Background
The index offences
[4]
The appellants detention relates to two sets of
index offences. The first set occurred on April 8, 2008, when the appellant
attended at the residence of his brother and sister-in-law, threatened to kill
his brother, and kicked the front door off its hinges. On November 25, 2008,
the appellant was found not criminally responsible on account of mental
disorder (NCR) on charges of uttering threats to cause death or bodily harm,
mischief, and failing to comply with an undertaking.
[5]
On September 7, 2011, while the appellant was in
the community after leaving Montfort Hospital, he committed the second set of
index offences. The appellant, wielding a screwdriver, acted aggressively and
chased a stranger. Later, armed with a rock, the appellant continued to chase the
stranger, this time threatening to kill him. Also, before police brought him
into custody, the appellant exposed himself to three women. On October 21,
2011, the appellant was found NCR on charges of assault with a weapon, uttering
threats to cause death or bodily harm, committing an indecent act, and failing
to comply with a recognizance: see
Abdulle (Re)
, 2020 ONCA 698.
The appellants criminal record
[6]
The appellant has a criminal record including
convictions from 2003 to 2012. It includes convictions for assault, assaulting
a police officer, possession of weapons (including a firearm), robbery, drug
possession and trafficking. Two convictions drug trafficking and assault were
entered while the appellant was living in the community, subject to the jurisdiction
of the Board.
The appellants psychiatric history
[7]
The appellant was first admitted to a
psychiatric hospital in 1997, when he was eighteen, for a stay of a months
duration. Between 2000 and 2006, he was hospitalized on multiple occasions but consistently
failed to take medication prescribed for him when released. He has a
significant history of daily alcohol and drug abuse since he was fifteen years
old.
[8]
His current diagnoses are the following:
·
Bipolar Disorder Type 1, currently euthymic;
·
Polysubstance Use Disorder;
·
Post-Traumatic Stress Disorder;
·
Antisocial Personality Disorder; and,
·
Somatic Symptom Disorder.
The appellants progress in the last reporting
period
[9]
The appellant has not made any significant
progress in the last reporting period. The hospital report indicates that he
has had repeated relapses, characterized by hypomania, lability of mood,
bizarre behaviour and disinhibition. Part of the reason for the standstill was
the appellants refusal to stop using cannabis, and his refusal to take mood
stabilizing medication because he fears the side effects associated with it. He
also refuses to be considered for community housing in the Brockville area and
refuses to discuss community discharge planning, stating repeatedly that he
will continue to appeal until he gets an absolute discharge.
[10]
The hospital report before the Board, authored
by Dr. Sanjiv Gulati, concluded that the appellant remained a significant threat
to the safety of the public:
Given Mr. Abdulle's long history of mental
illness, history of violence, ongoing periods of instability, indulgence in
substance misuse and cyclical relapses, he remains a significant threat to the
safety of the public at the present time. In my opinion, if Mr. Abdulle was to
be out in the community and was going through a cyclical relapse such as been
evidenced on the unit, he would pose a threat to the safety of the public
through his bizarre, disinhibited and erratic behaviour. His behaviour during
times of relapse can significantly be perceived as threatening towards others
around him and it is only through the expertise and skill set of staff, he has
been redirected and no aggressive/violent incidents have occurred. It is also
to be noted that his behaviour goes over and above mere annoyance and can cause
significant distress in people around him who are not familiar with his illness
as they can perceive his gestures to be threatening.
It remains the opinion of the team that if Mr.
Abdulle was in the community on a conditional/absolute discharge without
adequate supervision, he will constitute a significant threat to the safety of
the public. His current disposition is the least restrictive, least onerous,
necessary and most appropriate way of managing risk.
The team is not opposed to Mr. Abdulle being
discharged from the hospital on a detention order. A discharge on such an order
would allow the team to adequately monitor him, screen for illicit substance
misuse, timely intervene and put actions into place to mitigate any risks that
he poses towards self and others. The team continues to look for supervised
accommodation and has also made some suggestions to him such as the FITT House
or consider other placements in the community, but Mr. Abdulle remains
reluctant to accept any of these. Therefore, it appears that we are at an
impasse but it does not necessarily equate to a therapeutic impasse where
transfer to another team may resolve the impasse.
It is the insight
on Mr. Abdulle's part that needs to be worked on and we will continue to
endeavor to work on this in the coming year in the hope that he will engage and
be willing to abstain from illicit substances and comply with a mood stabilizer
thus achieve a period of stability, prior to being granted an absolute
discharge.
[11]
At the hearing, Dr. Gulati testified that, if he
were to receive an absolute discharge, the appellant would not comply with his
medication regime and would quickly deteriorate. In a controlled setting his
risk was moderate, but without Board oversight he would be at a high risk to
the public within weeks.
[12]
The appellant had proposed to live with his
brother near Ottawa, however the brother was sentenced in November 2016 to 3.5
years in prison for serious fraud offences. The investigating social worker
concluded that he could not support that residence as approved for the
appellant, without extensive prior planning. Dr. Gulati would want a successful
trial of community living in approved accommodation before he could recommend
an absolute discharge. A previous discharge in 2017 into highly structured,
approved accommodation in the community broke down after only four days,
following cannabis use by the appellant and decompensation.
The Boards decision
[13]
The Board considered the arguments made on
behalf of the appellant at para. 38 of its reasons:
Mr. Davies
submitted that Mr. Abdulle no longer meets the significant risk threshold. He
pointed to the fact that the index offences occurred in 2008 and 2011, and that
there had been a significant period of time with no evidence of convictions. He
submitted that there is no empirical evidence that Mr. Abdulles continued
cannabis use contributes to his periodic relapses, and he emphasized that there
have been no physically violent incidents during the periods when Mr. Abdulle
has been hospitalized.
[14]
The Boards reasons for concluding that the
appellant remained a significant threat are contained at paras. 41-44 of its
reasons:
There can be no doubt on the evidence before
us that Mr. Abdulle remains a significant threat to public safety. The
uncontradicted evidence is that the risk factors for Mr. Abdulle remain the
same as at last years annual hearing. At last years hearing, the Board heard
evidence that Mr. Abdulle was making encouraging progress and that his relapses
had become less frequent. At this years hearing, the evidence was that no
progress had been made, and that the Hospital and Mr. Abdulle had reached an
impasse, albeit it was not acknowledged that the impasse was a treatment
impasse.
Yet, based on the evidence before the Board at
last years hearing, and the Boards explanation for its conclusion, the Court
of Appeal stated at para. 15 of its decision, released on November 4, 2020,
that the Boards findings that Mr. Abdulle remained a significant threat were
both logical and reasonable on the record before it.
Given the less encouraging evidence at this
years hearing, it is understandable that Mr. Davies did not vigorously press
for an Absolute Discharge.
Based on the
evidence, the Board had no hesitation in concluding that Mr. Abdulle continues
to pose a significant threat to the safety of the public. The evidence
persuades us that without Board oversight, Mr. Abdulle would stop taking his
prescribed medications. We are persuaded that within a short time, he would
relapse, thereby leading to his engaging in criminal conduct that would put
members of the public at significant risk of psychological or physical, harm.
B.
Analysis
(1)
Did the Board err by referring to a previous
decision of this Court?
[15]
The appellant argues that the Board erred in
citing a decision of this court which referred to previous Board findings that
the appellant constituted a significant threat as both logical and reasonable
on the record before it. Since that finding, the appellants condition had
worsened.
[16]
This court reviews Board findings according to
the norm of reasonableness. This requires an assessment of whether the Boards
reasons for the disposition are justified, transparent, and intelligible and
whether the disposition itself falls within the range of possible acceptable outcomes:
Canada (Minister of Citizenship and Immigration) v. Vavilov
,
2019 SCC 65,
441 D.L.R. (4th) 1,
at paras. 84-86. A reasonable decision
is one where the Boards reasoning process and the outcome reflects an
internally coherent and rational chain of analysis
that is justified in
relation to the facts and the law:
Nguyen (Re)
, 2020 ONCA 247, 387
C.C.C. (3d) 13, at para. 28, quoting
Vavilov
, at paras. 83 and 85;
Sim
(Re)
,
2020 ONCA 563, at
paras. 67-68.
[17]
A previous decision of this court dealing with
the appellants history with the Board is part of the jurisprudential history
of this case, and the Board did not err by referring to that case. It would err,
however, if it considered that the range of reasonable decisions open to it was
constrained
by the previous appellate decision. The Board was obliged
to come to its own decision as to how best balance the competing objectives of
s. 672.54 of the
Criminal Code
.
[18]
We are not persuaded that the Board failed to
perform its own independent analysis in this case. The Board reviewed a
significant body of evidence post-dating this courts decision. The Boards
reference to this courts decision was simply further justification for the
Boards conclusion that, given the less encouraging evidence at this years
hearing, there was no basis to grant an absolute discharge.
(2)
Did the Board err in referring to the vigour of
the appellants counsels submissions?
[19]
The Board made a passing reference to the force
of counsels submissions: [g]iven the less encouraging evidence at this years
hearing, it is understandable that Mr. Davies did not vigorously press for an
Absolute Discharge.
[20]
On appeal, Mr. Davies, now acting as
amicus curiae
,
submits that the Board erred in referring to this. He says the degree of vigour
of counsels submissions is an unmeasurable quality. He submits that, in some
contexts, such observations are not helpful as they may impair the relationship
between counsel and client. Moreover, the Board cannot default to positions
taken by the parties. It is an inquisitorial body that is obliged to search out
evidence when necessary and come to its own conclusions: see
Winko v.
British Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at
paras. 54-55.
[21]
A reasonable decision-making process is driven
by the merits of the case, i.e. the facts and the law before the court. The
style of advocacy is not a governing factor.
[22]
That said, counsel should expect and would welcome
the notion that their advocacy would have an impact on a judges reasoning
process. A judge will almost invariably have thoughts about counsels advocacy
although those thoughts will not often be expressed. Sometimes arguments made
by the most eloquent and able lawyers are not accepted by a court. At other
times, less able lawyers find their arguments win the day, despite deficiencies
in their own performance. As
amicus
suggests, clients do not always
understand this. For example, the best advocates do not yell at the court by
making all their arguments uniformly loud; in some circumstances,
understatement is more persuasive and helpful to the client. In any event, the
outcome of a proceeding should not be taken as an endorsement or repudiation of
a lawyers approach in a particular case.
[23]
Here, the Board did not default to any perceived
message conveyed by the manner in which counsel made his submissions. The
Boards reasons make clear that it came to its own decision on the merits.
(3)
Was the Boards decision that the appellant was
a significant threat reasonable?
[24]
An absolute discharge is warranted where the NCR
accused poses no significant threat to the safety of the public. There is no
presumption that an NCR accused is dangerous. A significant threat must be
proven and, as
amicus
points out in his factum:
A significant
threat to the safety of the public means a real risk of physical or
psychological harm to members of the public that is serious in the sense of
going beyond the merely trivial or annoying. The conduct that gives rise to the
harm must be criminal in nature. The threat must be significant in at least
two senses: first, there must be a real risk that the actions leading to harm
will actually occur; and second, the potential or contemplated harm must be
serious. [Citing
Winko
, at paras. 62 and 57.]
[25]
The hospital report filed in evidence mirrored
the elements of this test, both the likelihood of the behaviours and the degree
of harm that would result. I repeat the relevant observations for ease of
reference:
In my opinion, if
Mr. Abdulle was to be out in the community and was going through a cyclical
relapse such as been evidenced on the unit, he would pose a threat to the
safety of the public through his bizarre, disinhibited and erratic behaviour.
His behaviour during times of relapse can significantly be perceived as
threatening towards others around him and it is only through the expertise and
skill set of staff, he has been redirected and no aggressive/violent incidents
have occurred. It is also to be noted that his behaviour goes over and above
mere annoyance and can cause significant distress in people around him who are
not familiar with his illness as they can perceive his gestures to be
threatening.
[26]
Dr. Gulati reiterated that the appellant would
quickly deteriorate if he received an absolute discharge and would constitute a
danger to the public within weeks. He opined that the appellant would likely
commit offences similar to the index offences under those circumstances.
[27]
The Board was entitled to accept this evidence.
It referred to and considered the arguments made by the appellant, the length
of time since the index offences with no further convictions, the uncertainty
as to the effects of the continued use of cannabis, and the absence of any
violence during periods when the appellant has been hospitalized. Nonetheless,
it was persuaded that without Board oversight Mr. Abdulle would stop taking his
prescribed medications, relapse, and engage in criminal conduct that would put
members of the public at significant risk of psychological or physical harm.
There can be no doubt that the index offences were of a nature to cause harm
beyond the merely trivial or annoying.
[28]
Amicus
submits
that the Board gave no consideration to the fact that the appellant had been
reasonably consistent in taking injected antipsychotic medication, had
completed all programs offered at Ottawa and Brockville, and had a place to
stay with his brother in Ottawa. However, none of these factors undermine the
essential conclusion accepted by the Board as to significant threat.
[29]
The Boards reasoning, though brief, reflects an
internally coherent and rational chain of analysis that is justified in
relation to the facts and the law and there is no basis to intervene.
C.
Disposition
[30]
For these reasons, the appeal is dismissed.
David
Watt J.A.
G.
Pardu J.A.
Gary
Trotter J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Flood v. Boutette, 2021 ONCA 515
DATE: 20210719
DOCKET: C67571 & C67653
Pepall, Roberts and Thorburn JJ.A.
BETWEEN
Kevin Flood and Anne Marie
Laniak
Plaintiffs (Appellants)
and
Shawn Boutette, Richard Marr, Lee Tome,
Windsor
Fire and Rescue Services Department,
Mario Sonego and the Corporation of the City of Windsor
Defendants (Respondents)
AND BETWEEN
Joseph Papic and Susan Papic
Plaintiffs (Appellants)
and
Shawn Boutette, Lee Tome,
Windsor
Fire and Rescue Services Department,
Mario
Sonego, Marc Mantha and
the Corporation of the City of Windsor
Defendants (Respondents)
Asha James and Jeremy Greenberg, for the appellants, Kevin Flood and
Anne Marie Laniak (C67571)
Steven Pickard, for the appellants, Joseph Papic and Susan Papic
(C67653)
Sheila C.
Handler, for the respondents (C67571 & C67653)
Heard: May 25, 2021 by videoconference
On appeal from the judgments of Justice Renee
M. Pomerance of the Superior Court of Justice, dated October 1, 2019, with
reasons reported at 2019 ONSC 5633, 58 C.C.L.T. (4th) 261.
Thorburn J.A.:
OVERVIEW
[1]
In Ontario, single-family dwellings require
fewer safety protections than boarding, lodging, and rooming houses (collectively,
lodging houses) because single-family dwellings operate as a single unit
whereas the occupants of lodging houses are more autonomous. Owners of single-family
dwellings used as lodging houses are therefore required to retrofit their premises
in accordance with the regulatory requirements in the
Fire Code
, O.
Reg. 213/07.
[2]
The appellants Kevin Flood and Anne Marie Laniak
(the Flood appellants), and Joseph Papic and Susan Papic (the Papic
appellants), rented single-family dwellings to students in Windsor, Ontario. Mr.
Flood and Mr. Papic were charged with
Fire Code
violations that apply
to lodging houses following investigations by Shawn Boutette, a city fire-prevention
officer.
[3]
The central issue in Mr. Floods three-day trial
was whether the properties were lodging houses within the meaning of the
Fire
Code
. Justice of the Peace Renaud determined that the Flood property was
not a lodging house for the purpose of the retrofit requirement in s. 9.3 of
the
Fire Code
. Mr. Flood was therefore acquitted on a directed verdict.
Shortly thereafter, the charges against Mr. Papic were withdrawn.
[4]
The appellants then brought claims against the
respondents, Shawn Boutette, Richard Marr, Lee Tome, Windsor Fire and Rescue
Services Department, Mario Sonego, Marc Mantha and the Corporation of the City
of Windsor (the City), seeking damages for claims that include negligent
investigation, malicious prosecution, violation of the
Charter
,
and
bad faith.
[5]
The claims against Richard Marr, Mario Sonego,
and Marc Mantha were withdrawn on the eve of trial. The trial judge dismissed
the remaining claims holding that (i) the respondents had reasonable grounds
[1]
to believe the properties were
lodging houses prior to laying charges under the
Fire Code
, (ii) the
investigator did not conduct a negligent investigation, and (iii) neither the
investigation nor the laying of charges was motivated by malice.
[6]
The appellants submit that the claims should not
have been dismissed as (i) the investigator knew or ought to have known the
buildings were not lodging houses and there were therefore no reasonable or
probable grounds to lay the charges, (ii) the investigator conducted a
negligent investigation, and (iii) the respondents acted in bad faith as their
motive was not public safety, but to reduce student housing in Windsor. The
appellants further claim that the usual deference owed to a trial judge is not
owed in this case as the judge who heard the evidence passed away and therefore
was not the judge who rendered the decision.
[7]
The Papic appellants also submit that the trial
judge ignored their claim of undue delay and abuse of authority in relation to the
development of a property and seek to remit that claim to the Superior Court
for determination.
[8]
For the reasons that follow, I would dismiss the
appeals.
BACKGROUND DISCUSSION
[9]
The appellants are residential landlords who own
properties around the University of Windsor.
[10]
Mr. Flood is a partner in the Flood Rental Group.
For many years, Flood has developed or renovated properties for the primary
purpose of renting those properties to students attending university. The Papics
own a duplex, also near the university, which they too rented as student
housing.
[11]
In June 2006, the mayor and City Council
received a report from the respondent Mario Sonego (the Sonego Report), then
the City of Windsors Chief Building Official. In his Report, Mr. Sonego
recommended that the City Council endorse a proposed strategy for pursuing
fire safety with respect to multiple tenant residences. In the background
section, he stated:
As Council will recall, multiple tenant
occupancy of single family or duplex residences, particularly around the
University of Windsor, has been an issue since the double cohort year of
approximately 2003.
Administration has had difficulty, as have
other municipalities, with attempting to convince the Courts or the Justice of
the Peace system that homes are not operating as single family units but are
operating as lodging homes.
[12]
The Report then discussed relevant
jurisprudence, namely
Good v. Waterloo (City)
(2013)
, 67 O.R. (3d) 89 (S.C.) (
Good
(ONSC)
),
affd 72 O.R. (3d) 719 (C.A.) (
Good (ONCA)
), which I will discuss in greater detail below, before
proposing that:
One possible enforcement strategy is to
proceed through the
Fire Code
to confirm compliance and the safety of
occupants. This strategy was discussed with the Off Campus Issues Committee,
whose membership has a representative from the West Windsor Homeowners
Association. They were in agreement with the benefits if successful.
[13]
The appellants and respondents disagree on the purpose
of writing this Report and the subsequent retrofit enforcement strategy adopted
by the City.
[14]
The appellants claim the enforcement strategy following
the Sonego Report, which led to the charges against them, was not motivated by
a
bona fide
concern for the safety of the public, but rather by a
desire to restrict student housing to appease other disgruntled homeowners. The
respondents claim the enforcement strategy was based on a concern for fire
safety.
[15]
I will begin by outlining the origins of the
retrofit enforcement strategy, before turning to the decision by Mr. Boutette
to investigate and lay charges against the appellants in 2007.
(1)
The Origins of the Retrofit Enforcement Strategy
[16]
According to Mr. Sonego, the City became concerned
about student tenancies in 2003. That year, a double cohort of students would
graduate from high school, placing pressure on limited student accommodation. The
City was concerned that students would pick the cheapest accommodation, which
might not always be the safest.
[17]
By 2004, the Citys
Building
& Development and Bylaw Enforcement & Licensing departments
had unsuccessfully pursued
landlords
renting premises
the City felt were illegal lodging
homes through bylaw enforcement. The City determined that the next step would
be to proceed under the
Fire Code
to order the retrofit of homes
lodging more than three persons, so as to comply with fire, safety, and
building standards. This strategy was not implemented in 2004.
[18]
On January 25, 2006, there was a fire at a
student rental property in which students were seriously injured, bringing the problem
of fire safety in student housing to the forefront. In March 2006, Mr. Sonego attended
a meeting of the Off‑Campus Housing Committee at which he indicated that he
would prepare a report for City Council. The report was delivered in June 2006.
[19]
Various city departments approved the retrofit
enforcement strategy proposed in the Sonego Report, which recommended that the
Fire Department look at a few cases where they suspected lodging
houses were being operated in an unsafe manner.
[20]
Based on the above, the trial judge accepted
that it is open to inference that the underlying motivation was rooted in
safety concerns rather than a desire to appease homeowners in the university
district. She held however that, even if it was rooted in a desire to appease
homeowners in the university district, this would not have altered Mr.
Boutettes motive as he did not know of any such purported strategy until he
had already begun the investigation.
(2)
The
Fire Code
Provision
[21]
One of the stated purposes of the
Fire Code
,
as set out in s. 2.2
,
is to
ensure that persons are not exposed to an unacceptable risk of injury due to
fire.
[22]
Section 9.3 of the
Fire Code
deals with
the retrofit requirements for lodging houses. Subsection 9.3.1.1 reads as
follows:
(1) This Section applies to boarding houses,
lodging houses, rooming houses and private rest homes in which residents do not
require care or treatment because of age, mental or physical limitations, where
(a) the building height does not
exceed 3 storeys and the building area does not exceed 600 m
2
,
(b) lodging is provided for more
than four persons in return for remuneration or the provision of services
or both, and
(c) lodging rooms do not have both bathrooms
and kitchen facilities for the exclusive use of individual occupants.
[2]
[Emphasis omitted.]
[23]
The terms boarding houses, lodging houses,
rooming houses are not defined in the
Fire Code
. However, the Ontario
Building Code
, O. Reg. 332/12, s. 1.4.1.2 defines these terms to
mean a building that meets substantially the same criteria set out in s.
9.3.1.1.(1)(a)-(c) of the
Fire Code
.
[3]
[24]
Buildings falling within the definition of s.
9.3.1.1 must comply with a number of specific safety requirements. For example,
portable fire extinguishers must be located on each floor, exit signs must be
installed, and walls that separate bedrooms must meet a specified fire-resistance
rating.
(3)
The Decision in
Good
v. Waterloo
[25]
As noted above, the City was aware that certain
jurisprudence might foreclose the possibility of student housing being
considered lodging houses. In his Report, Mr.
Sonego noted that:
The difficulty of the matter lies in the
burden of proof that persons unrelated to each other live in a single unit
dwelling not operating as a single housekeeping unit, but rather as a lodging
home. To illustrate the difficulties of this enforcement, attached is a copy of
the Superior Court Case of
Good v. the City of Waterloo
.
[26]
In
Good (ONSC)
, Gordon J. found that the
home in that case, that was occupied by students, operated as a single housekeeping
unit and was therefore exempt from the requirement to be licensed as a dwelling
house under a City of Waterloo bylaw.
[27]
This court affirmed his finding. Under the
Municipal
Act
in force at the time, and the Waterloo bylaw, a lodging house was
defined as:
a nursing home and any house or other building
or portion thereof in which persons are harboured, received or lodged for hire,
but does not include a hotel, hospital, nursing home, home for the young or the
aged or institution if the hotel, hospital, home or institution is licensed,
approved or supervised under any other general or special Act.
[28]
The same bylaw exempted residential units from
the requirement to obtain a license where the unit is used as a single
housekeeping unit, which includes a unit in which no occupant has exclusive
possession of any part of the unit, among other things.
[29]
Gordon J. held, in
Good (ONSC)
at
paras. 23-24, that:
[T]he distinguishing characteristic as between
a lodging house and a residential unit focuses on the control of the premises
.
Control, in a lodging house, is by the owner and the occupants on an individual
basis, whereas in a residential unit it is by the group. Accordingly, for a
residential unit there must be evidence of collective decision-making regarding
the use of the premises.
[30]
After articulating a list of factors present in
that case, Gordon J. concluded that the student tenants lived together
collectively and that the relevant premises were being used as a residential
unit, not a lodging house.
[31]
This result was upheld on appeal to this court,
which found collective decision-making sufficient to create a single unit for
housekeeping purposes to be an appropriate criterion to determine whether
the premises in question were single housekeeping units: see
Good
(ONCA)
,
at para. 3.
(4)
Mr. Boutettes Investigation
[32]
Mr. Boutette was a fire prevention officer with
the Windsor Fire and Rescue Services and a qualified fire inspector. One of his
tasks was to investigate alleged
Fire Code
infractions.
Mr. Boutette had the power to enter into any building in
the City of Windsor to inspect property to ensure fire safety pursuant to the
Fire
Protection and Prevention Act
,
1997
, S.O. 1997, c. 4
.
[33]
Mr. Boutette knew that boarding houses, lodging
houses, and rooming houses were not defined in the
Fire Code
but testified
that he was trained to use the definitions found in the
Building Code
where the
Fire Code
did not define a term. Lodging houses are defined
in the
Building Code
as buildings that have a building height not
exceeding 3 storeys and a building area not exceeding 600 m
2
, in
which lodging is provided for more than four people in return for remuneration
or for the provision of services or for both, and in which the lodging rooms do
not have bathrooms and kitchen facilities for the exclusive use of individual
occupants. This wording is, as noted above, similar to the wording of s. 9.3.1.1
of the
Fire Code
.
Inspection of the Appellants Properties
[34]
Between 2006 and 2008, the Fire Prevention
Division received several complaints from neighbours and previous tenants about
student rental properties owned by Mr. Flood and the Papics. Mr. Boutette
attended at each of the properties.
[35]
The first property was 659 Rosedale Avenue. Mr.
Boutette said that when he began his investigation, he did not know the
property was owned by Mr. Flood.
[36]
In October 2006, Mr. Boutette visited the
property and interviewed three of the seven tenants. He noted that there were
locks on some of the bedroom doors and he obtained a copy of some of the leases
and sublet agreements. The property had been rented to two people who sublet
their tenancy to other students. The sublets were not all entered into at the
same time. Different tenants were in charge of different household tasks. He
also noted a lack of interconnected smoke alarms.
[37]
Mr. Boutette concluded that the property was
being used as a lodging house, as it was less than three stories and rented for
remuneration to more than four people who shared kitchen and washroom
facilities. He contacted Mr. Flood and told him about the
Fire Code
,
s. 9.3 requirements. Mr. Flood claimed that the property was not a boarding,
lodging, or rooming house and that the provisions in the
Fire Code
therefore did not apply. Mr. Boutette said he would look into things further.
[38]
In February 2007, Mr. Boutette met with Mr.
Flood and several other landlords. The landlords denied that their properties
were boarding, lodging, or rooming houses. Mr. Boutette recalled that the
Good
cases were discussed at this meeting, as was another case which
distinguished
Good.
[39]
Mr. Boutettes second visit to 659 Rosedale
Avenue took place in March 2007. He noted labelled food in the refrigerator and
the presence of certain locks on the doors. He said that, at this time, he
again concluded that the building was being used as a lodging house within the
meaning of the
Fire Code
because the building was (i) less than three storeys
and 600 m
2
, (ii) rented for remuneration or services to more than
four people; and (iii) the tenants shared washroom and kitchen facilities. While
certain changes had been made, he found that the property did not comply with
the
Fire Code
requirements
.
Charges were laid on March 14,
2007.
[40]
The second property was a duplex at 341 and 343
Askin Avenue, owned by the Papic appellants. In September of 2007, following a
complaint by a previous occupant, Mr. Boutette visited the property with another
inspector from the Citys building department. They discovered that the Papic tenants
were strangers when they moved in, paid rent individually
to the
landlord, there were locks on the doors of the tenants rooms, and each was
responsible for their own meals.
[41]
Mr. Boutette concluded that both Askin properties
were boarding, rooming, or lodging houses and decided to proceed with charges.
In November 2007, charges were laid against Mr. Papic.
[42]
The third set of properties were three
residences on Bridge Avenue, owned by Mr. Flood. In January 2008, Mr. Boutette
attended the properties with two junior inspectors. After speaking with the
tenants, he learned that the properties were being used as student housing and
that Mr. Flood was the landlord. He discovered that each tenant gave cheques
for their own rent and paid it to another tenant who paid Mr. Flood; they came
from various areas across Ontario; absent permission, tenants rooms were
off-limits to others; and they each cooked their own meals and bought their own
food.
[43]
Mr. Boutette concluded that, using the same
criteria he used in respect of the Flood properties, the Bridge Avenue
properties were also boarding, lodging, or rooming houses.
[44]
A few days later, instead of laying charges, Mr.
Boutette proceeded by way of an inspection order under the
Fire Protection
and Prevention Act
, 1997,
S.O. 1997, c. 4, s. 21.
Mr. Boutettes Due Diligence Process
[45]
During this period, Mr. Boutette reached out to
several individuals who worked in fire prevention. They provided guidance,
which included cautioning him against an unsuccessful prosecution of s. 9.3 of
the
Fire Code
on student housing; informing him of a successful
conviction under s. 9.3 for a single-family home found to be operating as a lodging
house (see
City of Ottawa v. Bentolila
, 2006 ONCJ 541); and advising
him that student housing should be evaluated against indicators of a single
housekeeping unit before enforcing the bylaw, and that
Good
contained
criteria to distinguish between a single housekeeping unit and a lodging house.
[46]
Bruce Weaver, an official at the Fire Marshals
office, provided criteria to determine whether a building was occupied as a
housekeeping unit and dwelling unit. These criteria included, among other
things, the duration of the tenancies, the manner in which rent and utilities are
paid, whether the occupants exercise collective decision-making and lived
communally, the number of residents, whether rooms are assigned, and whether bedrooms
are locked. Mr. Boutette was not told how to apply these criteria.
[47]
Mr. Boutette also met with a Crown Attorney. Mr.
Boutette shared the information he had received with the Crown. He did not relay
the specific information from Mr. Weaver though the factors to be considered
are taken from both the
Good
and
Bentolila
cases. He said that,
as a result of the meeting, he understood that whether the
Fire Code
applied would be a judges decision. Mr. Boutette sought to meet with the
Crown Attorney and the appellants, but this request was denied. When he
endeavoured to speak with the tenants again, he was told by Mr. Flood that they
did not wish to speak with him.
(5)
The Prosecutions
[48]
Mr. Floods trial for the charges relating
to 659 Rosedale Avenue took place in November 2008. Mr. Flood was charged under
s. 28(1)(c) of the
Fire Protection and Prevention Act
. Mr. Flood
brought a motion for a directed verdict.
[49]
Justice of the Peace Renaud granted the
motion with respect to four of the five charges. She rejected the use of the
Building
Code
definition of lodging house. She held that:
The prosecution witnesses seemed to be under
the impression or feel that the term lodging house is defined by the criteria
in section 9.3 [of the
Fire Code
] and more specifically in subsection
9.3.1.1. and that, so long as there is proof that the building has fewer than
three stories, the building area does not exceed 600 square meters, that
lodging is provided for more than three persons for remuneration and that
lodging rooms are not individually equipped with bathroom or kitchen, then it
follows that the building is a lodging house. This is an erroneous
interpretation.
The three criteria relied upon by the
prosecution witnesses and prosecutor simply limit which boarding, lodging and rooming
houses are covered under section 9.3. A plain reading reveals this to be the
case, but this is further supported by the fact that the
Code
itself
contemplates that some boarding, lodging and rooming houses will not be covered
under section 9.3
.
Therefore, the issue to be resolved is whether
or not 659 Rosedale was a lodging house.
[50]
Justice of the Peace Renaud went on to consider
whether the premise was a lodging house based on the dictionary definition of
that term. She concluded that a lodging house or rooming house is a house that
rents out rooms to individuals on an individual basis where the landlord
controls who occupies each individual room, collects rent separately for each
individual room and where, when a room goes vacant, he ceases to collect money
for that room and where he has the right to replace the tenant for that room. She
held that there was no evidence that this was the case with respect to 659
Rosedale Avenue because the property was rented to a group of friends who
pooled their resources to rent the building. Following this ruling, she dismissed
the final charge at the Crowns request.
[51]
The Papic charges, relating to the duplex on
Askin Avenue, were withdrawn and did not proceed to trial.
[52]
The appellants then commenced their action
against the respondents for negligent investigation, malicious prosecution, and
violations of the
Charter
, among other things.
THE TRIAL JUDGES DECISION
[53]
The appellants claimed Mr. Boutette knew or
ought to have known their properties were not boarding, lodging, or rooming houses
and there were no reasonable and probable grounds to lay the charges. They also
claimed the respondents acted in bad faith by using the charges as a means to
discourage landlords from renting to students.
[54]
The trial took place in 2017, over 31 days, before the late
Justice Steven Rogin.
The central issue was whether it was
reasonable for the investigator to believe the properties were boarding,
lodging or rooming houses subject to the
Fire Code
.
Sadly,
Rogin J. passed away before rendering a decision. On consent, Pomerance J.
conducted a re-trial based on the trial record. She also heard the partys
arguments concerning this courts decision in
Payne v. Mak
,
2018 ONCA 622, 78 M.P.L.R. (5th) 179 (
Payne (ONCA)
), affg
2017 ONSC 243
(
Payne (ONSC)
), released after the trial submissions had
concluded before Rogin J.
[55]
Pomerance J. concluded that, in her words:
1.
The investigator did
owe a duty of care to the plaintiffs.
2. The standard of care required that the
investigator have reasonable grounds to lay the charges in question.
3. The investigator did have reasonable
grounds to believe that the properties were boarding, lodging or rooming houses
and that they were
noncompliant with the
Fire Code
:
a.
On the existing law, it was open to the
investigator to believe
Good v. Waterloo
did not govern
Fire Code
investigations;
b.
If
Good v. Waterloo
did apply, the criteria in that case applicable to a judicial
determination were of uncertain application at the charging stage;
c.
The standard of reasonable grounds did not
require the investigator to definitively conclude that the properties were
boarding, lodging or rooming houses; only that they could reasonably be found
to be boarding, lodging or rooming houses;
d.
In any event, the investigator did advert to the
criteria in
Good v. Waterloo
, gathering information for purposes of trial.
4. If
Boutette
did not have reasonable grounds, he nonetheless acted reasonably in
the investigation, by seeking advice and direction from various individuals and
entities, including the Crown Attorney, before he laid charges. An error in the
interpretation of a legal standard did not, in this case, result in breach of
the duty of care.
5. The investigator did not act with malice or
oblique motive. While there was evidence to indicate that the City of Windsor
had concerns
about
an influx of
student housing, the investigator was not privy to these discussions. I accept
his evidence that he was acting in the interests of public safety, in response
to specific complaints.
[56]
There was therefore no negligent investigation,
malicious prosecution, infringement of the
Charter
,
or abuse
of process. She dismissed all of the appellants claims.
ANALYSIS OF THE LAW AND CONCLUSION
[57]
Normally, a trial judges factual findings are
reviewable on a palpable and overriding error standard and are entitled to
deference. Whether those facts are sufficient in law to constitute reasonable and
probable grounds is reviewable on a correctness standard:
Tremblay v. Ottawa (Police Services Board)
, 2018 ONCA 497, 48 C.C.L.T. (4th) 1, at paras. 43-45, citing
R. v. Shepherd
, 2009 SCC 35, [2009] 2
S.C.R. 527, at para.
20,
R. v.
Anang
, 2016 ONCA 825, 367 C.R.R. (2d) 289, at para.
13;
Payne (ONCA)
, para. 30.
[58]
The Flood appellants urge this court to apply a
less deferential standard of review to the trial judges factual findings as
this court is no better placed than Pomerance J. to assess the original trial
record as she was not present when the evidence was adduced.
[59]
This submission runs contrary to the settled
principle that appellate deference to a trial judges factual findings does not
change simply because the trial record is in writing. As this court explained in
FL Receivables Trust 2002-A (Administrator of) v.
Cobrand Foods Ltd.,
2007 ONCA 425, 85 O.R. (3d)
561, at para. 46:
The principle of appellate deference to a
trial judge's fact-finding and inference-drawing applies even when the entire
trial record is in writing. That is so because the principle of deference is
grounded in more than a trial judge's ability to see and hear the witnesses.
Deference recognizes that even on a written record, the trial judge lives
through the trial while a court of appeal reviews the record only through the
lens of appellate review. Deference also preserves the integrity of the trial
process, maintains the confidence of litigants in that process, reduces the
number and length of appeals and therefore, the cost of litigation, and
appropriately presumes that trial judges are just as competent as appellate
judges to resolve disputes justly.
[60]
In
IFP Technologies
(Canada) Inc. v. EnCana Midstream and Marketing
,
2017 ABCA 157, 53 Alta. L.R. (6th) 96, at paras. 66-77, leave to appeal
refused, [2017] S.C.C.A. No. 303, the Alberta Court of Appeal considered the
standard of review applicable in similar circumstances. The trial judge passed
away before rendering a decision and, on consent, a new judge rendered a
decision on a written record. On appeal, the court found that the usual
standard of appellate review governs. As Fraser C.J. explained, appellate
review is not intended to be a retrial, duplicating the trial judges efforts. The
principal function of the appellate courts is to ensure consistency in the law,
not correctness of factual findings in particular cases. Even when they do not
hear evidence in person, trial judges have expertise in weighing evidence and
navigating complex records. Appellate courts, on the other hand, must be
mindful that a consistent standard of review helps maintain the effectiveness
of appellate review for all litigants in the justice system.
[61]
In this case, the parties consented to a trial
on an extensive written record, totalling over 4,000 pages of transcripts and
5,000 pages of exhibits. The trial judge made factual findings and drew inferences
after reviewing all of the evidence adduced. I see no basis on which to depart
from the established standard of review which accords deference to the trial
judges findings of fact absent palpable and overriding error. It is not this
courts role to navigate the voluminous record afresh, nor would it be
desirable for this court to do so.
[62]
For these reasons, the usual standard of
appellate review applies.
(1)
The First Issue:
Whether
there were
reasonable
and probable grounds to lay charges
[63]
The appellants claim the trial judge erred in
concluding that Mr. Boutette had reasonable and probable grounds to lay charges
against them.
[64]
First, the Papic appellants argue that the trial
judge failed to assess the charges against them independently of those laid
against the Flood appellants.
[65]
The Papics have not explained how the
investigation against them differed in any material respect from the
investigation against Mr. Flood. In both cases, the argument is that Mr.
Boutette conducted negligent investigations because he knew, or ought to have
known that the residences in question were not boarding houses such that the
requirements of s. 9.3 of the
Fire Code
were inapplicable and, thus,
he lacked reasonable and probable grounds to lay charges. The trial judge was therefore
entitled to consider this issue jointly in the circumstances.
[66]
Second, the appellants claim the trial judge
applied the wrong standard of review: she determined that Mr. Boutette had a
subjective belief that he had reasonable and probable grounds to charge them
but failed to also address whether there were
objectively
reasonable and
probable grounds to lay charges. Viewed objectively, they argue, a reasonable
officer would determine that the properties consisted of shared living space
and were not lodging houses.
[67]
In my view, for the reasons that follow, the
trial judge correctly found that Mr. Boutette had objectively reasonable and
probable grounds to lay the charges, notwithstanding that the charges
ultimately failed, and the trial judge both considered and applied the correct
test.
(a)
The duty of care in laying charges
[68]
Investigators such as Mr. Boutette owe a duty of
care to those they investigate. In
Hill v. Hamilton-Wentworth (Regional
Municipality) Police Services Board
, 2007 SCC 41, [2007] 3 S.C.R. 129, at
para. 73, the Supreme Court held that the standard of care is the overarching
standard of a reasonable police officer in similar circumstances, or in this
case, a reasonable fire safety inspector in similar circumstances: see
Upchurch
v. Oshawa (City)
, 2014 ONCA 425, 27
M.P.L.R. (5th) 179, at para. 21. Writing for the majority of the Court, at
para. 73, McLachlin C.J. held
that the duty is to exercise
discretion in a manner that falls within the range of reasonable decisions
available at the time the decision was made. She explained, further at para. 73,
that in the analogous context of police investigations:
The standard is not perfection, or even the
optimum, judged from the vantage of hindsight. It is that of a reasonable
officer, judged in the circumstances prevailing at the time the decision was
made circumstances that may include urgency and deficiencies of information.
The law of negligence does not require perfection of professionals; nor does it
guarantee desired results. Rather, it accepts that police officers, like other
professionals, may make minor errors or errors in judgment which cause
unfortunate results, without breaching the standard of care. The law
distinguishes between unreasonable mistakes breaching the standard of care and
mere errors in judgment which any reasonable professional might have made and
therefore, which do not breach the standard of care. [Internal citations
omitted.]
[69]
In laying
charges
, the standard [of care]
is informed by the legal requirement of
reasonable and probable grounds
to believe the suspect is guilty; since the law requires such grounds, a police
officer acting reasonably in the circumstances would insist on them:
Hill
,
at para. 68.
[70]
An investigators personal belief that there are
reasonable and probable grounds is not sufficient: a reasonable person standing
in the shoes of the investigator must believe there are reasonable and probable
grounds to believe that the person charged committed the offence: see
R. v. Storrey
, [1990] 1 S.C.R. 241, at
p. 250;
Payne (ONCA)
,
at para. 31.
[71]
In determining whether there are reasonable and
probable grounds to lay charges, the investigator need not evaluate evidence
to a legal standard or make legal judgments as [t]hat is the task of
prosecutors, defence lawyers and judges:
495793 Ontario Ltd. (Central Auto
Parts) v. Barclay
, 2016 ONCA 656, 132 O.R. (3d) 241, at para. 51; see
Hill
,
at para. 50.
[72]
The standard of care to be applied by a
professional generally requires expert evidence unless the standard is clear to
an ordinary person or the conduct so outrageous that it is obvious the standard
has not been met:
495793 Ontario Ltd. (Central Auto Parts)
, at paras. 53
and 57;
Krawchuk v. Scherbak
,
2011
ONCA 352,
106 O.R. (3d) 598
, at paras.
130-131
, leave
to appeal to S.C.C. refused, [2011] S.C.C.A. No. 319
.
(b)
The effect of a
withdrawal
of or an absence of conviction on the charges
[73]
The withdrawal of charges or the absence of a
conviction does not lead to the conclusion that reasonable and probable grounds
did not exist to lay charges. Reasonable and probable grounds may still exist
where the information relied upon changes at a future date or otherwise turns
out to be inaccurate. The requirement is that the information be reliable at
the time the decision was made to lay charges:
Collis
v. Toronto Police Services Board
(2007), 228
O.A.C. 333
(Div. Ct.)
,
at para. 66
; see also
Wong v. Toronto Police
Services Board
, 2009 CanLII 66385 (Ont. S.C)
, at
paras. 59-68;
Charlton v. St. Thomas
Police Services Board
, 190 C.R.R. (2d) 103,
at para.
41
(Ont. S.C.)
;
Lawrence v. Peel Regional Police Force
,
2009 CanLII 19934 (Ont. S.C.), at para. 48
.
[74]
Payne (ONCA)
, released
about a year and a half before the judgment under appeal, also concerned a fire
at a rental property and the alleged violation of s. 9.3 of the
Fire Code
.
Two owners of the home were charged with arson by negligence under s. 436 of
the
Criminal Code
. The charges against one homeowner were dropped,
while the second homeowner was discharged after the preliminary inquiry judge
found an insufficiency of evidence. The homeowners then brought a claim for
negligent investigation. The trial judge dismissed the claim, a result affirmed
by this court. Strathy C.J.O. held, at para. 47, that the individual who
charged the appellants:
had no obligation to determine whether the
charge would succeed at trial. He was not required to evaluate the evidence to
a legal standard or to make legal judgments. Nor was he required to exhaust all
possible investigations, to interview all potential witnesses prior to arrest,
to obtain the accuseds version of events or determine that the accused had no
valid defence to the charge, before being able to establish reasonable and
probable grounds. [Citations omitted.]
(c)
Mr. Boutette did not breach the standard of care
in laying charges
[75]
In this case, boarding, lodging, and rooming
houses are not defined in the
Fire Code
. Mr. Boutette believed that
the appellants properties were lodging houses subject to the
Fire Code
regulations because they met the criteria set out in s. 9.3.1.1: (i) they were
less than three storeys and 600 m
2
, (ii) were being rented for
remuneration or services to more than four people; and (iii) the tenants shared
washroom and kitchen facilities.
[76]
The appellants claim Mr. Boutette breached the
standard of care in laying charges and that the trial judge erred in
determining that any further requirements relating to specialized
investigations under the
Fire Code
, beyond the existence or absence of
reasonable and probable grounds, would require expert evidence. They say Mr.
Boutette was aware of legal authority in support of the requirement that there be
a reasonable belief that the residence is not a shared living space but chose
to ignore it. They also say Mr. Boutette ignored or failed to collect evidence
that was consistent with the residences being shared living spaces.
[77]
For the reasons set out below, I agree with the
trial judge that there were reasonable and probable grounds to believe an
offence had been committed when Mr. Boutette laid the charges, bearing in mind
that there was no obligation to correctly determine whether the charges would
succeed at trial and that she made no error in her standard of care analysis.
The
Good
decision did not
foreclose the possibility of conviction
[78]
Mr. Boutette was aware of this courts decision
in
Good (ONCA)
which, as discussed, concluded that in that case, whether
a building was a lodging house or a residential unit for the purpose of a
municipal business licensing bylaw depended on whether there was collective
decision-making sufficient to create a single unit for housekeeping purposes.
[79]
The statutory context in this case is
different than in
Good
and the trial judge held that Mr. Boutettes
view that
Good
might not apply to
Fire Code
investigations
was reasonable in the circumstances. It was therefore reasonable to think that the
definition of a boarding, lodging, or rooming house under
Fire Code
might
be more expansive than the bylaws at issue in
Good
.
[80]
Good
was a
business licensing dispute. The trial judge in
Good
favoured a
restrictive interpretation of the relevant bylaw in favour of the right of an
owner to deal freely with the property: see
Good (ONSC)
, at paras.
12-13 (noting, however, that his decision did not turn on this point); see also
Good (ONCA)
, at para. 2.
[81]
The
Fire Code
, by contrast, is a public
welfare regulation. Such regulations are given a liberal interpretation by the
courts, as to do otherwise would interfere with or frustrate the attainment of
the legislatures public welfare objectives:
Ontario (Ministry of Labour)
v. Hamilton (City)
, 58 O.R. (3d) 37 (C.A.), at para 16.
[82]
It was objectively reasonable to think the
different statutory context might be relevant and that factors other than those
identified in
Good
might militate in favour of the applicability of
the
Fire Code
. As the trial judge observed, subsequent jurisprudence has
confirmed the view that whether a property is a lodging house within the
meaning of a bylaw depends on the particular bylaw at issue: see
Neighbourhoods
of Windfields Limited Partnership v. Death
(2008),
49 M.P.L.R. (4th) 183 (Ont. S.C.), at paras. 70-71,
affd, 2009 ONCA 277, at paras. 3-4, leave to appeal refused, [2009] S.C.C.A.
No. 253;
Payne (ONSC)
, at paras. 142-144.
Whether a residence is a lodging house is
a contextual analysis
[83]
In
Good (ONCA)
, this court set out
several factors relevant to whether the occupants of a residence exercise
sufficient collective decision-making to form a single housekeeping unit,
including the manner in which rent and utilities are paid, how the residence is
furnished, and how housekeeping is organized. In addition to
Good
, Mr.
Boutette was also aware of the
Bentolila
case.
[84]
In
Bentolila
, the appeal judge found that
a residence occupied by students was a boarding house within the meaning of the
Fire Code
. Drawing on
Good
and other relevant authorities, that
case set out a range of factors, at para. 56, relevant to this conclusion.
These included, among other things, [a]part from their attendance at [a
university], there was no mention of any other connection between the
inhabitants, the only area where a resident could assert privacy was in his
or her own bedroom, and each resident provided for his or her own nutritional
needs, and shared the use of a number of refrigerators.
[85]
Taken as a whole, the caselaw stands for the
proposition that the question of whether a residence is a lodging, boarding, or
rooming house, within the meaning of the
Fire Code
,
is a
contextual one. Mr. Boutette understood that, ultimately, this determination
would be for the judge to make.
Mr. Boutette did a contextual analysis
[86]
Mr. Boutette collected a body of evidence in
anticipation of
Good (ONSC)
being raised at trial with respect to both
the Flood properties and the Papic duplex. For example, during his
investigation at 659 Rosedale Avenue, Mr. Boutette gathered evidence of some relevant
indicia: there were seven rooms rented; no evidence of pre-existing
relationships among the students, only of being fellow students; no evidence of
shared utilities or other expenses; the only privacy areas were indoor locks on
the bedroom doors; the property had been rented to two people who sublet their
tenancy to the other students; the sublets were not all entered into at the
same time; and food in the refrigerator was labelled, suggesting that they were
not eating communally. At the Askin duplex, he discovered that the tenants were
strangers when they moved in, paid rent individually, and ate separately.
[87]
The Flood appellants claim Mr. Boutette ignored
evidence that did not support his view, including a letter in which the tenants
at 659 Rosedale stated that they act as a joint group. Mr. Boutette did not
ignore this letter. He felt it was authored by someone other than the tenants.
He was not required to take this letter at face value when considering whether
to lay charges.
[88]
Ultimately, the appellants argue that a
reasonable investigator would have reached a different conclusion and not laid
charges. I do not accept this submission. As the trial judge observed, the
standard of care to be applied by a professional generally requires expert
evidence, unless the standard is clear to an ordinary person or the conduct so
outrageous that it is obvious the standard has not been met:
495793 Ontario
Ltd. (Central Auto Parts)
, at paras. 53 and 57;
Krawchuk
, at paras.
130-131
.
[89]
Mr. Boutettes conduct was not outrageous and
the norms of fire safety investigation are not obvious. No expert evidence was
adduced and the other evidence in the record, relied on by the Flood
appellants, is no substitute.
Conclusion on the reasonable and probable
grounds
[90]
Mr. Boutettes duty was not to come to the
correct conclusion regarding the legal status of the residence before laying
charges. It was to exercise his discretion in accordance with the options open
to him at the time that fell within the range of reasonableness:
Hill
,
at para. 73. I agree with the trial judge that, in this case and in the absence
of expert evidence, it was open to Mr. Boutette to conclude that there were
reasonable and probable grounds to lay charges because:
a)
The term lodging house is not a defined term
in the
Fire Code
;
b)
Interpretation of the term is contextual. A
number of factors have been considered, as outlined above;
c)
In
Bentolila
, a conviction was upheld
in similar circumstances when applying a public safety regulation.
Good
did not apply a public safety regulation;
d)
Mr. Boutettes function was not to draw legal
conclusions when deciding whether to lay charges;
e)
No expert evidence was adduced and the other
evidence in the record, relied on by the Flood appellants, is no substitute;
and,
f)
Mr. Boutette believed the properties were lodging
houses and that several of the
Good
factors supported his view. There
was evidence to support this belief.
[91]
Mr. Boutettes conduct was not outrageous and
the norms of fire safety investigation are not obvious.
For these reasons, I see no error in the trial judges conclusion
that the investigator had reasonable and probable grounds to lay the charges.
(2)
The Second Issue: Whether the investigation was
negligent
[92]
The second issue is whether Mr. Boutette
conducted an otherwise negligent investigation.
[93]
In my view, it is far from clear that Mr.
Boutettes conduct did not meet the standard of care. As noted above, the law
distinguishes between unreasonable mistakes that breach the standard of care,
and errors in judgment which a reasonable professional might make which do not
breach the standard of care. The function of an investigator is to investigate
incidents that might breach the
Fire Code
, make a conscientious and informed decision as to whether charges
should be laid, and present the full facts to the prosecutor. Although investigators
weigh evidence to some extent in the course of an investigation, they are not required
to canvass all possible avenues of investigation, interview all potential
witnesses, evaluate evidence according to legal standards, or draw correct
legal conclusions:
495793 Ontario Ltd. (Central
Auto Parts)
, at paras. 51-52;
Wong
, at paras. 56-59;
Upchurch
, at para. 28.
[94]
Mr. Boutette attended each of the premises at
least once to investigate. He also sought the opinion of several people in
other municipalities who had dealt with similar issues. He consulted with the
Fire Marshal and the Crown Attorney. Thereafter, he received little cooperation
from the appellants to obtain further information about the premises or
authorization to speak with their tenants again.
[95]
Mr. Boutette gathered information and he knew
that
Good v. Waterloo
involved a different statutory context (business
licensing as opposed to fire safety) and may therefore not be determinative of
the issue of whether he should charge the appellants with
Fire Code
infractions.
He also reasonably relied on the
Bentolila
decision.
[96]
For these reasons, I see no error in the trial
judges conclusion that Mr. Boutette acted reasonably in conducting his
investigation.
(3)
The Third Issue: The claim of malicious prosecution
[97]
The elements of malicious prosecution are (a) the
initiation of a prosecution by the defendants; (b) termination of a prosecution
in favour of the party prosecuted; (c) the absence of reasonable cause to
commence the proceeding, and (d) a finding that the prosecutor acted with malice
in setting the prosecution in motion:
Miazga
v. Kvello Estate
,
2009 SCC 51, [2009] 3 SCR 339, at paras. 53-56. Malice is the wilful perversion
of abuse of office for an improper purpose:
Miazga
, at para. 80. It is
an intentional or wilful state of mind and must be specifically pleaded.
[98]
As I have detailed above, the issue of malice
does not arise in this case as Mr. Boutette, in the circumstances at the time,
acted with reasonable and probable grounds to believe an offence had been
committed. As the Supreme Court explained in
Miazga
, at para. 55:
As a matter of policy, if reasonable and
probable cause existed at the time the prosecutor commenced or continued the
criminal proceeding in question, the proceeding must be taken to have been
properly instituted, regardless of the fact that it ultimately terminated in
favour of the accused.
[99]
In any event, the trial judge fairly concluded
that there was no malice on the part of Mr. Boutette as not only did he conduct
a protracted investigation of the facts, he demonstrated some concern for the
appropriateness of the charges ultimately brought:
This is not a case in which an investigator
was determined to lay charges, whatever the evidence or circumstances. To the
contrary, Boutette sought advice and guidance from several investigators and
individuals. He obtained information from Bruce Weaver, and Jeff Maraway. He
considered the PowerPoint presentation made by a representative of the Ontario
Fire Marshals office. He did his own research.
Significantly, the investigator went so far as
to seek input from the Crown Attorney.
[100]
Mr. Boutettes evidence as to his motive was that, [i]ts very
difficult for me as a fire investigator or a fire official to not order
something that could mean a difference between life and death on how students
who move into a house live.
[101]
The trial judge therefore concluded that Mr. Boutette did not base
his decision to lay charges on improper motives and did not seek out or target
these properties for investigation; rather, complaints were made to the Fire
Prevention Division and Mr. Boutette simply responded to them; as found by the
trial judge, the charges were motivated by a genuine and legitimate desire to
enforce the
Fire Code
. Her decision is amply supported by the evidence,
and she did not ignore evidence of the difficult relationship between Mr.
Boutette and the appellants during the course of the investigation.
[102]
The Flood appellants also raise the issue of malice on the part of
City Council. They claim the trial judge ignored the evidence of a connection
between the retrofit enforcement strategy and the prosecutions of the
appellant. The Papics claim that malice on the part of City Council can be attributed
to Mr. Boutette through the doctrine of vicarious liability.
[103]
I do not accept these arguments. The trial judge observed that Mr.
Boutette was not at the Council meetings and considered at length, at paras.
119-122 of her reasons, whether an improper motive for the retrofit enforcement
strategy influenced Mr. Boutettes decision to lay charges:
Finally, I must address the
allegation
that the charges were laid for an
oblique motive, namely to discourage landlords from renting or continuing to
rent to student tenants. Were the charges laid for an improper purpose,
unrelated to fire safety, that would displace the finding that the investigator
acted reasonably.
Evidence
was led to
indicate that officials with the City of Windsor had concerns about an influx
of student housing. The enforcement under the
Fire Code
happened after
the City had tried enforcement under the
Building Code
. That
enforcement effort was unsuccessful, and therefore the City made the decision
to use the
Fire Code
to address the issues. The question is what the
motivation was. The plaintiffs allege that the
Fire Code
was used to
crack down on or reduce student population.
There are some aspects of the evidence that
give me pause. It is not clear to me why some of the discussion of the issue by
Council was
in camera
. No landlords were invited to attend the council
meeting. There had been complaints about student housing from neighborhood
residents. It was recognized that the enforcement program might incidentally
reduce student housing if landlords were not prepared to retrofit. On the other
hand, there was also good reason to be concerned about fire safety in
properties rented out to multiple students during the school year.
Whatever the impetus for City Councils
enforcement strategy, I find
that it did not affect, or
infect, the conduct of the investigations carried out by Boutette.
[104]
I see no basis to disturb this finding. An oblique motive was not
proven at trial and, even if it were, that would not necessarily amount to
malice. In any event, there is no evidence that such a motive affected Mr.
Boutettes conduct.
(4)
The Fourth Issue: The unresolved Papic claims
[105]
The Papics raised a number of claims in relation to the development
property at 207 Askin Avenue.
These claims were not
addressed by the trial judge in her reasons and the Papic appellants therefore ask
that the issues be remitted to the Superior Court of Justice for determination.
The respondents request that this court determine these issues in accordance
with its discretion under s. 134 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43.
[106]
In brief, starting in 2007, the Papics
encountered difficulties getting approval for a minor
variance for their 207 Askin Avenue property, where they hoped to build a new multiple-unit
dwelling for student housing. Although the Planning Department supported the
variance, the Papics encountered resistance from other community members. The Citys
Committee of Adjustment denied the requested variance, on the basis that (i) it
was not a minor variance, (ii) the variance was not desirable for the
appropriate development of the land, and (iii) the granting of the application
would depart from the purpose of the zoning bylaw and the Citys Official Plan.
[107]
The Papics successfully appealed the Committee of Adjustments
decision to the Ontario Municipal Board (OMB), but a City solicitor believed
a site plan control process was required by the OMB decision. Papics legal
representative acknowledged that the development would be subject to site plan
control and would be circulated to area residents for approval and stated that
Papic had no issue with that nor was there any disagreement about this issue at
the hearing.
[108]
The Papics went through the site plan control process and filed an
application in January 2009. In February, a member of the Site Plan Review
Committee recommended approval of the Papics application. City Council elected
to vote on the application. The March 2009 vote was a tie, meaning the plan was
not approved. The Papics once again appealed to the OMB which, in May 2009, issued
an amending memorandum to its earlier decision, striking any reference to the Papics
property being subject to site plan control or the site plan control process. The
OMBs amending memorandum indicated that it had been incorrectly advised by
the Papics planning witnesses that their property was subject to site plan
control and that the parties agreed the property is not subject to site plan
control. At this point, the Papics could apply for and subsequently were
granted the relevant building permit.
[109]
The Papic appellants claim these delays were caused by Mr. Boutette
and the City and resulted in significant cost.
[110]
I agree with the respondents that there is nothing to be gained by
sending this matter back to the Superior Court and that it is in the interests
of justice that this court determine these issues:
Klurfeld v. Nova Quest
Logistics Inc.
, 2016 ONCA 348, 132 O.R. (3d) 66, at para. 33. The events
giving rise to the Papics claims on these issues date back to 2007. The record
before this court is full and allows for the fair adjudication of these issues
without prejudice to the parties who have had the opportunity to present
evidence and make full submissions at trial. Moreover, the claims are bound to
fail.
[111]
City departments supported the 207 Askin Avenue development
throughout. There was no evidence adduced at trial to support a finding that
the City solicitor, who believed a site plan control process was required by
the OMBs decision, acted negligently or with malice.
Mr.
Boutette appeared at one meeting at the request of a superior, said nothing of
any moment, and was otherwise uninvolved.
[112]
To the extent the Papics seek to hold the City liable for delays
attributable to the decision of the Committee of Adjustment or the vote at City
Council, these were policy decisions, made in good faith, for which there is no
legal liability in tort under the
Municipal Act, 2001
, S.O. 2001, c.
25, s. 450.
[113]
The Papics plead harassment and intentional infliction of
emotional distress. There is as yet no recognized common law tort of
harassment: see
Merrifield v. Canada (Attorney General)
, 2019 ONCA 205,
145 O.R. (3d) 494, leave to appeal refused, [2019] S.C.C.A. No. 174. In my
view, the circumstances of this case cannot plausibly warrant the recognition
of such a tort. The claim of intentional infliction of emotional distress is
also fatally flawed: none of the conduct at issue was flagrant, outrageous, or calculated
to harm the Papics.
[114]
Finally, the Papics claim of misfeasance in public office must
fail. The City councillors were not acting unlawfully or in bad faith when they
elected to vote on the site control plan application: see
Trillium Power
Wind Corp. v. Ontario (Ministry of Natural Resources)
, 2013 ONCA 683, 117
O.R. (3d) 721, at paras. 37-39. They were acting in response to community
opposition to the Papics proposed variance.
[115]
In sum, the Papics sought a variance to a property. Community
members objected and raised their concerns with City Council, the role of which
is to resolve such disputes. There is nothing particularly unusual, much less
tortious, about the events that followed.
DISPOSITION
[116]
For the above reasons, I conclude that the trial judge made no error
in finding that Mr. Boutette had reasonable and probable grounds to lay
charges, his conduct did not fall below the standard of care, and he did not
act with malice towards either the Flood or the Papic appellants. Moreover,
there is no legal liability for the Citys treatment of the Papic request for the
minor variance at 207 Askin Avenue. I would therefore dismiss the appeals.
[117]
In accordance with the bill of costs submitted by the respondents, I
would award partial indemnity costs of the appeals to the respondents in the
amount of $45,000 inclusive of disbursements and HST.
Released: July 19, 2021 S.E.P
J.A.
Thorburn J.A.
I
agree. S.E. Pepall J.A.
I
agree. L.B. Roberts J.A.
[1]
The
trial judge used reasonable grounds and the reasonable grounds standard as
a short form for reasonable and probable grounds. Nothing turns on this
abbreviation.
[2]
Before
November 2007, s. 9.3.1.1(1)(b) of the
Fire Code
, O. Reg. 388/97, referenced more than three
persons, not more than four.
[3]
The
2006
Building Code
,
O. Reg. 350/06, defines
boarding houses, lodging houses,
rooming houses in the same manner.
|
COURT
OF APPEAL FOR ONTARIO
CITATION:
R. v. Olvedi, 2021 ONCA 518
DATE:
20210719
DOCKET:
C66329
Doherty, Trotter and Thorburn JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Barna Olvedi
Appellant
Andrew Furgiuele, for the appellant
David Quayat and Nicholas Cooper, for the respondent
Heard: May 31, 2021 by video conference
On appeal from the convictions entered by Justice Cynthia
Petersen of the Superior Court of Justice on February 23, 2018, with reasons
reported at 2018 ONSC 1166, and from the sentence imposed on November 27, 2018,
with reasons reported at 2018 ONSC 6330.
Trotter J.A.:
A.
introduction
[1]
The appellant was convicted of importing
fentanyl and possession of fentanyl for the purpose of trafficking, contrary to
ss. 6(1) and 5(2) of the
Controlled Drugs and Substances Act
, S.C. 1996,
c. 19. He received a global sentence of 15 years imprisonment. He appeals his
convictions and sentence.
[2]
On the conviction appeal, the appellant
contends that the trial judge erred in her application of the wilful blindness
doctrine to fulfil the fault requirements for both offences. He further submits
that the sentence was unduly harsh and the trial judge erred by relying on this
courts sentencing jurisprudence relating to the importation of heroin.
[3]
At the conclusion of the hearing, the court
dismissed the conviction appeal with reasons to follow, but reserved its
decision on the sentence appeal. These reasons explain why I would dismiss both
appeals.
B.
Background
[4]
The appellant accepted delivery of a package that
contained 499.5 grams of 100% fentanyl citrate, worth upwards of $19 million.
The package came from China and was addressed to the appellant at his residence
in Brampton, Ontario. It was intercepted by U.S. Customs and Border Protection
in Memphis, Tennessee, who alerted Canadian officials.
[5]
When the package arrived in Canada, the RCMP
replaced all but one gram of the fentanyl with an inert powder for the purposes
of a controlled delivery. Posing as a FedEx delivery person, an undercover RCMP
officer delivered the package to the appellants family home, where he lived in
a basement apartment. The appellant accepted and signed for the package.
[6]
Shortly after accepting delivery, the appellant
and his girlfriend left the residence in a car. They were stopped by the RCMP
and arrested. When he was arrested, the appellant spontaneously stated, She
[his girlfriend] doesnt know anything
If there is weed on her, its mine.
He repeatedly asked the police to let her go. When the charges were read to
him, he said, Are you talking about the package? I dont know how it came. He
also said, Ill give it to you and, I just wanted to make some money. After
he was placed in a police cruiser, the appellant asked what was in the package.
When he was told it was fentanyl, he professed to not know what that was.
[7]
The appellant gave a more detailed account when
he was formally interviewed at the police station. He said that he was doing a
lot of cocaine at the time. He agreed to be a courier for his cocaine dealer,
named Bruno, who offered to pay him $3,000 if he agreed to accept a package
at his home. He agreed to the proposal because he needed the money to buy more
cocaine.
[8]
During his interview with the police, the
appellant made two statements that are critical to the issues raised on the
conviction appeal. They relate to his knowledge of what would be in the package
and where it was coming from. The appellant described making the arrangement
with Bruno in the following way:
Bruno said, Do you want to make some money?
I said, Fuck yeah, what I got to do?
He said, Ill give you three grand, all you
have to do is get a package delivered to your house. Just give me your info and
Ill give you three thousand cash.
And I said, I said, Okay. I meant, Whats
in the package? I said, You know what, I dont even want to know. So I dont
know what was in the package
. [Emphasis added.]
[9]
In terms of the origin of the package, the
appellant told the RCMP, I didnt really fucking care where it came from.
[10]
The
appellant said that he soon became reluctant to follow through with the
arrangement. He met with Bruno at a Tim Hortons restaurant and told him, I
cant do this. One of Brunos goons, who was also present at the meeting,
punched him in the face. Bruno threatened to kill the appellant if he did not
accept delivery of the package. In order to protect himself, the appellant
bought body armour, machetes, and throwing knives, all of which the police seized
from his residence.
[11]
The
appellant told the police that, when the package arrived, he was hesitant. The
undercover officer posing as the FedEx delivery person agreed that the appellant
seemed hesitant or surprised. Nonetheless, the appellant signed for the package
because he felt threatened and did not want to die.
[12]
The
appellant told a different story at trial. He said the Bruno story was false.
He made it up at the time because he thought that the police would feel sorry
for his girlfriend and let her go if they knew that she was involved with a
cocaine addict. He professed to have never used cocaine. However, when the
police searched his apartment, they found a baggie containing cocaine residue
in the pocket of a pair of pants lying on the floor. The appellant testified
that he had never seen the pants before, which the trial judge found to be
absurd. He also testified that he sometimes sold marijuana. The police seized
roughly $60,000 in cash from his residence, which he appellant said that this
was from the sale of marijuana.
[13]
As
for the package, the appellant testified that he was involved in selling
refurbished iPhones with a marijuana customer named Toor. He had previously
accepted such a shipment in exchange for $500. The appellant testified that he
was confused when he saw the FedEx delivery person that day because the package
did not look like the one he received before. Whereas the previous shipment was
delivered in a box, this package was malleable, and appeared to have some kind
of powder in it. He said, I thought it was cocaine right when I felt it
it
was a powder,
I wasnt expecting a powder. However, he was relieved to see
that the package did not appear to originate from South America, where cocaine
is manufactured. He thought that the package might contain acrylic paint, as
the shipping label indicated.
[14]
The
trial judge rejected the appellants trial testimony as simply implausible,
characterizing some of his evidence as absurd, and commenting that it made no
sense: at paras. 50, 54 and 56. She accepted the appellants statement to the
police and the Bruno scenario as truthful. She found that it was corroborated
by the armour and weapons found in the appellants basement apartment, and the
knife that he had put in his girlfriends purse before they left the residence.
[15]
In
her detailed reasons, the trial judge observed that, when he told his Bruno
story to the police, the appellant appeared to be relying on what he thought
was a defence of compulsion or duress. This defence was not advanced at trial,
likely because the appellant had a safe avenue of escape, in that he could have
sought police protection: see
R. v. Ryan
, 2013 SCC 3, [2013] 1 S.C.R.
14, at para. 47. However, the trial judge considered it as a mitigating factor
on sentence, finding that it reduced the appellants moral blameworthiness.
C.
The Conviction Appeal
(1)
Importing Fentanyl
[16]
The
appellant submits that the trial judge erred in relying on wilful blindness to
supply the fault requirements for importing a controlled substance.
Specifically, he contends that although wilful blindness may serve as a
substitute for an accuseds knowledge as to the nature of the substance, it
must be proved that the person subjectively
intended
to import this
substance. Consequently, wilful blindness has no application to the second
element (
i.e.
, from where the substance originates) . I disagree: wilful
blindness is available with respect to both elements.
[17]
The
offence of importing a controlled substance is prescribed by s. 6(1) of the
CDSA
:
Except as authorized under the regulations, no person shall import into Canada
or export from Canada a substance included in Schedule I, II, III, IV, V or VI.
The
CDSA
does not define importing. However, it has been explained in
the case law.
[18]
In
R. v. Foster
, 2018 ONCA 53, 360 C.C.C. (3d) 213, at para. 99, leave to
appeal refused, [2018] S.C.C.A. No. 127, Watt J.A. held that the term import
means to bring into Canada from elsewhere, or cause to be brought into Canada
from elsewhere, a controlled substance. See also
Bell v. The Queen
,
[1983] 2 S.C.R. 471. The
mens rea
for importing takes its form from this
definition of the
actus reus
. It requires both intent and knowledge.
[19]
As
a principal, it must be proved that the accused intended to bring a controlled
substance into Canada. But the appellants situation is one of party liability
under s. 21(1)(b) of the
Criminal Code
. In these circumstances, the
Crown is required to prove that the appellant intended to assist Bruno in
committing the offence:
R. v. Briscoe
, 2010 SCC 13, [2010] 1 S.C.R. 411,
at para. 16.
[20]
As
Charron J. explained in
Briscoe
, at para. 17: That sufficient knowledge
is a prerequisite for intention is simply a matter of common sense. In the
case of importing, whether as a principal or as a party, the Crown must prove knowledge
of two things: (a) the substance is a controlled substance (even if the exact
substance is not known); and (b) the substance originates from outside Canada. As
the Court of Appeal of Alberta put it in
R. v. Atuh
, 2013 ABCA 350, the
Crown must prove that the accused knew they were receiving a controlled
substance and that they knew that the drugs [they] knowingly expected and accepted
were from out of the country: at para. 7.
[21]
In
Canadian criminal law, wilful blindness is recognized as a proxy or substitute
for actual knowledge. It involves the presence of a subjective suspicion about
a fact, circumstance, or situation, and a decision not to make inquiries,
preferring to remain ignorant of the true state of affairs: see
Briscoe
,
at para. 21;
R. v. Pilgrim
, 2017 ONCA 309, 347 C.C.C. (3d) 141, at para.
66. There is no principled basis that would permit wilful blindness to apply to
supply the knowledge component for one essential element (the nature of the
substance) but not the other (the origin of the substance).
[22]
In
his statement to the police, the appellant said that he agreed to accept
delivery of a package for Bruno in exchange for $3,000. This was capable of proving
that the appellant intended to assist Bruno. But more was required. The Crown
was required to prove that the appellant knew or was wilfully blind to the fact
that he would be taking delivery of a controlled substance, and that it
originated from outside Canada.
[23]
The
trial judge concluded that each of these elements was proved, at paras. 65 and
68:
Although I am left with reasonable doubt as to
whether Mr. Olvedi
actually knew
that the package contained a controlled
substance,
I am persuaded beyond a reasonable doubt that he was wilfully
blind to that fact and to the fact that it was originating from outside Canada
.
I make this determination based, in part, on the cumulative effect of the
circumstantial evidence set out above, and also based on compelling evidence of
his deliberate suppression of suspicions about the packages contents or
origins.
. . .
For all of the foregoing reasons,
I am
persuaded beyond a reasonable doubt that Mr. Olvedi was wilfully blind to the
fact that the package he agreed to receive for Bruno contained a controlled
substance.
I am also persuaded that he was wilfully blind to the fact that
the package would be originating from outside Canada at the time that he agreed
to accept delivery for Bruno
. The Crown has therefore established the
accuseds intent to bring a controlled substance into the country, which
preceded the substances entry into Canada. [Emphasis added.]
[24]
I
see no error in the trial judges approach.
[25]
In
the alternative, the appellant submits that there was an insufficient
evidentiary foundation for the trial judge to conclude that the appellant was
wilfully blind to the origin of the substance he agreed to receive on behalf of
Bruno.
[26]
I
disagree. The trial judges findings were supported by the evidence she
accepted, particularly those parts of the appellants statement referred to in
paras. 8-9, above. Both parts must be considered.
[27]
In
conjunction with the appellants belief that Bruno was high up in the hierarchy
of cocaine distribution, the appellants statement I dont even want to know
provided a foundation for the trial judges finding that the appellant was
wilfully blind to the fact that he would be taking possession of a controlled
substance. As the appellants counsel conceded at the hearing, this statement
could serve as the avatar of wilful blindness.
[28]
The
second statement I didnt really fucking care where it came from sustained
the trial judges conclusion that the appellant was wilfully blind to the
packages origin, especially since he was aware that cocaine originated from
outside Canada.
[29]
The
appellant submits that, for wilful blindness purposes, the trial judge erred by
equating the two statements. They are qualitatively different. He submits that,
while the second statement may prove recklessness about the origin of the
package, it falls short of establishing that the appellant was wilfully blind. I
disagree. It is clear from the trial judges reasons that she considered the
two assertions to be qualitatively similar and complementary. Having had his suspicions
aroused about what he was being asked to do, the appellant did not want to know
what was to be delivered, or where it was coming from. He preferred to remain
ignorant of both circumstances. These findings were open to trial judge to
make.
[30]
I
would dismiss this ground of appeal.
(2)
Possession for the Purpose of Trafficking
[31]
The
appellant submits that there was no evidence to support the trial judges
finding that he was wilfully blind to the contents of the package on the charge
of possession for the purpose of trafficking. Although he may have been wilfully
blind to the contents of the package when he agreed to receive it on Brunos
behalf, he did not have the same understanding when the package was actually delivered.
At that point, his knowledge base had changed. The labelling on the package
indicated that it originated in China and contained acrylic paint. The
appellant testified that when he saw this, he was relieved because he thought
the package might actually contain paint. He submits that, on the facts known
to him
at that time
, he was, at worst, reckless as to the contents of
the package, and this was insufficient to found a conviction. I disagree.
[32]
Although
the trial judges reasons were brief in relation to this charge, they must be
viewed in the context of her reasons as a whole. The trial judge found that,
when he received the package, the appellant remained wilfully blind to its
contents and that [h]e intended to flip the package to Bruno, knowing (or
wilfully blind to the fact) that Bruno would then sell its contents to illicit
drug-users like himself, through an established chain of distribution: at
para. 70.
[1]
[33]
The
trial judges conclusion that the appellant was wilfully blind to the contents
of package was not unseated by the manner in which the package was labelled. In
any event, the trial judge rejected the appellants testimony and relied on his
police statement. Moreover, it is implausible that, when the package was delivered,
the appellant truly believed that he was to receive $3,000 for accepting
delivery of a small package of acrylic paint, instead of drugs.
[34]
I
would dismiss this ground of appeal.
D.
The Sentence Appeal
[35]
The
trial judge sentenced the appellant to imprisonment for 15 years on the
importing charge and 12 years, concurrent, on the charge of possession for the
purpose of trafficking. The appellant submits that the sentence was too harsh
and that the trial judge erred by finding that importing fentanyl was
comparable to importing heroin. I disagree. The comparison is apt, and the
sentence was fit.
[36]
At
the sentencing hearing, the Crown sought a sentence of 17 years imprisonment
(based on its assertion of a 16- to 20-year range). Counsel for the appellant
at trial submitted that 8 to 12 years would be appropriate.
[37]
The
trial judge took into account the personal circumstances that were favourable
to the appellant. He was 33 years old at the time of sentencing. Although he
had a conviction for failing to comply with a recognizance, the appellant was
entitled to be treated as a first offender. The trial judge acknowledged that
the appellant was cooperative with the police, was genuinely remorseful, and
had excellent rehabilitative potential. The trial judge also considered the
appellants moral blameworthiness to be diminished by virtue of the threats
from Bruno.
[38]
The
length of the sentence the trial judge imposed was driven by the principles of
denunciation and general deterrence, based on her assessment of the harmful
nature of fentanyl. Her conclusions were supported by evidence at the
sentencing hearing.
[39]
The
Crown adduced the evidence of three witnesses who spoke to the hazards of
fentanyl for drug users, and others who may come into contact with it, such as
law enforcement and EMS personnel, scientists and technicians who are required
to analyze controlled substances, and commercial couriers.
[40]
Dr.
Karen Woodall (a forensic toxicologist) testified about the potency and dangers
of fentanyl. Fentanyl is 100 times stronger than morphine and 20 times stronger
than heroin. It is also highly addictive. Based on this evidence, the trial
judge spoke of the impact of the drug on our communities, at para. 27:
Deaths from fentanyl overdoses started to
occur in the mid 2000s. The problem intensified over time. In the past five
years, there has been a dramatic increase in fentanyl-related fatalities. The
problem has reached crisis proportions. Dr. Woodall testified that fentanyl has
become the number one opioid identified in death investigations of drug-related
fatalities. In many cases, multiple drugs are detected in the deceaseds
system. Some case histories have shown that the deceased believed they were
taking cocaine or heroin but ended up unknowingly ingesting a deadly drug
mixture that contained fentanyl.
[41]
The
evidence also established that, because fentanyl can be inhaled and absorbed
through the skin, it presents serious risks to anyone who handles it or is near
to it. For this reason, the Centre of Forensic Sciences has implemented strict
safety guidelines for handling fentanyl.
[42]
Dr.
Woodall and Sergeant Ian Young, an officer with the Waterloo Regional Police
Service, testified that they had never previously encountered 100% pure
fentanyl nitrate. At this level, fentanyl is not consumable on the street. One
gram of fentanyl would need to be blended with 100 grams of a cutting agent,
such as caffeine. The usual method of cutting fentanyl is with a kitchen blender.
This is an imprecise process that may result in the uneven distribution of the
drug with the cutting agent, creating undetectable and dangerous hot spots of
higher fentanyl concentration. This creates a serious risk of accidental
overdose.
[43]
The
Crown also adduced evidence of the prevalence of fentanyl activity in Peel
Region, where the appellant was arrested, and which is home to the Toronto
Pearson International Airport. Police Constable Matthew Boycott, with the Peel
Regional Police, testified to a substantial upswing in fentanyl seizures, both
in powder and pill forms. Fatal overdoses increased dramatically between 2014
(n = 10) and the first quarter of 2018 (n = 38).
[2]
At the time of sentencing, Peel Regional Police was building a centralized drug
facility to safely store the fentanyl that is seized. P.C. Boycott also
testified that, in that part of the province, fentanyl has grown in popularity,
due to his high potency and because it is fairly inexpensive for dealers to get
set up, needing little more than a blender.
[44]
P.C.
Boycott gave evidence of the danger of fentanyl to law enforcement officers. In
Peel, officers carry nasal naloxone kits, which can be used to reverse the
effects of fentanyl. He testified that, although naloxone is administered to
drug users, officers carry it for their own protection in the event of exposure
to fentanyl.
[45]
The
trial judge also heard evidence that fentanyl is typically sold in doses of 0.1
grams. The amount of fentanyl imported by the appellant, 499.5 grams, could
have been cut into as many as 499,500 points of sale. Sold at $30 to $40 per dose,
the street value was between $14,985,000 and $19,980,000.
[46]
Based
on this evidentiary foundation, the trial judge accepted the Crowns submission
that sentencing for the importation of fentanyl should be approached in the
same way as importing heroin.
[47]
The
trial judge considered
R. v. Sidhu
, 2009 ONCA 81, 94 O.R. (3d) 609, in
which this court considered an appeal by the Crown from a sentence imposed on a
24-year-old first offender who imported a large quantity of heroin into Canada.
The trial judge in that case imposed a sentence of almost eight years
imprisonment, noting that heroin is a marginally more dangerous drug than
cocaine.
[48]
In
allowing the Crowns appeal, this court rejected the trial judges assessment
of the dangerousness of the drug, at para. 12:
Time and again, this court and the Supreme
Court of Canada have made it clear that heroin is the most pernicious of the
hard drugs it is the most addictive, the most destructive and the most
dangerous. Heroin trafficking has been described as a despicable crime and
one that tears at the very fabric of our society.
The court
held that, as a general rule, absent exceptional or extenuating circumstances,
first offender couriers who import large amounts of high grade heroin into
Canada for personal gain should expect to receive sentences consistent with the
twelve to seventeen year range: at para. 14. The court increased the sentence
to 14 years and 9 months.
[49]
After
discussing this courts holding in
Sidhu
, the trial judge concluded, at
para. 103:
Importing fentanyl must be treated at least as
seriously as importing heroin because fentanyl is known to be twenty times
stronger than heroin. As Sopinka J. stated in
Vezina
[
R. v. Vezina
,
2017 ONCJ 775] (at para. 56), [t]he dangers of fentanyl have become well
known, which puts traffickers [and importers]
[3]
on notice that their conduct will attract significant custodial penalties.
I
therefore conclude that the range of sentence proposed by Defence counsel in
this case, namely 8 to 12 years imprisonment, is too low for a first time
courier who imports a large volume of high purity fentanyl for personal gain.
[50]
I
agree with this approach. The record supported the trial judges findings that
fentanyl is at least as serious as heroin and that it has a devastating impact
on our communities. The appellant does not dispute the validity of the heroin
analogue, but submits that his sentence should have been shorter.
[51]
In
its written submissions, the Crown observes that appellate guidance on the
appropriate sentencing range for importing fentanyl is underdeveloped. It
urges this court to use
Sidhu
as a starting point and to signal that
sentences for importing fentanyl should go beyond the range identified in that
case. Although I would endorse the trial judges reliance on
Sidhu
, I would
decline the Crowns invitation to go further and essentially establish a firm
range for importing fentanyl.
[52]
In
my view, the Crowns request is premature. As the trial judge recognized, at
para. 98, Due to fentanyls relatively recent introduction into Canadas
illicit drug subculture, not many cases involving fentanyl trafficking and no
fentanyl importation (or conspiracy to import) cases have been decided by
appellate courts. This is a significant obstacle to establishing a range, for
as Wagner J. (as he then was) said in
R. v. Lacasse
, 2015 SCC 64, [2015]
3 S.C.R. 1089, at para. 57: Sentencing ranges are nothing more than summaries
of the minimum and maximum sentences imposed in the past, which serve in any
given case as guides for the application of all the relevant principles and
objectives. See also
R. v. Friesen
, 2020 SCC 9, 444 D.L.R. (4th) 1, at
para. 36.
[53]
In
R. v. Loor
, 2017 ONCA 696, Laskin J.A. observed, at para. 50, Few
fentanyl trafficking cases have reached this court. It is thus perhaps too
early in our jurisprudence to establish a range. In
R. v. Disher
, 2020
ONCA 710, 153 O.R. (3d) 88, Gillese J.A. said, at para. 30, The caselaw on
sentences for trafficking in fentanyl is still developing.
[54]
The
same may be said about importation cases. Ranges of sentence for importing
fentanyl will develop naturally over time, as the courts gain more experience
with this deadly drug. Nonetheless, the dangerous nature of fentanyl has
already been recognized by this court. In
Loor
, Laskin J.A. said, at
para. 33:
Unless used for therapeutic purposes, under
proper medical supervision, fentanyl is a highly dangerous drug. Its widespread
abuse, though recent, has quickly become entrenched in our country. Every day
in our communities, fentanyl abuse claims the lives of Canadians.
Further recognition of this dark truth is
reflected in other decisions of this court: see, for example,
R. v. Baks
,
2015 ONCA 560, at para. 3;
R. v. Lu
, 2016 ONCA 479, at para. 9; and
R.
v. Sidhu
, 2019 ONCA 880, at para. 4.
[55]
I
also agree with Laskin J.A.s observation that, although it may be too early in
the development of our jurisprudence to establish a range of sentence, it is
fair to say that generally, offenders even first offenders who traffic in
significant amounts of fentanyl should expect to receive significant
penitentiary sentences: at para. 50.
[56]
Other
appellate courts have taken the same, cautious approach, by declining to establish
sentencing ranges in fentanyl cases, but upholding significant penitentiary
sentences: see
R. v. Smith
, 2019 SKCA 100, 382 C.C.C. (3d) 455, at
paras. 126-27 (eight years for possession for the purpose of trafficking);
R.
v. White
, 2020 NSCA 33, 387 C.C.C. (3d) 106, at paras. 116-18 (eight years
for possession for the purpose of trafficking);
R. v. Petrowski
, 2020
MBCA 78, 393 C.C.C. (3d) 102, at para. 35 (10 years for possession for the
purpose of trafficking);
R. v. Slotta
, 2020 MBCA 79, 393 C.C.C. (3d)
122, at para. 3 (eight years for importing). The courts in
Smith
,
Petrowski
,
and
Slotta
recognized that, due to the dangerous nature of fentanyl,
sentences should be longer than those involving cocaine or heroin.
[57]
Returning
to this case, the trial judge considered all relevant factors, including the
need for restraint, especially given the personal circumstances of the
appellant. She gave effect to the appellants lower moral blameworthiness in
view of the coercion from Bruno. However, deterrence and denunciation had to be
given prominence in this case, especially given the amount, purity, and value
of the fentanyl imported. The trial judges assessment of the seriousness of
the offence, in conjunction with her balancing of the relevant aggravating and
mitigating circumstances, is entitled to deference on appeal:
Lacasse
,
at para. 41;
R. v. Fabbro
, 2021 ONCA 494, at para. 19.
[58]
Not
only did the evidence establish the seriousness of the appellants offending
owing to the danger associated with the fentanyl, it also spoke to fentanyls
prevalence in and impact on the community in which it took place. As the trial
judge said, at para. 58:
The enormity of the fentanyl crisis and its
impact in Peel Region cannot be ignored in this case. It underscores the need
for a sentence of sufficient length to denounce Mr. Olvedis conduct in the
strongest terms and to act as a general deterrent to those who would
contemplate similar actions.
This is an important consideration:
see
Lacasse
, at para. 48.
[59]
Although
the sentence imposed was substantial, it was not unfit, even for a first
offender. The appellant played a significant role in importing half a million
doses of what has become the most lethal of drugs. The toll on human life could
have been devastating had this staggering amount of fentanyl found its way onto
the streets of Peel Region, and beyond.
[60]
Given
that I would dismiss the sentence appeal on the importing charge, it is not
strictly necessary to address the appeal from the concurrent 12-year sentence
for possession for the purpose of trafficking. However, the same aggravating
factors are also very much in play in this context, and justify the substantial
penitentiary term that was imposed.
[61]
Lastly,
the victim surcharge should be set aside, in accordance with
R. v.
Boudreault
, 2018 SCC 58, [2018] 3 S.C.R. 599.
E.
Disposition
[62]
I
would dismiss the conviction appeal, grant leave to appeal sentence, set aside
the victim surcharge, but dismiss all other aspects of the sentence appeal.
Released: July 19, 2021 DD
Gary
Trotter J.A.
I
agree. Doherty J.A.
I
agree. Thorburn J.A.
[1]
The trial
judge did not need to go this far. Whatever Bruno intended to do with the drugs
was immaterial; taking possession of the package with the intention of giving
it to Bruno itself amounted to trafficking. In s. 2(1) of the
CDSA
, the
definition of traffic includes to sell, administer, give, transfer,
transport, send or deliver the substance.
[2]
At
the time P.C. Boycott testified, the first quarter data for 2018 had yet to be
finalized.
[3]
Inserted by the trial judge.
|
COURT
OF APPEAL FOR ONTARIO
CITATION: R. v. Theriault, 2021 ONCA 517
DATE: 20210719
DOCKET: C68671, C68489 & C68490
Tulloch, Roberts and Trotter
JJ.A.
DOCKET:
C68671
BETWEEN
Her
Majesty the Queen
Respondent
and
Michael
Theriault
Appellant
DOCKET:
C68489
AND BETWEEN
Her
Majesty the Queen
Appellant
and
Michael
Theriault
Respondent
DOCKET:
C68490
AND BETWEEN
Her
Majesty the Queen
Appellant
and
Christian
Theriault
Respondent
Michael Lacy and Deepa Negandhi for the
appellant (C68671) and respondent (C68489), Michael Theriault
Alan D. Gold and Laura Metcalfe for the
respondent (C68490), Christian Theriault
Susan Reid and Rebecca Schwartz for the
appellant (C68489 & C68490) and respondent (C68671), Her Majesty the Queen
Heard: May 12 and 13, 2021 by video conference
On appeal from
the conviction entered by Justice Joseph Di Luca of the Superior Court of
Justice on June 26, 2020, with reasons reported at 2020 ONSC 3317, and the sentence
imposed on November 5, 2020, with reasons reported at 2020 ONSC 6768
(C68671).
On appeal from
the acquittals entered by Justice Joseph Di Luca of the Superior Court of
Justice on June 26, 2020, with reasons reported at 2020 ONSC 3317 (C68489 &
C68490).
Tulloch J.A.:
A.
Introduction
[1]
In the early morning hours of December 28, 2016,
Michael Theriault and his brother, Christian, were smoking cigarettes in their
parents garage in a suburban town east of Toronto.
[1]
The
brothers heard a sound coming from outside and slid under the garage door to
investigate. They caught some teenagers stealing from their parents truck. One
of those teenagers was Dafonte Miller.
[2]
Mr. Miller is a young Black man. The accused
brothers are white. At the material time, one of the brothers, Michael, was an
off-duty police officer.
[3]
Once the Theriault brothers emerged from the
garage, the teenagers ran in different directions. Michael and Christian
pursued Mr. Miller for a distance of approximately 130 metres before Mr. Miller
ran between two houses. As Mr. Miller attempted to scale a fence between the
houses, Michael body checked him.
[4]
A violent struggle ensued. At some point, one of
the individuals introduced a metal pipe into the melee. The fight quickly
became one-sided, with Mr. Miller as the victim. As a result of this
altercation, Mr. Miller sustained serious injuries that resulted in a
permanently blind left eye, as well as associated physical and emotional trauma.
The Theriault brothers sustained minor, if any, injuries.
[5]
Months later, the Theriault brothers were
jointly charged with committing an aggravated assault against Mr. Miller and with
attempting to obstruct justice by lying about it to the police thereafter.
[6]
After a ten-day trial, the judge acquitted the
brothers of aggravated assault and attempting to obstruct justice. The trial
judges reasonable doubt stemmed from his holdings that the brothers may have
been: (i) attempting to execute a lawful arrest, and (ii) acting in
self-defence.
[7]
The trial judge convicted Michael of the lesser
and included offence of assault in relation to the final part of the struggle,
in which he was alleged to have struck Mr. Miller in the head with a metal pipe
as Mr. Miller sought assistance at a nearby house. The trial judge sentenced
Michael to nine months imprisonment.
[8]
Michael appeals his conviction and sentence for
common assault. For the reasons that follow, I would dismiss the defence appeal
on both grounds.
[9]
The Crown also appeals both brothers acquittals
of aggravated assault and attempts to obstruct justice. However, in its factum,
and again at the oral hearing, the Crown confirmed that it would seek a new
trial only if the defence appeal also succeeded. The Crown framed its position in
its factum as follows:
The Crown has appealed the acquittals so that,
if Michael Theriaults conviction appeal is successful and a new trial is
ordered, the trial can proceed on the original charges of aggravated assault
and attempt to obstruct justice.
The Crown is satisfied
that, if Michael Theriaults conviction for common assault is upheld, it is not
in the public interest to seek a new trial on the offence of aggravated
assault, or the charge of attempt to obstruct justice, against either Theriault
brother, and in those circumstances the Crown will not seek an order for a new
trial.
[Emphasis added.]
[10]
Accordingly, since I would dismiss the defence
appeal, and the Crown has indicated it will not pursue a retrial should its
appeal succeed, it is not in the interests of judicial economy to address the
Crowns appeal. My dismissal of the Crowns appeal, however, should not
necessarily be taken as agreement or disagreement with the trial judge on the
issues the Crown raises. My reasons do not consider the merits of the Crown
appeal. Rather, given the Crowns position and my decision to uphold the
conviction for common assault, these reasons focus only on the grounds of
appeal raised by Michael.
B.
The Evidence at trial
[11]
Since this case was in its nascency, Mr. Miller
and the brothers have advanced very different versions of events concerning
what happened on December 28, 2016. This section summarizes Mr.
Millers evidence, the Theriault brothers evidence, the evidence of other
witnesses, the 911 calls, the physical evidence, and the evidence pertaining to
the injuries sustained by Mr. Miller and the brothers.
(1)
Mr. Millers Evidence at Trial
[12]
On the evening in question, Mr. Miller testified
that he was hanging out with his friend, Antonio Jack, and an acquaintance,
Bradley Goode. According to Mr. Miller, after smoking marijuana at a
friends house, he and his friends decided to meet up with some women that Mr.
Goode knew. He denied that he was breaking into cars that evening. As I return
to below, Mr. Millers denial regarding his activities that night was
inconsistent with the physical evidence at the scene and the testimony of one
of his companions, Mr. Goode. Notably, Mr. Goode admitted that they were
stealing valuables from cars that night.
[13]
Mr. Miller and his friends set out on foot. Mr.
Miller testified that, as they walked through a residential neighbourhood
toward their destination, he observed two individuals standing outside an open
and lit garage. Mr. Miller later learned that these individuals were the two accused
brothers: Michael and Christian.
[2]
[14]
Mr. Miller testified that the Theriault brothers
randomly approached him and his friends. Mr. Miller recalled Christian asking
whether they lived in the area. Mr. Miller testified that Mr. Jack responded
no and gestured in the direction of the neighbourhood they do live in. Christian
then asked what they were doing in the neighbourhood. Mr. Miller testified that
at the time, he felt like he and his friends were being questioned. Mr. Miller further
recalled Michael identifying himself as a police officer. According to Mr.
Miller, Michael said he was a cop and could ask whatever he wanted.
[15]
Mr. Miller testified that he started walkin
the
way we were goin. Moments later, when he glanced back, he saw the Theriault
brothers coming towards him. Mr. Miller and his friends ran. Initially, he
thought he was running in the same direction as his friends, but quickly
realized that he was on his own, with the Theriault brothers quick on his trail.
He recalled the brothers trying to grab him, but he managed to keep running. When
he turned back, he did not remember seeing anything in either brothers hands.
[16]
Mr. Miller recalled his pursuers trying to grab
him for a second time. He then turned in an attempt to make it to a door of a
house to get help. Instead, according to Mr. Miller, he and the brothers ended
up between that house and another house (the houses would later be identified
as the Silverthorn and Forde residences). While between the houses, Mr. Miller
recalled Christian placing him into a headlock. Mr. Miller remembered facing
down, pretty much on the ground. He felt hits to his back and head.
[17]
Mr. Miller testified that he first saw a metal
pipe in Michaels hands when he managed to get out of the headlock. Mr. Miller recalled
standing up, turning around, and being struck with the pipe. He felt Christian
grabbing his leg, and next remembered being on the ground facing the fence. He
recalled Michael repeatedly hitting him with the metal pipe, while Christian hit
him with his hands and feet. He testified that the pipe struck him on the side
of his face. He recalled just laying there, looking at the fence. He remembered
being unable to feel the blows anymore.
[18]
Mr. Miller then recalled a moment when it
stopped, and he struggled to his feet. He made his way around the Silverthorn
residence to the front door, touching the walls of the house with his hands as
he walked. He testified that he was still receiving blows with the pipe by the
time he reached the door of the Silverthorn residence. According to Mr. Miller,
although he attempted to block some of the blows with his arms, he did not otherwise
fight back.
[19]
Mr. Miller next recalled knocking on the door. In
his words, he was tryin to just use the rest of [his] strength to get help.
He turned towards Michael, who was still holding the pipe. Mr. Miller
remembered saying you are going to kill me to Michael. According to Mr.
Miller, it is in that moment that Michael then hit him in the eye with the
pipe. Mr. Miller remembered blood pouring on the ground before him. He then
turned around and continued to bang on the door for help.
[20]
After realizing that no one was coming to his
assistance, Mr. Miller recalled walking over to the driveway. He testified that
Michael kept hitting him in the back with the pipe until he fell over.
Christian was on the sidewalk, some distance away.
[21]
Mr. Miller next remembered being on the ground,
sitting against a car. He took out his phone and called 911. According to Mr.
Miller, at this point, Michael was yelling at him to put his phone down, while still
holding the pipe. Michael then put Mr. Miller face down on the ground. Mr.
Miller testified that Michael had his knee on his upper back. He could not
breathe and asked to be turned over.
[22]
According to Mr. Miller, Michael first told him that
he was under arrest when he was on the phone with 911. After initially being
evasive in his testimony, he eventually agreed that he could be heard on the
911 call recording saying: I know.
[23]
Michael remained on top of Mr. Miller until
police officers arrived on the scene. Michael handcuffed Mr. Miller. Police
officers helped him up, searched him, and placed him under arrest. An ambulance
took him to the hospital.
[24]
Mr. Miller testified that the only person he saw
wield the pipe was Michael. He denied ever using the pipe to assault Michael or
Christian.
(2)
Mr. Millers Prior Evidence
[25]
Before testifying at trial, Mr. Miller made a
number of statements about the incident, including statements to the Special
Investigations Unit (SIU), a complaint to the Office of the Independent
Police Review Director (OIPRD), and his testimony at the preliminary inquiry.
In all of these statements, Mr. Miller denied involvement in any illicit
activity leading up to the encounter with the Theriault brothers and maintained
that he did not pick up the pipe at any time.
[26]
Certain other details in Mr. Millers account of
the events that night varied considerably each time he provided a statement or
testimony, including:
a.
the time that he met up with Mr. Jack and Mr. Goode;
b.
whether he, Mr. Jack, and Mr. Goode went to
visit a third friends house before setting out to meet the girls;
c.
whether he smoked marijuana that night;
d.
whether he told police the name of his friends when
speaking with the officers at the scene;
e.
whether he knew the names of the girls that he
and his friends were purportedly going to visit;
f.
whether he saw Michael and Christian smoking and
drinking in their garage;
g.
whether he reviewed his own criminal disclosure;
and
h.
whether he knew the version of events advanced
by his friend, Mr. Jack (which is detailed below).
(3)
Michael Theriaults Evidence at Trial
[27]
Michael testified at trial that, on the evening
in question, he and his brother were at their parents house for a family
dinner. They were drinking alcohol. At approximately 2:00 a.m., he recalled going
to the garage to smoke cigarettes with his brother. He testified that he was
wearing jeans, a shirt, and socks without shoes, while his brother was wearing
shorts, a sweater, shoes, and a toque.
[28]
Michael next recalled hearing truck doors close
right outside the garage. He assumed someone was inside his parents truck. Michael
testified that he told his brother to open the garage door. He remembered
rolling under it to get outside as quickly as possible. He denied bringing
anything, including a metal pipe, with him for safety.
[29]
When he got outside, he saw two teenagers in his
parents truck; one was exiting the front drivers side, the other was exiting
the front passengers side. According to Michael, the teenagers started running
right away. He gave chase. Michael indicated that he ran after the person who
was sitting in the drivers seat because he wanted to apprehend
one of the
males
arrest him
and wait til Durham Police arrived. He yelled to his
brother to follow.
[30]
Michael denied having any discussion with Mr.
Miller prior to the pursuit. Contrary to Mr. Millers testimony, Michael said
he did not tell Mr. Miller and his friends that he was a police officer when
they first encountered one another in front of the Theriault residence.
[31]
Michael agreed that during the chase, he still
did not identify himself in any way as a police officer. His explanation for
not saying anything was because everything happened really fast. He agreed it
would have been helpful for Mr. Miller to know what was happening. He also
agreed that saying something like stop, police would have assisted in the
apprehension of Mr. Miller.
[32]
Michael did not see Mr. Miller running with the
metal pipe and he agreed that it was too big to be hiding in Mr. Millers
pants.
[33]
According to Michael, as he and his brother
chased Mr. Miller, he turned and ran between two houses. Mr. Miller did not
slow down at any point. Michael figured that Mr. Miller was fleeing and didnt
wanna get caught. He denied that Mr. Miller attempted to get to the door of the
Silverthorn or Forde residence. Instead, he testified that Mr. Miller attempted
to climb a fence between the two properties. He testified that he then body checked
Mr. Miller into the fence because he didnt want him to, to escape,
essentially. Michael agreed that he had not said a word before body checking Mr.
Miller.
[34]
Michael testified that Mr. Miller started
hitting him in the body with a weapon of some sort immediately following the
body check. According to Michael, he realized that Mr. Miller had something in
his hand, and he yelled to his brother: Hes got a bat, hes got a bat. Michael
testified that he subsequently realized that Mr. Miller had a metal pipe in his
hands.
[35]
At trial, Michael maintained that he did not
know where the pipe came from. As I will explain below, this differed from his
initial statement at the scene. At that time, he had said to police: [l]ooking
after it appears [Mr. Miller] took the pole from the gas line at [the
Silverthorn residence].
[36]
Michael admitted that he still did not identify
himself as a police officer or tell Mr. Miller he was under arrest when the struggle
began between the two houses. He testified that his first and foremost
thoughts was he has a weapon, and, uh, I just wanted to make sure that me and
Christian were safe.
[37]
Michael next recalled Christian engaging Mr.
Miller. He testified that Mr. Miller struck Christian in the head with the
pipe. Michael indicated that he then decided to cut the distance between himself
and Mr. Miller in an effort to disarm him. Michael testified that he began
punching Mr. Miller wherever he could and as hard as [he] could in the face
and body. He indicated that in accordance with police training, he punched Mr.
Miller in the face to distract him so that Mr. Miller would loosen his grip
on the pipe, and he could retrieve it.
[38]
Michael indicated that Mr. Miller was punching
him back, although he could not recall where he was punched. He denied that Mr.
Miller was defenceless on the ground, with the brothers beating him repeatedly
with the pipe.
[39]
This portion of the altercation, according to
Michael, occurred closer to the fence.
[40]
The altercation then moved towards the flowerbed
alongside the Forde residence. Michael testified that he was unsuccessful in
disarming Mr. Miller, so he called Christian to get in here. Christian was
able to get Mr. Miller in a headlock. According to Michael, Christian was on
his back, holding Mr. Miller, who was on top of him, punching him. At this
point, Michael indicated that he was able to disarm Mr. Miller. He denied
striking Mr. Miller with the pipe. Instead, he testified that he threw the pipe
some distance away, and it landed on the snow-covered lawn. According to Michael,
he threw the pipe because he didnt want Mr. Miller to grab it again, to start
using it on us again. He testified that he then started punching Mr. Miller
since Mr. Miller was punching Christian.
[41]
According to Michael, Mr. Miller eventually
stopped punching Christian, leading Michael to stop punching Mr. Miller. At
this juncture, Michael said he told Christian that he was calling the police.
He testified that as he pulled out his phone, Mr. Miller started punching
Christian again. He indicated that he then threw his phone, re-engaged, and
started punching Mr. Miller again.
[42]
Michael testified that for a second time, Mr.
Miller stopped fighting so Christian let go of him. At this point, Michael said
he grabbed the pipe from the lawn because he feared that Mr. Miller was
possibly going to arm himself with it again. Michael testified that although he
picked up the pipe, he did not use it to strike Mr. Miller.
[43]
Michael testified that Mr. Miller walked toward
the front door of the Silverthorn residence and started banging on the door.
Michael admitted that he was holding the pipe upright with both hands at this
time. This posture, according to Michael, was consistent with police training
around the use of batons. However, he denied striking Mr. Miller as he walked
from the area between the houses to the front door of the Silverthorn
residence. As he followed Mr. Miller to the front of the house, he said that he
was yelling at him to get down. He also said he yelled at the occupants of
the Silverthorn residence to call 911.
[44]
Michael recalled Mr. Miller then walking toward
the car parked in the driveway. Mr. Miller put both his hands on the hood of
the vehicle. Michael testified that he again told Mr. Miller to get down. He
admitted that it was at this juncture that he told Mr. Miller he was under
arrest for the first time.
[45]
According to Michael, Mr. Miller was not
complying with his order to get down, so he grabbed Mr. Miller and put him on
the ground. Once he had control of Mr. Miller, with his knee on Mr. Millers
back, Michael said he threw the pipe to the middle of the lawn. Michael
explained that the act of putting Mr. Miller to the ground was consistent with
police training. He denied continuing to hit Mr. Miller while he restrained
him.
[46]
Michael admitted that he still did not tell Mr.
Miller why he was arrested because he figured, uh, once Durham Police came
over, and took over the scene, um, they would take over the formalities. He
also said he assumed that Mr. Miller knew that he was under arrest for whatever
he did in the car and for attacking him and Christian with a weapon.
[47]
Michael said that at this point, Christian was
at the end of the driveway, on the phone.
[48]
When the police arrived, one of the officers
handed Michael a pair of handcuffs and said something to the effect of you
know what youre doing. Michael recalled handcuffing Mr. Miller and helping
him to his feet. He then handed over custody of Mr. Miller to the uniformed
police officers.
(4)
Michael and Christians Police Statements
[49]
Both Michael and Christian gave statements at
the scene. Additionally, two weeks later, Christian came into the police
station to give a second statement. The statements were generally consistent
with the narrative advanced by Michael in his trial testimony, however, neither
brother made any mention of Michaels possession of the pipe beyond disarming
Mr. Miller between the houses.
[50]
The brothers denied knowing where the pipe came
from in their statements but made different suggestions implicating Mr. Miller.
[51]
As noted above, Michael indicated that: [l]ooking
after it appears he took the pipe from the gas line at [the Forde residence]. The
trial judge found that this gas line referred to the air conditioning
rough-in near the flowerbed on the Forde property. When asked about this suggestion
about the provenance of the pipe during cross-examination, Michael denied
returning to the area between the houses after the police arrived on the scene.
He explained that he was just speculating and had no idea what gas line he was
talking about.
[52]
In both of Christians statements, he suggested that
Mr. Miller had the pipe, which was approximately four feet long, tucked in his
pants from the outset. Christian said that Mr. Miller pulled it out when the
confrontation began between the houses.
(5)
The Evidence of Mr. Millers companions, Antonio
Jack and Bradley Goode, at Trial
[53]
Mr. Jack was a classmate and friend of Mr.
Millers. On the night in question, he indicated that he was with Mr. Miller
and Mr. Goode. They set out on a quest to locate marijuana. According to Mr.
Jack, as the three of them were walking, two guys came out of a garage and approached
Mr. Miller and Mr. Goode, who were walking some distance ahead of Mr. Jack. Mr.
Jack heard what sounded like an argument in a loud pitched voice. He asked Mr.
Miller if he was okay and Mr. Miller replied yes. Mr. Jack denied being
present alongside Mr. Miller and Mr. Goode when this interaction occurred. He also
denied hearing the questions asked by the men who came out of the garage.
[54]
Mr. Jack then saw two or three white males run
out of the garage towards them. Mr. Jack recalled that one male ran after Mr.
Goode and two males ran after Mr. Miller. According to Mr. Jack, one of the
white males who started chasing Mr. Miller had something in his hand that
looked like a silver pipe. Mr. Jack also ran. He did not see the men or Mr.
Miller again that night.
[55]
In cross-examination, defence counsel confronted
Mr. Jack with a number of inconsistencies in his version of events, which
differed between his initial statement to a SIU investigator, his testimony at
the preliminary inquiry, and his testimony in chief at trial. For example, Mr.
Jack had testified at the preliminary inquiry that he had not seen a weapon in
the hands of any of the men who pursued Mr. Miller. At trial, he maintained
that he now recalled seeing a weapon in one males hands. When asked about this
inconsistency, Mr. Jack admitted that his testimony at the preliminary inquiry
on this point was false. Mr. Jack continued to deny that he, Mr. Goode, and Mr.
Miller were car hopping on the evening of the incident.
[56]
Counsel also prodded Mr. Jack about any discussions
he may have had with Mr. Miller about the incident in the time leading up to
trial. Mr. Jack maintained that he and Mr. Miller did not discuss matters in
detail. He further denied that he was lying to protect and/or support Mr.
Miller.
[57]
Mr. Goode advanced a different narrative
altogether. Mr. Goode was an acquaintance of Mr. Miller; they were not close. On
the evening in question, Mr. Goode met up with Mr. Miller and Mr. Jack. Mr.
Goode testified that Mr. Miller and Mr. Jack indicated that they were going to
steal valuables from cars and invited him to join them. Mr. Goode agreed. They walked
around trying doors on various cars to see if they had been left unlocked. Mr.
Goode entered three or four cars and believed that Mr. Miller and Mr. Jack also
entered a few cars. Mr. Goode estimated that between the three of them, they
entered between ten to fifteen cars that evening.
[58]
At a certain point, Mr. Goode was no longer interested
in entering cars and he fell back from Mr. Miller and Mr. Jack. They were
walking ahead of him and they entered a truck parked on a driveway in front of
a house. Mr. Goode believed he saw a garage door open. He then saw Mr. Miller
and Mr. Jack exit the truck, shut the doors, and start running. Mr. Goode saw
two men giving chase. He did not see either of these persons holding a metal
pipe. Mr. Jack ran towards Mr. Goode and Mr. Miller ran the other way. He did
not see Mr. Miller or the men again that night.
(6)
Eyewitnesses Evidence
[59]
James Silverthorn lived in one of the houses
adjacent to the altercation (i.e., the Silverthorn residence). The morning of
the incident, he woke up to a commotion outside. He realized it was coming from
the west side of his house. He looked out the west-facing window of his
upstairs bathroom and observed three people located by the wall of his next-door
neighbours house. He noted that: [T]here were two individuals, and, uh, they
were both, um, uh, swinging their arms and punching somebody that was up
against the wall. The punches were described as very hard and fairly rapid.
[60]
According to Mr. Silverthorn, the third person was
crouched down and cornered between the wall and the jut-out for a fireplace,
near the flowerbed on the Forde property. Mr. Silverthorn could not see whether
the third person was retaliating or throwing punches, but he was down low, while
the other two punched downward. The punches seemed to hit the third mans
torso. From Mr. Silverthorns vantage point, it appeared, to me, that,
um, one individual was being beaten by two other people. He did not see anyone
using a weapon at this point in time.
[61]
Mr. Silverthorn told his wife to call 911 and
went downstairs. Through the living room window at the front of the house, he
observed someone go between the houses towards the street. At the same time, a Black
male began banging frantically on the front door. According to Mr. Silverthorn:
[T]he person banged so hard on the door, it, they are double doors, um, I
thought that the doors, uh, were not gonna hold their security. The Black male
screamed call 911 several times and then left.
[62]
Mr. Silverthorn went back upstairs, where he
joined his son and wife, who had called 911. He took the phone from his wife.
As he spoke to the 911 operator, he was looking down from his upstairs window
and observed two people on the driveway near his wifes vehicle. One person was
on the ground between the car and a snowbank, while the other stood above him
holding what appeared to be a silver or white broom, like, a broomstick, or a
piece of pipe around four feet in length. According to Mr. Silverthorn: [T]he
person, a few times, tried to lift up, and the person would, uh, would stab
down with this thing to hold the person where they were. Mr. Silverthorn also
observed a third person on the street, pacing back and forth, who appeared to
be on the phone.
[63]
In addition to James Silverthorn, the trial
judge heard evidence from two other witnesses who saw the last stage of the
incident, as Michael restrained Mr. Miller in front of the Silverthorn
residence. The witnesses described Michael holding the pipe near Mr. Miller at
the front of the Silverthorn residence. However, neither of these witnesses saw
Michael use the pipe to keep Mr. Miller down on the ground.
(7)
The Evidence of George Forde
[64]
Mr. Forde lived in the other house adjacent to
the altercation (i.e., the Forde residence). Soon after the incident, he told
police that the pipe may have been from his property. He explained that he
often uses old sticks, like brooms or rakes, to hold up his plants in his yard.
However, at trial, he was unable to positively identify the pipe in question as
his own. Indeed, he denied that it was associated with his property, and
further denied that the pipe was anything that he recognized as something he
might use to keep plants up.
(8)
911 Calls
[65]
Three 911 calls were entered into evidence on
consent.
[66]
First, Christian called 911 at 2:48:13 a.m. He
told 911 dispatchers that: We caught guys trying to break into our cars. He
said that they caught one of the culprits, and his brother was restraining
him. He also said that the person who was being restrained needed an ambulance.
When asked about the nature of the injury that required medical attention,
Christian said: He was fighting. Hes fighting us back we were trying. He
continued, were all all fucking bloody right now. Christian did not
mention a weapon. Christian was then heard speaking to Mr. Miller, saying:
Im on 911 you fucking, you fucking in our cars and shit, eh? You picked the
wrong cars.
[67]
At 2:48:33 a.m., 911 operators received a call
from the Silverthorn residence. Mr. Silverthorn told the operator that someone
was banging on his door and yelling to call 911. He described his observations
and indicated that he saw one person bent over his wifes car and another
holding a stick that was approximately four feet long. He then stated:
Jesus, I think hes gonna strike the guy again.
[68]
At 2:52:21 a.m., Mr. Miller also placed a call
to 911. Michael can be overheard telling Mr. Miller he is under arrest and Mr.
Miller is overheard saying I know. Mr. Miller also said: Please get the
police here and an ambulance now. Twice he said, turn me the other way and
you have the wrong person man.
(9)
Evidence Found at the Scene
[69]
Police seized the pipe used during the
altercation from the front yard of the Silverthorn property. It is a hollow
aluminum pipe, approximately four feet in length. The blood found on the end of
the pipe was tested for DNA and Mr. Miller could not be excluded as the
contributor.
[70]
Police also found blood on the hood of the car
parked in the driveway of the Silverthorn residence, as well as in the snow
nearby. Drops of blood continued up the walkway towards the front door of the
residence. Blood was present at the base of the Silverthorns front door, on
the glass window of that door, and by the bench placed to the right of the
door. Mr. Silverthorn also testified that when he later inspected the side of
his home leading towards the fence, he observed blood on the eavestrough
downspout. Otherwise, there was no visible blood in between the houses or on
the objects found between the houses.
[71]
Both the Silverthorn and Forde properties were
damaged: the frame around the glass window of the front door of the Silverthorn
residence was cracked; the window on the door had scrapes or gouges in the
glass; and the bricks that surrounded the flowerbed along the wall of the Forde
residence were dislodged.
[72]
The sweater worn by Mr. Miller on the night of
the incident had significant blood stains along the sleeves, cuffs, and lower
front portion. There was no visible blood on either of the Theriault brothers
or their clothing on the morning in question.
[73]
Finally, when police searched Mr. Miller, they
found loose change, a lighter, a pair of sunglasses, a car key, and some marijuana
on his person. They also found a pair of gloves at the scene, which contained
Mr. Millers blood.
(10)
The Injuries Sustained by Mr. Miller and the
Theriault Brothers
[74]
Dr. Michael James Pickup is a forensic
pathologist who was qualified as an expert on consent. He testified that Mr.
Miller sustained the following injuries:
a.
A left globe rupture with retinal herniation,
resulting in a permanently blind left eye which required two surgeries.
b.
A left orbital floor fracture.
c.
A left nasal fracture.
d.
Two small forehead lacerations above the left
eye.
e.
One 0.5 cm laceration on the right forehead or
eyelid which required suturing.
f.
A right ulnar styloid (wrist) facture.
g.
A left lower eyelid injury which required
surgical removal of scar tissue.
[75]
Dr. Pickup testified that injuries (a), (b), (c)
and (g) could have occurred as a single event, or single blow. Dr. Pickup also hypothesized
that the likely cause for these injuries was blunt force trauma, by way of a
punch or punches, rather than a metal pipe or pole. In his expert report, Dr.
Pickup explained his reasoning underlying his favoured mechanism for the eye
injury:
A metal rod can be used two ways to inflict
injury depending on which surface (the end or the side) strikes the body. 1. If
the side of a metal rod was wielded with enough force to rupture the globe, I
would expect fractures to the bridge of the nose, and the lateral wall of the
orbit (zygomatic bone), possibly with overlying lacerations. 2. If the end of
the metal rod was used to puncture the globe, I would expect more eyelid
injuries. For these reasons, the metal rod as an instrument causing the
observed injuries is considered less likely, but not entirely excluded.
[76]
Dr. Pickup opined that the nasal fracture would
have bled profusely and immediately, whereas the eye injury would have bled,
but not as profusely as the nose injury.
[77]
Dr. Pickup testified that it was difficult to
say what his favoured mechanism for the fractured wrist was. He indicated that
the more likely mechanism for the fractured wrist was the forceful bending of
the wrist, such as when someone tries to break a backwards fall with their
hand. However, a strike with a metal pipe could have caused this injury while Mr.
Miller held his arm in a defensive pose. Dr. Pickup opined that it would be
difficult to explain this [injury] by a punch. Um, a hitting with a, with an
instrument would be more likely.
[78]
It was agreed at trial that Mr. Millers eye
injury satisfied the wounds, mains, disfigures element of aggravated assault.
[79]
Michael had no visible injuries but reported
feeling general soreness.
[80]
On the night in question, the only injury that police
photographed on Christian was a small scratch on his hand. Since then, Christian
reported several other relatively minor injuries: a bruise on his right thigh,
tenderness over the right anterior parietal area of his head and base of his
thumb, and pain in his right elbow. He was also later diagnosed with a
concussion based on self-reported symptoms.
C.
The trial judges FINDINGS OF credibility and
fact
[81]
The trial judge grappled in great detail with the
various inconsistencies in the witnesses testimony. He made extensive findings
of credibility and fact. This section will summarize each in turn.
(1)
Credibility Findings
(a)
The Theriault Brothers Credibility
[82]
While the trial judge accepted portions of the
brothers testimony, he rejected significant aspects of their evidence that
made him concerned about their overall credibility.
[83]
With respect to Michael, the trial judge stated
the following at para. 239 of his reasons:
There are aspects of Michaels evidence that I
accept as I will detail momentarily. That said, there are significant aspects
of his evidence that I do not accept. I reject his assertion that his initial
intention was to arrest Mr. Miller. I am troubled by his description of how Mr.
Miller first produced the metal pipe. I also have significant concerns about
his description of what happened in between the Silverthorn and Forde
residences. Lastly, I do not accept his evidence about what happened at the
front door of the Silverthorn residence. His evidence is contradicted by the
physical evidence at the scene and the evidence of other witnesses.
[84]
With respect to Christian, the trial judge accepted
portions of his police statements while rejecting others. He rejected the
suggestion initially advanced by Christian that the pipe possibly came from Mr.
Millers pants. This suggestion was seen as an obvious attempt to paint a less
than favourable picture of Mr. Miller and may also have been an attempt by
Christian to distance himself and his brother from the pipe. The trial judge
was also troubled by Christians comment that can be overheard on the 911 call
(namely, you picked the wrong cars). The trial judge found that this
statement undermined the self-defence narrative advanced in both of Christians
police statements, and instead suggested that Christian believed a degree of
retribution had been administered.
(b)
Mr. Millers Credibility
[85]
The trial judge found that Mr. Miller presented
significant credibility problems, noting that [h]e proffered a version of
events that was false in certain material aspects. Specifically, he found that
Mr. Miller attempted to maintain that false narrative despite the evidence to
the contrary in relation to his illicit activities leading up to the incident.
[86]
The trial judge noted that it is dangerous to
convict a defendant solely on the unconfirmed word of a person who has
demonstrated a willingness to lie under oath, and accordingly instructed
himself that he must approach Mr. Millers evidence with great caution. He
went on to note that he must consider whether other independent evidence
confirms key points of Mr. Millers testimony in a manner that may restore the
courts faith in his evidence.
[87]
As I will return to below, the trial judge
accepted only Mr. Millers evidence regarding what happened in front of the
Silverthorn door. He rejected Mr. Millers narrative about what he and his
friends were up to that night. He also rejected Mr. Millers evidence
concerning what happened in front of the Theriault residence, prior to the
struggle. Finally, due to Mr. Millers credibility issues, the trial judge
could not accept his evidence concerning what happened between the Forde and
Silverthorn houses because there was a lack of independent evidence to
corroborate Mr. Millers account.
[88]
At the conclusion of his assessment of Mr.
Millers credibility, the trial judge made the following comment at para. 246:
In assessing Mr. Millers credibility, I am
also mindful that I must assess his evidence in a fair context and with a
sensitivity to the realities that racialized individuals face in society. In
this regard, when I assess Mr. Millers initial denial of criminal involvement
with the Theriault vehicle, I must keep in mind that as a young black man, Mr.
Miller may well have had many reasons for denying any wrongdoing including a
distrust of law enforcement. This is understandable especially in view of his
injuries and the fact that he was initially arrested and later charged with a
number of criminal offences relating to the incident.
(c)
The Credibility of Mr. Jack, Mr. Goode, and Mr.
Silverthorn
[89]
The trial judge rejected most, if not all, of
Mr. Jacks evidence. The trial judge found that he posed significant
credibility problems since he was intent on offering a version of events that
supported Mr. Miller regardless of the truth.
[90]
The trial judge thought that Mr. Goode, on the
other hand, was credible and told the truth about what he, Mr. Miller, and Mr.
Jack were doing on the night in question.
[91]
Finally, the trial judge found Mr. Silverthorns
account compelling, dispassionate, and objective. There were, however,
potential reliability concerns as he made his observations from an upstairs
window in less than ideal conditions in a highly emotive environment. That
said, the trial judge generally accepted Mr. Silverthorns evidence as
credible and reliable.
(2)
Findings of Fact
(a)
The Events
That Precipitated the Altercation
[92]
The trial judge was satisfied that Mr. Miller,
Mr. Jack, and Mr. Goode were car hopping before they encountered the
Theriault brothers. He was further satisfied that Mr. Miller and Mr. Jack had
opened the unlocked doors to the vehicle on the driveway at the Theriault
residence, and Michael and Christian essentially caught them in the act of
stealing items from that vehicle.
[93]
In making this finding, the trial judge rejected
the evidence of Mr. Miller and Mr. Jack, noting that they attempted to proffer
a false version of events that avoids any mention of car hopping. Their various
statements were inconsistent on material issues, were contradicted by physical
evidence at the scene, and were inconsistent with the evidence of Mr. Goode,
who admitted they were car hopping that evening.
[94]
While the trial judge did not address this point
explicitly, he rejected Mr. Millers entire explanation about what
happened in front of the Theriault house, which included his memory of Michael
identifying himself as a cop. The trial judge instead accepted Michaels
version of events on this point, in which he failed to identify himself as a
police officer at that time.
(b)
The Provenance of the Metal Pipe
[95]
Based on the evidence before him, the trial
judge identified three possible ways that the metal pipe could have been
introduced into the altercation: (1) Mr. Miller had the pipe with him
initially, either down his pants or perhaps in his hands; (2) Michael or
Christian took the pipe from the garage as they left to confront the unknown persons
in their parents vehicle; or (3) the pipe was located in between the
Silverthorn and Forde residences and was grabbed by either Mr. Miller or
one of the brothers at some point during the altercation.
[96]
The trial judge disposed of the first option
easily, finding it to be virtually impossible for Mr. Miller to have had a
four foot long pipe secreted down his pants as he walked the neighbourhood and
later ran away from the [Theriault brothers].
[97]
With respect to the second option, the trial
judge thought that it made sense for Michael or Christian to grab the metal
pipe as they were leaving the garage. First, they were confronting an unknown
individual or individuals who they believed to be committing an offence and who
could potentially pose a safety risk. A trained police officer would think
twice before entering that type of situation without anything to protect
himself. Second, it would explain why Michael body checked Mr. Miller against
the fence instead of grabbing him: he was holding the pipe in his hands. The
trial judge found this option to be a reasonable possibility.
[98]
Turning to the third option, the trial judge accepted
that the pipe was possibly located at the side of the Forde residence, perhaps
stored against the wall near the fireplace jut out and flowerbed. The trial
judge was troubled by Michaels evidence as to how the pipe was produced by Mr.
Miller: it seemed quite unlikely that as Mr. Miller was body checked, he simply
landed right where the metal pipe happened to be. The trial judge was also
troubled by Michaels evidence that the pipe could have come from the gas
line at the side of the house. The trial judge noted that Mr. Miller would
have had to run past the air conditioning rough-in on his way to the fence while
being chased, and it is highly unlikely that in so doing he would have managed
to spot and grab the pipe without Michael noticing it.
[99]
Ultimately, the trial judge did not decide with
certainty where the pipe came from. He also did not decide who first wielded
the pipe.
(c)
The Theriault Brothers Intent to Arrest
[100]
From the outset of this case, the Theriault brothers maintained that
their intent was always to arrest Mr. Miller, notwithstanding that Michael did
not identify himself as a police officer or utter words of arrest until the
last portion of the encounter. The trial judge rejected Michaels explanation
that everything unfolded quickly and that he just did not have time to
identify himself as a police officer and utter words of arrest. Rather, the
trial judge found that this was not simply a momentary delay in the midst of a
rapidly unfolding and dynamic situation, but a prolonged and sustained
failure to abide by police training that is rooted in common sense.
[101]
The trial judge found the fact that nothing was said during the
chase to be telling especially given the distance covered on a cold night in
the middle of winter, when Michael was only wearing socks. The trial judge
found it equally, if not more telling that nothing was said to Mr. Miller at
the time of the body check or when the incident escalated into a violent
struggle. He also found it to be telling that, by the stage of the encounter
when Michael pulled his phone out to call 911, Michael still did not identify
himself or utter words of arrest. Lastly, the trial judge was troubled that, as
the struggle subsided and Mr. Miller moved towards the front door of the
Silverthorn residence, Michael again failed to identify himself as a police
officer or utter words of arrest. Instead, the trial judge pointed out that
Michael retrieved the metal pipe and brandished it.
[102]
The trial judge concluded his commentary on this point with the
following comments at paras. 276-277:
It is inconceivable that a trained police
officer intent on effecting an arrest would have failed to utter a word by this
stage in an encounter. Lastly, it is telling that it is only when Mr. Miller is
on the phone with 911 that Michael Theriault finally identifies himself as a
police officer.
On the whole, I am satisfied that Michael
Theriaults initial intent was not to conduct an arrest. It was likely to
capture Mr. Miller and assault him.
[103]
With respect to Christian, the trial judge paid particular attention
to his comment You picked the wrong cars, and concluded that at least in
Christians mind, retribution had been served.
[104]
With respect to Mr. Millers state of mind at the time of the chase,
the trial judge made the following comment, at para. 279:
in the absence of any words of arrest or
words identifying a police presence, I cannot conclude that Mr. Miller
would have known that his pursuers were attempting to lawfully arrest him. At
best, he would have known that his pursuers wanted to catch him, perhaps to
arrest or detain him for police, perhaps to harm him, or perhaps both.
(d)
The Events that Transpired between the Homes
[105]
The trial judge accepted Michaels account concerning the beginning
of the struggle: namely, that he body checked Mr. Miller against the fence as
Mr. Miller attempted to scale it in an effort to escape. He rejected Mr.
Millers explanation that he was attempting to go to a house for help.
[106]
After the body check, the trial judge found that a violent struggle
ensued near the area of the fence. As the struggle continued, it progressed
over to the fireplace jut out and flowerbed alongside the Forde residence. The
trial judge found that the metal pipe could have been introduced into the
struggle at some point after the body check when the parties moved over to the
flowerbed. Given the credibility issues with Mr. Miller, the trial judge was
unable to accept that he never had the pipe in his hands and it was a
reasonable possibility that he wielded the pipe at some point during this
initial encounter.
[107]
He next found that there was a further struggle at the side of the
Forde residence near the fireplace jut out and flowerbed. He accepted that by
this stage, Christian had joined the melee and was holding Mr. Miller in a
headlock for at least some period of time.
[108]
While the trial judge could not reject the possibility that Mr.
Miller wielded the pipe initially, he was satisfied that if he did, it quickly
ended, likely with the pipe being taken away by Michael as he indicated in his
evidence. He further found that the fight thereafter quickly became one-sided.
In this regard, he accepted Mr. Silverthorns evidence that when he looked
out his bathroom window, he observed two individuals rapidly and forcefully
punching a third individual in the area of the fireplace jut out.
[109]
The trial judge found that the struggle initially tapered off likely
once Mr. Miller stopped fighting. He accepted Michaels evidence that when
Mr. Miller stopped, he let him go and grabbed his phone, ostensibly to call
911. He further found that the call was not completed, and the phone was
dropped.
[110]
What likely happened, according to the trial judge, was that Mr.
Miller broke free from Michael and Christian at the flowerbed and started to
retreat. Michael then re-engaged. The trial judge rejected Michaels evidence
that he did not hit Mr. Miller after he left the flowerbed. He accepted
that both Michael and Christian continued to hit and kick Mr. Miller when they
were between the houses. The trial judge did not make any finding that Mr.
Miller was still acting aggressively at this stage of the encounter.
[111]
The trial judge found that the eye injury was likely caused at some
point between the flowerbed and Mr. Millers movement towards the door of the
Silverthorn residence. He made this finding based on Dr. Pickups evidence that
the injury would have caused profuse blood loss, and the blood trail at the
side of the house confirmed that the injury was caused while the parties were
still in between the houses. Further, the trial judge reasoned that the injury
could not have occurred on the flowerbed as there was no blood in that location
and neither Michael nor Christian had any blood on them, despite the struggle occurring
in close quarters at that stage.
[112]
The trial judge accepted Dr. Pickups evidence that the eye injury was
most likely caused by a punch, and not a strike with a metal pipe. With respect
to the wrist fracture, the trial judge found that it could have been a
defensive wound or caused when Mr. Miller fell backwards with an arm
outstretched to break the fall. He further found that the multitude of punches
with significant force caused Mr. Millers bruises.
(e)
The Events in Front of the Silverthorn Residence
[113]
After the altercation in between the houses, the trial judge
accepted that Mr. Miller moved toward the front door of the Silverthorn
residence, away from Michael and Christian. He was further satisfied that Mr.
Miller was vigorously banging on the door of the Silverthorn residence. It was
also clear that he was badly injured and seeking help.
[114]
The trial judge accepted that Michael followed Mr. Miller to the
front of the house, and that Michael was brandishing the pipe at this time. The
trial judge rejected Michaels explanation that he retrieved the metal pipe to
prevent Mr. Miller from rearming himself. In this portion of the incident, Mr.
Miller was not going near the pipe and in fact was in retreat.
[115]
The trial judge was satisfied that Michael struck Mr. Miller in the
face with the pipe when he was standing at the front door of the Silverthorn
residence. He made this finding based on Mr. Millers evidence, in combination
with the available external evidence which provided sufficient confirmation
of Mr. Millers evidence on this point. This evidence included the following:
a.
Mr. Miller testified that as he was banging on the door, he turned
around and was struck in the face by the metal pipe.
b.
There was a gouge/scrape on the glass of the
front door of the Silverthorn residence, which was not present before the
incident. While Mr. Miller banging on the door could have caused the crack in
the window/door frame, the gouge/scrape on the glass must have been caused by
contact with the edge of the metal pipe. According to the trial judge, this
would have been caused when Mr. Miller was struck in the face with the pipe.
c.
Mr. Millers blood was on the end of the pipe.
The trial judge concluded that the blood was placed on the pipe when it came
into contact with Mr. Millers face, which was already bloodied from the punch
that injured his eye. Again, the only person alleged to have held the pipe
after the eye injury which was sustained between the houses was Michael.
d.
Michael brandished the pipe with two hands and
followed Mr. Miller in front of the house.
e.
While Mr. Silverthorn did not suggest seeing or
hearing the pipe come into contact with his door, he did note that the banging
was very loud, and the door was shaking. The trial judge reasoned that the
failure to observe the strike against the glass did not undermine the remaining
evidence.
[116]
The trial judge went on to find that Mr. Miller walked toward the
driveway and surrendered onto the hood of the car. The trial judge accepted Michael
struck Mr. Miller further times with the pipe after he was struck at the door
and before police arrived at the scene. This finding was based on Mr. Silverthorns
observation that Michael was using the pipe to downward jab Mr. Miller when he
tried to get up off the ground. The fact that the other witnesses did not see
Michael use the pipe in any way did not undermine Mr. Silverthorns
observations, as they were all observing the same event
at different times,
from different vantage points, while having been suddenly awoken in the middle
of the night.
[117]
Police subsequently arrived on the scene, and as explained above, they
handcuffed, searched, and arrested Mr. Miller.
D.
The trial judges analysis
(1)
The Trial Judges Analysis of Whether the
Brothers Attempted to Lawfully Arrest Mr. Miller
[118]
The trial judges reasons with respect to the arrest issue were
confined to one paragraph. At para. 315, he wrote:
I am satisfied that Michael Theriaults
initial intent was likely not to arrest Mr. Miller but rather to capture him
and assault him. That said,
I cannot exclude the
reasonable possibility that his intent was also to arrest him, notwithstanding
the manner in which he conducted himself.
As such, I cannot conclude
that the Crown has proven beyond a reasonable doubt that the initial body check
against the fence amounts to an assault in law.
To be
clear, it was probably an assault as Michael probably intended only to capture
and assault Mr. Miller at this stage. However, as with all criminal cases,
probability is not a sufficient standard of proof
. As such, I have a
reasonable doubt about whether this initial interaction amounts to an unlawful
assault. [Emphasis added.]
[119]
In other words, the
trial judge had a reasonable doubt that the brothers were only trying to
capture Mr. Miller to assault him; there was a possibility that they were also
trying to effect a lawful arrest. Although not stated explicitly, it seems the
trial judge concluded that the body check constituted reasonable force.
(2)
The Trial Judges Analysis of the Self-Defence
Claim
[120]
The trial judge assessed the self-defence claim from the vantage
point that it was a reasonable possibility that Mr. Miller initially wielded
the pipe and that Michael and Christian were responding to this aggressive
action.
[3]
The trial judge then emphasized, at paras. 320-321, that he must
treat the events that unfolded from the flowerbed stage onward as one
continuous event:
When I assess this evidence, I remind myself
that this incident unfolded quickly and in real time, without an opportunity
for reflection.
I must guard against artificially
dissecting the incident to determine at precisely which point a punch turned
from a lawful exercise of self-defence into an unlawful assault
. Again,
the law does not require clinical precision. The test is reasonableness and the
onus on the Crown is to disprove self-defence beyond a reasonable doubt.
It is tempting to divide the portion of the
incident that occurs on the flowerbed from the portion of the incident that
occurs roughly in between the homes when Mr. Miller is on the ground facing the
fence. However, I find that it is artificial to do so. The reality is that this
portion of the incident is essentially one continuous event. The defendants and
Mr. Miller are engaged at the flowerbed and the struggle moves over to the spot
in between the houses. During this portion of the incident, Michael Theriault
tries to use his phone to call 911. The fighting then resumes and Mr. Miller suffers
his eye injury at some point. He then moves over to the front door while
Michael goes to retrieve the metal pipe. [Emphasis added.]
[121]
Ultimately, the trial judge was left with a reasonable doubt about
whether Michael and Christian were acting in lawful self-defence during this
portion of the incident. He reasoned that, if Mr. Miller initially wielded the
pipe, Michael and Christian would have been entitled to act in self-defence by
repeatedly punching Mr. Miller to disarm him and thereafter to prevent him,
within reason, from engaging in any further assaultive conduct. He then noted
that while in a perfect world, once Mr. Miller was disarmed, the defendants
would have stopped hitting him, clinical precision is not required. The trial
judge was satisfied that the scope of permissible self-defence could, in these
circumstances, extend beyond the initial disarming of Mr. Miller. He concluded
with the following comment, at para. 322:
However, and to be clear, I am simply left
with reasonable doubt on this issue. The defendants were probably
not
acting
in self-defence at this stage and by the end of this portion of the incident,
the self-defence justification would have been razor thin. By that stage, they
were probably just beating on Mr. Miller. Probability, however, is not the test
for a criminal case. [Emphasis in original.]
[122]
The trial judge accepted that the eye injury (which satisfied the
wounds, maims, disfigures element of aggravated assault) occurred between the
houses, while self defence was still in play. As such, the trial judge
acquitted Michael and Christian of aggravated assault in relation to the
incident between the houses.
[123]
However, for the trial judge, the events in front of the Silverthorn
residence extended beyond the permissible scope of self-defence. Once Mr.
Miller moved to the side wall of the Silverthorn residence, he was badly
injured, in retreat and seeking refuge. The trial judge noted that [t]he
already razor thin self-defence justification evaporates at this stage.
[124]
The trial judge was satisfied beyond a reasonable doubt that when
Michael struck Mr. Miller with the pipe at the front door of the Silverthorn
residence, he was neither acting in self-defence nor attempting to effect a
lawful arrest. As such, Michael committed an unlawful assault contrary to s.
265 of the
Criminal Code
. However, as explained above, the trial judge
was not satisfied beyond a reasonable doubt that this assault caused the eye
injury and therefore it could not fulfil the wounds, maims, disfigures
requirement of aggravated assault under s. 268(1) of the
Criminal Code
.
[125]
The trial judge found that Christian was not a party to the assault
simpliciter offence because, at that point, Christian was some distance way.
[126]
The trial judge was satisfied beyond a reasonable doubt that the
pipe was used as a weapon and it was used on more than one occasion, including
at least one strike to the face at the door and at least two downward jabs
while on or near the driveway. However, he could not enter a conviction for
the offence of assault with a weapon because it was neither a charge before the
court, nor is it a lesser and included offence of aggravated assault.
(3)
The Trial Judges Analysis of the Attempts to
Obstruct Justice
[127]
The trial judge ultimately could not conclude beyond a reasonable
doubt that the core narrative of the statements provided by the brothers at the
scene were false, given his conclusions on the self-defence issue. He noted: Again,
it is probably false, but probably false is not enough.
[128]
He was, however, troubled by the absence of any mention that Michael
wielded the pipe and struck Mr. Miller once Mr. Miller was seeking assistance
at the Silverthorn residence. He agreed with the Crown that the failure to
even mention that Michael was holding the pipe at this point in time is likely
an attempt to distance Michael from the pipe.
[129]
The trial judge also noted that the issue in relation to Christians
second statement was more difficult because the statement was detailed and
still did not mention Michaels use of the pipe. Ultimately, the trial judge found
that Christian Theriault was not completely open and forthright about what
happened but he was not satisfied beyond a reasonable doubt that the failure
to mention Michaels possession and use of the metal pipe at the end of the
incident amounted to an attempt to obstruct justice.
E.
ISSUES in the defence appeal
[130]
Michael appeals his conviction of common assault in relation to the
events in front of the Silverthorn residence. He makes the following arguments
on appeal:
a.
the verdict was unreasonable, and the trial judge misapprehended the
evidence;
b.
the trial judge failed to explain why Michaels corroborated
evidence did not raise a reasonable doubt or analyze whether his use of force
was reasonable;
c.
assault simpliciter was not an included offence
in this case; and
d.
the sentence was unfit.
[131]
I analyze each ground of appeal in the above-noted order.
F.
Analysis of defence appeal
(1)
Was the Verdict Unreasonable?
[132]
Section 686(1)(a)(i) of the
Criminal Code
bestows a duty on
an appellate court to set aside a verdict that is unreasonable or cannot be
supported by the evidence. A conviction is reasonable if the verdict is one
that a properly instructed jury or judge could reasonably have rendered:
Corbett
v. The Queen
, [1975] 2 S.C.R. 275, at p. 282;
R. v. Yebes
, [1987]
2 S.C.R. 168, at p. 185;
R. v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R.
381, at para. 37. In applying that test, a [c]ourt must re-examine and to some
extent reweigh and consider the effect of the evidence:
R. v. Sheppard
,
[2002] 1 S.C.R. 869, 2002 SCC 26, at para. 34 (citing
Yebes
, at p.
186).
[133]
In this case, Michael argues that his assault conviction was
unreasonable due to the trial judges treatment of Mr. Millers evidence, given
that Mr. Miller presented significant credibility issues. Specifically, Michael
submits that the trial judge failed to give effect to his finding that Mr.
Miller perjured himself, and instead explained and excused it. On this point,
Michael places great significance on para. 246 of the trial judges reasons,
which I repeat for convenience:
In assessing Mr. Millers credibility, I am
also mindful that I must assess his evidence in a fair context and with a
sensitivity to the realities that racialized individuals face in society. In
this regard, when I assess Mr. Millers initial denial of criminal involvement
with the Theriault vehicle, I must keep in mind that as a young black man, Mr. Miller
may well have had many reasons for denying any wrongdoing including a distrust
of law enforcement. This is understandable especially in view of his injuries
and the fact that he was initially arrested and later charged with a number of
criminal offences relating to the incident.
[134]
In reference to this paragraph, Michael submits that: Mr. Millers
perjury was not explicable or explainable and could not be laundered through
speculative assertions by the trial judge as to why Mr. Miller might have lied
based on the colour of his skin or his distrust for law enforcement.
[135]
The Crown argues the following: the trial judges credibility
assessment of Mr. Miller is entitled to considerable deference; his reasons
disclose no error; and the trial judge looked for and found confirmatory
evidence before he relied on aspects of Mr. Millers account of events. The
Crown further submits that the trial judges substantial rejection of most of
Mr. Millers evidence shows that he did not excuse the frailties in Mr.
Millers evidence at all; instead, his reasons reveal quite the opposite.
[136]
For the reasons that follow, I agree with the Crown.
[137]
The record gives no indication that the trial judge abandoned his obligation
to strictly scrutinize the evidence of a witness whose credibility was in
question. There could be no dispute that Mr. Miller presented significant
credibility issues, and this fact was not lost on the trial judge. Indeed, it
is precisely why the trial judge rejected most of Mr. Millers evidence and
accepted only his evidence about what happened in front of the Silverthorn
residence, which he viewed as sufficiently corroborated.
[138]
In any event, the trial judge was entitled to
accept Mr. Millers evidence about what happened in front of the Silverthorn
residence notwithstanding the credibility issues he identified. Trial judges
may rely upon the evidence of someone who demonstrated a willingness to lie
under oath, provided they do so with great caution:
R. v. Khela,
2009
SCC 4, [2009] 1 S.C.R. 104, at para. 37. Where a particular risk attaches to a
critical element of that persons evidence, trial judges must be
satisfied that the potentially unreliable
evidence can be relied upon as truthful:
R. v.
Kehler
,
[2004] 1 S.C.R. 328, 2004 SCC 11,
at para. 20.
[139]
The trial judge was entitled to accept all, some or none of Mr.
Millers evidence. He plainly emphasized the dangers inherent in convicting
Michael on the basis of Mr. Millers evidence but was satisfied that the
potentially unreliable evidence he accepted from Mr. Miller could be relied
upon as truthful. In particular, he found that Mr. Millers narrative about
what happened in front of the Silverthorn residence was independently supported
by several pieces of evidence, including a gouge/scrape on the glass of the
front door, Mr. Millers blood on the end of the pipe, and Michaels own
admission that he brandished the pipe. None of this evidence was tainted by any
connection to Mr. Miller or concerns about the truthfulness of his testimony.
[140]
While I return to the trial judges reliance on this evidence below,
as Michael also argues that it amounted to a misapprehension, for now, suffice
to say, the trial judge was clearly satisfied that Mr. Millers evidence about
what happened in front of the Silverthorn house was true. I see no error in the
trial judges credibility assessment, and his assessment is entitled to
significant deference on appeal:
R. v. M. (O.),
2014 ONCA 503,
318 O.A.C. 390, at para. 19;
R. v. A. (A.),
2015 ONCA 558, 337 O.A.C.
20, at para. 121.
[141]
Moreover, I see no merit to Michaels argument that the verdict was
unreasonable because the trial judge recognized and observed that he must
assess Mr. Millers credibility in a fair context and with a sensitivity to
the realities that racialized individuals face in society and that he must
keep in mind that as a young black man, Mr. Miller may well have had many
reasons for denying any wrongdoing including a distrust of law enforcement.
[142]
Contrary to Michaels suggestion, this paragraph of the trial
judges reasons does not explain and excuse Mr. Millers credibility
issues. Rather, these comments simply acknowledge the racialized context of
this case.
[143]
The existence of anti-Black racism in Canadian society is beyond reasonable
dispute and is properly the subject matter of judicial notice. It is well
recognized that criminal justice institutions do not treat racialized groups
equally: Robin T. Fitzgerald and Peter J. Carrington,
Disproportionate Minority Contact in Canada: Police and Visible Minority
Youth (2011) 53
Can. J. Crimin. & Crim. Just.
449, at
p. 450;
R. v. Le,
2019 SCC 34, 375 C.C.C. (3d) 431. This reality may
inform the conduct of any racialized person when interacting with the police,
regardless of whether they are the accused or the complainant.
[144]
The social context of anti-Black racism was relevant in the case at
hand. I agree with the trial judge that it would have been understandable for
Mr. Miller to distrust law enforcement. When police arrived on the scene, Mr.
Miller was severely injured; he was bleeding profusely from his face and unable
to stand on his own. The Theriault brothers had no visible injuries, except for
a scratch on Christians hand. Yet, police permitted Michael to handcuff and
search the severely injured Mr. Miller. The trial judge was right to point out
that the matter may have unfolded differently had the first responders arrived
at a call late one winter evening and observed a black man dressed in socks
with no shoes, claiming to be a police officer, asking for handcuffs while
kneeling on top of a significantly injured white man. Mr. Millers charges
were not stayed until months later.
[145]
This context does not excuse Mr. Millers choice to lie about his
illicit activities that night, nor the fact that he was unlawfully rummaging
through cars, looking for items to steal. While Mr. Miller may have been
justifiably arrested for his conduct, his actions did not justify the severe
beating that the Theriault brothers meted out on him. The trial judge was correct
to consider the social context of anti-Black racism, and its effect on Mr.
Millers actions and how he was treated on the night in question. It is common
sense that being a Black man in our society could have affected Mr. Millers
trust in law enforcement and the criminal justice system more broadly.
[146]
In my view, it is incumbent on trial judges to consider relevant
social context, such as systemic racism, when making credibility assessments.
The trial judge did not err in doing so, and his findings are entitled to
considerable deference on appeal.
[147]
It also should be noted that the trial judges contextualization of
Mr. Millers evidence did not overwhelm nor determine the trial judges
credibility assessment by any stretch of the imagination. The impugned comments
are part of one paragraph in a three hundred and thirty-six paragraph judgment.
And again, the trial judge rejected most of Mr. Millers testimony, and only
gave weight to his testimony regarding the events at the door of the
Silverthorn residence after considering independent evidence which confirmed
it.
[148]
A court of appeal reviewing a trial courts assessments of
credibility to determine whether the verdict is reasonable cannot interfere
with those assessments unless it is established that they cannot be supported
on any reasonable view of the evidence:
R. v. R.P.,
2012 SCC 22,
[2012] 1 S.C.R. 746, at para. 10. The trial judges reasons disclose no such error.
In my view, the trial judges treatment of Mr. Millers evidence and his
credibility in no way compromised the reasonableness of the verdict. I would
dismiss this ground of appeal.
(2)
Did the Trial Judge Misapprehend the Evidence?
[149]
A misapprehension of evidence encompasses at least three errors: (1)
the failure to consider evidence relevant to an issue; (2) a mistake about the
substance of an item or items of evidence; and (3) a failure to give proper
effect to evidence:
R. v. Stennett
, 2021 ONCA 258, at para. 50.
[150]
If there is an allegation of a misapprehension of evidence, the
first step is to consider the reasonableness of the verdict. If the verdict is
not unreasonable, then this court determines whether there was a
misapprehension of evidence that occasioned a miscarriage of justice:
R. v.
Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 219;
Stennett
,
at para. 51. A misapprehension of evidence will occasion a miscarriage of
justice and render a trial unfair where the trial judge is mistaken as to the
substance of material parts of the evidence and those errors play an essential
part in the reasoning process resulting in a conviction:
Morrissey,
at
p. 221;
R. v. Lohrer,
[2004] 3 S.C.R. 732, 2004 SCC 80, at paras. 2,
8. If the appellant fails on this ground as well, the court must then consider
whether the misapprehension rests on an error of law:
Morrissey,
at
pp. 219-20;
Stennett
, at para. 51. If so, an appellate court may
nonetheless dismiss the appeal if the Crown shows that no substantial wrong or
miscarriage of justice occurred:
Morrissey,
at p. 220;
see
also
Criminal Code,
s. 686(1)(b)(iii).
[151]
In this case, Michael argues that a misapprehension of evidence
occasioned a miscarriage of justice. In particular, he takes issue with the
trial judges finding that Michael struck Mr. Miller in the face with the pipe
in front of the Silverthorn residence. Again, in addition to Mr. Millers
testimony, the trial judge cited the following evidence in support of that
conclusion:
a.
there was a gouge/scrape on the glass door of the Silverthorn
residence, which was not there before the incident and seemed consistent with
the impact of a metal pipe;
b.
police found Mr. Millers blood on the end of
the pipe, and it was common ground that he did not possess the pipe after he
obtained his eye injury (which caused him to bleed); and
c.
Michael admitted that he picked up the pipe
between the houses and held it upright with two hands as he followed Mr. Miller
to the door of the Silverthorn residence, when Mr. Miller was clearly
injured and seeking refuge.
[152]
Michael argues the trial judge erred by misapprehending this
evidence in five ways. I will address each alleged misapprehension in turn. In
essence, the Crown submits that each finding in question was supported by the
record when viewed in its totality, and none of Michaels complaints rise to
the level of a misapprehension of evidence.
[153]
Ultimately, I agree with the Crown. As I will explain, none of Michaels
complaints meet the exacting standard required to overturn the assault conviction
on the basis of a misapprehension of evidence.
(a)
Finding #1:
Michael caused
the gouge/scrape when he struck Mr. Miller in the face with the pipe
[154]
First, Michael takes issue with the trial judges reliance on the
gouge/scrape on the glass door of the Silverthorn residence to support the
conclusion that Michael struck Mr. Miller in the face with the pipe. Michael points
out that no expert evidence was called on this issue, nor was the glass made an
exhibit. Michael also argues that there was no basis to infer that Mr. Miller
did not cause the gouge/scrape when he was banging on the door for help.
[155]
Defence counsel made similar arguments in its written submissions at
trial in reply to the following argument advanced by the Crown:
The Crown relies on common sense and human
experience to submit that this diagonal gash visible on the glass was not made
by Mr. Millers hand banging for help. It was made by Michael Theriault hitting
it with the pipe as he swung at Mr. Miller, consistent with what Mr. Miller
described. It [is] impossible to look at this diagonal gash and attribute its
cause to anything other than being hit by an object.
[156]
Defence counsel submitted that it could not be credibly claimed that
the gouge/scrape was caused by the pipe coming into contact with the door in
the absence of any witness testimony confirming that this indeed occurred.
Rather, defence counsel offered an alternative inference: the evidence
disclosed that the gouge/scrape was caused by Mr. Millers fist when he was
banging on the door. According to defence counsel, it followed that the
evidence was only capable of supporting the finding that Mr. Miller caused the
gouge/scrape in the glass.
[157]
In my view, it was within the trial judges discretion, as the trier
of fact, to reject defence counsels theory. The trial judge found that a hand
or fist would not have caused the gouge/scrape in the glass, whereas, it would
have been caused by contact with the edge of a metal pipe. While this finding was
neither supported by any expert evidence, nor expressed by any of the witnesses,
it nevertheless rested on common sense. One would think that a pounding hand or
fist would cause a crack, not a scrape. It seems more likely that a metal pipe,
as a hard surface, would have caused a gouge/scrape in the glass. This
non-technical matter did not require expert evidence as it was within the
knowledge and experience of the ordinary person and trier of fact:
R. v.
Mohan,
[1994] 2 S.C.R. 9, at pp. 23-25. Moreover, defence at trial did not
argue that expert evidence was required to prove the pipe gouged the glass; it
only offered another cause for the damage namely, the fist pounding which
defence argued was equally plausible. I see no error in the trial judges
analysis on this point.
[158]
Michael also argues that it is illogical to reason that because the
pipe made contact with the door, it must have at the same time made contact
with Mr. Millers face. While I agree that there is no way to prove with
absolute certainty that the pipe made contact with both surfaces in the same
motion, I do not understand the trial judge to have made such a finding.
Rather, the trial judge found that the gouge or scrape was caused by contact
with the edge of the metal pipe used in the incident, and that this would have
been caused when Mr. Miller was struck in the face with the pipe. In other
words, the striking of the door and Mr. Millers face was part of the same
incident.
[159]
The trial judge arrived at his conclusion that the pipe made contact
with Mr. Millers face and the door as part of the same incident because
independent evidence supported Mr. Millers version of events (again, the
gouge/scrape in the glass, the blood on the end of the pipe, and Michaels own
admission about brandishing the pipe). When viewed in totality, I agree with
his assessment. This finding is owed deference on appeal and does not amount to
a misapprehension of evidence.
(b)
Finding #2:
The
blood on the pipe was placed there when Michael struck Mr. Miller in the face
[160]
Second, Michael submits that the trial judge also erred in his
assessment of the blood on the pipe. He notes that no expert evidence was
called on the issue of transference or the lack of blood spatter. He instead
offers an alternative explanation on appeal: Mr. Millers blood could have
come on the pipe from it being transferred from [Michaels] hands after
punching him and causing the eye injury when [Michael] grabbed the pipe to
prevent Mr. Miller from re-arming himself.
[161]
For the trial judge, the bloodied pipe was extremely telling given
the sequence of events and Dr. Pickups evidence regarding Mr. Millers blood
loss. Again, the trial judge found that Mr. Miller sustained the eye injury
when he was punched in the face between the two houses. His nasal fracture
which Dr. Pickup testified could have resulted from the same blow as the eye
injury is what caused him to bleed profusely. By Michael and Christians own
evidence, the metal pipe was not involved in the altercation at this point in
time. Michael then went and picked up the pipe, as Mr. Miller retreated to the
Silverthorn residence. Michael brandished the pipe with both hands as he
followed Mr. Miller to the front door. He maintained that he did not use the
pipe on Mr. Miller at any point going forward. Yet, somehow, Mr. Millers blood
ended up on the tip of the pipe. Something clearly did not add up.
[162]
As noted above, Michael argues that he somehow transferred Mr.
Millers blood to the end of the pipe. The trial judge did not address or
consider this possibility, as it was not raised by defence counsel at trial. However,
I agree with the Crown that Michaels submission was not a reasonable inference
on the facts. First, there was no visible blood on Michael after the incident.
Second, this explanation is inconsistent with how he said he held the pipe
(upright and with two hands). If he transferred the blood to the pipe, one would
expect blood marks where his hands would have been, rather than on the tip of
the pipe. In my view, the trial judge did not err by failing to consider this
alternative possibility.
[163]
It is also difficult to conceive of how Mr. Miller could have
transferred his own blood to the pipe. Taking Michaels own version of events
at its highest, he was the only one who held the pipe after the bleeding
started, and he never touched Mr. Miller with the pipe.
[164]
That leaves us with the only other rational explanation: the blood
was left on the pipe because Michael used it to strike Mr. Millers bloodied
face. No expert evidence was necessary to draw this inference, as it rested on
common sense. This finding did not amount to a misapprehension of evidence.
(c)
Finding #3
:
Michael brandished the pipe and
therefore he used it to strike Mr. Miller
[165]
Third, Michael argues that the trial judge operated under a misplaced
assumption: because he brandished the pipe, he must have used it. On this
point, the trial judge said as follows at para. 305:
On Michael Theriaults evidence, once Mr.
Miller walks away from the area in between the homes and heads towards the
front door of the Silverthorn residence, Michael runs to retrieve the metal
pipe. He indicates that he did this to prevent Mr. Miller from getting the pipe
again. I reject this evidence. I accept that once Mr. Miller broke free he was
moving along the wall of the side of the Silverthorn residence and heading
towards the front door. He was touching the side of the house as he was doing
so, likely because he was injured. This portion of Mr. Millers evidence is
confirmed by the presence of blood on the side wall and eaves downspout at the
Silverthorn residence. Importantly, during this portion of the incident, Mr.
Miller was not going near the pipe which had been thrown somewhere in between
the two homes. Even if I were to accept that Michael ran towards the pipe to
prevent Mr. Miller from getting it, it would not explain why he brandished it
in both hands, ready for use. In my view, this is a telling admission. On
Michaels own evidence, Mr. Miller was in retreat at this stage. I find that
regardless of why Michael initially retrieved the pipe, once he had it, he
decided to use it to hit Mr. Miller.
[166]
With respect, I disagree with Michaels characterization of the
trial judges reasoning. I do not understand this passage to suggest that there
was a causative relationship between Michael picking up the pipe and Michael
using it to strike Mr. Miller. Rather, in my view, the trial judge was
simply treating Michaels admission that he retrieved the pipe as corroboration
for the proposition that he was acting offensively, not defensively. In this
regard, it was fair for the trial judge to consider Michaels demeanour in the
context of the other evidence. It was telling that Michael brandished the pipe
with both hands when Mr. Miller was badly injured and seeking refuge.
[167]
Moreover, the reliance on the fact that Michael brandished the pipe
to ground the trial judges finding that Michael indeed struck Mr. Miller must
not be overstated. There was also other evidence showing that the pipe was used
in a violent manner: namely, Mr. Millers testimony, the gouge/scrape on the
glass, and the blood on the pipe. Michael brandishing the pipe was one piece of
the puzzle and must properly be viewed in the context of the totality of the
evidence.
[168]
I am not convinced that the trial judge erred in his consideration
of Michaels admission that he brandished the pipe. His reasoning on this point
does not rise to the level of a misapprehension of evidence.
(d)
Finding #4:
Mr.
Miller was struck in the face by the pipe notwithstanding the absence of
confirmatory medical evidence
[169]
Fourth, Michael argues that Dr. Pickups evidence contradicted the
trial judges conclusion regarding the assault with the pipe. Specifically, in
his factum, Michael asserts that: In addition to concluding that the most
likely cause of the injury to Mr. Millers eye was a punch, [Dr. Pickup] also
testified that there were no other injuries on Mr. Millers person that were
consistent with being struck with a pipe.
[170]
Respectfully, I interpret Dr. Pickups evidence differently. Dr.
Pickup only opined that the eye injury was likely not caused by the pipe. He
indicated that he could not fully exclude the possibility that Mr. Millers eye
injury was caused by the pipe, and he could not determine whether Mr. Miller
had been hit with the pipe on his head, face or body, in a manner that did not
cause a significant injury or leave a tram track bruise. Indeed, Dr. Pickup
testified that Mr. Miller could have received a number of blows (from punches
and/or the pipe) that would not necessarily show up as an injury:
Q:
is it possible that Mr. Miller could have
received a number of blows, whether it be a punch, or a rod that would not
result in a fracture to that area of his face?
A: Yes, of course. Uh, so, injury or blows
from a fist, or so-forth, uh, wouldn't necessarily show up as an injury.
[171]
The trial judge did not misapprehend the evidence by failing to give
effect to any absence of confirmatory evidence from Dr. Pickup about Mr. Miller
being struck in the head with the pipe. His testimony clearly left open the
possibility that Mr. Miller could have sustained blows from the pipe without
any resulting visible injuries.
(e)
Finding #5:
Michael pushed
Mr. Miller down with the metal pipe
[172]
Fifth, Michael takes issue with the trial judges finding that he
pushed Mr. Miller with the pipe in downward motions while Mr. Miller was
on the ground on the driveway. This finding was based solely on Mr.
Silverthorns evidence, who witnessed the altercation from his house, as Mr.
Miller did not specifically describe downward jabs with the pipe. Two other
witnesses did not see Michael use the pipe against Mr. Miller in any way, but
they did see him holding it.
[173]
The trial judge was entitled to accept Mr. Silverthorns evidence on
this point. Mr. Silverthorns evidence was clear and credible, and as the trial
judge noted, [t]he other witnesses viewed the scene from different vantage
points, at different times, after being awoken in the middle of the night.
This does not amount to a misapprehension of evidence.
(f)
Conclusion on the Misapprehension of Evidence
Ground
[174]
In my view, the trial judge did not misapprehend the evidence.
Accordingly, I would dismiss this ground of appeal.
(3)
Did the Trial Judge Fail to Analyze Whether Michaels
Use of Force Was Reasonable or Explain Why Michaels Evidence Did Not Raise a
Reasonable Doubt?
[175]
Michaels next ground of appeal alleges that the trial judge failed
to address whether Michaels conduct at the time of the alleged assault
constituted a lawful use of force in an attempt to arrest Mr. Miller. He also
argues that the trial judge failed to provide reasons why Michaels evidence
did not raise a reasonable doubt about him using the pipe as a weapon at the
doorway and driveway. In other words, Michael alleges that the trial judge
erred in his application of the methodology set out in
R. v. W.
(
D
.),
[1991] 1 S.C.R. 742.
[176]
The Crown argues that it was implicit in the trial judges findings
that Michaels use of the pipe as a weapon to assault Mr. Miller was not a
reasonable use of force, and that the trial judge otherwise had no reasonable
doubt about the legality of Michaels conduct in front of the Silverthorn
residence.
[177]
I agree with the Crown. In my view, the reasons, read in the context
of the trial record, sufficiently address both of Michaels asserted
deficiencies. To hold otherwise, would be to finely parse the trial judges
reasons in search of error, a foundering that the Supreme Court recently
warned against:
R. v. G.F.,
2021 SCC 20, 71 C.R. (7th) 1, at
para. 69.
[178]
In fairness, the trial judge did not explicitly address the prospect
that Michael could have been attempting to effect a lawful arrest when he used
the pipe to strike Mr. Miller in front of the Silverthorn residence. However, I
agree with the Crown that it is obvious that the trial judge implicitly found
the assault was not a reasonable use of force. Again, by all accounts, Mr.
Miller was badly injured and in retreat. In fact, he was the one banging on the
Silverthorn door asking the residents to call 911. At that point in time, Mr.
Miller was not someone who was intent on evading law enforcement, nor was he
someone who was acting aggressively in any way. If Michael was attempting to
lawfully arrest Mr. Miller, then he certainly used excessive force and the
assault cannot be justified on this basis.
[179]
I also see no issue with the trial judges
W. (D.)
analysis
respecting Michaels exculpatory testimony regarding what happened in front of
the Silverthorn residence. The conclusion of guilt was not based solely on the
trial judges rejection of Michaels portrayal of events, nor did it amount to
a dichotomous credibility contest between Mr. Miller and Michael. As noted in great
detail above, the trial judge pointed to multiple pieces of evidence that
sufficiently corroborated the conclusion that Michael struck Mr. Miller with
the pipe (namely, the gouge/scrape in the glass, the blood on the pipe, and
later, Mr. Silverthorns testimony regarding the downward jabs). It is clear
that the evidence, when viewed as a whole and in its proper context, did not
leave the trial judge with a reasonable doubt about Michaels guilt on the
assault count. And this conclusion was not based simply on a flat acceptance of
the testimony of the complainant over that of the accused. I see no error in the
trial judges application of
W. (D.).
[180]
I would dismiss this ground of appeal.
(4)
Assault Simpliciter Was an Included Offence
[181]
Michaels final ground of appeal against his conviction concerns
whether assault simpliciter is an included offence of aggravated assault. Michael
argues that the trial judge did not have the jurisdiction to find him guilty of
assault in the context of this case. He submits that assault is not a lesser
and included offence of aggravated assault, and the assaultive action was a separate
transaction from the assault that caused the aggravated injury. Michael also
argues that an assault conviction was unfair because the indictment only put
him on notice that he was liable for causing the aggravated injury. The trial
judge already rejected this argument post-conviction in dismissing Michaels
application to re-open the trial: see
R. v. Theriault,
2020 ONSC 5725.
I see no error in his disposition of this issue.
[182]
This court recently addressed the question of lesser and included
offences in
R. v. Tenthorey
, 2021 ONCA 324, albeit under different
circumstances. Paciocco J.A., writing for the court, affirmed that an offence
will be an included offence if the essential elements of that offence would
necessarily be proved if the Crown were to successfully establish any one of
the legally available avenues of conviction for the charged offence:
Tenthorey,
at para. 51.
[183]
Section 268(1) of the
Criminal Code
provides: Every one
commits an aggravated assault who wounds, maims, disfigures or endangers the
life of the complainant. In this case, the indictment was particularized to permit
three avenues to conviction for the offence of aggravated assault instead of
four: the brothers were alleged to have wounded, maimed, and/or disfigured Mr.
Miller. The indictment removes the possibility of a fourth avenue to conviction,
namely, through endangerment of life.
[184]
Crucially, under each of these avenues to conviction, common assault
will necessarily be proved by establishing any of the ways in which the charged
offence can be committed. An assault only requires the intentional
non-consensual application of force, and this definition applies to all forms
of assault:
Criminal Code,
s. 265(1)-(2);
Canadian Foundation for
Children, Youth and the Law v. Canada (Attorney General)
, 2004
SCC 4, [2004] 1 S.C.R. 76, at para. 1. I reject Michaels argument that
aggravated assault is a stand-alone offence under s. 268. Aggravated assault is
simply an aggravated version of common assault: the only distinguishable
feature is the added legal requirement that the assault must wound, maim,
disfigure, or endanger the life of another. I am satisfied that common assault
is an included offence of aggravated assault: see also
R. v. Rocchetta
,
2016 ONCA 577, 352 O.A.C. 130, at para. 38.
[185]
Michaels argument on this ground also seems to challenge the
factual nexus between the aggravated assault allegation and the assault
conviction. Put another way, he submits that the alleged assault constituted a
separate transaction from the charge alleging aggravated assault, as there was
a significant legal break in the factual context after the dynamic changed
and Mr. Miller retreated. Relying on
R. v. Talbot,
2007 ONCA 81, 217 C.C.C.
(3d) 415, at paras. 90-91, Michael argues that this was an all or nothing
case, and if the Crown had wanted to allege that the assault was criminal even
if the aggravated assault was not, it should have laid a separate charge for
the assault.
[186]
I would not accede to this argument. A single transaction can
include a single act, or circumstances that are successive and cumulative and
which comprise a series of acts that are sufficiently connected:
R. v.
Manasseri,
2016 ONCA 703, 344 C.C.C. (3d) 281, at para. 73, leave to
appeal refused, [2016] S.C.C.A. No. 513. In my view, the events that
transpired in front of the Silverthorn residence are sufficiently connected to
the events between the houses. Very quickly after the struggle began, the
dynamic was, and continued to be, one-sided, with the Theriault brothers
exacting a successive and cumulative attack on Mr. Miller. In my view, it
constituted a single and continuous transaction.
[187]
Simply put, the trial judges findings belie the argument that there
was a significant legal break in the factual context. Critically, Mr. Miller
was not acting aggressively when the alleged aggravated assault occurred. Rather,
the trial judge found that Michael and Christian re-engaged, and caused the aggravated
injury, when Mr. Miller was likely in retreat. Mr. Miller was also not
acting aggressively when the assault occurred in front of the house. He was
seeking assistance and was badly injured. The factual dynamic did not change. These
findings demonstrate that there was a consistent and sustained attack on Mr.
Miller. Ciphering the events into two discrete transactions would amount to an
artificial dissection of a series of connected acts that occurred over a short
and concentrated period of time.
[188]
Lastly, in my view, the assault simpliciter conviction occasioned no
unfairness to Michael, despite the fact that the indictment only included the
aggravated assault count. The factual landscape of this case always involved a
series of assaults on Mr. Miller, including assaults at the front door and on
the driveway. The Crown was clear from the outset that the assaults were
connected and occurred in the course of one single transaction. In these
circumstances, defence had fair notice of the scope of potential criminal
liability, notwithstanding the way the offence was charged in the indictment. I
see no error in the trial judges approach in this regard.
[189]
I would dismiss this ground of appeal.
G.
sentence appeal
[190]
Michael takes issue with the nine-month sentence imposed for the
assault simpliciter conviction. He argues that the trial judge made five errors
in principle, and also imposed a sentence that was disproportionately unfit.
[191]
Appellate review of sentences is subject to a highly deferential
standard of review. An appellate court may only intervene if the sentence is
demonstrably unfit or the sentencing judge made an error in principle that had
an impact on the sentence:
R. v. Friesen
, 2020 SCC 9, 444 D.L.R. (4th)
1, at paras. 25-26;
R. v. Lacasse
, 2015 SCC 64, [2015] 3
S.C.R. 1089, at paras. 11, 41 and 44. The sentencing judges findings of fact
and identification of aggravating and mitigating factors are entitled to
deference, to the extent they are not affected by an error in principle:
R.
v. R.A.
, 2021 ONCA 126, 154 O.R. (3d) 552, at para. 32; see also
Friesen
,
at para. 28.
[192]
I would dismiss his sentence appeal for the reasons that follow.
(1)
The Trial Judges Finding of Significant Force
[193]
First, Michael takes issue with the trial judges finding that he used
significant force when striking Mr. Miller in the face. He argues this finding
was not grounded in the evidence and was unreasonable. I disagree.
[194]
The trial judge made this finding post-trial at the sentencing
stage. Certainly, the gouge/scrape alone may not prove that Michael used
significant force; it is conceivable that a relatively light tap with a metal
pipe could cause damage to glass. However, I agree with the Crown that significant
force was a reasonable inference due to Michaels own admission that he
brandished the pipe. As the trial judge noted, the assault involved a two
handed-strike with a metal pipe held above the shoulders that left a gouge in
the glass front door of the Silverthorn residence. Based on the way Michael
wielded the pipe, as well as the damage the pipe occasioned to the glass, it is
common sense that the strike involved significant force. I see no error in his
reasoning here.
[195]
I would dismiss this ground.
(2)
The Trial Judges Consideration of the Use of a
Weapon
[196]
Second, Michael argues that the trial judge erred in aggravating the
sentence based on Michaels use of the weapon since he was not tried nor
convicted of assault with a weapon.
[197]
I disagree. The use of a weapon was proven beyond a reasonable doubt
and clearly formed part of the circumstances of this case. It called for
consideration. Furthermore, proportionality demanded close attention to the
circumstances that increased the gravity of the offence. Indeed, facts tending
to establish the commission of other offences of which an accused has not been charged
or convicted can be admitted to enable a court to determine a just and
appropriate sentence:
Criminal Code,
s. 725(1)(c);
R. v. Luu
,
2021 ONCA 311, at para. 30;
R. v. Angelillo
, 2006 SCC 55, [2006] 2
S.C.R. 728, at paras. 22-27; and
R. v. Edwards
(2001), 155 C.C.C. (3d)
473, (Ont. C.A.), at paras. 63-65.
[198]
Additionally, this aggravating factor occasioned no unfairness to Michael.
Although the Crown omitted the assault with a weapon charge from the
indictment, the Crown never abandoned the allegation that Michael wielded the
metal pipe. Since this was a critical aspect of the Crowns theory of the case,
Michael was fully apprised of the possibility that the weapon could feature in
sentencing; no fairness was occasioned when this prospect was actualized. The
trial judge did not err by taking the use of a weapon into consideration.
[199]
I would dismiss this ground.
(3)
The Trial Judges Consideration of the Self-Defence
Context
[200]
Third, Michael submits that the trial judge erred in failing to take
into account the self-defence context of the incident as a mitigating factor. I
would reject this argument for two reasons.
[201]
First, it is clear throughout the trial judges reasons for judgment
that he believed this defence, to use his words, was razor thin while the
altercation was taking place between the houses, and had evaporate[d] by the
time the assault occurred. Indeed, he was satisfied beyond a reasonable doubt
that Michael was not acting in self-defence when he assaulted Mr. Miller with
the pipe at the front door and thereafter in the driveway. As he put it at
para. 84 of his sentencing reasons:
To be clear, this is not a case where in the
course of self defence an accused simply went too far. This is a case where
after any reasonable possible threat abated, the accused armed himself with a
weapon and struck the obviously injured and retreating victim.
[202]
The trial judge was not obligated to treat his earlier reasonable
doubt regarding self-defence as mitigating, given how far Michaels actions
strayed from any proper scope of self-defence. As the trial judge said, the
assault was gratuitous and violent, and the victim was acutely vulnerable at
the time in question.
[203]
Second, the trial judge did take into account the self-defence
context when assessing the seriousness of the offence and the degree of
Michaels moral culpability. Indeed, the trial judge found that Michaels moral
responsibility was modestly moderated by the fact that this incident was
preceded by a violent encounter that did not result in any criminal liability.
The trial judge properly considered the events that preceded the assault, and
the weight he ascribed to this factor is subject to deference.
[204]
I would dismiss this ground.
(4)
The Trial Judges Consideration of the Breach of
Trust
[205]
Fourth, Michael argues the trial judge erred in aggravating the
sentence on the basis that the circumstances of the offence were a breach of
trust.
[206]
This was not improper reasoning. It is well recognized that police
are held to a higher standard than would be expected of ordinary citizens
because they are charged with enormous responsibilities and granted a great
deal of trust and power:
R. v. Forcillo,
2018 ONCA 402, 361 C.C.C.
(3d) 161, at paras. 198-99, leave to appeal refused, [2018] S.C.C.A. No. 258. Police
officers are duty bound to serve and protect the community. They are also duty
bound to uphold the law. When the conduct of a police officer runs contrary to
either of these duties, the legitimacy of the rule of law a postulate of our
constitutional structure rests on fragile ground. This court has emphasized
that the principles of denunciation and general deterrence become magnified in
these circumstances:
Forcillo,
at para. 199.
[207]
I agree with the trial judge that the fact that a police officer is
off duty at the time they commit the offence does not alter the power and
corresponding responsibilities that come with their job. This is especially the
case when they are purporting to act in a policing or quasi-policing capacity.
Police officers are trained to respond properly to volatile encounters; when
that training is weaponized in a manner that undermines public safety, public
trust will be particularly compromised.
[208]
That is exactly what happened here. Taking Michaels evidence at its
highest, he was acting in a de facto police capacity throughout his encounter
with Mr. Miller that night. The entire basis of Michaels defence was that he
was attempting to effect a lawful arrest, which had gone awry. He consistently
made reference to his police training when explaining various actions that he
took, despite his repeated failings to comply with protocol. He admitted he
brandished the weapon in the manner he did at the time of the assault because
it was consistent with his police training. He took Mr. Miller to the ground
and was ultimately the one to handcuff and search him. Indeed, the fact that he
was an off-duty police officer goes a long way to explaining why his version of
events was initially accepted when the police arrived to find a seriously
injured Black man, who was then handcuffed and arrested. It therefore stands to
reason that Michael was acting in a position of trust, and that trust was egregiously
broken with his gratuitous use of force against an acutely vulnerable person.
[209]
I agree with the trial judges assessment of this factor. I would
dismiss this ground.
(5)
The Trial Judges Consideration of a Heightened
Degree of Denunciation
[210]
Fifth, Michael contends the trial judge erred in aggravating the
sentence and for misperceiving the need for a heightened degree of
denunciation on the basis that the victim was Black, and the perpetrator was
white. Michael contends that this was not a racially motivated crime and the
concurrence of the victim being Black and the accused being white was
happenstance.
[211]
The Crown did not prove that this was a racially motivated crime
beyond a reasonable doubt. Nevertheless, the racial context within which this
offence took place was a relevant consideration.
[212]
While often overlooked out of a tendency to distance ourselves from
the social ills plaguing our southern neighbour, Canadas long history of
anti-Black racism has manifested in the contemporary phenomena of over-policing
and disproportionate incidents of violence during interactions between Black
people and the police:
Le,
at para. 93. Systemic and overt racism have
long sustained unequal treatment before the law, leading to a crisis of
confidence in the administration of justice in some communities. The current
moment of reckoning with respect to systemic racism in Canada is long overdue.
[213]
As the trial judge put it, Michaels conduct further sowed the
seeds of distrust between the Black community and the police. Michaels actions,
as a white off-duty police officer who assaulted a retreating, injured Black
youth, cannot, and should not, be divorced from this wider context. As noted
above, Michael was a representative of the rule of law in this country, and his
actions shattered a communitys trust in the very system that is supposed to
protect them.
[214]
Mr. Miller may have broken the law that night, but he did not
deserve what subsequently happened to him. The right to be free from excessive
and unreasonable force does not discriminate.
[215]
The trial judges treatment of this larger context in sentencing was
laudable and sets a model for future cases of this nature. As I will explain,
he did not falter in his role of imposing an individualized and proportionate
sentence, while also recognizing that this type of crime warrants heightened
denunciation due to its devastating implications.
[216]
At all times, the trial judge remained tethered to the fundamental
principle of sentencing: that a sentence must be proportionate to the gravity
of the offence and the degree of responsibility of the offender. He recognized
that he was not imposing a punishment in an attempt to right past societal or
systemic failings. He took into consideration Michaels mitigating
circumstances and maintained a focus on the individualized offence before the
court. At the same time, the trial judge acknowledged that denunciation, as a
collective statement of societys values, must evolve in tandem with developing
social values. This includes increasing awareness about anti-Black racism.
[217]
As the Supreme Court instructed in
Friesen,
at para. 35:
Sometimes, an appellate
court must also set a new direction, bringing the law into harmony with a new
societal understanding of the gravity of certain offences or the degree of responsibility
of certain offenders (
R. v. Stone
, [1999] 2 S.C.R. 290, at para. 239).
When a body of precedent no longer responds to societys current understanding
and awareness of the gravity of a particular offence and blameworthiness of
particular offenders or to the legislative initiatives of Parliament,
sentencing judges may deviate from sentences imposed in the past to impose a
fit sentence
(
Lacasse
, at para. 57).
That said, as a general rule, appellate courts should take the lead in such
circumstances and give sentencing judges the tools to depart from past
precedents and craft fit sentences. [Emphasis added.]
[218]
The trial judge correctly concluded that this case called for
heightened denunciation and I endorse his approach. As our society comes to
grips with disproportionate rates of police violence against Black people, it
is integral that the need for denunciation of crimes that are emblematic of
these broader social patterns develops accordingly.
[219]
I would dismiss this ground of appeal.
(6)
The Sentence Was Not Demonstrably Unfit
[220]
Lastly, Michael argues the sentence itself was
demonstrably unfit and outside the range of sentences for similar offenders. He
submits that a non-custodial sanction would be a fit sentence in this case. He
also argues that the trial judge provided insufficient reasons for rejecting an
alternative to a custodial sentence.
[221]
The trial judge did not err by deviating from the range advocated by
defence counsel. Defence counsel sought a sentence ranging from an absolute or
conditional discharge to a suspended sentence, or at worst, a conditional
sentence. The Crown argued that the case law does not provide a discernable
range given the unique circumstances of this case, and to the extent that a
range can be extrapolated, the aggravating features of this case called for a
departure from the range.
[222]
Ultimately, the trial judge accepted the Crowns argument that there
is no applicable range of sentence that can be discerned from the case law. He explained
that the case law referred to by defence counsel suffered from the following
deficiencies: it was dated and occurred in a different social context; it involved
the mitigation of a guilty plea and/or other factual scenarios that are less
serious; or it was otherwise distinguishable in that the offences were not
committed by police officers. The unique factual nexus in this case meant that
the cases provided did not greatly assist in determining the appropriate range.
In any event, the fact that a judge deviates from the proper sentencing range
does not in itself justify appellate intervention:
Lacasse,
at para.
11.
[223]
A sentence will be demonstrably unfit if it
constitutes an unreasonable departure from the principle of proportionality:
Lacasse,
at para. 53. This
incident
was, by any measure, a gratuitous and violent assault on a retreating, badly
injured, victim. The events of that night caused irreparable harm to Mr. Miller
and to the community at large. A custodial sentence was proportional in the
circumstances of this case, as were the ancillary orders. As the trial judge
put it at para. 104: The sentence is substantial, but not crushing. The
sentence was fit and is owed deference on appeal:
Friesen,
at para. 25.
[224]
The trial judges reasons for imposing a
custodial sentence were sufficient in the context for which they were given.
The trial judge explicitly considered less restrictive alternatives to
imprisonment, but ultimately concluded that nothing short of a jail sentence
will suffice to adequately denounce the offence and to offer the requisite
degree of deterrence. He concluded that a discharge would be manifestly
contrary to the public interest in these circumstances and would risk
trivializing the offence and undermining public confidence in the
administration of justice. He also considered a conditional sentence, but
ultimately concluded that a very strong denunciatory message
can only be
sent by a term of real jail. The trial judges reasons explain what he decided
and why he came to that conclusion, and in so doing, permitted meaningful
appellate review.
[225]
I would dismiss this ground of appeal.
H.
conclusion
[226]
I would dismiss the defence appeal against conviction and sentence. As
noted above, given the Crowns position on a retrial, I would also dismiss the
Crowns appeal without addressing its merits.
Released: July 19, 2021 M.T.
M.
Tulloch J.A.
I
agree. L.B. Roberts J.A.
I
agree. Gary Trotter J.A.
[1]
As the two brothers have the same last name, I will refer to them
in these reasons by only their first names. I do this not out of disrespect,
but to distinguish between them.
[2]
In his testimony, Mr. Miller differentiated between the two
brothers by their hairstyles. For simplicity, I have used their names instead
of their descriptors.
[3]
As noted above, due to the credibility
issues with both parties, the trial judge was unable to determine who initially
wielded the pipe. However, he recognized that if the pipe was first introduced
by Mr. Miller, it was quickly removed from him and the incident became
one-sided.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Bors v. Bors, 2021 ONCA 513
DATE: 20210716
DOCKET: C67846
Feldman, van Rensburg and Sossin
JJ.A.
BETWEEN
Ciprian Teodor Bors
Applicant (Respondent)
and
Ana Cristina Bors (Beleuta)
Respondent (Appellant)
Tiffani A. Frederick and Gloria E. Ichim,
for the appellant
Brian Ludmer, for the respondent
James R.G. Cook and Jessica Schissler,
for the appellants trial counsel
Heard: May 19, 2021 by video
conference
On appeal from the order of Justice Francine
Van Melle of the Superior Court of Justice, dated December 4, 2019, with
reasons reported at 2019 ONSC 7029.
REASONS FOR DECISION
A.
Overview
[1]
The parties are former spouses and the parents of two children, a
daughter, M, who is now 15 years old, and a son, C, who is 9.
[2]
This is an appeal of an order granting sole custody
[1]
of the children to the respondent father, and imposing other terms, after the
trial judge concluded that the appellant mother had engaged in parental
alienation. The order was made after an eight-day trial of a motion to change a
final order.
[3]
The motion to change was prompted by the alleged failure of the mother
to comply with the provisions of the final order respecting the fathers access
to the children. By the time the trial took place there had been more than 200
failed access transitions, the father had not had access to M for two years,
and, with limited exceptions, he had not had C in his care since the end of the
previous school year, in June 2019. Moreover, the parties had been involved in
the litigation of the motion to change for several years, and there had been
numerous court attendances and orders, most of which were to address ongoing
and worsening problems with the fathers access.
[4]
The trial judge concluded that the evidence was overwhelming that the
children were alienated from their father and that their mother was
responsible. She held that the best interests of the children required the
father to have custody of the children, with an initial period where the mother
would have no contact with C and reduced contact with M. The order required the
parties and the children to engage in reconciliation therapy with family
therapist Lourdes Geraldo, and provided for reports to the court. The trial
judge remained seized of the matter.
[2]
[5]
The mother asserts that the trial judge erred in finding that she had
alienated the children from their father. She also contends that the order
imposed by the trial judge was not in the childrens best interests, and that
some other order short of changing custody and restricting her access to the
children would have sufficed. Finally, she argues that she was deprived of a
fair trial because she was ineffectively represented by her trial counsel and
the trial judge demonstrated bias.
[6]
The father denies that there were any reversible errors, and he seeks to
rely on fresh evidence consisting of his own lengthy affidavit, which includes,
as an exhibit, a summary report dated January 12, 2021 from Ms. Geraldo.
[7]
For the reasons that follow, we dismiss the motion to introduce fresh
evidence, except for the report of Ms. Geraldo, which is admitted, and we
dismiss the appeal. As we explain, there was no reversible error in the trial
judges conclusion that the mother engaged in parental alienation, or her
conclusion that the best interests of the children required a change in custody
and the other measures that were included in the order. Nor was the mother
deprived of a fair trial.
B.
Brief Procedural History
[8]
The parties separated in 2012 after ten years of marriage. At the time,
M was six years old and C was under a year. The father commenced proceedings in
the Superior Court shortly after the parties separation.
[9]
A custody and access investigation pursuant to s. 112 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43,
was undertaken by
the Office of the Childrens Lawyer (the OCL). In its 2013 report the OCL recommended
custody of the children to the mother and access by the father every other
weekend and one night a week.
[10]
Shortly
before a trial on custody and access was to begin, the parties reached an
agreement. Its terms were incorporated into the consent final order of Snowie
J. dated May 11, 2015. In broad terms, that order provided for the mothers
custody of the children, with the father having access on alternate weekends.
[11]
The
father brought a number of motions to address problems with his access to the
children, which resulted in a number of interim orders as well as the final
order of André J. of February 23, 2017 increasing access time and providing for
access transitions at the childrens school.
[3]
[12]
On
March 23, 2017 the father commenced a motion to change proceeding, and further
court attendances and temporary orders followed.
[13]
An
updated OCL report was issued on May 4, 2018 (the 2018 OCL report). While the
author of the report, Wendy MacKenzie, recommended that the mother continue to
have custody of the children, with the father having access (including access
to C on alternating weeks), she was concerned about the father losing his
relationship with the children. She recommended that the mother consider
counselling support to help her to encourage a positive and healthy
relationship between the children and their father despite her feelings about
him and, she cautioned that if this cannot be achieved, consideration should
be given to a change in custody.
[14]
In
June 2018, after the children were refusing to transition to their fathers care,
he brought an interim motion for access. By that point the father had not had
access to M since September 2017 and C was attending access visits reluctantly.
Coroza J., as he then was, adjourned the motion to a long motion, he made an
order for questioning of Ms. MacKenzie, and he ordered that the children attend
separation counselling with a mutually agreed upon practitioner. Coroza J.
heard the long motion on August 13, 2018. During the months that his decision
was under reserve, M was still not seeing her father and Cs visits were
sporadic. On January 31, 2019, Coroza J. made an order increasing the fathers
parenting time, and ordered the motion to change to proceed to trial.
[15]
At
a further attendance on May 31, 2019, seeking compliance with the Coroza J.
orders, the trial of the motion to change was expedited. Mossip J. cautioned
the mother that continuing her behaviour could lead to a reversal in custody.
[16]
The
trial took place on eight days in October and November 2019. By that time, M
was still refusing to transition to her fathers care and C, who, with limited
exceptions, had not been in his fathers care since the end of the previous
school year, was missing a great deal of school, or leaving school early.
[17]
On
November 18, 2019, the trial judge heard closing submissions. The mother,
without explanation, was not present in court that day, and the trial judge was
advised that C had left school early. The trial judge provided an oral
decision, ruling that the mother had alienated the children from their father.
She ordered that the best interests of the children required the father to have
custody, and for the mothers access to be temporarily restricted. She ordered
C to move immediately to the fathers full-time care and M to live with the father
from after school until 8:00 pm, and from 9:00 a.m. to 8:00 p.m. on days M
was not in school. On December 4, 2019 the trial judge released written reasons
for judgment that set out the terms of her final order.
C.
Standard of Review
[18]
The
determination of custody and access (now parenting orders) involves issues of
mixed fact and law. As such, intervention on appeal is warranted only where
there is a material error, a serious misapprehension of the evidence, or an
error of law. As the Supreme Court has stated, [c]ustody and access decisions
are inherently exercises in discretion. Case by case consideration of the
unique circumstances of each child is the hallmark of the process:
Van de Perre v. Edwards
, 2001 SCC 60, [2001] 2 S.C.R.
1014, at para. 13.
[19]
As
this court has reiterated many times, an appeal court must not retry parenting cases,
but instead approach the appeal with considerable respect for the task facing
a trial judge in difficult family law cases, especially those involving custody
and access issues:
C.S. v. M.S.
, 2010 ONCA
196, 262 O.A.C. 225, at para. 4.
[20]
In
A.M. v. C.H.
, 2019 ONCA 764, 32 R.F.L. (8th)
1, which was the appeal of an order reversing custody after a finding of
parental alienation, Pardu J.A. articulated the standard of review. She stated,
at para. 74:
Each case must be determined on its own specific facts. The
trial judge hears from all the witnesses and as such, is in the best position
to assess the childs best interests. If there is no
error
in law, no palpable and overriding error of fact, and no misapprehension of
evidence, appeal courts should not interfere.
D.
Issues on Appeal
[21]
The
mother raises a number of issues on appeal. In essence, she makes three
arguments:
1.
The trial judge made a palpable and overriding error when she concluded
that the childrens unwillingness to have access with their father resulted
from parental alienation, and not some other reason, and when she ignored
evidence of domestic abuse;
2.
The trial judge erred in making the order she did, changing custody and
restricting the childrens access to their mother, (i) when the father had only
asked for joint custody; and (ii) when a less restrictive order could have been
made to enforce the fathers right of access; and
3.
She was deprived of a fair trial by reason of (i) the ineffective
assistance of her trial counsel; and (ii) bias on the part of the trial judge.
[22]
We
consider each issue in turn.
Issue One: Did the Trial Judge Err in Her Conclusions about
Parental Alienation?
[23]
The
mother contends that the trial judges conclusion that she had engaged in
parental alienation was speculative, and based only on the childrens behaviour
in refusing to transition into their fathers care. As such, she argues that
the trial judge made a palpable and overriding error in concluding that there
was parental alienation.
[24]
The
mother asserts (as she did at first instance) that it was sufficient for her to
bring the children to the access transfer point (typically the police station),
and that she was not responsible if the children refused to transition to their
fathers care. She also submits that her behaviour should be understood in the
context of the domestic abuse she had suffered, which she says the trial judge
ignored.
Discussion
[25]
It
was not contested at trial that the children had become alienated from their
father. Indeed, both parties took the position that reunification or
reconciliation therapy was required to attempt to restore the relationship. The
issue before the court was why the alienation had occurred, which would then
inform the decision about the appropriate remedy.
[26]
The
trial judge provided clear and detailed reasons for her conclusion that the mother
had engaged in parental alienation. The finding of parental alienation was not
based on speculation; rather it was firmly based on the evidence before the
court. Indeed, the trial judge reasonably concluded from the evidence that the
children were suffering emotional harm caused by their mothers behaviour.
[27]
The
trial judge heard evidence from the parties and other witnesses. Several
professionals who had been involved with the family testified, including Ms. MacKenzie
(the author of the 2018 OCL report) and caseworkers from the Peel Childrens
Aid Society (the CAS). It is unnecessary to detail here the evidence of the
witnesses; it is sufficient to observe that the trial judge assessed the
evidence and made findings of fact. She identified a long list of the mothers
actions that were consistent with alienation. The trial judge also referred to
the continuing failure by the mother to abide by court orders.
[28]
It
was not sufficient then, nor is it now, for the mother to assert that she was
only required to bring the children to the access transfer, and that she was
not responsible for their refusal to transition to their fathers care. Once a
court has determined that access is in the childs best interests, a parent
cannot leave the decision to comply with the access order up to the child. Ontario
courts have consistently held that a parent has some positive obligation to
ensure that a child who allegedly resists contact with the access parent complies
with the access order:
Godard v. Godard
, 2015
ONCA 568 at para. 28.
[29]
The
mother had been advised repeatedly to encourage and not to undermine the
childrens relationship with their father, and that alienation could be highly
damaging to the children. Yet the mother persisted in her conduct, and the
relationship between the children and their father deteriorated.
[30]
Nor
do we accept the contention that the mothers conduct in failing to support
and assist in the fathers access to the children can be explained by the
fact that she was a victim of domestic abuse. In support of this allegation her
counsel on appeal relied on the fact that in 2014 the father had pleaded guilty
to mischief and received a term of probation after he placed a GPS tracker in the
mothers vehicle.
[4]
[31]
The
GPS incident was not referred to in the trial judges reasons, for good reason.
In 2015 the mother had consented to a final order that provided for the fathers
access to the children on alternate weekends. The focus of the trial was on the
parenting of the children since that time, and their alienation from their
father. There was nothing to suggest that the mothers resistance to assisting
in the childrens transition to their fathers care resulted from any
consequences of the GPS incident or abuse that she had suffered in her
relationship with the father. Rather, she suggested that the fathers
mistreatment of the children justified their reluctance to transition into his
care. She made numerous false allegations to the CAS and the OCL that the father
was abusing the children. She had persisted in making complaints, including at
trial, even after they were investigated and not substantiated. The OCL and the
CAS, who had extensive dealings with the family over a number of years, identified
no concerns with the fathers fitness as a parent, and the testimony of their
representatives emphasized their concern with the mothers alienating
behaviours.
[32]
The
mothers attitude toward the father was reflected in the inflammatory and
untrue comments she made to others, including to witnesses at the trial. Although
the mother denied speaking ill of the father before the children, the trial
judge noted in her oral reasons that [the mothers] whole demeanour and
attitude telegraphs her intense dislike for him. There is no way that her
attitude is not transmitted to the children. The mothers alienating conduct,
as the trial judge observed, resulted from her lack of insight into the effect
of her behaviour on the children, as well as her total disregard for previous
court orders.
[33]
There
is no reason to interfere with the trial judges conclusions about parental
alienation. They are sound, and fully supported by the evidence.
Issue Two: Did the Trial Judge Err in the Terms of the Order
that She Imposed?
[34]
The
mother makes two arguments on this issue.
[35]
First,
she submits that the trial judge erred in law when she ordered a custody
reversal in light of the parties positions at trial, and in the absence of an
updated OCL report.
[36]
Second,
the mother asserts that the trial judge erred in making an order restricting
her access to the children when other alternatives were available, such as an
order for access with police enforcement, an order finding her in contempt of
earlier orders or, if custody were changed, an order for supervised access. The
mother further argues that a different order should have been made because the trial
judges order requires her to gain a level of insight that is beyond her reach,
and prevents her from demonstrating positive behavioural changes in order to
regain access to the children.
[5]
Discussion
[37]
The
mother is correct that the fathers counsel indicated at the outset of trial that
the preference was for an order for equal parenting with the children residing
with each parent on alternating weeks. He expressed concern about the mothers
compliance with such an order, and he advised that, depending on the evidence, the
father might be seeking custody with a period restricting the mothers access
to the children. Indeed, by the end of the trial it was apparent that an order
for equal parenting would not be sufficient to address the ongoing parental
alienation, particularly with the negative views the mother continued to
express about the father in her evidence at trial, and her history of non‑compliance
with court orders. The fact that the father asked for an order for equal
parenting as one alternative did not prevent the trial judge from making the
order she did, in the circumstances of this case. It was apparent even before
the trial commenced that an order reversing custody might well be required. As
in
A.M.
, the mothers conduct and its effect
on the [children] was front and centre in the fathers pleadings: at para. 29.
[38]
There
was no requirement for an updated OCL report. The OCL had provided a report in
2013, and the 2018 OCL report was prepared for the motion to change proceeding.
The author of that report, Ms. MacKenzie, had attended for questioning in 2018,
and she was a witness at trial where she was examined by the parties. She spoke
to what she had observed and determined at the time of her report including the
parenting abilities of both parties and the difficulties experienced with
access transitions and she confirmed her opinion that a custody reversal should
be considered if the mother continued to not encourage the childrens
relationship with their father. There is no indication that anyone requested an
updated OCL report before the expedited trial took place or that further delay
was justified in the circumstances.
[39]
As
for the appropriateness and necessity of the order made by the trial judge, this
is a unique case. Attempts to rectify the problems with access through repeated
court attendances and interim orders had not succeeded. Indeed, the situation
had worsened to the point that C, who was only transitioning to his fathers
care after school, was frequently missing school or leaving early in order to
avoid the transfer to his fathers care. Other available measures had proved
inadequate or ineffective.
[40]
Although
the mother had asked for an order for reunification therapy at trial, she had
not complied with earlier directions respecting therapy and counselling. Nor
had she followed the recommendation of the OCL to pursue individual therapy so
that, despite her own feelings about the childrens father, she could still encourage
a relationship between him and the children.
[41]
In
the circumstances, including the history of the mothers failure to comply with
court orders, it was reasonable for the trial judge to conclude that the family
reconciliation therapy that the parties agreed was required was best supported
by a reversal of custody and restriction on the mothers access to the children
for a period of time. As this court recently observed, [w]here a reversal of
decision-making and primary residence has been ordered, courts may order that
the alienating parent have no contact with the child for a minimum period:
M.P.M. v. A.L.M.
, 2021 ONCA 465, at para. 37.
[42]
Finally,
we do not agree with the mother that it is impossible for her to comply with
the trial judges order. The mothers alienating behaviour is informed by her
beliefs and attitudes. The order requires the mother to engage in individual
therapy to assist her to recognize the need to support the childrens
relationship with their father which is in their best interests. The mother is
not expected to change her attitude overnight; she is however expected to
comply with the order by engaging in counselling with a view to helping her to
develop behaviours that facilitate, and do not impede, the childrens relationship
with their father, irrespective of her own feelings about him.
[43]
For
these reasons we do not give effect to this ground of appeal.
Issue Three: Did the Mother Receive a Fair Trial?
[44]
The
mother asserts that she did not receive a fair trial because (1) the case was
not presented effectively by her trial counsel; and (2) the trial judge did not
demonstrate impartiality.
(1)
The Claim of Ineffective Assistance of Counsel
[45]
The
claim of ineffective assistance of counsel was raised in the notice of appeal
and the mothers factum. The notice of appeal states as a ground of appeal that
the appellants counsel was incompetent, negligent or ineffective. Her factum
asserts that the mother was deprived of meaningful legal representation, that
her trial counsel aligned himself entirely with the position of the father,
that he refused to follow her instructions and declined to lead relevant
evidence. She asserts that her trial counsel acted outside his mandate and
instructions.
[46]
At
the outset of the hearing of the appeal the panel raised the concern that the mother
had not followed this courts protocol for appeals involving claims of this
nature. The fathers counsel and counsel for the mothers trial counsel argued
that the ineffective assistance ground of appeal ought not to be considered
because of the failure to follow the protocol. The mothers appellate counsel
sought an adjournment for the purpose of taking the steps required under the
protocol.
[47]
The
mothers trial counsel was represented at the hearing of the appeal and had
filed a factum. Counsel for the mother indicated that she would be relying on
the existing record, and that, even if an adjournment were provided, she did
not intend to put forward evidence on this issue. In the exceptional
circumstances of this case, the panel was satisfied that the record was
sufficient to permit this ground of appeal to be considered based on the
materials filed, and, in the interest of avoiding further delay, it would be
appropriate to do so notwithstanding the failure to comply with the protocol.
[48]
In
order to establish ineffective assistance of counsel as a ground of appeal, an
appellant must satisfy the court on a balance of probabilities that trial
counsels conduct fell below the standard of reasonable professional assistance
and that the ineffective representation resulted in a miscarriage of justice. A
miscarriage of justice occurs when the ineffective representation undermines
the appearance of the fairness of the trial, or the reliability of the result
in the sense that there is a reasonable probability that the result would have
been different had there been effective representation:
R.
v. Archer
(2005), 203 O.A.C. 56 (C.A.), at paras. 119-20.
[49]
We
do not give effect to this ground of appeal. The mother did not file any
affidavit evidence to support the bald allegations in her factum of ineffective
assistance of counsel. She has not provided any evidence in support of her
allegations that trial counsel failed to follow her instructions, that he failed
to lead relevant evidence that would have changed the result, or that he acted
contrary to her interests.
[50]
Nor
do we agree that counsels ineffectiveness is obvious on the record. The mother
contends that her position at trial was that she was a victim of domestic abuse,
and that her counsel failed to advance this position. In fact, her evidence that
there was abuse, including the GPS tracker incident, was squarely before the
court in her trial affidavit. The issues at trial however, were whether the
children were refusing to transition to their fathers care because of parental
alienation or for some other reason, and the appropriate order to respond to
those circumstances. The mothers counsel brought out the mothers evidence
denying that she was alienating the children, her explanations for their
behaviour, and her assertion that she was doing all that was required in
bringing them to the access transfer. Her counsel cross-examined the various
witnesses. In the end, the evidence of alienation was overwhelming. Even then,
the mothers trial counsel advocated for her position that reunification
therapy (to which she had agreed) could occur without the need for a custody
reversal and restriction on her access. There is nothing in the transcript to
suggest that the mothers counsel was ineffective or incompetent.
[51]
The
claim of ineffective assistance of counsel is not made out. We dismiss this
ground of appeal.
(2)
Did the Trial Judge Demonstrate Bias?
[52]
The
mother asserts that the trial judge showed a lack of judicial impartiality,
and that as a result she had an unfair trial. She focuses on the trial judges
interventions or comments over the course of the trial, which she claims were
excessive and one-sided. This ground of appeal can be dispensed with briefly.
[53]
The threshold for showing bias is high and requires cogent
evidence. The standard is objective. The test is whether an informed person,
viewing the matter realistically, and having thought the matter through, would
conclude that the trial judge would not decide the matter fairly:
McGregor v. Pitawanakwat
, 2017 ONCA 77, at para. 19,
citing
Committee for
Justice & Liberty v. Canada (National Energy Board)
, [1978] 1 S.C.R. 369, at p. 394. See also
Miglin v. Miglin
, 2003 SCC 24, [2003] 1 S.C.R. 303, at para. 26.
[54]
We
have reviewed the passages the mother relies on as evidence of bias. Contrary
to her submissions, none of the interjections and comments by the trial judge, viewed
individually or collectively, would suggest to a reasonable person that the
trial judge was biased, or that she had prejudged the issue of parental
alienation. Her interjections occurred throughout the case, and for the most
part were directed to keeping the evidence and submissions focused on the
issues at hand, and preventing the witnesses who testified from straying beyond
their observations and expertise. As the trial progressed, the evidence
demonstrated a clear case of parental alienation. The fathers evidence went in
first, and included the testimony of a number of professionals who had worked
with the family. During closing arguments the trial judge observed that she was
struck by how unusual it was for so many professionals involved with the family
to uniformly conclude that a parents behaviour was the cause of alienation and
the childrens risk of harm. She also noted that the mother had readily
admitted to many of the allegations of alienating behaviour. These were fair
and appropriate comments on the evidence before the court, and not an
indication that the trial judge had pre-judged the issues.
[55]
Accordingly,
we see no merit to this ground of appeal.
Fresh Evidence
[56]
The
father sought to file as fresh evidence on the appeal his own lengthy
affidavit, with various exhibits.
[57]
The
test for admitting fresh evidence on appeal requires the moving party to
satisfy four criteria: (i) the evidence could not have been adduced at trial;
(ii) the evidence must be relevant in that it bears on a decisive or
potentially decisive issue; (iii) the evidence must be reasonably capable of
belief; and (iv) the evidence must be such that, if believed, it could
reasonably, when taken with the other evidence adduced at trial, be expected to
have affected the result:
R. v. Palmer
, [1980]
1 S.C.R. 759, at p. 775.
[58]
The
Palmer
criteria are more
flexible where an appeal involves the best interests of children, where it is
important to have the most current information possible [g]iven the inevitable
fluidity in a childs development:
Goldman v. Kudelya
,
2017
ONCA 300, at para. 25.
[59]
Notwithstanding
the more flexible approach for receiving fresh evidence where an appeal
addresses the best interests of children, the fresh evidence in the present
case does not meet the test for admission. The proposed fresh evidence is
essentially a whole new record, full of lengthy, contextualized narrative, that
expands on issues explored at the trial, and provides the fathers account of
what has transpired since the order under appeal was made, including his
assertions that the mother has failed to comply with the order.
[60]
In
Fiorito v. Wiggins
, 2015 ONCA 729, 69 R.F.L.
(7th) 5, this court admitted as fresh evidence two reports prepared by Dr.
Ricciardi, the therapist who saw the parents and children on a weekly basis
pursuant to the trial judges order which granted custody of the children to
their father and limited the mothers access to the children to the weekly
therapy sessions. Similarly, we are prepared to receive the report of Ms.
Geraldo, which summarizes the therapeutic work carried out with the parties and
children pursuant to the trial judges order in the instant case. That report
indicates that as a result of the increased time with their father, the
children have gone on to settle into their fathers care. While the report is
not essential to our decision to dismiss the appeal, it provides some comfort
that the measures that were ordered are underway and have gone a considerable
distance to restoring the childrens relationship with their father.
[61]
Ms.
Geraldos report also states that there have been problems with the mothers
engagement in the reconciliation therapy, in part due to her pursuit of this
appeal. Now that this court has determined the appeal, affirming the decision
of the trial judge, it is expected that she will comply with its terms,
including the requirements for individual therapy and participation in the reconciliation
therapy led by Ms. Geraldo.
[62]
We
dismiss the motion to admit fresh evidence, except for the report of Ms. Geraldo.
E.
Disposition
[63]
For
these reasons the appeal is dismissed. The father and the mothers trial
counsel are entitled to their partial indemnity costs from the mother. If the
parties are unable to agree on the amounts, we will receive brief written
submissions. The father and the mothers trial counsel are to provide their
submissions within 15 days of these reasons, with responding submissions to be
provided by the father within ten days thereafter, with no right of reply.
K.
Feldman J.A.
K.
van Rensburg J.A.
L.
Sossin J.A.
[1]
Pursuant
to amendments to the
Divorce
Act
, R.S.C. 1985, c. 3, (the Act) which came into effect on
March 1, 2021, custody and access terminology has now been replaced by
terms such as decision-making responsibility, parenting time and contact.
Section 35.4 of the Act deems a person who had custody of a child by virtue of
a custody order to have parenting time and decision-making responsibility and a
spouse or former spouse who had access by virtue of a custody order to be a person
to whom parenting time has been allocated. However, since counsel argued the
appeal using the terminology under the original orders, our reasons will also
employ the historical language.
[2]
This
is a broad outline only of the order, which contains detailed terms respecting
the residence of the children, the required therapy, and the reporting to and
supervision and review by the trial judge.
[3]
This
order was amended on April 13, 2017, to provide for access transitions at a Tim
Hortons, using the services of the Brayden Access Centre (Brayden), for
times where the children were not in school. In June 2017, and after Brayden withdrew,
a temporary order provided for access to be transferred at a police station.
[4]
The
father explained, in his affidavit evidence for trial, dated October 11, 2019,
that he had done so when he feared that the mother would leave the country with
the children, and take them back to Romania.
[5]
The
order provides that the trial judge will remain seized of the case, to review
the progress of the childrens relationship with their father and to gradually
increase their mothers access. The order requires the mother to engage
in individual therapy to assist her to recognize the need to support
the childrens relationship with their father, and it provides that the co
urt
shall not undertake a review of the custody and access provisions of the order
until the mother engages and meaningfully participates in therapy to gain
insight into her alienating behaviour and meaningfully works towards supporting
reconciliation between [the father] and the children.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Boudreau v. Jakobsen, 2021 ONCA
511
DATE: 20210716
DOCKET: C68278
Brown, Roberts and Zarnett JJ.A.
BETWEEN
Bruce Boudreau
Applicant
(Respondent)
and
Randi Jakobsen
Respondent
(Appellant)
Michael J. Stangarone and Stephen P.
Kirby, for the appellant
Jenna Beaton and Jessica Grys, for the respondent
Heard: In writing
On appeal
from the order of Justice Sharon Shore of the Superior Court of Justice dated February
5, 2020.
REASONS FOR DECISION
Overview
[1]
The appellant appeals from the trial judges order
requiring her to pay spousal support to the respondent, whom the trial judge
found was the appellants common law spouse.
[2]
The parties met at university in Nova Scotia in
1989 and became romantically involved. They moved to Toronto and started living
together in 1997, later moving into a house purchased by the appellant in 2008.
The parties never married and have no children. The appellant achieved
substantial success in her career. She paid the household, mortgage, vacation
and other expenses for the parties throughout the relationship. She financially
supported the respondent who had access to her bank and credit cards, as well
as a joint bank account. They cared for two dogs together. They presented to
the public as a couple.
[3]
The respondent suffers from mental health
issues and has been mostly unemployed, earning no more than $10,000 in any of
the few years he worked. He performed no household duties for the parties nor
did he otherwise contribute to the appellants professional success. The
relationship ended on April 7, 2018 when the respondent was charged with
assaulting the appellant. The appellant was 49 and the respondent was 52 years
old at the time of separation.
[4]
The parties were self-represented at a trial
that lasted nine days. The trial judge concluded that the parties were common
law spouses. While she acknowledged that there were times that the respondent was
likely unable to work because of his mental health issues, she found that the
respondent had failed to provide any medical evidence to support his inability
to work and, rather, chose not to accept work that he felt was beneath him. She
found that the respondent was intentionally underemployed and financially
advantaged by living with the appellant. She imputed to the respondent a yearly
income at minimum wage in the amount of $29,120 from January 1, 2020 onwards. She
denied his claims based on unjust enrichment and joint family venture, and
found he was not entitled to compensatory spousal support. However, the trial judge
ordered the appellant to pay the respondent retroactive and ongoing spousal
support in an amount below the lowest end of the
Spousal Support Advisory
Guidelines
from May 1, 2018, subject to review on December 31, 2025 at the
latest, unless a material change in circumstances justified an earlier review.
Issues
[5]
The appellant submits that the trial judge
made the following substantive reversible errors: she erred in finding that the
parties were spouses under s. 29 of the
Family Law Act
, R.S.O. 1990,
c. F.3; and she erred in awarding spousal support to the respondent in respect
of which she provided inadequate reasons. In addition, the appellant argues
that the trial judge erred in failing to allow the parties to make submissions
regarding costs and in failing to determine the issue of costs. We shall
consider each submission in turn.
(i)
Did the trial judge
err
in finding that the
parties were spouses?
[6]
The appellant submits the trial judges
finding that the parties were common law spouses was based on a narrow review
of select documentary evidence and a failure to consider other relevant
evidence that undermined her conclusion.
[7]
We see nothing in the trial judges reasons to
suggest she relied on only some of the documentary evidence to the exclusion of
other relevant evidence. Rather, her reasons demonstrate that she carefully
reviewed all the relevant evidence.
[8]
The trial judge reviewed the applicable
definition of spouse under s. 29 of the
Family Law Act
, meaning: a
spouse defined in subsection 1(1) including either of two persons who are not
married to each other and have cohabited, (a) continuously for a period of not
less than three years. She noted that s. 1(1) of the Act defines cohabit as
to live together in a conjugal relationship, whether within or outside marriage.
The trial judge correctly instructed herself that the question to be answered
was whether the parties were in a conjugal relationship. In determining whether
a conjugal relationship existed between the parties, she carefully reviewed the
relevant evidence in accordance with the well-established factors set out in
Molodowich
v. Penttinen
(1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), as adopted and
affirmed by the Supreme Court in
M. v. H.
, [1999] 2 S.C.R. 3.
[9]
The trial judge made negative assessments of
the parties and witnesses testimony. It was therefore reasonable and
necessary for the trial judge to turn to documentary evidence to assist her in
determining the issue. The trial judge found that both parties had serious
credibility and reliability issues and that they gave whatever answer they
thought would assist them in advancing their case and the answers changed
during the trial. She reviewed in detail the inconsistent and unreliable
elements in each partys testimony and in their witnesses testimony. Her
assessment was amply supported by the record.
[10]
The appellant had denied financially supporting the
respondent and maintained that they were no more than friends and roommates.
The trial judge found that the appellants contentions were contradicted by her
own documents. Importantly, the trial judge saw that the appellant had
consistently named the respondent as her common law spouse and beneficiary in
important documents, including: her will, powers of attorney for property and
care, her life insurance policy, pension plan, group retirement savings plan,
extended medical and health insurance, and in her income tax returns, where he
was also claimed as a dependant. The trial judge observed that the appellant
had deliberately failed to disclose these documents until just before the
trial. We also note that on cross‑examination, the appellant admitted
that she indicated that the respondent was her common law spouse in her will
and powers of attorney because she felt that he was.
[11]
We reject the appellants assertion that the trial judge
erred in failing to refer explicitly to documentation signed by the respondent
to transfer land in Nova Scotia in which he stated that he was not married or a
spouse. It is well established that the trial judge was not required to refer
to every piece of evidence, notably evidence that did not and could not have a
material effect on her decision. The respondent testified that his statement was
correct because common law spouses are not recognized as married or spouses
in Nova Scotia. Whether or not the respondents assertion is accurate, this isolated
piece of evidence does not undermine the significant evidentiary support for
the trial judges conclusion that the parties lived together in a conjugal
relationship.
[12]
We see no error in the trial judges analysis on this issue
that warrants appellate intervention. Her determination that the parties were
spouses under the provisions of the
Family Law Act
because they had
lived together in a conjugal relationship for 21 years involves questions of
fact and mixed fact and law that are subject to deference on appeal absent
palpable and overriding error:
Climans v. Latner
¸ 2020 ONCA 554, at
para.
61;
Opie v. Zegil
(1997), 28 R.F.L. (4th) 405 (Ont. C.A.), at paras.
15-17. The appellant does not suggest that the trial judge
applied incorrect statutory provisions or inapplicable legal principles to
determine whether a conjugal relationship existed. She has not identified any
palpable or overriding error. Essentially, the appellant objects to the outcome
of the trial judges analysis and asks us to reweigh the evidence and redo the
trial judges findings. That is not our task on appeal.
(ii)
Did the trial judge err in awarding retroactive and ongoing spousal
support to the respondent?
[13]
The appellant submits the trial judge erred in awarding any
spousal support to the respondent because she erroneously applied the criteria under
the
Divorce Act
, R.S.C., 1985, c. 3 (2nd Supp.) for determining
eligibility to spousal support when she should have considered the factors
under the
Family Law Act
. She also says the trial judges reasons are
inadequate to explain the amount and duration of the support ordered,
especially given the respondents failure to provide an evidentiary basis for
his support claim.
[14]
This court in
Ballanger v. Ballanger
, 2020 ONCA
626, at paras. 22-23, recently and compendiously reiterated the
well-established deferential appellate standard of review and its rationale in
relation to support orders:
The Supreme Court of Canada has instructed
courts of appeal to accord significant deference to the decisions of trial
judges relating to support orders. The discretion involved in making a support
order is best exercised by the judge who has heard the parties directly. The
deferential standard of review avoids giving parties an incentive to appeal
judgments to attempt to persuade the appeal court that the result should be
different. This approach promotes finality in family law litigation and
recognizes the importance of the appreciation of the facts by the trial judge.
An appeal court can therefore only interfere
with the trial judge's decision if there is a material error such as a serious
misapprehension of the evidence, or an error in law. It is not entitled to
overturn a support order simply because it would have made a different decision
or balanced the factors differently: see
Hickey v. Hickey
, [1999] 2 S.C.R. 518,
at paras. 11-12.
[15]
There is no dispute that in determining the respondents
entitlement to spousal support, the trial judge explicitly referenced only the
statutory criteria set out in s. 15.2(6) of the
Divorce Act
, which has
no application to common law spouses, rather than the factors mandated for her
analysis under ss. 33(8) and (9) of the
Family Law Act
. While this was
an error, the question is whether this error is so material that it wholly
undermines the trial judges decision.
[16]
In our view, it does not. There is significant overlap
between the
Divorce Act
and the
Family Law
Act
criteria. Significantly, the promotion of economic self‑sufficiency within
a reasonable period of time figures prominently in both statutes. Giving the
trial judges reasons the generous reading they require, it is clear that she
considered all the relevant factors in determining whether spousal support was
warranted, including the respondents lack of contributions and work efforts,
his mental health issues, his diminished resources, the appellants income, the
parties lifestyle during their relationship, the parties ages, and the length
of their relationship.
[17]
There was ample evidence to support the respondents
economic dependence on the appellant during their relationship and his need for
financial support following separation. The respondents unchallenged evidence
was that he was in receipt of disability benefits, lived in shelters and
frequented food banks. Economic self-sufficiency does not mean mere subsistence
but is a relative concept tied to the achievement of a reasonable standard of
living having regard to the lifestyle the couple enjoyed during their
relationship and the time needed to reach the goal of self-sufficiency:
Rioux
v. Rioux
, 2009 ONCA 569, at paras. 42-44;
Fisher v. Fisher
, 2008
ONCA 11, 288 D.L.R. (4th) 513, at paras. 58-59;
Chutter v. Chutter
,
2008 BCCA 507, 301 D.L.R. (4th) 297, at paras. 55-61.
[18]
The trial judges award of spousal support was not so high that
it warrants intervention. Rather, it was below the lowest range of the SSAGs
having regard to the parties respective ages, the length of their relationship
and the income earned by the appellant and imputed to the respondent. Given the
finding that the parties had cohabited for 21 years and the respondent was 52
at the time of separation, the trial judge could have awarded time-unlimited
support in accordance with the Rule of 65 under the SSAGs. She did not do so.
[19]
The trial judge was alive to the respondents deliberate
failure to become economically self-sufficient notwithstanding any demonstrated
impediment other than his self-imposed aversion to what he saw as low-level
work that would really rip out [his] soul. As a result, she imputed income to
him and implicitly imposed a time-limited award by ordering a mandatory review
of her support order no later than 2025. By her findings and her review order,
the trial judge sent a strong message that the respondent will have to show significant
efforts toward economic self-sufficiency by the time of any review or risk the
termination or reduction of the spousal support order on that basis alone.
[20]
We see no basis to interfere.
(iii)
Trial costs
[21]
The appellant submits that the trial judge erred in failing
to allow the parties to make submissions as to costs and in failing to make any
provision for costs in her decision. We disagree.
[22]
As the parties were unrepresented at trial, to obtain an
award of costs, it was incumbent on the appellant to demonstrate that she forewent
income or incurred disbursements in relation to the trial:
Fong v. Chan
(1990), 181 D.L.R. (4th) 614, at para. 26. There is no evidence in the record
to support the appellants claim for any trial costs. In any event, success was
mixed at trial.
[23]
We therefore decline to make any order respecting the trial
costs.
Disposition
[24]
Accordingly, the appeal is dismissed.
[25]
If the parties cannot agree on the disposition of costs of
the appeal, they may make brief written submissions of no more than two pages,
plus a costs outline within ten days of the release of these reasons.
David
Brown J.A.
L.B.
Roberts J.A.
B. Zarnett
J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Paletta International Corporation
v. Liberty Freezers London Ltd., 2021 ONCA 512
DATE: 20210716
DOCKET: C67449
Roberts, Zarnett and Sossin
JJ.A.
BETWEEN
Paletta International Corporation
Plaintiff
(Respondent)
and
Liberty Freezers London Ltd.
Defendant
(Appellant)
Kim G. Ferreira and Asad Ali Moten, for
the appellant
Robert C. Dunford and Sarah Wouters,
for the respondent
Heard: January 27, 2021 by
video conference
On
appeal from the judgment of Justice Dale Parayeski of the Superior Court of
Justice, dated August 26, 2019.
REASONS
FOR DECISION
[1]
By reasons dated June 4, 2021, the appeal was
allowed in part with respect to the respondents damages. In accordance with our
invitation, the parties have made further submissions respecting the issues of
rent differential damages and trial costs.
[2]
The respondent submits that it has incurred rent
differential damages in the amount of $50,827.83, plus post-judgment interest,
because of the appellants breach of the lease.
[3]
We agree with the appellants position that the
respondent has not suffered any damages. The $200,000 deposit that the
appellant forfeited to the respondent because of the breach must be deducted
from the respondents damages. As a result, we order that no rent differential damages
are payable.
[4]
The parties have resolved the issue of the trial
costs. They have agreed that the trial judges April 15, 2020 costs award in
favour of the respondent in the amount of $300,000 is set aside and that each
party shall bear its own trial costs. No further order is required.
L.B.
Roberts J.A.
B.
Zarnett J.A.
L.
Sossin 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 complainants 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. Litt, 2021 ONCA 510
DATE: 20210716
DOCKET: C65746
MacPherson, Trotter and Harvison
Young JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Grant Litt
Appellant
Danielle Robitaille and Lauren Mills
Taylor, for the appellant
Jamie Klukach and Caitlin Sharawy, for
the respondent
Heard: January 21, 2021 by video conference
On appeal from the conviction entered on
May 10, 2018 by Justice Frederic M. Campling of the Ontario Court of Justice.
Harvison Young J.A.
:
A.
Overview
[1]
The charges underlying this appeal arose out of
a frightening home invasion. When the 15-year-old complainant answered the
door, she was attacked by a young man who pushed her to the floor and later fled.
The appellant was charged with breaking and entering and committing an
indictable offence, touching a person under 16 for a sexual purpose, and
attempting to choke a person to enable himself to commit the indictable offence
of sexual assault.
[2]
The only issue at trial was identity. The
complainant had provided descriptions of the attacker and worked with the
police to create a composite sketch. She had also noted the appellants photo
in a photo line-up. The attacker had left a boot print on the floor at the
home, and the Crown advanced expert evidence at trial comparing the boot print at
the scene with the appellants boots, which were seized from his car. The
appellants evidence on his whereabouts also placed him in the vicinity of the
complainants home around the time of the attack. The trial judge convicted the
appellant of all three charges.
[3]
On appeal, the appellant argues that the trial
judge erred in his assessment of the evidence and erred in dismissing his
application to exclude from evidence his boots and evidence flowing from those
boots pursuant to s. 24(2) of the
Canadian Charter of Rights and Freedoms
.
He also seeks to introduce fresh evidence consisting of a revised opinion on
the boot print by the Crowns expert from trial.
[4]
For the following reasons, I conclude that this
fresh evidence must be admitted with the result that the appeal must be allowed
and a new trial ordered. Accordingly, it will not be necessary to consider the
other grounds of appeal except to the extent that any aspects of those
arguments bear on the fresh evidence issue.
B.
BACKGROUND
(1)
Facts
[5]
The 15-year-old complainant and her sister had
just arrived home from school. They lived on a country road near Hamilton,
Ontario. The complainant was vacuuming when the family dog started barking. She
looked out the window and saw a red dump truck parked on the road. A few
minutes later, a young man knocked on her door, asked for directions, came into
the home, grabbed her by the arms, and pushed her to the floor. She started
screaming, and he started to touch her breasts. He put his hand over her mouth
and choked her, but he abandoned the attack when her sister in another room
heard screaming and called out. The young man fled.
[6]
The complainant called 911 shortly after the
attack. That evening, at a police interview, she provided the police with a
detailed description of her attacker. A boot print was also found on the floor
of the house. The day after the attack, the complainant met with police to
create a composite sketch of her attacker.
[7]
The appellant worked for a landscaping company,
which had headquarters near the complainants home, in the spring of 2016. The employees
used red trucks. On May 25, 2016, the day of the attack, the appellant was in Guelph
with his grass cutting crew and returned to the company headquarters in the
afternoon at around 3 to 4 p.m. He was driving a red dump truck that day. After
returning to headquarters, he went to the dump alone to dispose of the grass
clippings, located to the west. To delay having to clean out his bosss pond,
which was an apparently unpleasant job, he went east instead and drove up the
road the complainant lived on before looping back to the dump. This added
around five minutes to his trip. The appellants route in a red dump truck on
the way to the dump took him past the complainants home around the time of the
attack. The appellant testified at trial and denied attacking the complainant.
[8]
The police planned to arrest the appellant,
seize his boots and cell phone incidental to arrest, secure his vehicle, secure
his home, and then release him unconditionally. They also planned to then
obtain search warrants for his car, home, and cell phone. The appellant was
arrested on June 1, 2016 and read his rights and cautioned. The police seized
his cell phone and the boots he was wearing, which were new. They noticed another
pair of boots in his car as well. The appellant was handcuffed and placed in
the back of the police car. One officer asked for his consent to search his
phone and vehicle, which the appellant declined. The appellant was unconditionally
released about an hour later, and in the meantime, the police had secured his
home and towed his vehicle to the police station. The police obtained a search warrant
for the car the next day and seized the pair of boots.
[9]
According to the police, the appellant had not
asserted his right to counsel at any point. According to the appellant, he was
searched and handcuffed before he was read his rights and cautioned, and he had
asserted his right to counsel multiple times and had given his lawyers name,
but the police did not facilitate a call to his lawyer. During the trial, the
appellant applied under s. 24(2) of the
Charter
to exclude the evidence
of or any evidence flowing from the boots seized from his car based on alleged
breaches of ss. 8, 9, and 10(b). The trial judge assumed, without deciding,
that the appellants right to counsel had been breached when he was arrested, and
the trial judge held that the evidence was admissible on the basis that the
evidence had not been obtained in a manner that violated the appellants
Charter
rights pursuant to s.24(2).
[10]
The complainant participated in a photo line-up
on July 20. The appellants photo was taken from his drivers licence, which
could not be enlarged without degrading it, so the photos in the line-up were
all rather small. The complainant selected the appellants photo, saying
[t]his picture really stood out to me
Im not really sure why
it really
reminds me of
the person who was at my home.
[11]
The appellant was arrested and charged with the
attack on the complainant on December 15.
(2)
Reasons for Conviction
[12]
The trial judge began his reasons by reviewing
the circumstances of the attack on the complainant and her evidence on the
attackers description. There were some discrepancies between her descriptions
given at various times, which were minor and understandable, and some
differences between the descriptions and the appellant. He also noted that the
appellant resembled the composite sketch that the complainant and police
created. The trial judge found that the photo line-up was fair, based on the complainants
description, and he discussed the complainants photo line-up evidence and
evidence at trial. Based on the appellants lies in his evidence regarding his
physical appearance, the trial judge disbelieved the appellants denial of the
attack.
[13]
He then described one part of the other evidence
implicating the appellant, the evidence on the boot print. The Crown had called
an expert on footwear impressions, Sgt. Annette Huys, to compare the boot print
left at the complainants home with the old boots seized from the appellants
car. The experts opinion was that there was a high degree of association
between the left boot from the appellants car and the boot impression at the
scene. The trial judge found that the evidence came extremely close to proving
that the left boot from the appellants car made the impression in the
complainants home.
[14]
In conclusion, the trial judge said that he
considered all of the evidence, and that because the appellant lied rather
obviously to exonerate himself, he disbelieved the appellants evidence of
innocence. The Crowns evidence was overwhelming proof that the appellant
attacked the complainant, and the trial judge convicted the appellant of all
three charges.
C.
Discussion
[15]
The appellant raises a number of grounds of
appeal. First, he claims that the trial judge erred in his assessment of the
evidence by failing to properly and evenly scrutinize the evidence. He also
claims that the trial judge misapprehended the expert evidence when he
described it as coming extremely close to proving that the appellants boot
seized from his car made the impression at the scene, when her opinion was that
there was a high degree of association between the two.
[16]
Second, the appellant argues that the trial
judge erred in failing to exclude the boot print evidence on the basis that it
was not obtained in a manner that infringed a
Charter
-protected
interest. He submits that his boots were obtained in the same investigative
transaction as his initial arrest on June 1, and that the trial judge erred in
accepting the Crowns argument that the search of the appellants car the next
day, which led to the seizure of the boots, was not sufficiently connected to
the failure to permit him to contact a lawyer.
[17]
The appellant also asks this court to admit fresh
evidence on appeal. The fresh evidence consists of a revised expert report by
the same expert, Sgt. Annette Huys, whose original report concluded that there
was a high degree of association between the impression at the scene and the
appellants boot. She prepared the subsequent report after reviewing an expert
report obtained by the appellants appeal counsel after the trial. In this
report, her opinion is that there is only an association of class
characteristics between the impression at the scene and the appellants boot.
(1)
The Fresh Evidence
[18]
It will be useful to review the circumstances
giving rise to the application to admit fresh evidence on this appeal.
[19]
To form her opinions, Sgt. Huys used the Range
of Conclusions Standard for Footwear and Tire Impression Examinations published
by SWGTREAD (Scientific Working Group for Shoeprint and Tire Tread Evidence),
which provides possible conclusions ranging from insufficiency of detail to a
positive identification. For a conclusion of association of class
characteristics, the class characteristics of design and physical size must
correspond between the questioned impression and known footwear, and
correspondence of general wear may also be present. For a conclusion of high
degree of association, the questioned impression and known footwear must
correspond in the class characteristics of design, physical size, and general
wear. There must also exist: (1) wear that, by virtue of its specific location,
degree and orientation make it unusual and/or (2) one or more randomly acquired
characteristics. In Sgt. Huys original opinion, she based her comparison only
on the first criterion, wear that is unusual. While she observed a small
accidental characteristic in the heel in the test impression of the appellants
boot, she did not base her opinion on it because of the debris in that area of
the scene impression and lack of clarity.
[20]
Upon reviewing the trial judges reasons, the
appellants appeal counsel (who was not trial counsel) sought their own opinion
of the boot print evidence. A footwear analysis report (the Benton Report) was
obtained on September 22, 2019 and provided to the Crown. Mr. Benton also used
the SWGTREAD Range of Conclusions. He could not verify the conclusion reached
by Sgt. Huys, but rather opined that the definition of this conclusion can be
misleading and is not supported by the testimony and evidence provided. The
conclusion that should have been reached was that there was either a limited
association of class characteristics or an association of class
characteristics between the appellants boot and the scene impression.
[21]
The Benton Report also considered the size of
the possible population of boots that resembled those seized from the appellant.
The appellants boots were mens size 9½ Kodiak Rebel Steel Toe 6 Inch Work
Boots. The outsole pattern used on this boot was used from 2012 to 2016. The
same mold is used for size 9 and 9½ boots. In only one year (2015-2016), 1909
pairs of boots in those sizes were sold in Ontario. It is unknown how many were
sold in the proximate years and geographic areas. In addition, the same outsole
pattern has been used on 7 different models of footwear from the same
manufacturer.
[22]
The appellate Crown provided this report to Sgt.
Huys. Upon reconsideration, she changed her opinion, downgrading her conclusion
about the footwear evidence along the lines of the Benton Report. Sgt. Huys, in
her new report, stated that while in her opinion there was an association of
wear from the scene impression to the test impression of the appellants boot, Mr.
Benton had pointed out areas of discrepancy due to lack of clarity in the scene
impression. This lack of clarity changed her level of opinion from a
high degree of association
between the appellants
boot and the scene impression to association of class characteristics.
[23]
In her revised opinion, Sgt. Huys made no
express findings about the degree of association of wear between the scene
impression and the test impression from the appellants boot. But, when
comparing her conclusion to the SWGTREAD Range of Conclusions, it can be
inferred that she no longer viewed the scene impression as containing wear
that, by virtue of its specific location, degree and orientation make it
unusual. Rather, to fall within the scope of an association of class
characteristics this must have been only general wear.
(a)
The Parties Submissions
[24]
The appellant argues that the fresh evidence is
admissible pursuant to the test in
Palmer v. The Queen
, [1980] 1
S.C.R. 759 and
Truscott (Re)
, 2007 ONCA 575, 225 C.C.C. (3d) 321 because
it was not available at trial, it is cogent and would have affected the
verdict, and is credible. In particular, he submits that the fresh evidence is
highly relevant to the identity of the assailant, which was the only issue at
trial, and that, given the trial judges heavy reliance on Sgt. Huys trial
opinion that there was a high degree of association between the scene
impression and the appellants boot print, it is clear that her revised opinion
could have affected the verdict.
[25]
The respondent argues that the appellant fails
to meet the cogency argument. In its view, the potential ability of the fresh
evidence to affect the verdict must be considered within the broader context of
the evidence as a whole. It argues that the Crowns case, viewed in its
entirety, was overwhelming, and that even with the revised expert opinion, it
defies reasonable possibility that the tight web of incriminating
circumstantial evidence engulfing the appellant could have been the product of
bad luck or incredibly unfortunate coincidence.
(b)
The Law
[26]
The test for the admission of fresh evidence on
appeal begins with s. 683(1) of the
Criminal Code
, R.S.C. 1985, c.
C-46, which provides that an appellate court has a broad discretion to receive
evidence on appeal where it considers it is in the interests of justice to do
so. The burden is on the applicant to establish that the fresh evidence is
admissible:
R. v. Abbey
, 2017 ONCA 498, 140 O.R. (3d) 40, at para. 43.
[27]
As explained in
R. v. Allen
, 2018
ONCA 498, 362 C.C.C. (3d) 509, leave to appeal refused, [2020] S.C.C.A. No. 298,
the phrase interests of justice signals a broad discretion. However, this
discretion is not unbordered and a context-sensitive inquiry is required. As
this court explained, at para. 90:
The interests of justice are
furthered when verdicts shown to be unreliable on the basis of fresh evidence
are set aside. But those same interests the interests of justice would
undoubtedly suffer if the appellate process were routinely invoked to rewrite
the trial record several years later. Admitting fresh evidence on appeal
necessarily undermines legitimate finality expectations. This negative
consequence can only be justified if the overall integrity of the process is
furthered by the reception of the fresh evidence. As a result, admitting
further evidence on appeal of facts litigated at trial is, as it must be,
exceptional
.
[Citations omitted.]
[28]
Although the overriding test for the admission of
fresh evidence is the interests of justice, appellate courts have structured
their discretion under this broad standard by prescribing a specific set of
criteria to be addressed which may be understood as addressing these concerns:
Abbey
,
at para. 44. The leading Supreme Court of Canada case articulating the criteria
is
Palmer
. In
Truscott
, a five-judge panel of this court reformulated
the
Palmer
test. As in
Abbey
, I will use our courts reformulation.
It consists of three criteria, summarized in
Abbey
, at para. 44:
1.
Is the evidence admissible under the operative
rules of evidence? (admissibility criterion)
2.
Is the evidence sufficiently cogent in that it
could reasonably be expected to have affected the verdict? (cogency criterion)
3.
What is the explanation offered for the failure
to adduce the evidence at trial and should that explanation affect the
admissibility of the evidence? (due diligence criterion)
[29]
This appeal turns on the second and third
criteria the cogency and due diligence criteria.
(i)
Cogency
[30]
Cogency has a three-pronged focus:
Truscott
,
at para. 99;
R. v. C.B.
, 2019 ONCA 380, 146 O.R. (3d) 1, at para. 134.
The three prongs are:
1.
The proposed evidence must be relevant to a decisive or potentially
decisive issue at trial;
2.
It must be credible in that it is reasonably capable of belief; and
3.
It must be sufficiently probative that, when taken with the rest of
the evidence received at trial, it could reasonably be expected to have
affected the result.
[31]
There is no question that the proposed evidence
here is relevant to the identification of the person who attacked the
complainant in her home, which was the central issue at trial. Similarly, there
is no serious issue as to the credibility of the fresh evidence as it consists
of an amended opinion of the same expert whose opinion the trial judge accepted
and relied on at trial. The heart of the cogency question in this appeal is whether
the proffered fresh evidence could reasonably have affected the verdict at
trial.
[32]
In
R. v. Reeve
, 2008 ONCA 340, 233
C.C.C. (3d) 104, at para. 72, Doherty J.A. wrote that the could reasonably be
expected to have affected standard is somewhere between would probably have
affected the result and could possibly have affected the result. This
determination requires a weighing of the potential probative value of the fresh
evidence in the context of the trial evidence and the positions advanced by the
parties at trial:
Reeve
, at para. 72.
[33]
This also requires a consideration of the trial
judges reasoning. For example, in
R. v. J.A.A.
, 2011 SCC 17, [2011] 1
S.C.R. 628, the trial judge commented that the case was a close one. He
ultimately found the complainant to be credible and disbelieved the accuseds
testimony. In his credibility discussion, he referenced evidence of an injury
to the accuseds finger. A police officer had testified and explained why he
thought the injury was a bite mark. The trial Crown had urged the trial judge
to accept the officers testimony and argued that it corroborated the
complainants version of events (that she bit down on the accuseds finger as
hard as she could). The trial judge mentioned evidence of this finger injury
twice and clearly regarded it as corroborative. On appeal, the appellant adduced
compelling evidence that the injury was not a bite mark. In concluding that the
fresh evidence could reasonably have affected the result, Charron J. stated for
the majority, at paras. 12-13, that:
It is apparent, and understandable, from the
trial judges reasons that he looked closely at any item of physical evidence
that could assist him in determining the credibility issue.
When considered in
the context of the other evidence at trial and the trial judges reasons as a
whole, I agree with Winkler C.J.O. that Dr. Woods evidence is sufficiently
cogent that it could reasonably be expected to have affected the verdict
(para. 80).
[34]
In
Reeve
, Doherty J.A. commented that
looking at the closing submissions of the parties is one way to glean the
potential value of the discredited evidence: at para. 76. The discredited evidence
in
Reeve
was expert toxicology evidence indicating that the victim
died within 20 minutes after having his last drink, which contradicted the
appellants version of events and supported the Crowns theory. Fresh evidence
tendered suggested that this opinion was incorrect. The discredited evidence
itself occupied a few seconds in a lengthy trial: at para. 73. However, the
evidence was unchallenged in cross-examination and the experts credibility was
not disputed. Because of this, there was a real likelihood that the jury gave
Mr. Robinsons evidence significant weight: at para. 75. The evidence played
an important role in the Crowns closing submissions and, if believed, would
have undermined the appellants credibility and suggested that the murder was
planned. Thus, although the Crowns case was formidable, the fresh evidence
could be reasonably expected to have affected the result
.
[35]
In summary, the application of the could
reasonably be expected to have affected test requires
an
examination of the fresh evidence, the evidence at trial, the submissions of
the parties, and the role that the discredited evidence played in the reasoning
process.
In
J.A.A.
and
Reeve
, the fresh evidence
undermined aspects of the Crowns case. In
J.A.A.
, the discredited
evidence played an important role in the trial judges reasoning process,
especially because the trial judge admitted that it was a close case. In
Reeve
,
it was impossible to know exactly what role the discredited evidence played in
the jurys reasoning process. However, the evidence was an important component
to the Crowns case and, given the fact that the evidence was unchallenged on
cross-examination, there was a real likelihood that the jury gave the
evidence significant weight.
(ii)
Due Diligence
[36]
The due diligence factor is not a condition precedent
to the admissibility of fresh evidence on appeal. It only becomes important if
the fresh evidence meets the first two criteria of admissibility and cogency. It
is concerned with
the broader integrity of the criminal
justice system, including the need for finality in the trial process
. It
asks whether the explanation offered, if any, for the failure to adduce the
evidence at trial should affect the admissibility of the evidence on appeal. The
explanation offered or absence of an explanation may result in the fresh
evidence being excluded despite being otherwise admissible on appeal. It is a
factor to be taken into account, along with the requirement of cogency, in
deciding whether the interests of justice warrant admission of the evidence:
Truscott
,
at para. 93;
C.B.
, at para. 127;
Reeve
, at para. 68.
[37]
Where the fresh evidence was available but not
tendered at trial for tactical reasons, an additional degree of cogency is
required before the fresh evidence may be received on appeal:
C.B.
, at
para. 135. As Watt J.A. explained in
R. v. Manasseri
, 2016 ONCA 703, 132
O.R. (3d) 401, leave to appeal refused, [2016] S.C.C.A. No. 513, at paras.
247-48:
We generally hold fresh evidence to a more
stringent standard of cogency where it was available, but not adduced at trial
because of a tactical decision by trial counsel.
The rule is
general, but not unyielding. Due diligence is not a trump card that denies
entry to all evidence tendered for the first time on appeal that satisfies the
admissibility and cogency requirements for admission.
[38]
The general rule is less strictly applied in
criminal law, and, as in
Manasseri
, when the charges are very serious
as they were in that case: at para. 224.
(c)
Application to the Facts
[39]
There is no dispute as to the admissibility of
the evidence pursuant to the general rules of evidence. It is relevant to the
issue of the identity of the assailant, which was the sole issue at trial, and consists
of an opinion by an expert whose qualifications were accepted at trial.
[40]
As I have already indicated, the fresh evidence
issue turns on the questions of cogency and, relatedly, due diligence. The
question of cogency considers whether the fresh evidence is relevant, credible,
and sufficiently probative such that it could reasonably be expected to have
affected the result. The fresh evidence is highly relevant and bears on a
decisive issue at trial, identity. The experts revised opinion is credible. The
same expert was qualified and testified on the same issue at trial. This was
not a case, for example, where a witness who was reluctant and uncooperative at
trial recants his evidence later: see e.g.
Allen
.
[41]
The respondent argues that this was an
extremely strong case and that the proposed evidence could not reasonably be
expected to have affected the verdict. With respect, I disagree.
[42]
In considering whether Sgt. Huys revised
opinion could reasonably be expected to have affected the result, the court
must examine its broader context, such as the fresh evidence, the evidence at
trial, the submissions of the parties, and the role that the discredited
evidence played in the reasoning process:
Reeve
, at paras. 72-76;
J.A.A.
,
at para. 13.
[43]
In this case, the most important factor bearing
on whether the fresh evidence could reasonably be expected to have affected the
result is the trial judges reasons themselves. These reasons were brief, and a
significant portion focused on the boot print evidence.
[44]
The trial judge readily dismissed the
appellants evidence. The trial judge found that the appellant was lying when
he said his hair was straight when the assault took place, and when he said
that he shaved every day and explained that what appeared to be stubble in surveillance
photos had been dirt and mud. The complainant had described stubble and said
that her attacker had hair that was not really curly, but it wasnt, like
straight. After referring to the appellants drivers licence photo and his
arrest photo, and the appellants appearance throughout the trial, the trial judge
noted that he would consider the appellants hair to be curly and had no doubt
that it was curly on the day of the attack. Regarding the stubble and mud
explanation, the trial judge stated that, in his opinion, the appellant was
lying to exonerate himself. He commented that the composite sketch produced
from the complainants description resembles [the appellant] very closely, but
not precisely.
[45]
The trial judge then turned to the evidence on
the photo line-up and the complainants evidence at trial, stating:
Whether the manner
in which [the complainant] referred to your photo in the July 20, 2016 line-up
and again in court, amounts to proof of your identity beyond a reasonable
doubt, I do not need to decide because of the other evidence implicating you.
[46]
He then reviewed just one part of this other
incriminating evidence, the boot print evidence, relying on Sgt. Huys opinion
that there was a high degree of association between the left boot from [the
appellants] car and the boot impression at the scene. He explained that:
Within this method
of classifying conclusions, high degree of association is the closest
conclusion to a positive finding that the boot made the impression. I am not
bound by the classification system
nor am I bound by Officer Huys opinion. However,
examining the evidence she examined and listening to her testimony I agree with
her conclusion.
The evidence comes extremely close to
proving that the left boot from your car made the impression in [the
complainant]s home.
[Emphasis added.]
[47]
The trial judge then stated that he disbelieved
the defence evidence in the context of the other evidence, concluded that the
Crown evidence was overwhelming proof that he attacked the complainant, and found
him guilty.
[48]
It is not necessary to determine whether the
trial judges view that the expert opinion came extremely close to proving that
the left boot made the impression was, as the appellant argues, a
misapprehension of evidence. The point is that, given the fact that this was
the only Crown evidence, apart from the identification evidence, that the trial
judge considered in his reasons, it clearly had significant importance for him.
The discussion of the boot print evidence amounted to about one third of the
reasons. In itself, that makes it more difficult to say that Sgt. Huys fresh
evidence could not reasonably be expected to have affected the verdict.
[49]
Moreover, the trial judges failure to
scrutinize the other discrepancies and inconsistencies raised by the appellant
exacerbates this difficulty.
[50]
This is especially true in a case such as this in
which eyewitness identification plays a significant role. The complainants
description of her attacker, the composite photo, and her photo line-up
evidence were reviewed and largely accepted by the trial judge. As this court
explained in
R. v. Gough
, 2013 ONCA 137, at paras. 35-36, triers of
fact should treat eyewitness identification evidence with caution:
Being notoriously unreliable, eyewitness
identification evidence calls for considerable caution by a trier of fact. It
is generally the reliability, not the credibility, of the eyewitness
identification that must be established. The danger is an honest but inaccurate
identification.
The trier of fact
must take into account the frailties of eyewitness identification in
considering such issues as whether the suspect was known to the witness, the
circumstances of the contact during the commission of the crime (including
whether the opportunity to see the suspect was lengthy or fleeting) and whether
the circumstances surrounding the opportunity to observe the suspect were
stressful. [Citations omitted.]
[51]
The trial judge appears to have considered the boot
print evidence to be so significant that it was not necessary for him to carefully
scrutinize the other evidence and, in particular, the manner in which the complainant
had selected the appellants photo from the line-up. He did not review, much
less critically examine, a great deal of the circumstantial evidence relied on
by the Crown, including evidence of the appellants whereabouts, before
concluding that the Crown evidence was overwhelming proof that the appellant
attacked the complainant. I hasten to add that it is not necessary for a trial
judge to consider every single item of evidence and explain how they resolved every
single inconsistency. However, given that the boot print evidence is less
probative of the appellants identity than Sgt. Huys indicated at trial, the
rest of the evidence required greater scrutiny than they received in the
reasons in order to sustain a conviction. There are a number of examples that
illustrate this point:
·
The appellant submitted at trial, and on appeal,
that there were flaws in the manner in which the photo line-up was created, and
in particular, that only a few of the photos were of men with round faces in
accordance with the complainants description. The trial judge did say that he
considered the line-up to have been adequate in this regard. However, the
appellant also argues in this court that the photo line-up took place a number
of months after the creation of the composite drawing which had been widely
publicized, raising the possibility that the complainant was comparing the photos
in the line-up to the composite she had in her mind rather than to the person
she actually remembered.
·
Several other landscaping companies in the area
also used red trucks, which were frequently seen on the road the complainant
lived on. The activity and locations of other red trucks were not investigated
or ruled out.
·
The complainant said she saw a red truck parked
on the road, and also thought she had heard a vehicle backing out from her
driveway after the attack, leaving open the possibility that multiple vehicles were
present at the time.
·
The appellants evidence was that he always wore
black shorts to work, while the complainant described her attacker as wearing green
cargo or khaki shorts.
·
The complainant described her attacker as
wearing a sweater or hoodie, but the appellants evidence was that he was not
wearing a sweater that day as it was a hot day. He had also misplaced a sweater
matching the complainants description the weekend before the incident.
[52]
The respondent may well be right that, had the
trial judge scrutinized the evidence as the appellant argues that he should
have, the circumstantial case was so strong that the appellant would have been
convicted nonetheless. But given the absence of reasons on so many of these
discrepancies, it is not, in my view, possible to say that the fresh evidence
could not reasonably be expected to have affected the result.
[53]
The final consideration is that of due diligence.
Although it is true that the evidence would have been available at trial had
the defence retained and called Mr. Benton at that point, the appellant did
provide an explanation. At trial, the appellants counsel was of the view that
a cross-examination of the Crowns expert would be sufficient to cause the
expert to concede or change her opinion. Having reviewed the reasons while
considering an appeal, the appellants appeal counsel decided to obtain another
expert opinion. That report, which addressed some of the same issues raised by
trial defence counsel on cross-examination, caused the Crown expert to revise
her opinion and downgrade the level of similarity between the impression at the
scene and the boot. In these circumstances, the concern for the broader
integrity of the criminal justice system, even taking into account the need for
finality in the trial process, leads me to conclude that there was no failure
of due diligence to warrant a refusal to admit the fresh evidence: see
C.B.
,
at paras. 146-47.
[54]
In summary, the admissibility of the revised
opinion under the operative rules of evidence, its credibility, the emphasis of
the trial judges reasons on the now-revised boot print evidence combined with
the absence of sufficient analysis of the rest of the evidence at trial, and
the explanation for the failure to tender this evidence at trial satisfy the criteria
for admissibility of fresh evidence and the proposed evidence should be
admitted.
[55]
Admitting this evidence would not allow this
court to dispose of the matter on appeal, as it is not so clear and conclusive to
allow an immediate disposition in the form of an acquittal: see
R. v.
Stolar
, [1988] 1 S.C.R. 480, at pp. 491-93;
R. v. Hay
, 2013 SCC
61, [2013] 3 S.C.R. 694, at paras. 76-77. The revised opinion by the Crowns
expert could, however, have potentially altered the result at trial when considered
with the other evidence in the case. The result is that a new trial must be
ordered.
[56]
In light of my conclusion as to the admissibility
of the fresh evidence, I do not find it necessary to address the other
arguments advanced on this appeal, including the trial judges conclusion that
evidence should not be excluded under s. 24(2) of the
Charter
. This
will be for the trial judge to decide at the new trial if this argument is
renewed.
D.
Disposition
[57]
The fresh evidence is admitted. The appeal is therefore
allowed, and a new trial is ordered.
Released: July 16, 2021
J.C.M.
A. Harvison Young J.A.
I agree J.C. MacPherson J.A.
I agree Gary Trotter J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Sears, 2021 ONCA 522
DATE: 20210716
DOCKET: M52559 & M52561
Brown
J.A. (Motions Judge)
BETWEEN
Her
Majesty the Queen
Responding Party
and
James
Sears
Applicant
James Sears, acting in person
Ian McCuaig, assisting the applicant
Michael Bernstein, for the responding
party
Heard: June 18, 2021 by video conference
ENDORSEMENT
I.
OVERVIEW
[1]
The applicant, James Sears, applies for leave to appeal from the order
of the Summary Conviction Appeal Judge, Cavanagh J. (the Appeal Judge), and,
if leave is granted, bail pending appeal.
[2]
On January 24, 2019, the applicant and his co-accused, LeRoy (Lawrence)
St. Germaine, were found guilty on two counts of willfully promoting hatred
against identifiable groups Jews and women contrary to s. 319(2) of the
Criminal
Code
. Neither accused testified at trial. The trial judge sentenced the
applicant to a term of imprisonment of six months on each count, to be served
consecutively.
[3]
The convictions stemmed from statements written and published by the
applicant and his co-accused in 22 issues of a newspaper called Your Ward
News distributed in Toronto and online between January 2015 and June 2018.
[4]
The applicant appealed his conviction and sentence to the Superior Court
of Justice. The Appeal Judge dismissed the appeal:
R. v. Sears,
2021
ONSC 4272 (Appeal Reasons).
[5]
The applicant then applied before this court for leave to appeal his
conviction and sentence pursuant to
Criminal Code
s. 839(1). As well, the
applicant sought bail pending his appeal.
[6]
The applications came before me on Monday, June 14, 2021. I advised the
applicant that his application for bail pending appeal would necessarily entail
a consideration of the merits of his leave to appeal application. Although I
had jurisdiction to hear his application for leave to appeal
[1]
,
the practice of this court is for a panel to consider such applications in
writing:
Criminal Code
, s. 839(1);
Practice
Direction Concerning Criminal Appeals at the Court of Appeal for Ontario
,
(March 1, 2017), at 7.3.6. The applicant advised that he wished to proceed
before a single judge. I adjourned the hearing until Friday, June 18, 2021 to
permit the applicant to file further materials.
II.
GOVERNING PRINCIPLES
[7]
An appeal to the Court of Appeal in summary conviction matters lies,
with leave, on any ground that involves a question of law alone:
Criminal
Code
, s. 839(1). The principles governing such applications for leave
were summarized by this court in
R. v. Lam
, 2016 ONCA 850, at paras. 9
and 10, leave to appeal refused, [2017] S.C.C.A. No. 2:
Section 839(1) of the
Criminal
Code
limits appeals to this court from decisions of summary
conviction appeal courts to grounds involving questions of law alone and
requires that leave to appeal be granted by this court. This second level of
appeal in summary conviction proceedings is an appeal from the decision of the
summary conviction appeal court, not a second appeal from the decision of the
trial court. The appeal is limited to questions of law alone and does not extend
to questions of fact alone or of mixed fact and law, as do appeals to the
summary conviction appeal court from decisions made at trial. Second appeals in
summary conviction proceedings are the exception, not the rule:
R. v.
R.(R)
, 2008 ONCA 497, 90 O.R. (3d) 641, at para. 25.
Two key variables influence the leave
decision:
The significance of the legal issue(s)
raised to the general administration of criminal justice
The merits of the proposed ground(s) of
appeal.
Issues that have significance to the administration
of criminal justice beyond the particular case may warrant leave to appeal,
provided the grounds are at least arguable, even if not especially strong. And
leave to appeal may also be granted even if the issues lack general importance,
provided the merits appear very strong, especially if the conviction is serious
and an applicant is facing a significant deprivation of his or her
liberty:
R.(R.)
, at para. 37.
[8]
To those principles I would add two others. First,
since an appeal pursuant to s. 839(1) is an appeal against the judgment of the
summary conviction appeal court, not a second appeal of the trial judgment, the
leave to appeal judge should determine whether the summary conviction appeal
judge properly applied the principles governing appellate review of the trial
decision:
John Sopinka, Mark Gelowitz & W.
David Rankin,
Sopinka and Gelowitz on the Conduct of an Appeal
, 4th
ed. (Toronto: LexisNexis, 2018), at §3.119;
R. v. McCammon
, 2013 MBCA
68, 294 Man. R. (2d) 194, at paras. 21, 36;
R. v. C.S.M.
,
2004 NSCA 60, 223 N.S.R. (2d) 311, at
para. 26.
[9]
Second, the leave to appeal test should be relaxed where the summary
conviction appeal decision is, in effect, a decision of first instance, for
example where the appeal court reverses a decision of the trial court by
substituting an acquittal for a conviction:
R. v. OMeara
, 2012 ONCA
420, 292 O.A.C. 358, at para. 25. That a new issue arose for the first
time on the summary conviction appeal is an important contextual factor within
which to address the
R. v. R.R.
,
2008 ONCA 497, 90 O.R. (3d) 641,
test:
R. v. MacKay
, 2012
ONCA 671, 112 O.R. (3d) 561, at paras. 21-22.
III.
THE APPLICANTS GROUNDS OF APPEAL
[10]
The
applicant acts in person. As a former medical doctor, the applicant is very
articulate. However, his written materials at times lack focus or sufficient
legal particularity.
[11]
The
applicants Notice of Appeal identifies six grounds of appeal, which really
amount to five as the fourth and sixth grounds essentially relate to the same
sentencing issue concerning the imposition of consecutive sentences. The
applicants Notice of Application for Release Pending Appeal and Leave to
Appeal repeats three of the grounds contained in the Notice of Appeal.
[12]
At
the hearing on June 14, the applicant was assisted by Mr. Ian McCuaig, who was
counsel at trial and on appeal for the applicants co-accused. In response to
my inquiry for a more focused statement of the questions of law alone on which
the applicant seeks leave, Mr. McCuaig sent the court an email identifying
three issues that the applicant considers his strongest grounds of appeal. They
are:
i.
A new issue arising from the conduct of the summary conviction appeal:
specifically, that the mode of hearing for the appeal was changed from
in-person to Zoom videoconference over the applicants objections, resulting in
an unfair process for the appeal hearing;
ii.
The Appeal Judge erred in treating the direct evidence of the
actus reus
the 22 editions of Your Ward News as
direct evidence for proving the
mens rea
of
the offences. In the applicants view, the newspapers were only circumstantial
evidence of
mens rea
and the trial judge did
not satisfy the requirements of
R. v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, when
he inferred the applicants intent from the contents of the newspapers he
edited and wrote; and
iii.
The Appeal Judge failed to address the applicants sentence ground of appeal
that
Criminal Code
s.
718.2(a)(i)
treating evidence that the offence was motivated by hatred based on race or
sex as an aggravating factor did not apply to offences under s. 319(2).
[13]
On
these applications, I will examine those three grounds of appeal, as well as whether
the Appeal Judge erred by letting the applicants consecutive sentences stand. Although
the applicant raised a number of other complaints with the
trial decision during oral argument, these four grounds of appeal were the only
ones advanced with particularity
in the Notice
of Appeal and Notice of Application for Release Pending Appeal and Leave to
Appeal.
IV.
FIRST GROUND: HEARING THE SUMMARY CONVICTION APPEAL BY VIDEOCONFERENCE
The events
[14]
The
appeal hearing was scheduled to be heard in mid-October 2020. One issue on the
appeal concerned the applicants allegation of ineffective assistance by trial
counsel; the trial judge had dismissed an application for a mistrial by reason
of ineffective assistance. Cross-examination on the affidavits relating to that
issue would take place at the appeal hearing. The applicant anticipated that
the hearing would be in-person as that was the default mode of hearing for
self-represented persons at that point of time in the Toronto Region.
[15]
A
case management conference was held before Akhtar J. on October 9, 2020, who
advised that because of increasing COVID-19 infection rates in Toronto the
appeal would be heard by Zoom videoconference. The applicant objected, arguing
that he was entitled to see the eyes of the person that is judging me. A discussion
ensued about whether the applicant had to comply with the general rule to wear
a mask when entering the courthouse and the ability of supporters of the
applicant to watch the appeal. At the end of the discussion Akhtar J. ruled:
[L]isten, I apologize for the
miscommunication. There's clearly been miscommunication [
indiscernible
]
with the court what, what happened. The means of infection is a game changer.
They are surging. But I understand that there'd be over a hundred people,
potentially, coming into the court and they would not be allowed in the
courtroom. And who knows what they're going to be doing, whether they're going
to be wearing masks or not, I don't know. Mr. Sears says he won't wear a mask
because he's exempt. He won't be allowed into the courthouse, I can assure you
of that, because that's the rule. Mr. Sears, I've done my best to accommodate
you, and you know that, in every single day here, to try and get this on, on
the rails and keep it on the rails. But, you have no entitlement to an in-person
hearing. You don't decide the procedure here. The court does. And based on all
the circumstances I've heard, including the fact that, as I say, there's going
to be a large crowd coming, there's going you're not going to be wearing a
mask, and the fact that these figures today on the COVID I'm hearing, they are
going to the Zooms and it is to be a Zoom hearing, and it will be a Zoom
hearing.
[16]
A
Zoom hearing of the appeal commenced before the Appeal Judge on October 13,
2020. The applicant again raised his objection to the appeal proceeding by way
of Zoom. He also submitted, by way of a key takeaway, that he required
additional time to prepare properly for a Zoom hearing: he had planned to use
large display boards at the in-person hearing but now would have to prepare a
PowerPoint slide presentation. The Appeal Judge granted the applicants request
for a short adjournment until November 10, 2020.
[17]
On
November 5, a few days before the scheduled start of the hearing, the Appeal
Judge heard a motion by the applicant to adjourn the appeal until it could be
conducted in-person. The applicant argued that the order to proceed by Zoom
conflicted with information on the courts website stating that
self-represented persons must appear in person and violated his rights under
the
Canadian Charter of Rights and Freedoms
.
[18]
The
Appeal Judge dismissed the motion, ruling in part:
This was raised again before me on October 13,
2020 when the applicant appeared by audio conference only, and I granted the
requested adjournment on that occasion on the basis that it would not be fair
for Mr. Sears to participate in the appeal by audio conference only. And at
that time Mr. Sears agreed to secure an Internet link in order to proceed by
Zoom, and new dates were scheduled.
Section 715.23 of the
Criminal Code
provides
that the court may order an accused to appear by audio conference or video
conference if the court is of the opinion that it would be appropriate, having
regard to all the circumstances including the five specified circumstances set
out in section 715.23.
In this case the order of Justice Akhtar as
the case management judge is an interlocutory order and I lack jurisdiction to
hear an appeal from that order.
And so in my view the order of Justice Akhtar
order is - [indiscernible] the order as stands and I am not allowed to
interfere with it on this application. If it turns out that there was a problem
with a reasonable apprehension of bias, as Mr. Sears suggests, or any other
issue with respect to that interlocutory order, that is properly a matter to be
addressed through appeal proceedings, if the summary conviction appeal is
dismissed.
[19]
Although
the applicant informed the Appeal Judge that he might not appear on the first
two days of the appeal hearing when the evidence on the ineffective assistance
of counsel issue was scheduled, in fact he participated throughout the Zoom
appeal hearing.
Positions of the parties
[20]
In
his Notice of Application for Release Pending Appeal and Leave to Appeal and
his Notice of Appeal, the applicant states that the decision of Akhtar J. to
change the mode of hearing without notice was procedurally unfair because it
contravened the stated policy of the Court that self-represented appeals would
be heard in person. The decision prejudiced the applicant as the appeal
included cross examination as part of an ineffective assistance claim, the
appeal record was voluminous and the number of issues argued was significant.
[21]
The
applicant submits that Akhtar J. lost jurisdiction by overruling the stated
policy of the Court, which was the September 28, 2020 iteration of the
Superior Court of Justice, Toronto Region, Notice to Profession: Toronto
Expansion Protocol for Court Hearings During COVID-19 Pandemic. Section A.4
dealt with matters that will continue to be heard remotely. Subsection (viii)
concerned Summary Conviction Appeals. In the section dealing with hearings,
para. 4 stated:
All out of custody appellants required to attend the hearings
in person are no longer required to do so, unless self-represented. Hearings
for self-represented appellants/applicants shall be conducted in person, unless
in custody, in which case they will be conducted remotely.
[22]
In
his Enhanced Book of Authorities and Unfiltered Oral Argument Notes for Summary
Conviction Appeal (Unfiltered Argument), which the applicant filed at the
appeal hearing and on these applications, he describes his objection to a Zoom
appeal hearing in the following terms:
I am being denied my constitutional right to
an in-person hearing, and instead, under threat of imprisonment, I have been
ordered to stare into a video screen at a cluster of pixels being transmitted
from the Ministry of Truth. I am told that the image formed on the screen
represents the Arbitrator of Truth who I must refer to as His Honour and who
may be a real human or an A.I. virtual image.
And the reason I am
forbidden to meet my arbitrator in person is that the Ministry of Truth is an
arm of a fascist government which conveniently claims that an invisible virus
could strike dead the Ministry of Truths aged prosecutor. And my suggestion
that he alone appear by ZOOM is rejected without a reason.
[23]
The Crown submits that this ground of appeal does not involve a
question of law alone. Sections 683(2.1) and 822(1) of the
Criminal Code
provide a summary conviction appeal judge with the statutory power to order an
appeal hearing to proceed by videoconference. Akhtar J.s exercise of that
statutory power does not give rise to a question of law alone. In any event,
the applicants particular complaints about the mode of hearing do not have
significance to the administration of justice beyond the four corners of the
case.
Analysis
[24]
I
do not understand the applicant to be taking the position that Akhtar J. lacked
the power to direct a videoconference appeal hearing. That is understandable
given that s. 683(2.1) of the
Criminal Code
, which applies to summary
conviction appeals by reason of s. 822(1), states: In proceedings under this
section, the court of appeal may order that a party appear by audioconference
or videoconference, if the technological means is satisfactory to the court.
[2]
[25]
Instead,
I understand the applicant to be arguing that Akhtar J. improperly exercised
his power to order a videoconference hearing because the Notice to Profession
then in force contemplated in-person hearings for summary conviction appeals
where the appellant was self-represented.
[26]
I
am not persuaded that a challenge to a procedural decision made within the
jurisdiction of a summary conviction appeal judge raises a question of law
alone within the meaning of s. 839(1) of the
Criminal Code
:
R. v. Bresnark
, 2013
ONCA 110, at para. 7.
[27]
Even
if the ruling could be characterized as a breach of procedural fairness giving
rise to a question of law alone, the merits of this ground are very weak for
two reasons. First, as disclosed in his reasons, Akhtar J. exercised his
discretion to direct a Zoom hearing at a time of increasing public health
concerns with the start of the COVID-19 second wave in Ontario, which
resulted in the cancellation of most in-person attendances. Second, the
prejudice the applicant sought to avoid namely, impediments to adducing
viva
voce
evidence and cross-examining on the issue of ineffective assistance
of counsel evidently did not materialize for he has not sought leave to
appeal the Appeal Judges dismissal of his ineffective assistance of counsel
claim.
[28]
Nor
does this ground of appeal involve a matter of significance to the general
administration of criminal justice: it concerns the exercise of judicial
discretion on a specific set of facts at a point of time when there were unique
public health concerns.
[29]
Accordingly,
treating this ground of appeal as a new issue arising from the appeal hearing,
I do not see it satisfying even a relaxed application of the
R.R.
principles regarding s. 839(1) leaves to appeal.
V.
SECOND GROUND: CHALLENGING THE FINDINGS ON THE ELEMENTS OF THE OFFENCES
[30]
The
22 issues of Your Ward News were marked as Exhibit 2 at trial. The trial judge
wrote:
After considering the entirety of Exhibit 2, a consistent and
obvious theme that radiated from this publication was hatred. It was at times
contradictory in that love was professed to Jews and some women. It was at
times satirical in that humour and exaggeration were employed to make the point.
But hatred of Jews and women was overwhelmingly the message.
[31]
The
trial judge went on to find that: (i) both men intended to publish hate. No
other intent can be inferred from a complete reading of this newspaper; (ii) there
exists significant evidence of the promotion of that hatred which undeniably
illustrates their intent to pass on to others the message of hate towards Jews
and women; and (iii) both men were fully aware of the unrelenting promotion
of hate in YWN and intended that hatred to be delivered to others.
[32]
The
applicant appealed those findings, advancing his objections under several
discrete grounds of appeal, contending that the trial judge: provided
insufficient reasons; failed to read the publications as a whole and failed to
consider the published words in their context; wrongly treated the 22 issues of
Your Ward News as direct evidence from which he could infer intent; failed to
consider alternate, non-criminal meanings for the published words; and
misapprehended the evidence thereby rendering the verdict unreasonable. The
Appeal Judge rejected the applicants objections.
[33]
On
these applications, the applicant repeats his challenge to the trial judges
findings, organizing his complaints under two grounds of appeal contained in
his Notice of Appeal and Notice of Application for Release Pending Appeal and
Leave to Appeal: (i) the Appeal Judge improperly applied the test for promotion
of hatred and erred in concluding that statements made by the applicant
constituted promotion of hatred; and (ii) the Appeal Judge improperly applied
the law relating to circumstantial evidence with respect to the issue of
wilfulness.
[34]
In
comprehensive reasons, the Appeal Judge dealt with each submission. His reasons
disclose that he:
i.
correctly identified the applicable scope of appellate review: Appeal
Reasons, at paras. 15-19; 23; 39-42; 49-50; 55; 57; 61; and 67;
ii.
correctly identified the governing legal principles set out in
R. v. Keegstra
, [1990] 3 S.C.R. 697, and found that the
trial judge had given himself the direction recommended in that case: Appeal
Reasons, at paras. 31-33;
iii.
accurately summarized the facts and principles in
Villaroman
, seeing no error in the trial judges finding that the
contents of the 22 issues of Your Ward News constituted direct evidence of the
statements made by the applicant from which the intention of the applicant
could be inferred: Appeal Reasons, at paras. 34-37;
iv.
on the latter point, properly referred to and applied the observation in
Keegstra
, at p. 778, that [t]o determine if
the promotion of hatred was intended, the trier will usually make an inference
as to the necessary
mens rea
based
upon the statements made: Appeal Reasons, at para. 65;
v.
Accurately read the trial judges reasons as stating that he had read
the entirety of all 22 issues of Your Ward News, had assessed the statements
made in context, and understood the distinction between hate speech and merely
offensive or distasteful statements: Appeal Reasons, at paras. 33, 46, 58-61;
and
vi.
As part of the process of appellate review, reviewed the evidence of the
issues of Your Ward News marked as Exhibit 2 at trial: Appeal Reasons, at
paras. 56-61.
[35]
That
process of appellate review led the Appeal Judge to conclude, at paras. 58 and
61:
In his reasons, the trial judge found that [w]hen all 22
issues are examined, one is left with unfocused and absurd opinions,
contradictory messages, and scattershot ramblings. Except for its stated claims
of being the worlds largest anti-Marxist publication, YWN exhibits no unifying
concept. This finding is reasonably supported by the evidence.
Based on my review of the published issues of YWN marked at
trial as Exhibit 2, I am satisfied that there was ample evidence upon which the
trial judge could reasonably make these findings and reach these conclusions.
Statements described by the trial judge in paragraphs 11 and 12 of his reasons
as communicating hatred, within the meaning of that term in
Keegstra
, against women and Jews are found in the issues
of YWN received in evidence. The trial judges reasons show why he decided as
he did, and they show a logical connection between why he decided as he did and
the evidence that was the basis for his decision. The 22 issues of YWN received
in evidence provide the basis for public accountability of the trial judges
reasons. The trial judges reasons, read in the context of the evidence at
trial and the submissions made by counsel, do not foreclose appellate review.
[36]
The
applicant has not identified any error of law that tainted the Appeal Judges
analysis. As I understand his submissions, the applicant simply repeats his
disagreements with how the trial judge applied the law to the specific facts of
his case and complains that the Appeal Judge did not apply the law to the facts
in a different way. This ground of appeal is fact-focused and does not engage a
question of law alone.
VI.
THIRD GROUND: APPLICATION OF S. 718.2(
a)(i
)
TO OFFENCES UNDER S. 319(2)
[37]
In
his reasons for sentence, the trial judge identified, as an aggravating factor,
that
Criminal Code
s. 718.2(a)(i) provides that where offences are
motivated by hate, the sentences ought to be increased. That section deems to
be an aggravating circumstance evidence that the offence was motivated by
bias, prejudice or hate based on race, national or ethnic origin, language,
colour, religion, sex, age, mental or physical disability, sexual orientation,
or gender identity or expression, or on any other similar factor.
[38]
In
his factum on appeal, the applicant enumerated 10 errors committed by the trial
judge in his sentence, including misapplying Section 718.2(a)(i), as
Parliament never meant it to redundify Section 319. In his Unfiltered
Argument, the applicant contended that since some speakers during the
Parliamentary debate over the enactment of s. 718.2 gave examples of hate
motivated crimes causing physical harm to people and the then Minister of
Justice, Allan Rock, stated the proposed amendment had nothing to do with
policing or punishing the way people think or the views they hold, it follows
that s. 718.2(a)(i) applies only to violent crime against an individual. Since
the applicant did not commit such a crime, he contends that the trial judge
erred by relying on s. 718.2(a)(i) as part of his determination of sentence.
[39]
In
oral submissions, the applicant complained that the Appeal Judge failed to deal
with his ground of appeal involving s. 718.2(a)(i). He contends that s. 718.2(a)(i)
applies only to cases other than hate speech under
Criminal Code
s. 319.
[40]
No
doubt the proper interpretation of a provision of the
Criminal Code
involves a question of law. So, too, the proper interpretation of a provision
of the
Criminal Code
is an issue of significance to the administration
of criminal justice beyond the particular case. Yet, the applicant offers no
arguable grounds for his position outlined above. On its face, s. 718.2(a)(i)
applies to all offences in the
Criminal Code
; it identifies no
exception. The applicant advances no plausible argument based on the principles
of statutory interpretation that would create an exception where none exists.
[41]
However,
I have considered the applicants submission from a different angle. Perhaps
the applicant is attempting to argue that by taking into account the statutory
aggravating factors in s. 718.2(a)(i) the trial judge, in effect, impermissibly
considered elements of the offence under s. 319(2) as aggravating factors. Characterizing
an element of the offence as an aggravating factor is a reviewable error:
R.
v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 42;
R. v. Adan
,
2019 ONCA 709, at para. 106. Nevertheless, numerous cases have found no such error
where a sentencing judge has taken into account statutory aggravating factors
that are themselves elements of the offence:
R. v. Tejeda-Rosario
, 2010 ONCA 367, 262 O.A.C. 228, at paras. 12-13;
R. v.
B.S.
, 2019 ONCA 72, at para. 12;
R. v.
S.C.W.
, 2019 BCCA 405, at paras. 27-36;
R. v.
JAS.
, 2019 ABCA 376, at paras. 18-19. In any event, even
where a sentencing judge errs, appellate intervention requires demonstrating
that the error had an impact on the sentence. In the present case,
the
Appeal Judge considered whether the trial judge had erred by imposing a
demonstrably unfit sentence. He concluded, at para. 136, that the applicant had
not shown that the trial judge imposed a demonstrably unfit sentence. The
applicant has not identified any arguable error of law in the Appeal Judges
review of this aspect of the sentence.
[42]
Consequently,
this ground of appeal does not satisfy the principles in
R.R.
VII.
FOURTH GROUND: IMPOSITION OF CONSECUTIVE SENTENCES
[43]
The
trial judge sentenced the applicant to the maximum sentence of six months on
each of the two counts, to be served consecutively. In determining that the
sentences should be consecutive, the trial judge applied the decision of this
court in
R. v. Gummer
(1983), 1 O.A.C. 141, [1983] O.J. No. 181 (C.A).
[44]
Gummer
involved convictions for dangerous driving and failing to stop. In setting
aside the imposition of concurrent sentences and making them consecutive, this
court stated at para. 13:
We do not consider the rule that sentences for offences arising
out of the same transaction or incident should normally be concurrent
necessarily applies where the offences constitute invasions of different
legally-protected interests, although the principle of totality must be kept in
mind. The offences of dangerous driving and failing to remain protect
different social interests. The offence of dangerous driving is to protect the
public from driving of the proscribed kind. The offence of failing to remain
under s. 233(2) of the Code imposes a duty on the person having the care of a
motor vehicle which has been involved in an accident, whether or not fault is
attributable to him in respect of the accident, to remain and discharge the
duties imposed upon him in such circumstances.
[45]
The
trial judge stated, at para. 12:
In this case, identifiable groups, those being women and Jews,
have separate, legally-protected interests. The defendant could promote hatred
against one and not the other, or vice versa. He promoted hatred against both.
In addition, the hate was promoted against both groups not from one incident,
but many, and consistently over a period of three years.
[46]
On
his appeal from sentence, the applicant submitted that the trial judge
committed an error in principle by deciding that the sentence for each count
should be served consecutively rather than concurrently. The Appeal Judge did
not accept that submission. The Appeal Judge properly recited the deference
owed to a sentencing decision absent an error in principle or demonstrably
unfit sentence. In the case before him, the Appeal Judge concluded that the
trial judge did not err in principle by ordering that the sentence on each
count be served consecutively, stating at paras. 129-130:
Counsel for Mr. St. Germaine submits that the only relevant
interest for a sentencing judge to consider is societys interest, and that the
trial judge erred by identifying two separate interests. I disagree with this
submission. Society has an interest in discouraging hate crimes against
different groups and, just as in
Gummer
, the
trial judge concluded in respect of the charges against the appellants, that
there were two separate societal interests, discouraging hatred against women
and discouraging hatred against Jews.
The Crown proceeded with a two-count information against each
appellant and it acted within its discretion to do so. The trial judge had
reviewed the collection of the 22 issues of YWN that were introduced into
evidence, and he was well situated to decide whether the communications against
women and against Jews in those issues should properly be treated as part of
the same conduct against two groups who do not not enjoy separate protected
interests, such that concurrent sentences would be proper. The trial judge,
having reviewed the 22 issues, concluded that the communications promoting
hatred were directed against separate identifiable groups, women and Jews, and
each has a separate legally protected interest.
[47]
On
this application, the applicant submits that the Appeal Judge erred in law in
allowing the order for consecutive sentences to stand.
[48]
I
am not persuaded that this ground of appeal amounts to a question of law
alone. The Appeal Judge properly identified the principles governing his
appellate review of the trial judges sentence. The applicant does not identify
any conflict within the jurisprudence relevant to the circumstances of his
sentence. Finally, as pointed out in Clayton C. Ruby,
Sentencing,
10th ed.
(Toronto: LexisNexis, 2020), at
§14.18, it becomes a
fact-specific inquiry
of
whether the nexus between offences is sufficiently or insufficiently close to
merit either consecutive or concurrent sentences. [Emphasis added.]
VIII.
DISPOSITION
[49]
For
the reasons set out above, I am not satisfied that the applicants proposed
appeal meets the requirements of
Criminal Code
s. 839(1), as
interpreted by
R.R
. Accordingly, the application for leave to appeal
is dismissed. It follows that the application for bail pending appeal is
also dismissed.
David
Brown J.A.
[1]
Section
839(1) of the
Criminal Code
states, in part:
Subject to subsection (1.1), an appeal to the court of appeal as defined in
section 673 may, with leave of that court
or a judge thereof
, be taken on any ground that
involves a question of law alone
[Emphasis added.]
[2]
The decision of this court in
Woods (Re),
2021
ONCA 190, 154 O.R. (3d) 481, to which the applicant directed my attention, has
no application to the present case.
Woods
involved proceedings under
Part XX.1 of the
Criminal Code
. This court held, at para. 33, that Part
XX.1 of the
Criminal Code
did not provide the Ontario Review Board with
the authority to conduct its hearing by videoconference without the consent of
the NCR accused. Part XX.1 has no application to the present case, which
concerns the powers of judges on summary conviction appeals.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Grant, 2021 ONCA 519
DATE: 20210715
DOCKET: M52394
(C69275)
Brown
J.A. (Motions Judge)
BETWEEN
Her
Majesty the Queen
Responding
Party
(Respondent)
and
James
Jahkyn Grant
Applicant
(Appellant)
George Singh, for the applicant
James Clark, for the responding party
Heard: June 17, 2021 by video conference
ENDORSEMENT
I.
OVERVIEW
[1]
The applicant, James Jahkyn Grant, applies for
his release pending his appeal from his conviction by a jury of importing into
Canada a controlled substance, namely 2.5 kilograms of cocaine. The cocaine was
found hidden in a piece of the applicants luggage when he attempted to clear
customs at Pearson International Airport upon his return from Aruba.
[2]
The applicant was convicted by a jury on August
13, 2019. Sentence was passed on June 17, 2021. The sentencing judge imposed a
custodial sentence of 4.5 years. After deducting approximately one year for
pre-trial custody, the resulting sentence to be served is 3.5 years.
[3]
The main grounds of appeal asserted by the
applicant on his appeal are:
(i)
The trial judge inadequately charged the jury on
the requisite knowledge to establish the offence;
(ii)
The trial judge failed to properly answer a question asked by the
jury during their deliberations that sought to clarify some evidence and failed
to permit the defence to properly address the evidence;
(iii)
On a pre-trial application that sought to stay the charge by reason
of the violation of the applicants rights under s. 11(b) of the
Canadian
Charter of Rights and Freedoms
, Justice Harris erred in calculating the
total amount of defence delay; and
(iv)
On a subsequent pre-trial
Charter
application, Justice André
failed to address various factual inconsistencies in the evidence, resulting in
his erroneous dismissal of the application.
[4]
The Crown opposes the application for three
reasons: (i) the proposed grounds of appeal are devoid of merit; (ii) the
applicant is unlikely to surrender into custody; and (iii) the public interest
favours his detention as the reviewability interest in his appeal is weak while
the enforceability interest points strongly in favour of his ongoing detention.
[5]
Since only a few transcripts of the pre-trial
proceeding were filed on this application, the applicant relies primarily upon
the written reasons of the application judges, the charge to the jury, and the
reasons for sentence. The applicants counsel, Mr. George Singh, has filed an
affidavit opining on the merits of the appeal.
[1]
Mr. Singh also appeared as lead counsel on this application. Consequently, I am
obliged to treat his affidavit as a form of argument, not opinion evidence.
[6]
The applicant proposes release with bail of
$10,000, without deposit, with two sureties, his wife and sister. Both acted as
his sureties while on pre-sentence interim release.
II.
NOT FRIVOLOUS:
Criminal Code
s
. 679(3)(
a
)
[7]
The bar for establishing that an appeal is not
frivolous is very low:
R. v. Oland
, 2017 SCC 17, [2017] 1
S.C.R. 250, at para. 20. As described by Watt J.A. in
R. v. Manasseri
,
2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38: An appeal is not frivolous if
the proposed grounds of appeal raise arguable issues. An applicant need not
establish a likelihood, much less a certainty of success on appeal, but must be
able to point to a viable ground of appeal that would warrant appellate
intervention if established. The purpose of the not frivolous threshold is
to require the applicant to demonstrate that the appeal has some merit. If
this were not so, the appellate process could be abused by those intent on
forestalling the execution of a custodial sentence:
R. v. T.S.D
.,
2020 ONCA 773, at para. 24.
[8]
I shall assess each of the applicants grounds
of appeal against this standard.
A. Charge to the jury
[9]
As his first ground of appeal, the applicant
submits the trial judge inadequately charged the jury on the requisite
knowledge required to establish the offence. According to a written copy of
part of the charge, when instructing the jury on the elements of the offence
the trial judge stated:
The Crown is required to prove that [the applicant]
actually knew or was aware that the substance was a controlled substance, in
this case cocaine. [The applicant] does not have to know the technical term for
the substance but must know that it is a controlled substance.
[10]
As I understand the applicants submission, he
does not take issue with that part of the charge. Instead, he submits that when
the trial judge summarized the Crowns position for the jury he referred
several times to what the applicant must have known. The applicant submits
that without a correcting or clarifying instruction, those references would
have misled the jury about the applicable legal requirements for knowledge.
[11]
The written copy of the charge included in the
record does not contain the judges summary of the Crowns position. Nor does
the record contain the transcript of the charge, pre-charge conference or any
post-charge objections.
[2]
Consequently, the applicant has failed to file the evidentiary record necessary
to assess whether this ground of appeal is not frivolous.
B. Trial judges response to a question
from the jury
[12]
At trial, the applicant testified that he had
stayed at a particular resort for his entire stay in Aruba. During their
deliberations, the jury asked a question about a document that showed the
applicant stayed at the resort for a shorter period of time.
[13]
The applicant submits the trial judge did not
permit any opportunity to clarify the answer he provided to the jury nor the
ability for defence nor the crown to solicit a proper answer to the question.
[14]
The record does not contain the transcript of
this portion of the trial. Instead, it contains what appears to be the
reporters partial annotation of the audio recording.
[3]
The document contains less
than 20 lines of annotation for a discussion between the trial judge and
counsel that lasts about 19 minutes. Since it does not provide the entirety of
the discussion, I cannot assess the legal adequacy of the trial judges
approach and, therefore, cannot assess whether this ground of appeal is not
frivolous.
C. The s. 11(b) ruling
[15]
Justice Harris heard the s. 11(b) application on
November 26, 2018. At that point of time, the total delay from the date the
applicant was charged, January 25, 2015, to the prospective trial date, January
14, 2019, was just short of four years, exceeding the presumptive ceiling of 30
months established by
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631. In
the result, the application judge attributed 22 months of the delay to defence
conduct or waiver, leaving a net delay of about 26 months, which fell under
Jordan
s
presumptive ceiling: 2018 ONSC 7260.
[16]
The applicants notice of appeal states that Justice
Harris erred in calculating the total amount of delay for the purposes of
11(b) application based on a misinterpretation of the facts presented in
support of the delay in the matter being heard within a reasonable time as
permitted by law. Counsel did not elaborate on this ground of appeal in his
affidavit of merits.
[17]
In oral submissions counsel submitted that the
particulars of this ground of appeal are: (i) there was an element of bias on
the part of the application judge as he described several instances of conduct
by the applicant as the particular brand of juridical nihilism espoused by the
applicant; (ii) the trial judge considered some affidavit evidence filed by
the Crown without affording the defence an opportunity to cross-examine on it;
and (iii) the trial judge incorrectly calculated delay attributable to defence
conduct or waiver. Counsel submitted that a fair analysis of the events would
conclude that the applicant was not responsible for any of the delay.
Allegation of bias
[18]
As described by Justice Harris, at many steps
along the way the applicant challenged the authority of the court, as well as
that of police officers who attempted to fingerprint him. The application judge
commented: In his many appearances, the applicant often referred to himself as
an indefinable spirit created by flesh and blood and as an aboriginal sovereign
on his land. The application judges reasons reproduce portions of the
transcripts of some of the proceedings in which such conduct occurred. The
applicants conduct, as disclosed in those transcripts, led the application
judge to state, at paras. 20 and 21:
With respect to a number of the incidents, the
applicant and his counsel blame others. I am very skeptical. On the contrary,
from the many conflicts which have occurred with the full gamut of personnel in
the administration of justice, including judges, court officers, police
officers, and lawyers, a portrait of the applicant emerges. The applicant is
not merely egocentric. He does not see himself so much as the centre of the
universe as a separate and complete universe on to himself. He refuses to
acknowledge the authority of the state over him. The applicant is a judicial
nihilist. This is a particularly convenient stance for a man charged with a
serious criminal offence.
For the purpose of clarity, although it should
be unnecessary to say, there was not a scintilla of sense let alone legal merit
to any of the applicants positions with respect to the authority of judicial
officers over him. The applicant is subject to the same authority and jurisdiction
of the court as any other accused person. To take one of the more egregious
examples, failing to appear because he feels hard done by in the system cannot
be tolerated.
[19]
The applicant contends that the application
judges use of the term judicial nihilist displays bias against him. I am not
persuaded that this ground of appeal surpasses the not frivolous standard.
Other courts have employed strong language to describe the conduct of those who
act in court in ways similar to those employed by the applicant:
R. v.
Cassista
, 2013 ONCJ 305;
R. v. Duncan
(2012), 2013 ONCJ 160; and
Meads
v. Meads
, 2012 ABQB 571, 74 Alta. L.R. (5th) 1. In any event, a reading of
the application judges reasons discloses that he took an evidence-based
approach to the arguments advanced by the applicant on his s. 11(b) motion.
The treatment of affidavits filed
by the Crown just prior to the s. 11(b) hearing
[20]
The transcript of the 11(b) hearing reveals that
the application previously had been adjourned, following which the applicant
filed supplementary materials. Just before the November 26, 2018 hearing date,
the Crown filed some responding materials. The application judge acceded to
defence counsels request for a few hours to review the Crowns materials.
[21]
Upon resuming, the application judge proposed
that the hearing proceed, with the issue of cross-examination on the Crowns
supplemental affidavits left to another day:
THE COURT: Why cant we proceed here today and
leave the affidavit issue for another day? We can argue everything today as is
and then we come to cross examine on the affidavits at some other date.
MR. SINGH: Im prepared to do that Your
Honour. Just a moment, let me just confer with my client. Yes Your Honour, the
preference is to be able to complete today. However, if thats the only way
this matter will proceed we do want to start today. We dont want to delay any
further.
[22]
The parties then proceeded to make their
submissions on the 11(b) application. At the conclusion of the submissions,
defence counsel again raised the issue of the Crowns supplemental affidavits.
Defence counsel requested that the court not consider certain affidavits unless
cross-examination was permitted, to which the application judge responded:
THE COURT: Okay, Ill consider that long with everything
else. And Ill reserve then and if I need you to come back Ill let you know.
[23]
The court then permitted the applicant to file
several videos of his interaction with court security and institution officers
that had not previously been filed as part of his application materials.
[24]
The reasons of the application judge disclose
that he did not find it necessary to consider the affidavits and determine what
in fact had taken place on certain occasions. He wrote, at para. 19:
I have been asked to determine what actually
occurred during some of the incidents during the movement of this case through
the system such as in the flagpole incident for example. In cases in which the
conduct in question is not captured on the record, a motions judge is in no
position to hold mini-trials to resolve factual disputes concerning the
applicants many conflicts with those in the administration of criminal
justice. Furthermore, such an approach would be contrary to the letter and
spirit of
Jordan
. The Supreme Court has concluded that the
hearing of 11(b) motions should be streamlined just as the substantive criteria
have been from the previous
Askov/Morin
structure.
[25]
Instead, the application judge examined five
periods of delay that the Crown contended were either defence delay or waiver. It
is apparent from the reasons that the application judge did not rely on the
contested affidavits to determine which periods of delay were attributable to
defence conduct or waiver. This ground of appeal therefore does not exceed the
not frivolous threshold.
Errors in attributing delay to the defence
[26]
The next aspect of this ground of appeal alleges
that the application judge wrongly attributed time to defence delay.
[27]
The longest such period of time ran from April
15, 2016 until January 31, 2017. The application judge described the events at
para. 26:
After leaving the court
twice in the midst of the March 23, 2016 appearance before Justice Durno and
being warned that an arrest warrant would be issued, the applicant was required
to reattend on April 15, 2016. On April 1, 2016 he was served with a pre-trial
conference form but was reluctant to accept service. He failed to attend on
April 15, 2016 and a bench warrant was issued for his arrest. He was not
arrested until the New Year and appeared before the court January 31, 2017.
[28]
The applicants position was that the delay from
April 15 until November 16, 2016 should be the shared responsibility of the
Crown and defence, with the remainder treated as institutional delay because
the applicant was in custody on another matter on November 16, 2016. According
to the applicant, the primary fault lay with the authorities for not executing
the arrest warrant more quickly.
[29]
The application judge rejected that submission
writing, at para. 28:
These arguments are totally devoid of merit
and I dismiss them out of hand. It was the applicants obligation to attend
court and, having missed it, it was his obligation to bring his failure to
appear to the attention of the authorities. There is not one iota of evidence
that the police were negligent. The burden falling on the applicant, this
argument fails. This time period is the responsibility of the defence:
Jordan
at para. 63.
[30]
The second significant period of time, which the
application judge also characterized as delay attributable to the defence, was a
period of almost five months: February 2, 2017 April 25, 2017; and May 25,
2017 July 28, 2017. During the first period, the applicant was attempting to
retain a lawyer; during the second, the Crown and court were prepared to set a
trial date but counsel for the applicant was not.
[31]
On appeal, the applicant will argue that the
application judge erred in attributing those periods of time to defence delay
instead of inherent delay. I recognize that the characterization of periods of
delay, and the ultimate decision concerning the reasonableness of a period of
delay, is reviewable on a standard of correctness; the underlying findings of
fact are reviewable on a standard of palpable and overriding error:
R. v.
Konstantakos
,
2014 ONCA
21
, 315 O.A.C. 123, at para.
5
;
R. v. Williamson
,
2014 ONCA 598, 324 O.A.C. 231, at para. 29, affd 2016 SCC 28, [2016] 1 S.C.R.
741;
R. v. Pauls
, 2020 ONCA 220, 149 O.R. (3d) 609, at para. 40, affd
2021 SCC 2, 453 D.L.R. (4th) 189.
[32]
Nevertheless, as to the April 15, 2016 to
January 31, 2017 period of time, one condition of the applicants interim
release was that he would attend[] thereafter as required by the court in
order to be dealt with according to law. It appears uncontested that the applicant
did not do so. The case law recognizes that the allocation of responsibility
for delay resulting from an accuseds failure to appear in accordance with
terms of release involves, in part, a consideration of the knowledge of the
Crown about the accuseds whereabouts and whether the accuseds inability to
appear was due to reasons beyond his control:
R. v. J.K.
, 2021 ONCA
256, 155 O.R. (3d) 427, at paras. 38-45. Here, however, the applicant has not
provided any evidence on those matters that would enable me to assess the
strength of the application judges conclusion that the applicants arguments
are totally devoid of merit.
[33]
As to the other periods of time,
Jordan
includes within delay attributable to the defence delay caused solely by the
conduct of the defence and delay caused when the court and Crown are ready to
proceed but the defence is not.
[34]
In those circumstances, on the evidentiary
record before me I conclude that this ground of appeal does not surpass the
not frivolous threshold.
D. Errors in dismissing the 2019
pre-trial stay application
[35]
A few months prior to trial, the applicant
sought a stay of the charge on the basis that on numerous occasions state
agents violated his ss. 2, 7, 8, 9, 10, 12, and 15
Charter
rights. The
application took 11 days to argue. Justice André dismissed the application:
2019 ONSC 3616.
[36]
In his notice of appeal the applicant states
that
Justice André
erred
in dismissing the application by not addressing the various factual
inconsistencies of the evidence put forth in the Crowns case. Applicants
counsel did not elaborate on this ground in his affidavit of merits. In oral
submissions, counsel stated that the particulars of this ground of appeal were:
(i) a reasonable apprehension of bias on the part of Justice André; (ii) some officers
admitted to lying but the application judge made no comment; and (iii) witness
dishonesty.
[37]
Justice Andrés reasons run some 30 pages. He
examined in detail each of the eight incidents in which the applicant alleged
that his
Charter
rights had been violated by a judge, police officer
or court security officer. The allegations against the judges also included
allegations of reasonable apprehension of bias. Justice André gave extensive
reasons why he did not find a
Charter
violation in any of the
incidents. The applicants grounds of appeal submitted before me lack
sufficient particularity to enable an evidence-based assessment of their
merits:
Oland
, at para. 45. Since the applicant bears the burden of
establishing that his appeal is not frivolous, I am not satisfied that he has
met that burden for this ground of appeal.
E. Conclusion
[38]
For the reasons set out above, based on the
record filed on this application I am not satisfied that the applicant has
established that his appeal is not frivolous.
[39]
Although that is sufficient to determine this
application given the conjunctive nature of the s. 679(3) criteria, I will
consider the other two criteria.
III.
SURRENDER INTO CUSTODY:
CRIMINAL CODE
s
. 679(3)(
b
)
[40]
The second criterion the applicant must
establish is that he will surrender himself into custody in accordance with the
terms of the release order. I am not satisfied that the applicant has satisfied
this criterion for the following reasons.
[41]
First, as mentioned above, the applicant failed
to attend court on April 15, 2016, contrary to the terms of his interim release
dated January 30, 2015. A bench warrant was issued. He was arrested early the
following year and appeared before the court on January 31, 2017. The applicant
does not address this issue in his supporting affidavit. Although his proposed
sureties depose that they had no issues with ensuring the applicant complied
with his conditions of interim release, they were acting as sureties during the
time the applicant failed to appear in 2016 and 2017. I therefore give little
weight to their present assurances.
[42]
Second, the applicant provided no information in
his supporting affidavit about any employment or source of income for the
period prior to the hearing of his appeal. In his reasons, the sentencing judge
wrote that the applicant reported that he was a principal and administrator of
Rouge Ontario Cathedral Kynship but did not provide any proof of income. Simply
put, the applicant has not provided the court with evidence of a concrete
release plan.
[43]
Third, I am concerned about the applicants
history of aggressively challenging the authority of the court in the criminal
proceeding against him. While the applicant did not repeat his failure to
attend court following his arrest in January 2017, my concern about his failure
to comply with a term of his interim release is compounded by the observation
made by MacPherson J.A. in
R. v. Patterson
(2000), 135 O.A.C. 324
(C.A.), at para. 11, that flight before trial and flight after conviction and
the imposition of a serious custodial sentence are very different scenarios:
When optimism and hope recede, thoughts of flight might well advance. I
appreciate that the applicant has deposed that he has five children whom he
supports and is active in their daily lives. However, his affidavit lacks
concrete details about his release plans.
[44]
Taken together, these factors lead me to
conclude that a real risk exists that the applicant would not surrender himself
into custody in accordance with the terms of a release order.
IV.
PUBLIC INTEREST:
CRIMINAL CODE
s
. 679(3)(
c
)
[45]
The public interest criterion consists of two
components: public safety and public confidence in the administration of
justice:
Oland
, at para. 23.
[46]
There is no suggestion in the present case that
the applicants release would jeopardize public safety.
[47]
The public confidence criterion requires
balancing several factors: the seriousness of the offence; the strength of the
grounds of appeal; public safety; and flight risks:
Oland
, at para. 47.
[48]
Given my conclusion above on the first
criterion, the applicants grounds of appeal do not clearly surpass the not
frivolous criterion:
Oland
, at para. 44. By contrast, the
enforceability interest in the present case is strong: the applicant has been
convicted of a very serious criminal offence and there is a risk that he would
not surrender into custody. In my view, the enforceability interest far
outweighs the reviewability interest:
Oland
, at para. 50.
[49]
I conclude that the applicant has not
established that his detention is not necessary in the public interest.
DISPOSITION
[50]
For these reasons, I dismiss the application.
[51]
However, given the applicants family situation,
I am prepared to give directions pursuant to
Criminal Code
s. 679(10)
to expedite the hearing of this appeal. If the applicant perfects his appeal by
August 31, 2021, I direct that the hearing of his appeal take place no later
than December 17, 2021, with 2.5 hours of oral argument allocated for the
appeal.
David
Brown J.A.
[1]
Although
the copy of the affidavit included in the application record contains the entirety
of counsels treatment of the grounds of appeal, it is missing a few
introductory pages. Two efforts by the courts Executive Legal Officer to
obtain from applicants counsel copies of the missing pages proved
unsuccessful.
[2]
The applicant
filed summary annotations of some portions of the trial leading up to the
charge. This document did not contain any active links to an audio recording.
In any event, it was the obligation of the applicant to file a proper
transcription of the relevant portions of the trial on this application.
[3]
Again,
this
document did not contain any active links to an audio
recording.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Ontario College of Teachers v.
Bouragba, 2021 ONCA 508
DATE: 20210714
DOCKET: M52510
(C69405)
Brown, Roberts and Zarnett JJ.A.
BETWEEN
The Ontario College of Teachers
Plaintiff
(Respondent/Responding
Party)
and
Ahmed Bouragba
Defendant
(Appellant/Moving
Party)
Ahmed Bouragba, acting in person
Charlotte-Anne Malischewski, for the
responding party
Heard: July 2, 2021 by video conference
REASONS FOR DECISION
[1]
By order dated June 14, 2021, Zarnett J.A.
ordered that the motion by the appellant, Ahmed Bouragba, be heard by a panel.
[2]
Mr. Bouragba has filed in this court an appeal
from the order of Master Brott dated March 22, 2021 (the Order). He has also
filed an appeal from the Order to the Divisional Court. Mr. Bouragba now moves
to transfer his Divisional Court appeal to this court so that they can be heard
together.
[3]
To transfer his appeal from the Divisional Court
to this court, Mr. Bouragba must demonstrate that his appeal already filed with
this court lies to this court, as required by s. 6(2) of the
Courts of
Justice Act
, R.S.O. 1990, c. C.43 (
CJA
).
[4]
The responding party, The Ontario College of
Teachers (College), started a defamation action against Mr. Bouragba. He
moved under
CJA
s. 137.1 to dismiss the action. His motion was
dismissed. This court allowed his appeal and sent his s. 137.1 motion back to
the Superior Court to be heard by a different judge:
Ontario College of
Teachers v. Bouragba
, 2019 ONCA 1028, 51 C.P.C. (8
th
) 280,
leave to appeal to S.C.C. refused, 39229 (October 29, 2020).
[5]
The College then moved under r. 23.01 of the
Rules
of Civil Procedure
seeking leave to discontinue its action, with prejudice
to the College. Mr. Bouragba opposed the motion. Master Brott granted the
motion. The first three paragraphs of her Order read as follows:
1. THIS COURT ORDERS that this action is
discontinued.
2. THIS COURT ORDERS that the discontinuance
of this action shall be deemed a bar to any subsequent action or actions
brought by the Plaintiff arising from the same causes of action asserted within
this action.
3. THIS COURT ORDERS that the discontinuance
of this action shall be deemed to have ended the Defendants motion brought
under section 137.1 of the
Courts of Justice Act
, R.S.O. 1990, c. C.
43.
[6]
Mr. Bouragba submits that an appeal of the Order
lies to this court pursuant to
CJA
s. 6(1)(d), which states that an
appeal lies to the Court of Appeal from
(d) an order made under section
137.1.
[7]
We disagree. An order made under section 137.1
within the meaning of
CJA
s. 6(1)(d) is an order made by a judge of
the Superior Court of Justice. This is clear from the language of s. 137.1,
which authorizes a judge to make orders that: (i) dismiss a proceeding (s.
137.1(3)); (ii) refuse to dismiss a proceeding (s. 137.1(4)); (iii) amend a
pleading (s. 137.1(6)); (iv) award costs (s. 137.1(7) and (8); or award damages
to the moving party (s. 137.1(9)).
[8]
A case management master, such as Master Brott,
is not a judge. Consequently, her Order was not an order made by a judge,
within the meaning of
CJA
s. 137.1, and therefore not an order made
under section 137.1 within the meaning of
CJA
s. 6(1)(d). It follows
that no appeal from the Order lies to this court. We would observe that the
issue of this courts jurisdiction to hear an appeal under
CJA
s.
6(1)(d) was not raised in the case of
Bruyea v. Canada (Veteran Affairs)
,
2019 ONCA 599, 439 D.L.R. (4
th
) 193. However, in
Bruyea
, at
para. 14, the court did point out the significance of s. 137.1s use of the
word judge instead of court, in respect of the authority of a master.
[9]
Accordingly, Mr. Bouragba has not demonstrated
that an appeal of the Order lies to this court for the purposes of the
transfer provisions in
CJA
s. 6(2).
[10]
Mr. Bouragbas transfer
motion is dismissed. The proper court to consider his appeal from the Order is
the Divisional Court:
CJA
s.
19(1)(c)
.
[11]
There shall be no order
as to the costs of this motion.
David Brown J.A.
L.B. Roberts J.A.
B. Zarnett J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Moreira, 2021 ONCA 507
DATE: 20210714
DOCKET: C67785
Miller, Paciocco and Nordheimer
JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Matthew Moreira
Appellant
Margaret Bojanowska, for the appellant
Michael Fawcett, for the respondent
Heard: June 18, 2021 by video conference
On appeal from the sentence imposed on
April 29, 2019 by Justice Suhail A.Q. Akhtar of the Superior Court of Justice, with
reasons reported at 2019 ONSC 2648.
Paciocco J.A.:
OVERVIEW
[1]
Zaher (Zack) Noureddine died after being
brutally beaten on December 29, 2015. A jury convicted Matthew Moreira of
manslaughter in Mr. Noureddines death, and of robbing Mr. Noureddines
companion, Mitchell Conery, during the same incident.
[2]
The sentencing judge imposed a global sentence
on Mr. Moreira of 13 years imprisonment: 12 years for the manslaughter and 1 year
consecutive for the robbery. As Mr. Moreira had already served the equivalent
of 4 years and 7 months in pre-sentence custody, the sentencing judge imposed a
net sentence of 8 years and 5 months.
[3]
Mr. Moreira seeks leave to appeal his sentence
and raises numerous grounds of complaint. Most significantly, Mr. Moreira
argues that the sentencing judge, who also presided over the jury trial in this
case, erred in determining the factual basis for Mr. Moreiras manslaughter
conviction and in assessing his degree of fault.
[4]
For reasons that follow, I would grant leave to
Mr. Moreira to appeal from sentence and allow his sentence appeal on this
ground. I would also accept his ground of appeal that the sentencing judge
materially misapprehended the evidence in considering whether to give him credit
for harsh conditions of pre-sentence custody, pursuant to this courts decision
in
R. v. Duncan
, 2016 ONCA 754, [2016] O.J. No. 5255.
[5]
Based on these two errors, I would set aside the
12-year global sentence imposed on Mr. Moreira for the offence of manslaughter.
After rectifying both errors, I would substitute a global sentence of 10 years.
I would not interfere with the one year of consecutive imprisonment for the
robbery. After credit for pre-sentence custody, I would therefore substitute a
net sentence for the two offences of 6 years and 5 months.
MATERIAL FACTS
(a)
The Attack and Key Trial Evidence
[6]
Around midnight on December 29, 2015, Mr.
Noureddine and Mr. Conery were accosted by William Cummins, Patrick Smith, and
Mr. Moreira. Both Mr. Noureddine and Mr. Conery were attacked in the ensuing
altercation. Tragically, Mr. Noureddine died as the result of a savage beating.
He suffered a ruptured artery in his neck, which caused a brain bleed that led
to his death. Mr. Cummins, Mr. Smith, and Mr. Moreira were subsequently
apprehended and charged.
[7]
Prior to their joint trial, Mr. Cummins fired
his lawyer. As a result, his trial was delayed. The trial of Mr. Smith and Mr.
Moreira went ahead. They were tried jointly by a jury on charges of first-degree
murder in the death of Mr. Noureddine, contrary to s. 235(1) of the
Criminal
Code
, R.S.C. 1985, c. C-46, and with robbery, arising from the
assault on Mr. Conery, contrary to s. 343(c) of the
Criminal
Code
.
[8]
During the trial, Mr. Conery testified that he
and Mr. Noureddine had been at a bar on the night in question. After leaving the
bar, they were walking to Mr. Conerys car when three men emerged from an
alleyway and moved towards them. Mr. Conery said that, without warning or
provocation, he was immediately sucker punched and knocked to the ground by
one of the three men.
[9]
Mr. Conery and other witnesses to the incident
confirmed that Mr. Noureddine was also set upon. They testified that he too was
knocked to the ground, and then kicked repeatedly in the head. One witness likened
the force of the kicking to Mr. Noureddines head to someone trying to kick a
soccer ball across a field.
[10]
Several witnesses testified that only two of the
three men took part in the attack on Mr. Noureddine. It is not contested that
those witnesses were referring to Mr. Cummins and Mr. Smith, who were identified
based on their large stature relative to the third man, Mr. Moreira. Indeed, on
Mr. Conerys evidence, only the two larger men participated in the attack on
Mr. Noureddine. Mr. Conery testified that during the attack on Mr. Noureddine, the
smaller man, Mr. Moreira, tapped Mr. Conery with his foot and told him that if
he handed over his wallet, the attack would end.
[11]
By contrast, only one witness, Michael Bruton,
testified to having seen three men attacking Mr. Noureddine.
(b)
The Jury Charge and the Verdicts
[12]
While presiding over the trial, the sentencing judge
instructed the jury that they could find Mr. Moreira guilty of first-degree
murder, second-degree murder, or manslaughter. It is unnecessary to say more
about the jury charge relating to first-degree murder.
[13]
The sentencing judge instructed the jury that
there were three possible bases for convicting Mr. Moreira of second-degree
murder: (1) through participation in the physical assault on Mr. Noureddine with
the requisite intent for murder; (2) by aiding Mr. Smith in committing the
offence of second-degree murder knowing that Mr. Smith had the requisite intent
for murder; or (3) by common design, through agreement with Mr. Smith to
participate in robbing Mr. Noureddine, knowing that Mr. Smith would probably
cause the death of Mr. Noureddine with the requisite intent to commit murder.
[14]
The sentencing judge instructed the jury on two pathways
to convicting Mr. Moreira of manslaughter: (1) through participation in the
physical assault, without the requisite intent for murder; or (2) by aiding Mr.
Smith in committing the offence of murder or manslaughter knowing that Mr.
Smith would commit the unlawful act of assaulting Mr. Noureddine in a manner
that would put Mr. Noureddine at risk of bodily harm but Mr. Moreira did not
foresee that he would cause the death of Mr. Noureddine.
[15]
The sentencing judge did not instruct the jury
directly on the findings they could make relating to the aid or encouragement that
Mr. Moreira was alleged to have given Mr. Smith. However, in summarizing the
evidence, he referred to Mr. Conerys testimony about Mr. Cummins, Mr. Smith,
and Mr. Moreira walking in a cluster and moving in a diagonal direction in
front of [Mr. Conery and Mr. Noureddine], immediately before Mr. Conery was
sucker punched and knocked to the ground.
[16]
The sentencing judge also summarized the Crown
theory at trial that, even if the jury had a reasonable doubt that Mr. Moreira
physically participated in the attack, the evidence showed that Mr. Moreira nonetheless
supported [Mr.] Cummins and [Mr.] Smith. The sentencing judge instructed the
jury that the Crowns theory of support or aid was that Mr. Moreiras comment
to Mr. Conery, give me your wallet and its all over, was an admission that
the death of Mr. Noureddine and the robbery of Mr. Conery are clearly
connected. In the trial Crowns submission, this admission effectively made Mr.
Moreira a party to the killing of Mr. Noureddine by robbing Mr. Conery.
[17]
The jury returned verdicts acquitting Mr. Smith
and Mr. Moreira of the charged offence of first-degree murder in the death of
Mr. Noureddine but convicting them both of included homicide offences. Of
importance to this appeal, their homicide convictions differed; Mr. Smith was
convicted of second-degree murder, but Mr. Moreira was convicted of
manslaughter. Also noteworthy is that only Mr. Moreira was convicted of robbing
Mr. Conery. Mr. Smith was convicted of assaulting Mr. Conery but acquitted of
robbing him.
(c)
Sentencing
[18]
In light of the mandatory minimum sentence for
second-degree murder, Mr. Smiths sentencing was straightforward. He was given
the minimum sentence of life imprisonment, and the sentencing judge set his
parole ineligibility at 12 years.
[19]
Mr. Moreiras sentencing was more complex. A
jury gives a general verdict without reasons and, as explained, there were
different legal pathways to finding Mr. Moreira guilty of manslaughter given to
this jury for consideration. It therefore fell to the sentencing judge to
resolve the factual basis for Mr. Moreiras conviction.
The factual basis for Mr. Moreiras manslaughter
verdict
[20]
During sentencing submissions, the factual basis
for Mr. Moreiras manslaughter verdict was discussed. The Crown submitted that
Mr. Moreira had been convicted of manslaughter as a principal who participated
in the illegal attack that caused Mr. Noureddines death, but that he had played
a different role than his associates, Mr. Cummins and Mr. Smith, who had beat
Mr. Noureddine. The Crowns theory was that Mr. Moreira, who was present
throughout the altercation, asserted control over the attack to make sure that Mr.
Conery and Mr. Noureddine would be beaten so that they could be successfully
robbed.
[21]
Mr. Moreiras defence counsel argued that the
jury must have convicted Mr. Moreira as a party who aided the offence and not
as a principal, because the bulk of the evidence pointed only to Mr. Cummins
and Mr. Smith as having assaulted Mr. Noureddine.
[22]
The sentencing judge rejected both parties submissions
regarding the basis for the verdict. He disagreed expressly with defence
counsels submission, and in doing so offered his own conclusions about the
factual basis for Mr. Moreiras manslaughter conviction. After describing the
defence submission, the sentencing judge said as follows:
I disagree and find that the evidence at trial
supports Mr. Moreiras role as principal or aider in the factual matrix.
One witness, Michael Bruton, testified that he
saw three men attacking Mr. Noureddine. If that were the case, Mr. Moreira had
to be physically involved in the beating. The jury may well have accepted his
evidence as their basis for finding that Mr. Moreira was guilty of manslaughter
by physically assaulting Mr. Noureddine but lacking the state of mind required
for murder. Alternatively, the jury might have found that Mr. Moreira was an
aider or an abettor, providing assistance in some way or encouraging the attack.
In my view, the difference is immaterial:
whichever route is accepted, Mr. Moreira was equally culpable in Mr.
Noureddines death. By uttering words to the effect of give me your wallet and
this will end to a prone Mr. Conery, Mr. Moreira demonstrated that he was part
of the attack on Mr. Noureddine and that, at a minimum, believed he had the
power and authority to terminate it.
[23]
These same findings also disclose the sentencing
judges rejection of the factual foundation for the manslaughter conviction
that the Crown had advanced. Specifically, the sentencing judge stopped short
of finding that Mr. Moreira asserted control over the attack, finding only that
at a minimum, [Mr. Moreira]
believed
he had the power and authority to
terminate [the attack] (emphasis added).
[24]
The subjective belief of an offender cannot
constitute an act of aiding or abetting or satisfy the Crown theory of the
factual basis for the conviction. As I interpret the sentencing judges
comments, he therefore concluded that the factual basis for the jurys
manslaughter conviction was either that Mr. Moreira had participated directly
in the physical assault leading to Mr. Noureddines death, or that he had aided
Mr. Smith and Mr. Cummins, providing assistance in some way or encouraging the
attack.
Aggravating factors and range of sentence
[25]
The sentencing judge then went on to identify a
number of aggravated features in the case, including that it was a
pre-meditated, unprovoked, brutal assault on two unsuspecting, defenceless
strangers outnumbered by their assailants, in which numerous blows of
considerable force were delivered to Mr. Noureddines head, one of the most
vulnerable parts of the body.
[26]
The sentencing judge further noted that, given Mr.
Smiths acquittal on the robbery charge, the jury had necessarily found that he
was not a party to Mr. Moreiras demand for Mr. Conerys wallet. This left the
purpose of the joint attack unexplained, and therefore an apparently random
and senseless killing. This, of course, was further repudiation of the Crowns
alleged basis for the manslaughter conviction.
[27]
The sentencing judge then commented on an
elevator security camera video captured shortly after the incident (the
elevator video), calling it the most disturbing evidence in this case. He described
the elevator video as follows:
It shows Mr. Smith and Mr. Cummins
enthusiastically re-enacting parts of their assault on Mr. Noureddine as on
looking Mr. Moreira grins in apparent approval. All three men leave the elevator
in a triumphalist fashion, seemingly well pleased at their handiwork.
[28]
The sentencing judge found that none of the men
knew at the time of their celebration that Mr. Noureddine had died, but knew he
had been begging for mercy as he was repeatedly kicked.
[29]
The sentencing judge also described the powerful
victim impact statements that had been presented.
[30]
After reviewing several authorities advanced by
the parties, the sentencing judge decided that the range of the sentence for
the offence of manslaughter in this case was 10 to 15 years.
Mr. Moreiras personal circumstances
[31]
Before sentencing Mr. Moreira, the sentencing judge
considered his personal circumstances. At the time of sentencing, he noted that
the 35-year-old Mr. Moreira had an 8-year-old daughter. He found that Mr.
Moreira had a troubled background but that he now enjoyed the support of his
family and life-partner, whom he met in 2016, after the attack on Mr.
Noureddine and Mr. Conery.
[32]
The sentencing judge also noted that Mr. Moreira
had filed character references from family, friends, and fellow inmates, and
that since being incarcerated for this offence, [Mr. Moreira] has completed a
number of educational courses
although, as the Crown points out, the courses
were taken and completed since his conviction
(emphasis added). The
sentencing judge subsequently mentioned Mr. Moreiras rehabilitative efforts
while incarcerated, saying, He appears to have taken educational courses
although this must be viewed in light of the fact that
some of the courses
were taken after conviction
and might have been in the hope of alleviating
the length of sentence (emphasis added).
[33]
Notwithstanding these positive signs, the
sentencing judge commented that the optimistic comments and references which
purport to ensure that Mr. Moreira does not once more stray into the paths of
criminality must be tempered with Mr. Moreiras criminal record and history of
continually breaching probation orders. Mr. Moreiras lengthy criminal record
included several convictions for violence, and he was on probation at the time
of the offence. The sentencing judge ultimately concluded that Mr. Moreiras
prospects for rehabilitation are poor, given this history.
Mr. Moreiras written statement
[34]
Of importance, the sentencing judge also expressed
disapproval of the written statement that Mr. Moreira read out in court during
his sentencing hearing. The sentencing judge found that the statement was not
an expression of remorse, but, in fact, an expression of regret of the
situation he now finds himself in after being convicted.... The statement was
all about Mr. Moreira and his loss and inability to see his daughter.
[35]
The sentencing judge therefore found that remorse
was not a mitigating factor in Mr. Moreiras case.
Duncan
credit and imposition of sentence
[36]
Before apportioning Mr. Moreiras sentence, the
sentencing judge noted that the Crown sought 14 years in custody, comprised of
10 to 12 years for manslaughter and 2 years for robbery. On the other hand, he noted
that the defence sought a 5-year sentence for manslaughter, and a concurrent
sentence of 18 months to 2 years imprisonment for the robbery.
[37]
At the outset of his reasons, the sentencing
judge explained that he would first determine a suitable global sentence and
then apportion the quantity of time between the two offences. Applying this
approach, the sentencing judge ultimately sentenced Mr. Moreira to 12 years imprisonment
for manslaughter and 1 year consecutive imprisonment for the robbery. During
sentencing submissions, the sentencing judge commented, correctly, that the
robbery of Mr. Conery could not be an aggravating factor in determining Mr.
Moreiras manslaughter sentence where a consecutive sentence is imposed.
[38]
The sentencing judge declined to give credit to
Mr. Moreira, pursuant to
Duncan
, for harsh conditions of pre-sentence
custody. In support of this decision, the sentencing judge explained that he
did not have evidence of the impact of pre-sentence custodial conditions on Mr.
Moreira, noting that findings of misconduct had been made against Mr. Moreira during
his time in custody.
[39]
Accordingly, after allocating the equivalent of
4 years and 7 months for the pre-sentence custody Mr. Moreira had served to
date, the sentencing judge imposed a net sentence of 8 years and 5 months.
THE GROUNDS OF APPEAL
[40]
Mr. Moreira raises numerous grounds of appeal.
In summary, he contends that the sentencing judge:
(a)
erred in determining the factual basis for Mr. Moreiras conviction,
and in assessing Mr. Moreiras degree of fault;
(b)
misapprehended the evidence of the elevator video;
(c)
misapprehended the evidence in assessing Mr. Moreiras prospects of
rehabilitation;
(d)
erred in imposing consecutive sentences for manslaughter and robbery;
(e)
erred in not awarding Mr. Moreira
Duncan
credit;
(f)
erred in failing to consider the case of
R. v. Triolo
, 2017
ONSC 4726, despite it being advanced by Mr. Moreiras defence counsel, and
(g)
imposed a sentence that was harsh and excessive.
[41]
As I will explain below, I would accept grounds
of appeal (a) and (e). Those errors affected the sentence. This makes ground of
appeal (g) moot, so I will not address it further. Similarly, I will say no more
about ground of appeal (f), since, in substance, it is linked to moot ground of
appeal (g); the unstated premise of ground of appeal (g) is that, had the
sentencing judge considered the
Triolo
decision, he would have
imposed a fit sentence, rather than a harsh and excessive one. I would reject the
remaining grounds of appeal.
ANALYSIS
(a)
The Basis for the Manslaughter Conviction and
Degree of Fault
[42]
In my view, the sentencing judge erred in
determining the factual basis for Mr. Moreiras conviction and in identifying
his level of culpability.
[43]
In
R. v. M. (C.A.)
, [1996] 1 S.C.R.
500, at para. 73, Lamer C.J. commented that, In our system of justice, the
ultimate protection against excessive criminal punishment lies within a sentencing
judges overriding duty to fashion a just and appropriate punishment which is
proportional to the overall culpability of the offender. To achieve this
objective, the quantum of sentence imposed should be broadly commensurate with
the gravity of the offence committed and the moral blameworthiness of the
offender:
R. v. M. (C.A.)
, at para. 40.
[44]
There is a wide range of culpable acts of
variable gravity and many degrees of moral fault known to the criminal law. In light
of Lamer C.J.s guidance, to make the kind of carefully calibrated assessment
required to determine a proportional sentence, a sentencing judge must therefore
identify, with some precision, the criminal act or omission of the offender, as
well as their morally culpable state of mind.
[45]
In a jury trial, the factual findings required
to identify a proportional sentence may not be evident, as jurors give general
verdicts without elaborating on the precise findings they have made. To assist
in overcoming this challenge, s. 724(2) of the
Criminal
Code
applies to fact-finding for the purposes of sentencing in a jury trial, once the
jury has rendered its general verdict. Section 724(2) provides as follows:
Where the court is composed of a
judge and jury, the court
(a) shall accept as proven all
facts, express or implied, that are essential to the jurys verdict of guilty;
and
(b) may find any other relevant fact
that was disclosed by evidence at the trial to be proven, or hear evidence
presented by either party with respect to that fact.
[46]
In
R. v. Ferguson
, 2008 SCC 6, [2008] 1
S.C.R. 96, at paras. 17-18, McLachlin C.J. articulated two principles governing
the task of a sentencing judge as contemplated in s. 724(2):
First, the sentencing judge is bound by the
express and implied factual implications of the jurys verdict:
R. v.
Brown
, [1991] 2 S.C.R. 518, at p. 523. The sentencing judge shall accept
as proven all facts, express or implied, that are essential to the jurys
verdict of guilty (
Criminal
Code
, s. 724(2)(a)), and
must not accept as fact any evidence consistent only with a verdict rejected by
the jury:
Brown; R. v. Braun
(1995), 95 C.C.C. (3d) 443 (Man. C.A.).
Second,
when the factual implications of
the jurys verdict are ambiguous, the sentencing judge should not attempt to
follow the logical process of the jury, but should come to his or her own
independent determination of the relevant facts
:
Brown; R. v. Fiqia
,
(1994), 162 A.R. 117 (C.A.).
In so doing, the sentencing judge may find any
other relevant fact that was disclosed by evidence at the trial to be proven
(s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the
sentencing judge must be convinced of the existence of that fact or conviction
beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing
judge must be persuaded on a balance of probabilities
It follows from the
purpose of the exercise that the sentencing judge should find only those facts
necessary to permit the proper sentence to be imposed in the case at hand. The
judge should first ask what the issues on sentencing are, and then find such
facts as are necessary to deal with those issues
. [Emphasis added.]
[47]
In view of these governing principles, a judge
tasked with sentencing an offender based on a jury verdict must attempt to
identify the express or implied factual implications of the verdict on material
issues. If those factual implications are ambiguous or unclear, the sentencing
judge must make their own determination of the relevant facts, but must not
arrive at findings inconsistent with those necessary to the jury verdicts
rendered: see e.g.,
R. v. L.M.
, 2014 ONCA 640, 122 O.R. (3d) 257, at
paras. 48-51.
[48]
In Mr. Moreiras case, the sentencing judge
concluded that the jurys pathway to conviction was ambiguous. Indeed, it was based
on the finding that Mr. Moreira either (a) participated in the physical assault
on Mr. Noureddine, or (b) aided or encouraged Mr. Smith in the fatal attack on
Mr. Noureddine. The sentencing judge never resolved the ambiguity he
identified. Instead, he concluded that the difference is immaterial. In my
view, his approach was problematic, and in error, for several reasons. I will
explain each reason in turn.
The sentencing
judge erred by failing to make the requisite factual findings
[49]
First, the sentencing judge erred in determining
Mr. Moreiras sentence based on his conclusions about what the jury
may have
found
.
[50]
Section 724(2) of the
Code
and the
decision in
Ferguson
reflect an expectation that offenders will
be sentenced based on factual determinations, not contingencies. In my view, it
is therefore an error to sentence an offender based on what he
could
have been found to have done, rather than on what he
has
been found to
have done. If the sentencing judge was correct in determining that the specific
factual foundation for the jurys conviction could not be identified, he should
have made his own factual determination. I would find that he erred by not
doing so.
The sentencing
judge erred in assessing Mr. Moreiras role in the attack
[51]
Second, even if it had been available to the
sentencing judge to sentence Mr. Moreira without finally resolving the nature
of his involvement, the sentencing judge erred when inferring that the jury may
have convicted Mr. Moreira as a participant, and therefore a principal, in the
physical assault leading to Mr. Noureddines death.
[52]
Not even the Crown supported the participant path
to conviction during sentencing submissions, and with good reason. When the
relative verdicts against Mr. Moreira and Mr. Smith are examined together, as
they should have been, it is not implicit, nor even probable, that the jury
convicted Mr. Moreira as a principal. Indeed, the prospect that the jury did so
is extremely remote. I will explain.
[53]
The jury convicted Mr. Smith of second-degree
murder because Mr. Smith admitted that he had participated in the physical
attack on Mr. Noureddine, an attack which was so brutal that Mr. Smith must
have either meant to kill Mr. Noureddine, or to cause him bodily harm that Mr.
Smith knew was likely to cause death and was reckless as to whether death
ensued. Had the jury found that Mr. Moreira had also participated in the
physical assault, the same inference arising from the nature of that attack would
have followed, and Mr. Moreira would almost certainly have been convicted of
second-degree murder, not manslaughter.
[54]
As such, upon finding that both Mr. Smith and
Mr. Moreira had participated in the physical assault on Mr. Noureddine, the
only plausible way that the jury could have found Mr. Smith guilty of
second-degree murder and Mr. Moreira guilty of manslaughter would be if the
jury had rejected Mr. Smiths intoxication defence but accepted Mr. Moreiras
intoxication defence. It is evident that the sentencing judge did not consider
this to be what the jury had decided, as he did not sentence Mr. Moreira on the
premise that he was intoxicated when his crimes occurred.
[55]
Simply put, it was not at all implicit that
the jury may have convicted Mr. Moreira of manslaughter as a participant. The
sentencing judge failed to recognize this because he did not consider the
impact of the verdict against Mr. Smith in determining whether Mr. Moreiras
manslaughter conviction was linked to a jury finding that he had participated
directly in the physical assault.
[56]
In sum, the sentencing judges conclusion that
it was implicit in the jury verdict that Mr. Moreira may have been convicted as
a principal who participated in the assault was arguably in error, and it was
certainly arrived at in error, as his analysis was incomplete.
The sentencing
judge erred by failing to identify the aid Mr. Moreira provided
[57]
Third, even if it had been available to the
sentencing judge to sentence Mr. Moreira without finally resolving the nature
of his involvement, the sentencing judge erred by failing to resolve the
precise assistance that Mr. Moreira provided in the attack on Mr. Noureddine.
[58]
A jury cannot convict an accused person as an
aider based on a generic finding that they played some undefined part in the
crime charged. Nor can a proportional sentence be identified without defining
the act of aid or of encouragement that was provided. Yet, in his reasons for
sentence, the sentencing judge said that the jury might have found that Mr.
Moreira was an aider or an abettor,
providing assistance in some way or
encouraging the attack
(emphasis added). The sentencing judges subsequent
elaboration provides no support for this statement. Recall that he said as
follows:
By uttering words to the effect of give me
your wallet and this will end to a prone Mr. Conery, Mr. Moreira demonstrated
that he was part of the attack on Mr. Noureddine and that, at a minimum,
believed he had the power and authority to terminate it.
[59]
As I have explained, the sentencing judges
finding about Mr. Moreiras state of belief is not an act of aiding or
assistance; it is a subjective state of mind. What the sentencing judge did
find, as he was entitled to find, was that Mr. Moreiras demand to Mr. Conery,
give me your wallet and this will end, was an admission by Mr. Moreira that
he was part of the attack on Mr. Noureddine. But what part did he play? The
sentencing judge did not attempt to resolve this question. I would find that failing
to do so was an error.
[60]
In my view, had the sentencing judge undertaken
the requisite close and precise analysis of the jury verdict, he could have
identified the implicit basis upon which the jury had found Mr. Moreira guilty
of manslaughter. Quite clearly, by acquitting Mr. Smith of robbery, the jury
necessarily rejected the theory of aiding that the Crown advanced at trial, namely,
that the robbery and the attack were linked such that Mr. Moreiras demand for
Mr. Conerys wallet aided in the attack on Mr. Noureddine.
[61]
The only remaining viable theory in play, given
the evidence, the Crown submissions, and the jury charge, was that Mr. Moreira
aided or encouraged the assault that caused Mr. Noureddines death by joining
Mr. Cummins and Mr. Smith in moving in a diagonal direction in front of [Mr.
Conery and Mr. Noureddine], so that Mr. Noureddine could be assaulted. The
sentencing judge was alive to this theory during sentencing submissions, but
unfortunately never alluded to it in his reasons for sentence.
[62]
Simply put, the sentencing judge either erred in
sentencing Mr. Moreira on the basis that the jury may have convicted him as an
aider, without resolving the nature of the aid or encouragement provided, or he
erred by failing to give sufficient reasons that could reveal the aiding theory
that he was relying upon in sentencing Mr. Moreira.
The sentencing
judge erred in finding Mr. Moreira equally culpable
[63]
Finally, in my view the sentencing judge erred in
concluding that it was unnecessary to resolve the factual basis for Mr.
Moreiras manslaughter conviction because he would have been equally culpable,
whether sentenced as a principal who participated in the physical assault on
Mr. Noureddine, or as an aider.
[64]
In short, even leaving aside the other errors I
have identified (each of which, on their own, would have precluded this line of
reasoning) the culpability that Mr. Moreira would bear if convicted of aiding
manslaughter would be less than he would bear if convicted of participating
physically in the brutal assault on Mr. Noureddine. To be clear, I am not
suggesting that an aider can never be as culpable as the principal perpetrator.
The point is that, on this record, the finding of aiding against Mr. Moreira
implicit in the jury verdict does not give rise to equal culpability when
compared to a finding, if it were available, that Mr. Moreira had participated
in the physical assault on Mr. Noureddine.
[65]
As I have explained, the available basis for finding
that Mr. Moreira aided or encouraged the attack on Mr. Noureddine is that he
helped Mr. Cummins and Mr. Smith intercept the two victims so that they could
be assaulted. Of note, this act of aiding or encouraging occurred at the outset
of the attack, before the physical assault was underway. There was no basis on
the evidence for inferring that, when he gave this aid, Mr. Moreira would have
been aware that such brutal force would be used by his two associates. Indeed,
by acquitting Mr. Moreira of aiding in Mr. Noureddines murder, the jury
foreclosed any suggestion that Mr. Moreira knew when he aided or encouraged his
associates that they would exercise force that was likely to cause death.
[66]
There can be no doubt that Mr. Moreira bears a
high level of culpability for aiding a planned, concerted, and unprovoked
assault on two innocent men. However, as a matter of principle, his level of
culpability is less than it would have been if he had joined directly in the gratuitous
punching, kicking, and stomping of a defenceless Mr. Noureddine, even as Mr.
Noureddine begged for his attackers to stop.
Conclusion on ground (a)
[67]
In sum, I would find that the sentencing judge
erred in determining the factual basis for Mr. Moreiras conviction, and in
assessing Mr. Moreiras degree of fault.
(b)
The Elevator Video
[68]
The sentencing judge considered the elevator
video to be a significant aggravating factor in relation to both Mr. Moreira
and Mr. Smith, calling it the most disturbing evidence in the case. He
concluded that the elevator video depicted Mr. Moreira grinning with apparent
approval as Mr. Cummins and Mr. Smith re-enacted their attack on Mr. Noureddine.
The sentencing judge also found that the video showed Mr. Moreira, Mr. Cummins,
and Mr. Smith leaving the elevator in a triumphalist fashion, seemingly well
pleased at their handiwork.
[69]
Mr. Moreira argues that this is not a reasonable
interpretation of his demeanour and conduct in the elevator video. He urges
that the sentencing judge erred in making the findings he did.
[70]
I would not give effect to this ground of
appeal. Others may not have interpreted Mr. Moreiras demeanour and actions in
the elevator video as the sentencing judge did, but this was his determination
to make and it is owed deference. I see no basis for interfering.
(c)
Mr. Moreiras Remorse and Prospects for
Rehabilitation
[71]
I would also reject Mr. Moreiras ground of
appeal regarding the sentencing judges alleged misapprehensions of evidence
relevant to potential mitigating factors.
[72]
First, I do not accept that the sentencing judge
erred regarding Mr. Moreiras statement during the sentencing proceedings. On
the evidence, it was open to the sentencing judge to find that Mr. Moreira was not
truly remorseful. I do not agree with Mr. Moreira that the only reasonable
interpretation of his statement was that it expressed genuine remorse for his
crimes. In that statement, Mr. Moreira expressed sorrow for what had happened
to Mr. Noureddine, for being there when this happened, for not intervening,
and for doing [his] own foolishness in robbing Mr. Conery. Crucially, Mr.
Moreira did not acknowledge his role in the attack on Mr. Noureddine, nor
apologize for it. Moreover, the written statement was heavily weighted toward identifying
the impact of the events and the prosecution upon Mr. Moreira himself. I see no
basis for interfering with the sentencing judges treatment of Mr. Moreiras
written statement.
[73]
Second, I would reject Mr. Moreiras submission
that the sentencing judge materially misapprehended the timing of his
pre-sentence educational courses. Assuming, without deciding, that the sentencing
judge erred in his findings relating to the courses Mr. Moreira took while in
custody, any such error would be insignificant. At worst, the sentencing judge was
mistaken on one occasion, but later got it right on the same point. As well, the
timing of the coursework was not a central feature in the sentencing judges
reasoning. As such, even if it could be said that he misapprehended the
evidence, no miscarriage of justice occurred.
[74]
In all the circumstances, particularly given the
absence of remorse, Mr. Moreiras lengthy criminal record, and his mature age,
the sentencing judge was entitled to conclude that Mr. Moreiras prospects of
rehabilitation are poor, notwithstanding his family support and his
pre-sentence rehabilitative efforts.
(d)
Consecutive Sentences
[75]
Nor, in my view, did the sentencing judge err in
imposing consecutive sentences for the robbery of Mr. Conery and the
manslaughter of Mr. Noureddine. Those acts constituted separate crimes
committed against different victims. Moreover, the sentencing judge made clear
that he had determined Mr. Moreiras sentence by arriving at what he considered
to be a fit global sentence, and then apportioning the quantity of time between
the two offences.
[76]
I see no merit in this ground of appeal.
(e)
The
Duncan
Credit
[77]
Next, Mr. Moreira argues that the sentencing
judge erred in denying him
Duncan
credit for the harsh
conditions of his pre-sentence custody. Specifically, he contends that the
sentencing judge erred in concluding that he had no evidence as to the effect
of [the conditions at the Toronto South Detention Centre] and how they impacted
Mr. Moreira. Mr. Moreira contends that there was such evidence on the record,
and therefore that the sentencing judges decision not to give him
Duncan
credit was in error.
[78]
I agree with Mr. Moreira on this point. The
evidence from Mr. Moreiras life partner that on numerous occasions her scheduled
visits to the detention centre were cancelled or cut short provided
circumstantial evidence of the effect of lockdowns on Mr. Moreira. Moreover,
there were medical records before the sentencing judge supporting Mr. Moreiras
submissions that he had been unable to access effective medical care for a
broken hand and digestive problems while incarcerated, and that he had suffered
a medical mishap affecting his mobility.
[79]
Of course, enhanced credit for harsh conditions
of pre-sentence custody is a matter within the discretion of the sentencing
judge:
Duncan
, at paras. 6-7;
R. v. Ledinek
, 2018 ONCA 1017,
[2018] O.J. No. 6503, at para. 13. In this case, however, I would not defer to
the sentencing judges finding. In my view, he erred in exercising his
discretion by failing to consider relevant evidence that was before him.
DID THE ERRORS IDENTIFIED AFFECT MR. MOREIRAS SENTENCE?
[80]
An error in principle, the failure to consider a
relevant factor, or the erroneous consideration of factors will justify
appellate intervention only where it appears from the trial judges decision
that such an error had an impact on the sentence:
R. v. Lacasse
, 2015
SCC 64, [2015] 3 S.C.R. 1089, at para. 44. In my view, both of the errors I
have identified impacted on the sentence.
[81]
First, the sentencing judges failure to resolve
the factual basis for the manslaughter conviction undermined his ability to
identify a proportionate sentence. Indeed, the sentencing judges conclusion
that the factual basis for the jurys finding would not affect Mr. Moreiras
culpability appears to have given the sentencing judge comfort in sentencing
Mr. Moreira on the footing that he participated directly in the physical
assault on Mr. Noureddine, without having made a finding that this was, in
fact, the basis for the conviction. Specifically, at the end of his sentencing
decision, just before imposing sentence, the sentencing judge summarized the
crime for which Mr. Moreira and Mr. Smith stood to be sentenced:
Mr. Smith, Mr. Moreira, and Mr. Cummins
emerged from the alleyway onto Lola Road with the express intention of
inflicting harm on Mr. Conery and Mr. Noureddine. They headed directly towards
the two men and attacked without reason or warning. They punched and stomped on
Mr. Conery. They kicked, punched, and restrained Mr. Noureddine. They pummelled
Mr. Noureddine with such force that onlookers believed that Mr. Noureddine was
going to die as a consequence. They fled the scene when those bystanders came
to assist. When they returned to their apartment building, they took great
pleasure in reliving their act of battering and brutalising two complete
strangers.
[82]
For the reasons I have expressed, treating Mr.
Moreira as having participated directly in this reprehensible physical assault
could have no other outcome but to amplify his level of culpability. In my
view, he was sentenced as if he had physically participated, absent the
requisite judicial determination that this was the factual basis for his
conviction and notwithstanding that this theory of liability was almost
certainly not the basis for the jurys verdict. As such, I would find that the
errors the sentencing judge made in this regard were central to the sentence he
imposed.
[83]
Second, the
Duncan
error also
effected the outcome. As indicated, the sentencing judges explanation for
denying
Duncan
credit was based, in material part, on a misapprehension
of the evidence before him.
[84]
I would therefore grant leave to appeal and set
aside the manslaughter sentence of 12 years.
A FIT SENTENCE
[85]
In my view, it is not necessary to consider
whether to send this matter back to the sentencing judge to determine the
factual basis for the conviction before we substitute a sentence, as in
R. v.
Englehart
(1998), 124 C.C.C. (3d) 505 (N.B.C.A.), at pp. 510-12. As I will
explain, the basis for the jurys manslaughter verdict can readily be
determined on the record before us.
[86]
I have already expressed my view that it is not
implicit in the jurys verdict that they found Mr. Moreira guilty as a principal
for having participated in the physical assault. This prospect is so remote that
it can fairly be disregarded. Rather, it is implicit that Mr. Moreira was
convicted of manslaughter for having aided Mr. Smith at the outset of the
assault by helping the assailants intercept the victims.
[87]
In sentencing Mr. Moreira, I would not give
effect to the aggravating factors identified by the sentencing judge that do
not bear on Mr. Moreiras crime, nor his determination of the range for a fit
and appropriate sentence. That range was identified without a proper resolution
of the factual basis for the conviction. Nor would I defer to the sentencing
judges refusal to award
Duncan
credit. I would defer to all
his other findings, and sentence Mr. Moreira for manslaughter as follows.
[88]
Mr. Moreira did not know the level of violence
that would follow from his act of assistance. However, he was callously indifferent
to that violence. His act of aiding an unprovoked and pointless attack on Mr.
Conery and Mr. Noureddine reflected a total disregard for their well-being. His
readiness to celebrate with his associates after the attack had unfolded in all
its brutality shows just how disinterested he was in the consequences of the
conduct he encouraged.
[89]
Mr. Moreiras crime is aggravated by his related
criminal record, and the fact that he was on probation at the time of
commission. Mr. Moreira has not demonstrated real remorse for his role in the
attack. Denunciation, general deterrence, and specific deterrence are therefore
the key sentencing goals in his case. Although Mr. Moreira did not foresee or
participate directly in the killing of Mr. Noureddine, those relevant
sentencing goals require a significant sentence.
[90]
Mr. Moreira played an indirect and early role in
the attack, at a time when his mental state was mere indifference, and when he
could not have foreseen the likelihood that his associates would use life-threatening
force. As indicated, the sentencing judge mistakenly equated Mr. Moreiras
moral culpability arising from this type of role with that of someone who directly
participated in the brutal beating of Mr. Noureddine. Therefore, the 12-year
sentence imposed for manslaughter was too high; Mr. Moreiras level of
culpability for that offence is materially less.
[91]
Accordingly, after considering the punitive
impact of the hardship of pre-sentence custody, pursuant to
Duncan
, I
would impose a 10-year sentence for the offence of manslaughter, before credit
for pre-sentence custody.
CONCLUSION
[92]
For the foregoing reasons, I would grant Mr.
Moreira leave to appeal from sentence, set aside his manslaughter sentence of
12 years, and impose a global sentence of 10 years for that offence. I would
not disturb the consecutive sentence of 1 year imprisonment for robbery. This
would result in a total global sentence of 11 years imprisonment.
[93]
Since the global sentence of 11 years I would
impose is 2 years less than the 13-year global sentence imposed by the sentencing
judge, the net sentence should be reduced by two years. The net sentence
imposed on Mr. Moreira at the time of sentence, April 29, 2019, was 8 years and
5 months. I would therefore substitute a net sentence of 6 years and 5 months,
as of April 29, 2019.
Released: July 14, 2021 B.M.
David
M. Paciocco J.A.
I
agree. B.W. Miller J.A.
I
agree. I.V.B. Nordheimer J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Scholz, 2021 ONCA 506
DATE: 20210713
DOCKET: C67582
Miller, Paciocco and Nordheimer
JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Joern (John) Scholz
Respondent
Marie Comiskey, for the appellant
Jody Berkes and Cristina Candea, for
the respondent
Heard: June 18, 2021 by
videoconference
On appeal from the sentence imposed by
Justice Andrew J. Goodman of the Superior Court of Justice, dated September 26,
2019, with reasons reported at 2019 ONSC 5490.
Nordheimer J.A.:
[1]
The Crown appeals from the conditional sentence of
two years less a day imposed by the trial judge following the respondents
conviction for fraud over $5,000. For the reasons that follow, I conclude that
the trial judge made errors in principle in imposing the sentence he did. I
would allow the appeal.
Background
[2]
The respondent was charged on an indictment
alleging three counts of fraud over $5,000. Counts 1 and 2 alleged frauds in
relation to a unique Registered Retirement Savings Plan (RRSP) that the
respondent created and marketed to approximately 300 investors. The investment
involved the transfer of the respondents clients RRSP monies to Western
Pacific Trust Company (WPTC) in Vancouver, B.C. and, thereafter, the purchase
of shares of either Red Hill Capital or Northland Capital. In total, the
respondent facilitated the transfer of over $22 million to WPTC.
[3]
Count 3 alleged that the respondent failed to
declare the income received from facilitating these transactions on his
personal income taxes and failed to remit the GST/HST he should have charged
the investors.
[4]
The trial proceeded before a jury. The jury
ultimately acquitted the respondent of counts 1 and 2 but convicted the
respondent of count 3. Subsequent to the conviction, and after a
Gardiner
hearing
[1]
,
the trial judge found that the appellant had not proved beyond a reasonable
doubt that the quantum of this fraud exceeded $1 million.
[5]
At sentencing, the defence argued for a conditional
sentence of imprisonment of between 18 months and 2 years less a day.
[2]
The Crown sought a sentence of
imprisonment of three years and a $500,000 fine. Prior to passing sentence, defence
counsel advised the trial judge that the respondent had deposited $100,000 in counsels
trust account toward payment of any fine ordered. We were advised that that
amount has since been paid.
The sentencing decision
[6]
The trial judge imposed a conditional sentence of
two years less a day and a fine along with a victim surcharge.
[7]
In imposing a conditional sentence, the trial
judge made certain factual findings. The trial judge also reviewed a number of
decisions regarding the appropriate sentence, many of which he noted were
dissimilar, either based on their facts or on the circumstances of the
particular offender.
[8]
In reaching his conclusion on the appropriate
sentence, the trial judge said, on more than one occasion, that this was not a
tax evasion case. He also noted that, where conditional sentences had been
imposed in major-scale fraud cases, there had been exceptional circumstances.
[9]
The trial judge mentioned certain aggravating
factors in this case including the nature of the offence (the impact of tax
fraud on the taxpayers of Canada), the role of the respondent over many years
to commit the fraud, and the respondents professional designation as a
Chartered Accountant, which helped him facilitate the fraud. The trial judge
also found that the sole motivation for the offence appeared to be greed.
[10]
On the issue of the quantum of the fraud, the
trial judge was not satisfied that the appellant had proven beyond a reasonable
doubt that the amount of the fraud exceeded $1 million, although he also said
that the amount may be close to the amounts asserted by the appellant, which totalled
about $1.05 million.
[11]
In terms of mitigating factors, the trial judge
pointed out that the respondent was a first-time offender. His actions were not
driven by addiction or compulsion. The trial judge found that there were no
bars to the respondents rehabilitation. He noted that the respondent enjoyed
the support of his family for whom he was the primary breadwinner. The trial
judge also noted that the respondent would lose his professional designation as
a Chartered Accountant, as a result of the offence, and that his ability to
earn an income would be adversely affected. He further noted that the
respondent was the subject of ongoing audits by the Canada Revenue Agency.
Lastly, the trial judge found that the respondent was a person of good
character and that he had expressed remorse for his actions.
[12]
In determining the appropriate sentence, the
trial judge relied on one other factor. He found that the lead investigator for
the Ontario Securities Commission (OSC), where the investigation of the
matter had begun, had acted in a heavy-handed manner. The trial judge said that
he was persuaded that the conduct of the OSC investigator should play a
collateral role in mitigation.
[13]
On the issue of a conditional sentence, the
trial judge distinguished the cases relied upon by the appellant that held that
a conditional sentence was not appropriate in such cases. In doing so, the
trial judge said, [T]his is not a situation where [the respondent] committed
the tax fraud as a breach of trust or in his professional capacity.
[14]
Finally, the trial judge said that the principle
of specific deterrence was paramount, while general deterrence and denunciation
needed to be achieved. He concluded:
It is trite law that a conditional sentence
can include restrictive and punitive elements. In this case, I am persuaded
that this form of sentence would provide the requisite deterrent elements. Such
a disposition is in the best interests of the offender and is in the public
interest.
Analysis
[15]
Appellate courts are
instructed by the Supreme Court of Canada to give substantial deference to the
sentencing decisions of trial judges. Appellate courts should only interfere
with a sentence if it is demonstrably unfit or if the trial judge has committed
an error in principle, failed to consider a relevant factor, or erroneously
considered aggravating or mitigating factors, and such an error had an impact
on the sentence:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at
paras. 41, 43-44.
[16]
At the same time, appellate courts perform an
important task of ensuring, to the degree possible, that the principle of
parity is properly applied in the sentencing process: see
Lacasse
, at para. 37
. In
other words, that offenders who have committed similar crimes in similar
circumstances receive similar sentences. To that end, appellate courts may
establish sentencing ranges for particular offences. If that is done, those
sentencing ranges are intended to serve as guidelines for sentencing judges. While
a sentence imposed outside of the range is not necessarily unfit, it will naturally
raise a question regarding fitness: see
R. v. Nasogaluak
, 2010 SCC 6,
[2010] 1 S.C.R. 206, at para. 44. As LeBel J. said in
Nasogaluak
, at
para. 44:
The wide discretion granted to sentencing
judges has limits. It is fettered in part by the case law that has set down, in
some circumstances, general ranges of sentences for particular offences, to
encourage greater consistency between sentencing decisions in accordance with
the principle of parity enshrined in the
Code
.
[17]
In my view, the trial judge committed two errors
in principle in imposing the sentence that he did. First, he imposed a sentence
that is outside the range established by this court for major frauds, and he
did so without explaining the basis for departing from that range. Second, the
trial judge failed to follow the necessary analytical process and consider all
of the factors required before imposing a conditional sentence.
[18]
With respect to the first error, this court has an
established range of three to five years as the sentence for major frauds:
R.
v. Bogart
(2002), 61 O.R. (3d) 75 (C.A.), at para. 36, leave to appeal
refused, [2002] S.C.C.A. No. 398;
R. v. Davatgar-Jafarpour
, 2019 ONCA
353, 146 O.R. (3d) 206, at para. 34. It is a range of sentence that has been
set for many years.
[3]
The trial judge acknowledged that a penitentiary term of imprisonment was the
norm, although he stated the range as being two to six years. Regardless of
which of those two ranges is accepted, the trial judge still departed from the
range without explaining the reasons why he felt justified in doing so. On that
point, I would reiterate the admonition in
Davatgar-Jafarpour
, at
para. 32, where Roberts J.A. said, [S]entencing ranges cannot be arbitrarily
ignored otherwise they become meaningless.
[19]
I do not propose to review all of the past
decisions of this court dealing with the subject of the appropriate sentence
for major frauds. Many of the older cases were reviewed in
R. v. Dobis
(2002), 58 O.R. (3d) 536 (C.A.), where MacPherson J.A. concluded, at para. 42:
However, in the end I am persuaded that the
serious nature and consequences of the offences committed by the respondent
required the imposition of a penitentiary sentence. There is a real need to
emphasize denunciation and, especially, general deterrence in the realm of
large-scale frauds committed by persons in positions of trust with devastating
consequences for their victims, which is how I would characterize the offences
in this case.
[20]
In this case, of course, there were no specific
individual victims of the respondents offence. Rather, the victims were the
taxpayers of Canada. The Government of Canada was deprived of tax revenue,
which has the effect of increasing the tax burden on all other taxpayers in
order to fund the work of the federal government. This very point was restated
by this court in
Davatgar-Jafarpour
, at paras. 44-45. It was also made
by the Quebec Court of Appeal in
R. c. Coffin
, 2006 QCCA 471, 210
C.C.C. (3d) 227, where the court rightly said, at para. 46: Defrauding the
government is equivalent to stealing from one's fellow citizens.
[21]
The need for a penitentiary term of imprisonment
in major fraud cases has been reiterated in other decisions of this court,
including
Bogart
, at para. 36;
R. v.
Drabinsky
, 2011 ONCA 582, 107 O.R. (3d) 595, at para. 164, leave to appeal
refused, [2011] S.C.C.A. No. 491; and
Davatgar-Jafarpour
, at para. 35.
[22]
Further, in considering the statement made by
MacPherson J.A. in
Dobis
, at para. 42, it should also be mentioned
that an offender does not have to be in a position of trust in order to warrant
the penalty of a penitentiary term of imprisonment:
R. v. Khatchatourov
,
2014 ONCA 464, 313 C.C.C. (3d) 94, at para. 39.
[23]
The trial judge does not refer to any specific factor
that would have justified a departure from this established range of sentence. Factors
that have led to a departure in the past have included a guilty plea; or the
repayment of the monies taken; or that the offender played only a minor role in
the fraud itself; or that the offender was at an advanced age; or that the
offender had serious health issues. None of those factors are present in this
case.
[24]
The mitigating factors that the trial judge did
refer to, the fact that the appellant is a first-time offender and that he is
of good character, are not factors that will operate to reduce the sentence in
a fraud case below the usual range. This is because it is those very factors
that generally permit the offender to commit the offence. This point was aptly made
in
Drabinsky
, where this court said, at para. 167:
Second, individuals who perpetrate frauds like
these are usually seen in the community as solid, responsible and law-abiding
citizens. Often, they suffer personal and financial ruin as a result of the
exposure of their frauds. Those factors cannot, however, alone justify any
departure from the range. The offender's prior good character and standing in
the community are to some extent the tools by which they commit and sustain
frauds over lengthy time periods. Considerable personal hardship, if not ruin,
is virtually inevitable upon exposure of one's involvement in these kinds of
frauds. It cannot be regarded as the kind of unusual circumstance meriting
departure from the range.
[25]
However, even assuming for the moment that the
mitigating factors relied upon by the trial judge could justify a sentence
below the low end of the three to five year range, they still would not justify
less than a penitentiary term of imprisonment. That fact alone removes a
conditional sentence as a sentencing option.
[26]
This leads to the second error in principle. In
R.
v. Proulx
, 2000 SCC 5, [2000] 1 S.C.R. 61, Lamer C.J. set out the process
that a trial judge should follow in determining whether it is appropriate to
impose a conditional sentence. The first step in that process is to determine
the proper sentence. In that regard, Lamer C.J. said, at para. 50:
A literal reading of s. 742.1(a) suggests that
the decision to impose a conditional sentence should be made in two distinct
stages. In the first stage, the judge would have to decide the appropriate
sentence according to the general purposes and principles of sentencing (now
set out in ss. 718 to 718.2). Having found that a term of imprisonment of less
than two years is warranted, the judge would then, in a second stage, decide
whether this same term should be served in the community pursuant to s. 742.1.
[27]
The trial judge did not make the preliminary
determination that a sentence of less than two years was appropriate. Indeed,
the trial judge never actually addressed what the appropriate sentence should
be. Rather, he simply found that a conditional sentence was appropriate which
required no greater sentence than two years less a day.
[28]
In my view, if the trial judge had first
considered what an appropriate sentence was for the offence committed, he would
have had to conclude that a penitentiary term of imprisonment was required.
That finding, by itself, would have removed a conditional sentence as an
option.
[29]
I should mention on this point that the trial
judge not once, but on three separate occasions, mentioned that this was not a tax
evasion case. He seems to have repeatedly made that point as a way of lessening
the seriousness of the offence. Indeed, in his conclusion, he said that it was
worth repeating that this is not a tax evasion case. However, the fact is
that it was a tax evasion case. Admittedly, it was not a prosecution for tax evasion,
but the basis of the fraud was the evasion of taxes. The choice to prosecute
the offence as fraud over $5,000, rather than as tax evasion, does not change
the seriousness of the conduct. Simply put, it does not change the fact that
the respondent was convicted of orchestrating a large-scale fraud on the
federal government and, thus, on the taxpayers of Canada.
[30]
I should address one other factor that played
into the trial judges conclusion on the sentence and that is the role that the
OSC investigators actions played in the overall prosecution. It is not
entirely clear what basis the trial judge relied on to conclude that his
concerns about the OSC investigators conduct should impact on the sentence
imposed. In particular, it is not clear what the trial judge meant when he said
that the conduct should play a collateral role in mitigation.
[31]
It was established in
Nasogaluak
, at
para. 53, that a sentence can be reduced in light of state misconduct even
when the incidents complained of do not rise to the level of a
Charter
breach. However, in this case, it is difficult to see how the OSC
investigators conduct would have given rise to any significant reduction in
the appellants sentence. I say that for one principal reason. The actions of
the OSC investigator related to the two offences for which the respondent was
acquitted. As was observed in
Nasogaluak
, at para. 4, [w]here the
state misconduct does not relate to the circumstances of the offence or the
offender no remedy by way of sentencing is appropriate.
[32]
In any event, even if a remedy of sorts was to
be provided on that basis, it could not operate to reduce the sentence from a
penitentiary sentence to a reformatory sentence, given the nature of the
offence. The actions of the OSC investigator, as described by the trial judge,
did not rise to the level required for that exceptional result.
[33]
Finally, I should address the concern that the
sentence imposed by the trial judge can be justified because the appellants
position on sentence might be seen as being a concession that a reformatory
sentence was an available outcome.
[34]
First, I do not see that the appellant made any
such concession before the trial judge. In fact, before the trial judge, the
appellant sought a sentence of three years and strongly resisted any suggestion
that a conditional sentence would be appropriate.
[35]
Perhaps unfortunately in this court, the
appellant said in its factum that a fit and proper sentence is a 3 year jail
sentence or in the alternative, a sentence of two years less a day imprisonment.
However, in the very next paragraph, after reviewing the relevant case law, the
appellant said, Based on this Courts jurisprudence a fit sentence for the
Respondents major tax fraud of almost a million dollars is 3 years in the
absence of any exceptional circumstance. Taken together, I do not read these
statements from the appellants factum as being a concession that a reformatory
term of imprisonment was appropriate. Indeed, all of the authorities cited by
the appellant were directed at establishing that a conditional sentence was not
available in this case.
[36]
However, even if it could be held that the
appellant had made that concession, it is not binding on this court: see
R.
v. Barabash
, 2015 SCC 29, [2015] 2 S.C.R. 522, at para. 54. This court
must be satisfied that the sentence is a fit and proper one based on the existing
authorities, including the range that this court has established for this
offence. As I have endeavoured to set out, a conditional sentence was not
properly available on the facts of this case.
[37]
Before concluding, I must address two issues
that were raised by the respondent. First is the fact that the trial judge
imposed a victim surcharge. Second, the respondent seeks a reduction in the
fine imposed by the trial judge. He asks that the fine be reduced to the
$100,000 that he paid shortly after he was sentenced.
[38]
Assuming, without deciding, that the issue of
the appropriateness of the fine is open for our consideration in the absence of
a cross-appeal, I would not interfere with the fine that the trial judge
imposed. The respondent has not put any evidence before this court that would
provide us with a proper basis for interfering with the fact that a fine was imposed
by the trial judge nor with respect to the quantum of that fine.
CONCLUSION
[39]
I would grant leave to appeal the sentence, allow
the appeal, and set aside the sentence imposed by the trial judge. In its
place, I would impose a sentence of three years imprisonment. I would give the
respondent credit for the time that he has spent on his conditional sentence to
date which amounts to approximately one year and ten months. That leaves one
year and two months remaining to be served. I would not interfere with any of
the ancillary orders, including the fine imposed, save and except that the
victim surcharge would be set aside.
[40]
A warrant for the arrest of the respondent may
issue if required.
Released: July 13, 2021 B.M.
I.V.B.
Nordheimer J.A.
I
agree. B.W. Miller J.A.
I
agree. David M. Paciocco J.A.
[1]
See
R. v. Gardiner
,
[1982] 2 S.C.R. 368 (disputed aggravating facts relevant to sentencing must be
proved by the Crown beyond a reasonable doubt).
[2]
Given the time when the offence occurred, a conditional sentence
was available for the offence of fraud over $5,000.
[3]
Even this sentence range must be approached with caution as
it was set prior to the increase in the maximum sentence for fraud over $5,000
from 10 to 14 years: see
R.
v. Reeve
, 2020 ONCA 381, 151 O.R. (3d) 65, at para. 39.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Moreton v. Inthavixay, 2021 ONCA
501
DATE: 20210712
DOCKET: C68806
Brown, Roberts and Zarnett JJ.A.
BETWEEN
Christian Moreton
Applicant
(Respondent)
and
Douangta Inthavixay
Respondent
(Appellant)
Michael H. Tweyman and Ashley Waye, for
the appellant
Christian Moreton, acting in person
Caterina E. Tempesta and Jean Hyndman,
for the Office of the Childrens Lawyer
Heard: June 30, 2021 by video conference
On appeal
from the order of Justice James F. Diamond of the Superior Court of Justice,
dated October 22, 2020, with reasons reported at 2020 ONSC 6267.
REASONS FOR DECISION
[1]
The appellant mother appeals from
the final order that the parties children primarily reside with their father,
the respondent, in Lindsay, Ontario (the relocation order), with substantial
parenting time to the appellant.
[2]
The respondent moved to
Lindsay in late September 2020, primarily for financial reasons. He resides in
a spacious home on a large parcel of land that is owned by his father, from
which he works on various consulting contracts. The home is a five-minute walk
from the local elementary school where he has enrolled the children. The
children have been living with their father in Lindsay since the release of the
relocation order.
[3]
The relocation order varied
the previous July 17, 2018 order of Kristjanson J. that the childrens
primary residence was to be with the respondent in Toronto, with access granted
to the appellant. While there have been some temporary changes, this was the
longest standing arrangement before the relocation trial. The children are now
12 and 8 years of age. The parties have been embroiled in high conflict
litigation almost since their separation on October 1, 2017. The details of the
adjournments and frequent litigation with which this file has been plagued are
set out in numerous endorsements. The children have expressed to the clinician
assisting the Office of the Childrens Lawyer (OCL) who represents their
interests in these proceedings that they love their parents and simply want the
conflict to end and their parents to get along.
[4]
By the September 1, 2020
order of Shore J., the trial was bifurcated: the relocation and residential
schedule of the children would be determined first in September 2020 because it
was in the best interests of the children to have these issues heard as soon as
possible, and the issues of custody and financial matters were ordered to be
tried in December 2020 (the bifurcation order). The trial was peremptory on
the appellant and respondent. On September 11, 2020, Shore J. dismissed the
appellants request that she be permitted to proceed with a long motion on the
issues of relocation and the childrens residential schedule and that a trial
of those and the other outstanding issues be heard in December 2020. She noted
that there had been 15 court attendances and 11 court orders at that point and
that the evidence shows that the children were suffering because there had been
no final resolution. She enumerated the history of the litigation, the various
adjournments granted to the appellant, and set out accommodations for the appellants
participation in the trial.
[5]
The appellants motion for an
adjournment of the trial was dismissed by the order of Nishikawa J. dated
September 16, 2020. The appellants motion for leave to appeal the bifurcation
order was dismissed by the Divisional Court on September 22, 2020. The
relocation order was granted on October 22, 2020. The appellants motion to
stay the relocation order was dismissed by Pepall J.A. of this court on
December 9, 2020
.
[6]
The trial judge granted an adjournment of the
second trial because the appellant retained counsel on the eve of the second
trial. The second trial took place in February and March 2021 and judgment on
the issue of custody/decision-making authority was released on April 23, 2021. Subject
to an outlined consultation process with the appellant, the respondent was
granted final decision-making authority with respect to major decisions
concerning the children. The appellant has appealed that decision, which is not
the subject of this appeal.
[7]
The appellant submits that the relocation order
should be set aside because: 1) the trial judge erred by determining the
question of the childrens relocation to Lindsay before deciding the issue of
custody contrary to this courts decision in
Bjornson v. Creighton
(2002),
62 O.R. (3d) 236 (C.A.), leave to appeal refused, [2003] S.C.C.A. No. 14; 2) the
trial judge erred in his application of the law on relocation to the facts of
this case; and 3) the trial proceeded in an unfair manner to the appellant
whose adjournment and accommodation requests because of her disability went
unheeded such that a new hearing is required.
[8]
We do not accept these submissions.
[9]
First, we do not read this courts decision in
Bjornson
as establishing an absolute rule or requirement that the
issue of custody must be determined before the issue of relocation. Rather, the
sequence depends on the circumstances of the case and, specifically, on the
best interests of the children.
Bjornson
arose out of the particular circumstances of that case: the
sequence in which the trial judge dealt with relocation and custody was
criticized because it caused him to err he did not make the depth of enquiry
required in the circumstances and failed to give the evidence of the custodial
parent the great respect or most serious consideration to which it was
entitled.
[10]
Further, the bifurcation order here correctly determined
the sequence of the proceedings. Echoing the sentiments of previous judges, as
the trial judge observed, it was in the best interests of the children to have
the relocation issue determined as quickly as possible to provide stability in
their living arrangements, finality and closure. Dismissing the appellants
motion for leave to appeal, the Divisional Court found that Shore J.s bifurcation
and trial management decisions are clear, thoughtful and well-reasoned, fall
well within the discretion available to the court in trial scheduling and other
procedural matters, and were the only reasonable outcome in the particular circumstances
of this case. We also note that the appellant had twice requested before Shore
J. that she be permitted to proceed with a long motion on the issues of relocation
and the childrens residential schedule and that the trial of those issues and
the other outstanding issues be heard later.
[11]
With respect to the appellants second argument, we see no
error in the trial judges determination that it is in the childrens best
interests that their primary residence be with the respondent in Lindsay. His
determination is amply supported by the evidence that the trial judge was
entitled to accept and is entitled to considerable deference on appeal:
Bourke v. Davis
, 2021 ONCA 97, 154 O.R. (3d) 431, at para. 42. The trial
judge carefully considered the relevant factors concerning the question of the relocation
of the childrens primary residence as outlined in
Gordon v. Goertz
, [1996]
2 S.C.R. 27. His primary focus was, properly, the best interests of the
children. Among other factors, he considered that the children advised the OCL
that they wish to relocate to Lindsay with their father but still spend time
with the appellant; the respondent will be home almost every day to attend to
the childrens needs as they arise; and at only 90 minutes distance from
Toronto and with the parenting time schedule proposed by the OCL, the children
can maintain their relationships with the appellant, her family and the
childrens friends. He concluded that any potential disruption caused by a
relocation to Lindsay to live with their primary caregiver did not justify
refusing to permit that move, given the benefits to the children. We see no
basis to intervene.
[12]
We do not agree that the trial judge misapprehended the
childrens evidence concerning their preferences. Nor did he err in considering
the respondents enhanced ability to better meet the needs of the children by
having more disposable income and time, a larger house in which each child has
her own room and shares a bathroom, and an elementary school within five
minutes walking distance of the house. The improved ability to satisfy the
childrens needs, including financial viability, is a valid and compelling
parenting-based reason for the move of a primary caregiver:
Porter v. Bryan
, 2017 ONCA 677, 6 R.F.L. (8th) 41, at para. 17;
Bourke
, at
paras. 27, 51-52. This is consistent with the recent amendments to the
Divorce Act
,
R.S.C., 1985, c. 3 (2nd Supp.) and the
Childrens Law Reform Act
, R.S.O. 1990, c. C.12.
[13]
Most important, the children are thriving with their father
in Lindsay. The OCL supported the move to Lindsay, opposed the appellants
unsuccessful motion to stay the order under appeal, and opposes this appeal. As
fresh evidence, the OCL has tendered updated affidavit evidence concerning the
children from Michelle Nagy, the clinician who has been involved in this case
since April 2019. We admit the fresh evidence because it is important that we
have the most current information bearing directly on the best interests of the
children, it is provided by the OCL, and is reasonably capable of belief:
Decaen v. Decaen
, 2013 ONCA 218, 303 O.A.C. 261, at para. 13. By all
accounts, the children are settled, happy, and doing well in their new home,
school, and community, and are generally content with and do not want a change
to their living arrangements.
[14]
We do not allow the appellants fresh evidence motion. The
appellant concedes that the substance of the tendered fresh evidence from the
second trial was available at the time of the relocation trial. More important,
we do not see how it would have made any difference to the relocation order. Specifically,
the proposed fresh evidence does not invalidate or undermine the trial judges
credibility assessments and other findings from the relocation trial nor give
rise to inconsistent findings. Any issues with the trial judges April 23, 2021
reasons are properly the subject of the appellants pending appeal.
[15]
Finally, we see no error in the trial judges refusal to
adjourn the trial or any failure to accommodate the appellants meaningful
participation in the trial. There is ample evidence supporting the trial
judges dismissal of the appellants request for an adjournment of the
bifurcated trial that had already been adjourned and made peremptory on the
appellant. He outlined in detail the appellants history of seeking
adjournments and found that there was very little, if any, reliable or
credible medical information to support the [appellants] repeated, vague
contentions of medical illness and lack of accommodation. The record reveals
that the appellant was given accommodations and participated meaningfully in
the trial of the issues of the childrens primary residence and parenting time.
There is no indication of any prejudice or unfairness to the appellant
warranting appellate intervention.
[16]
For these reasons, the appeal is dismissed.
[17]
Neither the respondent nor the OCL sought any costs of the
appeal. Accordingly, we order that there be no costs of the appeal.
David
Brown J.A.
L.B.
Roberts J.A.
B. Zarnett
J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Petrolo, 2021 ONCA 498
DATE: 20210708
DOCKET: C67966
Watt, Pardu and Trotter JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Caterina Petrolo
Appellant
Alan D. Gold and Laura Metcalf, for the
appellant
Matthew Asma, for the respondent
Heard: June 28, 2021 by
videoconference
On appeal from the conviction entered by
Justice David Harris of the Ontario Court of Justice on January 17, 2020, and
from the sentence imposed on March 4, 2020, with reasons reported at 2020 ONCJ
36 and 2020 ONCJ 122.
REASONS FOR DECISION
[1]
The appellant was convicted of one count of
breach of trust of a public official and one count of attempt to obstruct
justice for using her position as a paralegal prosecutor to improperly
influence the outcome of provincial offences matters.
[2]
The police discovered the appellants conduct
after intercepting communications between the appellant and Police Constable
Richard Senior, who was the primary target in a large investigation into police
corruption. P.C. Senior and the appellant were having an affair. The
intercepted communications detailed steps the appellant took to obtain
favourable outcomes for friends of P.C. Seniors who were charged with
provincial offences.
[3]
The intercepted communications were summarized
in a Substantive Event Summary (SES), which was then disclosed to York
Region, the appellants employer. Armed with the SES, the appellants
supervisor gathered court and internal records to provide to the police to use
in their investigation.
[4]
The appellant sought to have the intercepted
communications and York Region records excluded from trial on
Charter
grounds. Her application was dismissed. She was found guilty of both offences
for two separate matters and sentenced to a three-month conditional sentence.
She appeals her conviction and sentence.
[5]
The appellant challenges the convictions on three grounds:
1.
The verdict was unreasonable. The
trial judge could not have ruled out the possibility that the appellant was
lying to impress her intimate friend, and the trial judge was therefore
required to acquit her.
2.
The trial judge erred in
concluding that police disclosure of some aspects of the intercepted
communications to the appellants employer were covered by the exemption in s.
193(2)(b) of the
Criminal Code
as disclosure made in the course of a criminal
investigation. As a result, the disclosure was illegal, in contravention of s.
193(1) of the
Code
, and tainted the interception evidence on
Charter
grounds. Pursuant
to
Wakeling v. United States of America
, 2014 SCC 72, [2014] 3 S.C.R. 549
, this
evidence should have been excluded.
3.
The appellant was convicted of two
offences for essentially the same conduct and one of the matters should have
been stayed by operation of the principles in
R. v.
Kienapple
, [1975] 1 S.C.R. 729.
[6]
The appellant challenges the sentence, arguing that a conditional
discharge was the appropriate sentence in the circumstances.
Analysis
[7]
We do not accept these arguments.
(1)
Unreasonable verdict
[8]
In brief, the appellant was accused of
improperly intervening in the prosecution of five traffic offences between May
and October 2018. The trial judge acquitted the appellant with respect to three
of these incidents. The appellants convictions rest on her involvement in the
remaining two prosecutions.
[9]
The first concerned Mr. Carlton Wills, who
received a traffic ticket for disobeying a sign. This charge was ultimately
withdrawn. The second concerned Mr. Nicholas Guarino, who was charged with
careless driving. This charge was later reduced to disobeying a lane light.
[10]
There was nothing improper on the face of these
dispositions. The assessment of the appellants role in these events depends on
the interpretation of her intercepted communications.
The Wills matter
[11]
P.C. Senior had grown up with Mr. Wills son,
Fabian. They had been friends for 30 years. After he received the ticket, Mr.
Wills contacted P.C. Senior and asked what he could do about it. On P.C.
Seniors instructions, Mr. Wills set a court date for June 1, 2018. Roughly a
week before the court date, Mr. Wills received a call telling him not to
attend.
[12]
A transcript of proceedings at the Richmond Hill
Provincial Offences Court, dated June 1, 2018, states that a prosecutor not
the appellant withdrew the charge. Mr. Wills was listed as appearing in
person.
[13]
The appellant is only connected to Mr. Wills
matter through the intercepted communications. The appellant, P.C. Senior, and
Fabian communicated via WhatsApp on June 1, 2018 at around midnight. The key
portions of their conversation read:
[1]
CP: Hello!!!
FW: Lmao
CP: Fabian your fathers disobey sign tickets
gone bye [emoji]
FW: Well hello
CP: Im still sweating [emoji]
FW: Omg. You are too good to me and my pops
FW: He wants to meet you
CP: Lol he owes me a drink
RS: I am officially shutting down the CP lets
make a deal office after this
CP: Rich ur tab is getting big
RS: Lol
FW: I am sure CP will assist where she can
with Myles. But this chat group is solely Wills and their traffic stupidity
CP: Yes I agree Fabian
RS: Then the name should reflect that
CP: Lmao
RS: Wills ticket specialist
FW: What you and
her do in your spare time is not my business [emoji]
[14]
There later followed a discussion of a Toronto
traffic ticket. The appellant was not a prosecutor in Toronto:
CP: Drum roll pls ....
CP: Fabian .. pls tell ur dad his seatbelt
ticket was withdrawn
CP: Total saving of 4 points and $350
CP: Lucky man
FW: Fml
FW: I am feeling jealous
CP: Lol
CP: Now he needs to keep that record squeaky
clean
CP: And pls make
sure that he doesnt attend that June court date
The Guarino matter
[15]
Mr. Guarino was initially charged with careless
driving. He spoke with a friend, Roman, who advised Mr. Guarino he would try
and speak to someone about helping him with the charge.
[16]
Mr. Guarino ultimately attended court and
pleaded guilty to disobeying a lane light. The fine was substantially lower
than that for careless driving, and there are no demerit points for disobeying
a lane light compared to six points for careless driving.
[17]
The appellant was not the prosecutor at court on
the day Mr. Guarino appeared, and she never spoke with him. Again, the only
evidence linking the appellant to the matter is in the following intercepted
telephone conversation between the appellant and P.C. Senior:
PETROLO
: And I called you because I worked some magic with uh Romans
ticket
SENIOR
: Oh Romans buddys ticket yeah
(voices overlap)
PETROLO
: His buddys ticket
SENIOR
: Yeah
PETROLO
: Okay so I offered him zero (0) points like a lane light it
doesnt even apply does not sit I squeezed it out
SENIOR
: Yeah
PETROLO
: Uhm it shouldve been like a fail to tum out left to
(unintelligible)
(voices overlap)
SENIOR
: Yeah yeah
PETROLO
: (mouth noise) Tell him he better not know me he better not
fucking squawk cause if he squawks theyll look at the deal right
SENIOR
: Yeah yeah yeah a hundred (100) percent
PETROLO
: So tell him tell him to take fuckin deal and shut up and not
question it
(voices overlap)
PETROLO
: Well you gimme a headache too sometimes so were even
SENIOR
: Okay sup
PETROLO
: Uhm that's it. I was telling you about the ticket
SENIOR
: Oh okay
PETROLO
: Make sure he doesn't squawk (ph) hey
SENIOR
: Yeah yeah Ill forward you what I wrote him sent him
PETROLO
: Because as soon as he says is there anything better theyre gonna
be like this doesn't even apply
SENIOR
: Yeah
PETROLO
: So (unintelligible) take it 'n be quiet.
The verdict was not
unreasonable
[18]
The appellant argued that this evidence did not
exclude the possibility that the appellant was lying in an effort to impress
Senior and that, therefore, the trial judge had to acquit her. The trial judge
rejected this argument, noting that there was no direct evidence to support the
suggestion that the statements by the appellant were an attempt to ingratiate
herself with Senior.
[19]
The trial judge recognized that the burden lay
upon the Crown to prove the offences beyond a reasonable doubt, citing
R.
v. W.(D)
, [1991] 1 S.C.R. 742, and also that the appellant was not obliged
to testify.
[20]
He was not required to acquit based on
supposition or conjecture, that flows from a purely hypothetical narrative:
R.
v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 50.
[21]
While trial judges must consider exculpatory
theories inconsistent with guilt when convicting an accused based on
circumstantial evidence, such theories must be based on logic and experience
applied to the evidence or absence of evidence, not on speculation:
R. v.
S.B.1
, 2018 ONCA 807, 143 O.R. (3d) 81, at para. 124. As explained in
R.
v. S.B.1
, at para. 138:
Decisions of this court since
Villaroman
demonstrate that merely because a trial judge rejects an alternative theory
inconsistent with guilt does not mean that he or she committed a so-called
Villaroman
error. It may simply mean that there was no available inference, other than guilt,
that was reasonable, given the evidence and the absence of evidence, and in
light of human experience and common sense. Nor does the use of expressions
such as no evidence to the contrary or no competing narrative signal a
Villaroman
error or a misplacement of the burden of proof. [Citations omitted.]
[22]
Deference is owed to a trial judges conclusion
that there are no reasonable alternative inferences other than guilt:
R. v.
S.B.1
, at para. 139.
[23]
Here, the trial judge could reasonably take the
appellant at her word and conclude in light of human experience and common
sense that the appellant had in fact fixed the tickets as a favor to Senior
and his associates. There was nothing manifestly untrue about any of the
appellants intercepted communications. The appellant did not testify, so there
was no evidence that she was lying in these communications. There is no common
sense inference that a party to an affair will lie so as to ingratiate him or
herself with the other party: see
R. v. Perkins
, 2007 ONCA 585, 228
O.A.C. 120, at para. 35;
R. v. JC
, 2021 ONCA 131, 70 C.R. (7th) 38, at
paras. 58-62.
[24]
There is no basis to conclude that the trial
judge reversed the burden of proof or failed to consider the absence of
evidence from the prosecutors who actually dealt with the matters in the
courtroom.
(2)
Disclosure of the intercepted communications
[25]
The appellant acknowledges that the above
communications were lawfully intercepted. She argues that her rights under s. 8
of the
Charter
were violated by the subsequent illegal disclosure of
these intercepted communications and that the evidence should properly have
been excluded.
[26]
On the afternoon that the appellant was
arrested, York Regional Police Inspector deRuiter emailed a copy of a document
the SES to York Regional Solicitor Joy Hulton. Inspector deRuiter testified
that he approached Ms. Hulton to seek help in obtaining documents necessary for
the investigation and that he thought sending the SES was the easiest way to
communicate the substance of the allegations.
[27]
The SES was seven pages long. It referred to
nine separate instances of purported fixing of provincial offence notices.
While the document did not contain a transcript or recording of the intercepted
communications, it included very short summaries. The extracts specifically
referred to in the SES relate to the appellant taking steps to deal with
tickets.
[28]
The SES was passed along to York Region Senior
Counsel for Prosecutions Chris Bendick. Mr. Bendick, who was also the
appellants supervisor, used the SES to pull court records and internal
prosecution records to ascertain whether what was said in the SES and
intercepted communications was connected to the appellant. He provided the
documents gathered to the police.
[29]
Sections 193(1) and 193.1(1) of the
Criminal
Code
make the use or disclosure of an intercepted communication or
disclosure of any part, substance, or meaning thereof or its existence, an
indictable offence, subject to the exemptions in ss. 193(2) and (3): see
Wakeling
v. United States of America
.
[30]
One of the exemptions is for disclosure in the
course of a criminal investigation. For ease of reference, the relevant
exemption read as follows:
(2) Subsection (1) does not apply to
a person who discloses a private communication or any part thereof or the
substance, meaning or purport thereof or of any part thereof or who discloses
the existence of a private communication
(b)
in the course of or for the purpose of any criminal investigation if the
private communication was lawfully intercepted;
[31]
The trial judge found that the police disclosed
the information in the course of or for the purpose of a criminal
investigation. The information was disclosed for the subjective, specific
purpose of enabling counsel for York Region to locate documents which the
police hoped to use as evidence against the appellant.
[32]
The appellant submits that it was entirely
unnecessary for the police to disclose the intercepted communications. They
could have requested the sought-after ticket information by giving the ticket
numbers, the names of the persons involved, or the dates of the provincial
court appearances. Further, the police failed to warn the recipients of their
request that disclosure was prohibited by the
Criminal Code
. Counsel
argues that the temporal connection between the disclosure and the arrest or
investigation of the appellant is not enough to establish that the disclosure
of the intercept was of or for the purpose of [a] criminal investigation.
[33]
We agree that it was not logically necessary for
police to disclose the intercepted communications to obtain the documents they
sought; however, we are not persuaded that necessity is an element of the
exemption. The language in the course of or for the purpose of any criminal
investigation is broad and not so limited. Where Parliament meant to require
necessity as an element in this context it has done so expressly: see, e.g.,
ss. 184(2)(c) and (e), 184.4(b), 193(2)(d).
[34]
In
Wakeling
, s. 193(2)(e) was in issue.
This section permits domestic and international sharing of intercepted private
communications to investigative and prosecutorial authorities. This disclosure
is potentially quite intrusive, as once the evidence is in a foreign state
Canadian laws may have no application to its use.
[35]
Moldaver J. held that, under s. 193(2)(e), the
subjective belief of the person making the disclosure is the relevant factor
for determining whether the exemption is engaged. It is difficult to see how an
objective test of necessity for the disclosure is compatible with the
subjective assessment required. Further, in her concurring opinion, McLachlin
C.J.C. indicated, at para. 92-93, that:
[A] valid warrant
sanitizes the state intrusion on privacy, as long as the execution of the
warrant is reasonable and the information is used for the purposes of law
enforcement.
Provided information is shared for purposes of law enforcement,
the individual cannot complain that the sharing violates his s. 8 right to
privacy.
There was no suggestion that necessity was
an element of the exemption.
[36]
Here, there is much more than simply a temporal
connection between the impugned disclosure and the investigation and arrest.
The police were subjectively looking for relevant documents in aid of their
investigation. In our view, the disclosure was made in the course of and for
the purpose of a criminal investigation and, accordingly, the exemption
applies.
[37]
Further, we agree with the trial judges
conclusion that, taking into account the content of the SES, the police acted
reasonably, particularly given the limited reference to the intercepted
communications confined to some of the appellants statements about her actions
in relation to tickets.
[38]
The disclosure was therefore lawful, and there
is no
Charter
breach associated with the intercepted communications.
We need not consider whether the exemption in s. 193(2)(a) applies.
(3)
Was the appellant properly convicted of both
offences?
[39]
The appellant was convicted of breach of trust
by a public official, under s. 122 of the
Criminal Code
, and
obstruction of justice, under s. 139(1).
[40]
The trial judge accurately stated the elements
of each offence. For breach of trust by a public official he noted, at para. 23
of his reasons, that the Crown must prove each of the following:
1)
The accused is an official;
2)
The accused was acting in connection with the
duties of her office;
3)
The accused breached the standard of
responsibility and conducted demanded of her by the nature of the office;
4)
The conduct of the accused represented a serious
and marked departure from the standards expected of an individual in the
accuseds position of public trust; and,
5)
The accused acted with the intention to use her
public office for a purpose other than the public good, for example, for a
dishonest partial, corrupt of oppressive purpose: see
R. v. Boulanger
,
2006 SCC 32, [2006] 2 S.C.R. 49, at para. 58.
[41]
In relation to the elements of obstruct justice,
citing
R. v. Yarlasky
(2005), 195 O.A.C. 188 (C.A.), the trial judge
listed the essential elements as follows:
1)
The accused must have done enough for there to
be a risk, without any further action by her, that injustice will result; and,
2)
The attempt by the accused to obstruct justice
must have been wilful.
[42]
As is apparent from their elements, these are
two different offences that serve different societal interests. One applies
only to officials. Obstruction of justice requires an intent to obstruct,
pervert or defeat the course of justice. There are additional and
distinguishing elements which differentiate the two offences: see
R. v.
Prince
, [1986] 2 S.C.R. 480, at pp. 493-495;
R. v. Kinnear
(2005),
199 O.A.C. 323 (C.A.), at paras. 32-39. The
Kienapple
principle does
not foreclose conviction for both offences.
(4)
The sentence appeal
[43]
The appellant also submits that the trial judge
erred in not granting a conditional discharge. She submits that the trial judge
unreasonably distinguished cases in which a discharge had been granted by
observing that those involved guilty pleas. Counsel argues that a conditional
discharge would not have been contrary to the public interest given that the
appellant was a 37-year-old first offender with no previous record. She has
suffered serious collateral consequences: the loss of her job and profession.
[44]
In our view, the three-month conditional
sentence imposed was not demonstrably unfit, nor was there an error in
principle. The weight to be given to the mitigation factor of remorse
demonstrated by a guilty plea in the other cases was a matter for each of the
sentencing judges in those cases. That mitigating factor was absent here.
Whether a conditional discharge would have been contrary to the public interest
was a discretionary decision available to the trial judge: see
R. v. Lu
,
2013 ONCA 324, 307 O.A.C. 40, at paras. 48-50, leave to appeal refused, [2013]
S.C.C.A. No. 313. Given the serious violations of trust placed in the appellant
as an official, and the potential to erode public confidence in the
administration of justice, some denunciation was required. There is no basis to
interfere with the trial judges decision that a conditional discharge would
not be appropriate.
Disposition
[45]
Accordingly, the appeal from convictions is
dismissed. Leave to appeal sentence is granted but the appeal from sentence is
also dismissed.
David Watt J.A.
G. Pardu J.A.
Gary Trotter J.A.
[1]
CP is the appellant; RS is P.C. Senior; and FW is Fabian
Wills.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Wiseau Studio, LLC v. Harper, 2021
ONCA 504
DATE: 20210707
DOCKET: M52604 (C68580)
Fairburn
A.C.J.O. (Motions Judge)
BETWEEN
Wiseau
Studio, LLC and Tommy Wiseau d.b.a. Wiseau-Films
Plaintiffs/Defendants
by Counterclaim
(Appellants
/
Moving Parties)
and
Richard
Harper, Fernando Forero McGrath, Martin Racicot d.b.a. Rockhaven Pictures, Room
Full of Spoons Inc., Parktown Studios Inc. and Richard Stewart Towns
Defendants/Plaintiffs by Counterclaim
(Respondents/Responding Parties)
Daniel Brinza, for the moving parties
Meredith Bacal and Matthew Diskin, for the responding
parties
Heard: July 7, 2021 by video conference
ENDORSEMENT
[1]
This is a motion pursuant to s. 65.1(1) of the
Supreme
Court Act
, R.S.C. 1985, c. S-26, seeking a stay of a decision of this
court, which decision requires the moving parties to post security for costs of
their appeal and the costs awarded from trial by no later than 4:00 p.m. today,
failing which the
[responding parties]
may move
ex parte
in writing before [that] panel for an
order dismissing the appeal:
Wiseau Studio, LLC v. Harper
, 2021 ONCA
396, at para. 10.
[2]
The request for a temporary stay of this courts
panel decision is predicated on the moving parties efforts to obtain leave to
appeal to the Supreme Court of Canada.
[3]
For the following reasons, the moving parties motion
to stay the panel decision is dismissed.
[4]
First, there is no serious issue raised by the moving
parties application for leave to appeal to the Supreme Court.
[5]
The order of Thorburn J.A. required the posting
of security for costs of the appeal and the costs awarded at trial:
Wiseau
Studio, LLC v. Harper
, 2021 ONCA 31, at para. 41. That order was upheld by
a panel of this court on June 2, 2021, with reasons released on June 7, 2021.
As the panel noted, the Thorburn J.A. decision was a discretionary one based
upon the record before her at that time. Moreover, the moving parties failed to
justify why fresh evidence should be admitted on review. As such, according to
the panel, at para. 7 of their reasons, the review turned on the fact that it
was reasonably open to [Thorburn J.A.] in the exercise of her discretion to
make the order she made, specifically as it related to security for costs of
both the trial and appeal pursuant to r. 61.06(1) of the
Rules of Civil
Procedure
, R.R.O. 1990, Reg. 194. I see no error in that approach.
[6]
It is largely the facts that drove the final
decision about the posting of costs in this case. Those facts are well
documented in Thorburn J.A.s decision, most notably at para. 10, and I will
not repeat them here. Needless to say, as reflected in Thorburn J.A.s review
of the record below, there had been findings regarding the fact that the moving
parties (normally resident outside of Ontario) had put up roadblocks to
scheduling at almost every attendance and engaged in other improper acts that
interfered with the efficient course of the litigation.
[7]
For purposes of this motion, and the first
question on the stay application pertaining to whether there is a serious
issue to be dealt with, the moving parties have failed to demonstrate that
there is a an issue of public or national importance raised in the Notice of
Application for Leave to Appeal to the Supreme Court of Canada that could
possibly rise to the level of meeting the stringent requirements of s. 40(1)
of the
Supreme Court Act
:
Livent Inc. v. Deloitte & Touche
,
2016 ONCA 395, 131 O.R. (3d) 784, at para. 7. This is particularly true given
the completely discretionary nature of the original order in this case, as
upheld by the panel on review. It is well settled that these types of
discretionary orders are owed deference on review:
Yaiguaje v. Chevron
Corporation
, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 20. This is even
more the case when discretionary orders, such as the one in dispute here, are
heavily predicated on fact-finding.
[8]
The second issue to be considered is whether the
moving parties will suffer an irreparable harm if the stay is not imposed:
Deloitte
,
at para. 4. They will not.
[9]
Having reviewed the evidence on this motion, at
its highest, there is a suggestion by the moving parties, as reflected in the
affidavit of Tommy Wiseau, dated June 28, 2021, that he does not have
sufficient funds, or access to sufficient funds, to meet the demands of this
courts order. I am not satisfied that this evidence reflects anything more
than, as the responding parties put it, a request to imagine the irreparable
harm that may flow. While there is discussion in Mr. Wiseaus affidavit about
the general financial implications of the COVID-19 pandemic in the United
States and on the entertainment industry in particular, and a suggestion that
it is impossible for
[Mr. Wiseau]
to be able to obtain liquidity on a short notice, there are no
specifics given about why that is so. This is nothing more than a request to
trust Mr. Wiseau. In light of the history of this matter, cogent evidence would
be required to satisfy me that the security for costs required as a result of
this courts decision cannot be posted.
[10]
In any event, even if the court was inclined to
extend the trust requested, the responding parties have provided an in-writing
undertaking that alleviates any harm that may flow to the moving parties pending
resolution of the application for leave to appeal to the Supreme Court. That
correspondence, dated July 4, 2021, is written by counsel to the responding
parties, Matthew Diskin, and includes the following undertaking:
Further to your July 7 motion in the Wiseau
matter, our clients and my firm undertakes that any funds recovered as relates
to the cost awards and judgments in this matter will be held in trust, pending
the leave to appeal motion to the Supreme Court of Canada. If leave is granted,
and the order of the panel upholding security for costs of the appeal and
judgment reversed, then such funds would remain in trust pending the hearing of
the appeal of Justice Schabas judgment. If leave is not granted or if the
proposed appeal is dismissed, then such funds would be released.
The point is that there is no need for a stay
motion in view of the foregoing undertaking. My position is, and will be before
the Court of Appeal on July 7, that the stay motion should be dismissed on
various bases, but that to the extent there is any question, it is entirely
resolved by the undertaking.
[11]
Even if there could be harm flowing from
dismissing this stay motion, the potential for harm has been significantly
mitigated by the responding parties by way of this undertaking. In essence, any
recovered funds will be held in trust pending the decision on the leave to
appeal application before the Supreme Court of Canada. Of course, were the moving
parties to be successful on that leave application, they could make a request
of the Supreme Court of Canada to grant any necessary, interim remedies deemed
necessary.
[12]
Third, and finally, I will address whether the
balance of convenience favours a stay:
Deloitte
, at para. 4.
[13]
As reflected in Thorburn J.A.s reasons, at
para. 7, this litigation commenced with an
ex parte
injunction that
restrained the release of the documentary that is at the heart of this dispute.
Unbeknownst to the court that granted that injunction, at the same time that
the
ex parte
motion was brought by the moving parties, the parties
were negotiating about the documentarys release.
[14]
I pause to note that in a clearly different
vein, but carrying the same element of surprise, during the hearing of this motion,
the responding parties came to know for the first time, through a public
website, that just yesterday the moving parties sued them in Federal Court. The
responding parties have not yet seen the Statement of Claim because it has not
yet been served on them. When asked about whether this was true, the moving
parties counsel acknowledged that in fact this claim had been filed in court yesterday
without any notice to the responding parties, suggesting that it was really
nothing more than a cheap insurance policy to keep the moving parties
options open going forward.
[15]
It falls beyond the scope of the motion before
me to comment upon that turn of events, other than to observe this behaviour appears
somewhat consistent with many of the factual observations recounted by and made
by Thorburn J.A. in her reasons.
[16]
In any event, focusing on the balance of
convenience here, I accept what Thorburn J.A. sets out in her reasons, at para.
34, that there is evidence that the responding parties will suffer prejudice if
the order of this court to post security for costs is not granted (and
therefore if it is stayed). That prejudice includes the fact that, as noted by
multiple case management judges in the past and the trial judge, Mr. Wiseau
seems to be engaging in tactical attempt(s)
to delay and obstruct the
release of Room Full of Spoons.
[17]
Conversely, I see no compelling evidence of harm
to the moving parties, other than the fact that they may not be able to post
the security for costs today. Of course, the panel hearing the review from
Thorburn J.A.s order gave them one month to do so. I am hearing this motion
mere hours before the deadline.
[18]
In all of these circumstances, including the responding
parties written undertaking, the overarching consideration involving the
interests of justice leads me to conclude that this motion to stay the panel
decision of this court should be dismissed.
[19]
If the moving parties do not comply with this
courts panel decision, and the responding parties decide to move
ex parte
in writing before
[
the
]
panel for an order dismissing the appeal,
the responding parties must include these reasons and their undertaking as part
of the record to be placed before the panel on that
ex parte
application.
Disposition
[20]
The moving parties motion to stay the panel
decision of this court is dismissed.
[21]
Costs submissions will be heard in writing.
[22]
The responding parties may provide written costs
submissions of no more than two pages no later than July 9, 2021. The moving
parties may respond with written costs submissions of no more than two pages no
later than July 13, 2021.
Fairburn
A.C.J.O.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Wiseau Studio, LLC v. Harper, 2021
ONCA 505
DATE: 20210708
DOCKET: M52604 (C68580)
Fairburn
A.C.J.O. (Motions Judge)
BETWEEN
Wiseau
Studio, LLC and Tommy Wiseau d.b.a. Wiseau-Films
Plaintiffs/Defendants
by Counterclaim
(Appellants
/
Moving Parties)
and
Richard
Harper, Fernando Forero McGrath, Martin Racicot d.b.a. Rockhaven Pictures, Room
Full of Spoons Inc., Parktown Studios Inc. and Richard Stewart Towns
Defendants/Plaintiffs by Counterclaim
(Respondents/Responding Parties)
Daniel Brinza, for the moving parties
Meredith Bacal and Matthew Diskin, for the responding
parties
Heard: July 7, 2021 by video conference
COSTS ENDORSEMENT
[1]
The endorsement in this matter was released
yesterday. Costs will be paid to the respondents in the agreed upon all
inclusive amount of $3,500.
Fairburn
A.C.J.O.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Zia v. Ahmad, 2021 ONCA 495
DATE: 20210708
DOCKET: C69391
Brown, Roberts and Zarnett JJ.A.
BETWEEN
Maria
Zia
Applicant (Respondent)
and
Zafar
Ahmad
Respondent (Appellant)
Gary S. Joseph, for the appellant
Michael H. Tweyman, for the respondent
Heard: In writing
On
appeal from the order of Justice Cheryl Lafrenière of the Superior Court of
Justice, dated October 22, 2020.
REASONS FOR DECISION
[1]
The appellant, Zafar Ahmad, appeals from the dismissal of his motion
under r. 25(19) of the
Family Law Rules
, O.
Reg. 114/99, to set aside a default order granted on January 17, 2020. The
default order directed, among other things, that Mr. Ahmad pay spousal support
to the respondent, Maria Zia, that he designate Ms. Zia as a beneficiary on his
life insurance for as long as he was obligated to pay spousal support, and that
he make an equalization payment to her.
[2]
The parties were married in 2009 and separated
in 2015. In 2016, they participated in an arbitration conducted through their
Ahmadiyya Muslim community; an award was made on August 13, 2016 (the Award).
The Award stated that it was addressing four issues: divorce and habitation
rights, dower money, possession of certain household items, and possession of
certain jewellery. None of the issues decided were described as equalization
of net family property or as support. A space on the Award form entitled spousal
support was crossed off with the notation N/A. An issue concerning the
matrimonial home was not decided; the Award instead advised the parties to
consult court because of legal implications of subject matter.
[3]
Ms. Zia commenced her court application for
support and an equalization payment on March 6, 2018. She served the
application on Mr. Ahmad in April 2018, and then served an amended version of
it on him in June 2018. Mr. Ahmad did not respond to either service. He was
noted in default in February 2019. He took no steps up to and including the
making of the default order.
[4]
Mr. Ahmad does not challenge the test that the motion judge applied,
under which the following factors are considered:
a)
whether the moving party moved promptly, after
learning of the order, to have it set aside;
b)
whether the moving party has provided an
adequate explanation for the failure to respond to the proceeding in accordance
with the
Family Law Rules
;
c)
whether the moving party has established an
arguable case on the merits;
d)
whether the moving party is acting in good faith
and with clean hands";
e)
the prejudice that may be suffered by the
moving party if the motion is dismissed and to the responding party if the
motion is allowed; and,
f)
whether, in the final analysis, the interests of
justice favour setting aside the judgment.
[5]
Mr. Ahmad submits that the motion judge erred by
failing to appreciate that the default order was made without jurisdiction
because the parties had previously submitted their dispute to an arbitration, or
in failing to appreciate that the Award gave rise to a
res
judicata
defence to Ms. Zias claims.
[6]
We do not accept these arguments.
[7]
The default order was not made without
jurisdiction simply because the parties had participated in an arbitration. Mr.
Ahmad does not point to any evidence that the parties had agreed that they
would submit, to arbitration, claims for support, insurance to secure spousal
support, or equalization. Nor does he identify any evidence that the parties
made that agreement after their dispute arose or that the arbitration about
such matters was to be conducted exclusively under Ontario law or the law of
another province of Canada preconditions to any such agreement being valid or
any such arbitration having legal effect:
Family Law Act
, R.S.O. 1990,
c. F.3, ss. 59.2(1)(b) and 59.4. In any event, an arbitration agreement does
not preclude the court from exercising jurisdiction if a motion to stay the
court proceeding has not been brought and granted:
Arbitration Act
,
1991
,
S.O. 1991, c. 17, s. 7. Here, there was no motion for a stay.
[8]
The argument that the Award bars Ms. Zias
claims based on the doctrine of
res judicata
is also without
substance. For that doctrine to apply, the issues that were, or could have
been, dealt with in the arbitration would have to be the same as those that
were the subject of the court proceeding:
Rathwell v. Hershey Canada Inc.
(2001)
, 152 O.A.C. 1 (CA),
at para.
5, leave to appeal refused, 164 O.A.C. 279 (note) (SCC). The Award does not
deal with equalization, support, or insurance to secure support; nor, for the
reasons above, is there any evidence that it could, with legal effect, have
dealt with those issues.
[9]
Mr. Ahmad also submits that the motion judge
failed to take into account that he was self-represented or consider his
evidence about his ability to make support payments or the net family property
calculations. He argues that the motion judge should not have decided the
matter without
viva voce
evidence, and that her reasons are inadequate.
[10]
We reject these submissions. The motion judge
was clearly aware of the fact that Mr. Ahmad was self-represented. She considered
his submissions and the evidence he put forward. Her findings of fact arising from
her assessment of that evidence are entitled to deference, as is her exercise
of discretion as to whether to set aside the default order.
[11]
The motion judge concluded that although Mr.
Ahmad had acted promptly once he became aware of the default order, this was
the only factor of the test that he satisfied. She found that he failed to
provide an adequate explanation for his failure to respond to the application
for more than 18 months after he was served, did not establish an arguable case
on the merits, provided no financial disclosure, and lacked clean hands. She
was not required to conduct a
viva voce
hearing. Her reasons are not
inadequate; they permit meaningful appellate review.
[12]
The appeal is dismissed. If the parties are
unable to agree on costs, they may make submissions in writing, not exceeding 2
pages each, within 10 days of the release of these reasons.
David
Brown J.A.
L.B.
Roberts J.A.
B.
Zarnett J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Fort Erie (Town) v. 2312810
Ontario Inc., 2021 ONCA 500
DATE: 20210707
DOCKET: M51952 (M51357)
Watt, Pardu and Trotter JJ.A.
BETWEEN
The Corporation of the Town of Fort Erie
Responding Party
and
2312810 Ontario Inc., Daniel Leo Lino
Favero, Linda Favero
and Leo Joseph Favero
Moving Parties/Applicants
Stephanie DiGiuseppe and Karen Heath,
for the moving parties/applicants
Terrence H, Hill, for the responding
party
Heard and released orally: July 2, 2021 by
video conference
REASONS FOR DECISION
[1]
The applicants seek an order setting aside the
order of the motion judge dismissing their application for leave to appeal
under s. 131(1) of the
Provincial Offences Act
.
[2]
Casting the decision of the motion judge
refusing leave to appeal as based upon or amounting to jurisdictional error, they
invoke the decision in
Hillmond Investments Ltd. v. Canadian Imperial Bank
of Commerce
(1996)
, 29 O.R.
(3d) 612 (Ont. C.A.), in support. They concede that the decision in
Hillmond
has not previously been applied in circumstances governed by s. 131 of the
POA
.
[3]
It is well-settled, as the motion judge said,
that leave to appeal should be granted only in exceptional cases. Indeed, s.
131(2) of the
POA
limits the granting of leave to cases in which the
motion judge is satisfied that, in the particular circumstances, it is
essential:
i.
in the public interest; or
ii.
for the due administration of justice
that leave be granted.
[4]
Section 131(3) of the
POA
enacts a
prohibition against appeals or reviews from decisions on leave motions under s.
131(1).
[5]
In our view, this application, however
characterized, is barred by s. 131(3) of the
POA
. Further, even if
Hillmond
Investments
were applicable, an issue which we need not decide, we are not
persuaded that there was any jurisdictional failure on the part of the motion
judge that would justify the order sought.
[6]
The application is dismissed. There is no order
as to costs.
David Watt J.A.
G. Pardu J.A.
Gary Trotter
J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Marfo (Re), 2021 ONCA 480
DATE: 20210707
DOCKET: C68732
Hourigan, Paciocco and Zarnett
JJ.A.
IN THE MATTER OF: Alfred Marfo
AN APPEAL
UNDER PART XX.1 OF THE
CODE
Anita Szigeti, for the appellant
Vallery Bayly, for the respondent,
Attorney General of Ontario
Leisha Senko, for the respondent,
Person in Charge of the Centre for Addiction and Mental Health
Heard: June 24, 2021 by video conference
On appeal from the disposition of the
Ontario Review Board dated July 24, 2020, with reasons dated October 14, 2020.
REASONS FOR DECISION
Introduction
[1]
The appellant appeals the disposition of the
Ontario Review Board (the Board) that ordered him to be detained on the
General Forensic Unit at the Centre for Addiction and Mental Health (CAMH) on
conditions.
[2]
The appellant contends that the Board erred in
law in finding that he was a significant threat to the safety of the public,
and thus in failing to grant an absolute discharge. Alternatively, he submits
that the Board erred in law in failing to give meaningful consideration to a
conditional discharge, and to the extent the Board did consider a conditional
discharge, it unreasonably failed to grant one. The appellant concedes that he
has a history of violence committed against intimate partners, but places central
reliance on what he says was the Boards failure to take note of a four year
period of stability between 2015 and 2019, during which the appellant lived in
the community while on bail in relation to the index offences.
[3]
A decision of the Board is subject to deference
on appeal. This court may intervene only if the Board made an error of law,
there was a miscarriage of justice, or the decision is unreasonable or cannot
be supported by the evidence:
Criminal
Code
, R.S.C.,
1985, c. C-46, s. 672.78. We do not accept the appellants arguments that a
basis for appellate intervention exists in this case. We therefore dismiss the
appeal.
Background
[4]
In April
2001, the appellant assaulted his
common law wife and, for several hours, forcibly confined her in their
apartment. In October 2001, he was found not criminally responsible due to a mental
disorder (NCR) on charges of forcible confinement, assault with a weapon, and
aggravated assault, and came under the jurisdiction of the Board.
[5]
The appellant continued under the Boards
jurisdiction until 2014. Between 2001 and 2014, he had a number of lengthy
admissions to CAMH, Millhaven Institution, and the Mental Health Centre
Penetanguishene (now Waypoint Centre for Mental Health Care).There were also
periods during which he was permitted to live in the community.
[6]
In November 2003, while living in the community,
the appellant assaulted, sexually assaulted, and forcibly confined a second
intimate partner. On this occasion, the forcible confinement lasted nine hours.
He was ultimately found NCR on charges arising from that conduct.
[7]
In August 2014, the appellant received an
absolute discharge from the Board.
[8]
Within a year of his discharge, on March 8,
2015, the appellant committed the index offences against a third intimate
partner. He confined her in an apartment for five hours, prevented her from
calling the police, hit her, and threatened to kill her.
[9]
After an initial period of detention following
his arrest for the index offences, the appellant was granted bail and lived in
the community for more than four years. He was supported by payments under the
Ontario Disability Support Program, and episodic work. He was treated by family
physicians and prescribed anti-psychotic medication; he had a number of
psychiatric assessments.
[10]
On December 18, 2019, the appellant was found
NCR in relation to the index offences, on charges of assault causing bodily
harm, assault with a weapon, and sexual assault.
[11]
On July 9, 2020, the Board held a hearing to
determine whether the appellant was a significant threat to the community and,
if so, what disposition was necessary and appropriate.
The Boards Decision
[12]
At the hearing before the Board, CAMH and the
Crown took the position that the appellant was a significant threat to the
safety of the public and that a detention order was necessary. They opposed
either an absolute or conditional discharge. The appellant requested an
absolute discharge, or alternatively a conditional discharge. He relied heavily
on his conduct while on bail during the four years following the index
offences, taking the position that he had educated himself on his illness,
taken rehabilitative steps, seen a physician regularly, taken prescribed
medications, and received support from his mother.
[13]
The
Board concluded that
the appellant posed a significant threat to the community and made a detention
order, with privileges up to living in the community in accommodations approved
by the Person in Charge.
[14]
The Board noted the appellants significant
psychiatric history and service utilization. He has been diagnosed with
schizophrenia with symptoms of delusional ideation, auditory and visual
misperceptions, affective instability disinhibition, and agitation. His
delusional system was pervasive.
[15]
The Board accepted the evidence of Dr. Paul Benassi,
who performed a psychiatric and mental status examination of the appellant in
May 2020, and the reports of Dr. Philip Klassen, who conducted a psychiatric
assessment for the court during the proceedings leading to the 2019 NCR
finding. The Board noted that both psychiatrists concluded that the appellant posed
a significant risk due to his significant and repeating violence, his psychotic
illness and ongoing symptoms, problems with medication compliance, impaired
insight into his illness, and his risk assessment scores.
[16]
Dr. Benassi gave evidence that the appellants
treatment while in the community was suboptimal: he was taking medication in a
dosage far below what was recommended, was continuing to experience psychotic
delusions, and lacked interest in increasing his medication. These bore on the
assessment of risk as, in Dr. Benassis view, the appellant had limited or
impaired insight into his condition and need for treatment. Dr. Benassi
testified that:
As we can see, Mr. Marfo has a significant
history of violence, specifically in intimate relationships. From reviewing all
incidents, but mainly the most recent index offence is that this has occurred
under symptoms of psychosis, specifically paranoid delusions that have been
directed towards his partner. It appears that even at that time, and currently,
he still is not [optimally] treated for his psychosis and still experiences
active psychosis. It appears that when he is in intimate relationships, this
can be a destabilizer for him where it will elicit more of these paranoid
delusions, which then lead him to act out in an impulsive and violent manner
towards his partner.
[17]
Dr. Benassi stressed the need to be able to intervene
quickly to manage risk and described the challenges of attempting to do so by
resort to the
Mental Health Act
, R.S.O. 1990, c. M.7 (
MHA
).
[18]
The Board considered the appellants evidence and
came to the same conclusion. It found that the appellant was over-confident in
his ability to self-diagnose and would not recognize his symptoms if he
decompensated. He was suboptimally treated under the care of his family
physician and would not consent to an appropriate dosage of medication.
Additionally, the appellant has a history of withholding information. He gave
inconsistent answers about his working hours, the frequency at which he sees
his doctor, withheld that he has two pharmacies dispensing his drugs, and that
he had a new intimate partner. The Board expressed concerns about the appellants
ability to mask his symptoms and convince doctors that he is not unwell.
Finally, it found that the appellant takes no responsibility for his actions,
blaming alcohol or his partner for his offences. The Board concluded that the
MHA
is not sufficient to manage the appellants risk because by the time the
unwellness is obvious, the appellant would be well on his way to
decompensation and violence.
Analysis
[19]
The appellant argues that the Board erred in
finding that he was a significant threat to the safety of the public by placing
undue focus on the existence of a major mental illness and giving insufficient
attention to the fact that he had been able to live peacefully for four years
on bail, despite the existence of a mental disorder.
[20]
We disagree. The Board described the issue before
it as whether the appellant is a significant risk to the community in the first
paragraph of its decision. After discussing the evidence, it concluded
that Mr. Marfo poses a significant threat
to the safety of the public as enunciated in [
Winko
v. British Columbia (Forensic Psychiatric Institute),
[1999] 2 S.C.R. 625]
.
The psychiatric evidence that the Board accepted went beyond the
existence of psychiatric disorders; it related those disorders to the
appellants history of intimate partner violence and identified the significant
risk of further intimate partner violence, should the appellant find himself in
a committed or cohabiting relationship. The Board cited the correct test and
applied it. It did not ignore the appellants four years on bail.
[21]
We do not accept the appellants argument that
the Board should not have considered the reports of Dr. Klassen, as his reports
were prepared for the court proceedings in relation to the index offences. In
any event, in light of the Boards acceptance of the evidence of Dr. Benassi,
the alleged error had no impact on the result.
[22]
The appellant also argues that the Board failed
to give meaningful consideration to a conditional discharge, and that its
decision not to grant one was unreasonable. We disagree. It is convenient to
discuss both arguments together.
[23]
The Board noted that if it found the appellant
to be a significant risk, the issue was the necessary and appropriate
disposition. The Boards express discussion of a conditional discharge was
limited to noting that the Crown and Hospital took the position that one would
not be appropriate, and that the appellant requested, in the alternative, that
a conditional discharge be granted. As the appellant correctly points out, the
Boards analysis section does not use the words conditional discharge.
[24]
The Board is an expert tribunal. It noted that
the parties took positions on a conditional discharge, and we are not prepared
to conclude that the Board lost sight of the issue. Rather, read as a whole, it
is clear from the Boards reasons that it decided not to grant a conditional
discharge because it would not be appropriate to do so. The factors it referred
to in fashioning a disposition that was necessary and appropriate include those
relevant to why a conditional discharge was rejected. For example, the Board
found that, in this case, the
MHA
was insufficient to protect public
safety. This court has held that the need to be able to intervene in a timely
fashion and the adequacy of the
MHA
regime in a specific case are
relevant considerations when deciding whether a conditional discharge is
appropriate:
Davies (Re)
, 2019 ONCA 738, 380 C.C.C. (3d) 552, at paras.
28-32.
[25]
In light of the appellants history of three
sets of violent offences one committed while the appellant was under the
Boards jurisdiction but had been permitted to live in the community, and another
within a year of his absolute discharge and the psychiatric evidence that it
accepted, the Boards finding that there was a need to be able to intervene
quickly and thus not to grant a conditional discharge was reasonable, even taking
into account the appellants apparent stability while on bail. This court should
be slow to second guess the Boards expert opinion about the appellants risk
level and how it is best managed:
Fotiou (Re)
, 2020 ONCA 153, at para.
14.
Conclusion
[26]
For these reasons, the appeal is dismissed.
C.W.
Hourigan J.A.
David
M. Paciocco J.A.
B.
Zarnett J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: 7084421 Canada Ltd. v. Vinczer,
2021 ONCA 497
DATE:
20210706
DOCKET: M52283 (C68637)
Huscroft, Roberts and Zarnett
JJ.A.
BETWEEN
7084421 Canada Ltd.
Plaintiff
(Respondent/Responding Party)
and
Attila Vinczer, Peter Vinczer
and Katalin Vinczer
Defendants
(Appellants/Moving Parties)
Attila Vinczer, acting in person, on
behalf of the appellants
Gerald Anthony, for the respondent
Heard: July 2, 2021 by videoconference and
released orally
REASONS FOR DECISION
[1]
The appellants move to set aside the order of Benotto J.A. dated
February 26, 2021 and request leave to bring this motion. They raise a single legal
argument. They submit that the effect of her order was to terminate their
appeal, and that such an order could only be made by a panel, not a single
judge. We disagree.
[2]
As the appellants did not perfect their appeal within the time
prescribed by the order of Brown J.A. dated December 17, 2020, the Registrar
made an order on January 27, 2021 dismissing the appeal as required by r.
61.13(3.1) of the
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194.
[3]
The appellants motion before Benotto J.A. sought to set aside the
Registrars dismissal order. A single judge has jurisdiction to determine such
a motion under r. 61.16(5). The appellants motion also sought leave to make
that request. The requirement for leave was set by the order of Brown J.A.
which specifically stated that leave could be granted by a judge.
[4]
Benotto J.A. dismissed the appellants motion. Just as she had
jurisdiction to grant the requested relief if she had considered it appropriate
to do so, she also had jurisdiction to refuse it, leaving the order of the
Registrar dismissing the appeal in effect. We see no error in her decision.
[5]
The appellants motion is therefore dismissed.
[6]
The respondent brought a cross-motion for various relief. To the
extent that the cross-motion requests dismissal of the appellants motion it is
moot in light of the disposition above. To the extent that it seeks other
relief related to the mortgaged properties and continued litigation by the
appellants, it is inappropriate for this court to address those matters as
there is no appeal pending in this court. Those aspects of the cross-motion are
dismissed without prejudice to the respondents ability to seek such relief in
the Superior Court.
[7]
The appellants shall pay costs to the respondent
in the sum of $1,500, inclusive of disbursements and applicable taxes.
Grant
Huscroft J.A.
L.B.
Roberts J.A.
B.
Zarnett J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Ontario (Attorney General) v.
Norwood Estate, 2021 ONCA 493
DATE: 20210706
DOCKET: C68474
Huscroft, Paciocco and Jamal
JJ.A.
BETWEEN
Attorney General of Ontario
Applicant/Moving Party
(Respondent)
and
Michael Norwood (Estate of) and
947014 Ontario Inc.
Respondents/Respondents on Motion
(Appellants)
and
Rosa
Norwood
Interested Party
Geoffrey
Adair, Alan Brass and Erica Tanny, for the appellants
Antonin I.
Pribetic and Paul Kim, for the respondent
Robert
Meagher, for the interested party
Jessica L.
Kuredjian and Robert Sniderman, for the intervener Canadian Constitution
Foundation
Heard: May 12, 2021 by video conference
On appeal from the order of Justice Charles
T. Hackland of the Superior Court of Justice, dated June 4, 2020, with reasons
reported at 2020 ONSC 3510.
Paciocco J.A.:
OVERVIEW
[1]
Michael Norwood (Michael) faced narcotics-related
criminal charges, but died before he could stand trial. As a result of those
charges, and before Michaels death, the Attorney General of Canada (Canada) seized
Michaels home at 11 Cassone Court (the Cassone Court property) and commenced
proceedings to secure its forfeiture. Pending Canadas forfeiture proceedings,
the Cassone Court property was sold on consent. The proceeds were paid into
Canadas Seized Property Management Directorate.
[2]
After Michaels death, Canada terminated its
forfeiture proceedings. Before the proceeds of sale of the Cassone Court property
could be returned to Michaels estate, the Attorney General of Ontario
(Ontario) commenced proceedings under the
Civil Remedies Act, 2001
,
S.O. 2001, c. 28 (the
Civil Remedies Act
or the Act), seeking its
own forfeiture order. The proceeds of sale of the Cassone Court property were subsequently
paid into court.
[3]
Michaels mother, Rosa Norwood (Rosa), notified
Ontario of her claim to an interest in the Cassone Court property. Before
Ontarios forfeiture claim could be resolved, Ontario agreed with Rosa that she
should receive $120,000 from the sale proceeds. On May 6, 2020, pursuant to s.
18.1 of the
Civil Remedies Act
, Ontario moved for approval of this proposed
settlement. Michaels estate (the Estate) and 947014 Ontario Inc. (947),
a company Michael controlled before his death, opposed Ontarios motion and the
payment of funds to Rosa. On June 4, 2020, the motion judge granted an order
approving the settlement between Ontario and Rosa, which required payment of $120,000
to Rosas counsel in trust.
[4]
The Estate and 947 are the appellants in this
appeal. Ontario is the respondent. Rosa is an interested party and relies on
Ontarios submissions; she advanced no oral or written submissions of her own.
[5]
The appellants contend that the motion judge
erred in approving the agreement between Ontario and Rosa prior to a judicial
determination that Ontarios forfeiture claim was successful.
[6]
I agree. In my view, properly interpreted, to
constitute a settlement in relation to a proceeding under this Act in the
meaning of s. 18.1(1) of the
Civil Remedies Act
, the proposed agreement
must relate to the
in rem
property interests being litigated in the underlying
forfeiture proceedings. Although Ontario and Rosa could settle their relative
in
personam
claims, they could not, between themselves, settle the
in rem
interests of others, such as the Estates interest in the Cassone Court
property. Put another way, their so-called settlement was not a settlement in
the meaning of the Act at all, and therefore not properly subject to judicial
approval under s. 18.1.
[7]
Things would have been different, however, if before
approving the agreement the motion judge had determined that the sale proceeds
of the Cassone Court property were the proceeds and/or instruments of unlawful
activity, and that forfeiture was not clearly contrary to the interests of
justice. Such a determination would have given Ontario a higher right to the Cassone
Court property to the exclusion of all others, subject to Rosas outstanding
claim that she was a legitimate or responsible owner. Ontario and Rosa
could then have entered into an agreement resolving the
in rem
property
interests in the proceeds of the Cassone Court property being litigated in the forfeiture
proceedings under the
Civil
Remedies
Act
, an
agreement which would have constituted a settlement in the meaning of s. 18.1.
[8]
Put simply, absent a finding of unlawful
activity, there was no settlement in relation to a proceeding under [the] Act
between Ontario and Rosa for the motion judge to approve. Therefore, I conclude
that the motion judge erred in approving the agreement between Ontario and Rosa.
Accordingly, I would set aside the motion judges order of June 4, 2020.
MATERIAL FACTS & PROCEEDINGS BELOW
[9]
On October 7, 1993, Michael acquired the property
at 11 Cassone Court, Ottawa (formerly Nepean). On September 22, 1995, a charge
was registered against the Cassone Court property in favour of Michaels
mother, Rosa. Rosas charge against the Cassone Court property was discharged twelve
years later, on October 10, 2007.
Procedural history leading to the settlement
approval motion
[10]
In February 2015, after a prolonged
drug-trafficking investigation, Michaels Cassone Court residence was searched
and the property itself was seized. So too was the Silver Dollar nightclub, which
Michael owned and operated through 947.
[11]
As a result of its investigation, Canada laid drug-related
charges against Michael, and instituted forfeiture proceedings against the
Cassone Court property and the Silver Dollar, pursuant to s. 17 of the
Controlled
Drugs and Substances Act
, S.C. 1996, c. 19, and ss. 462.38(2) and 490(9)
of the
Criminal
Code
, R.S.C. 1985, c. C-46.
[12]
On October 19, 2015, Canada obtained a restraint
order relating to the seized properties. The next day, October 20, 2015, Michael
executed a promissory note in favour of Rosa in the amount of $138,000. On
October 23, 2015, Michael directed his counsel to register a collateral charge
against the Cassone Court property in Rosas name, also for $138,000.
[13]
Rosa claims that the promissory note and collateral
charge retroactively evidenced an informal arrangement between herself and Michael,
dating back to the mid-1990s, through which she provided her son with $138,000.
Rosa asserts that, in return, Michael renovated the Cassone Court property to
provide her with an apartment, promised her she could reside there until her
death, and agreed to repay her from the proceeds of sale if the property were ever
sold. However, when Rosa attempted to register the collateral charge, she was
unsuccessful because Canadas restraint order against the Cassone Court property
was in place.
[14]
Subsequently, Michael and Canada agreed that the
Cassone Court property would be sold. The sale closed in July 2016 for
$243,098.88. The net proceeds of sale were paid into Canadas Seized Property
Management Directorate, along with the net proceeds of the Silver Dollar, which
had also been sold.
[15]
On October 4, 2016, an order was made releasing
some of the property Canada had seized from Michael to his criminal lawyer to
assist in paying his legal fees, including $105,099 of the proceeds of sale of
the Cassone Court property:
R. v. Norwood
, 2016 ONSC 6207. In making
that order, Parfett J. (who was not the motion judge who made the order now
under appeal), found that Michael had a possessory right in the seized
property [including the Cassone Court property] to the exclusion of anyone else
and no other means or assets with which to pay his legal expenses: at para.
30.
[16]
Michael died around one year later, on October
17, 2017. On February 8, 2019, Canada secured another order from Parfett J. terminating
its forfeiture proceedings and ordering the return of the remaining proceeds of
sale of the Cassone Court property, approximately $145,000 plus interest, to the
Estate.
Ontarios forfeiture application and Rosas
claim
[17]
On February 15, 2019, before the proceeds contemplated
in Parfett J.s order could be paid to the Estate, Ontario began forfeiture
proceedings pursuant to the
Civil Remedies Act
relating to the
proceeds of sale of both the Cassone Court property and the Silver Dollar.
[18]
On February 21, 2019, Rosas counsel wrote to
Ontario to advance Rosas $138,000 claim against the proceeds of sale from the Cassone
Court property.
[19]
On March 7, 2019, Ontario obtained an interim
preservation order relating to the proceeds of sale of the Cassone Court
property and the Silver Dollar. That preservation order was renewed, on consent,
in October 2019.
The proposed settlement and the settlement
approval motion
[20]
On April 24, 2020, Ontario made an offer to
settle Rosas claimed interest in the forfeiture proceedings by payment of
$120,000 from the proceeds of sale of the Cassone Court property. The Estate
rejected the offer. Rosa accepted it.
[21]
On May 6, 2020, Ontario brought an urgent
motion pursuant to s. 18.1 of the
Civil Remedies Act
for
approval of its proposed settlement with Rosa. The motion was heard before Ontario
had served an application record setting out the evidentiary basis for its
underlying forfeiture application.
[22]
The Estate opposed the approval motion,
contending that Rosas claim was without merit. It maintained that, by hearing
the motion before the Estate could challenge the forfeiture proceedings, the
court would effectively deprive the Estate of a defence in those proceedings.
The order under appeal
[23]
On June 4, 2020 the motion judge ruled against
the Estate, granting an order approving the settlement between Ontario and
Rosa and directing payment of $120,000 in trust to Rosas counsel (the order
under appeal).
[24]
The motion judges reasons for granting the
order under appeal do not disclose a detailed exercise of statutory
interpretation relating to s. 18.1. Notably, the motion judges reasons do not
expressly contemplate whether he had the authority to approve the proposed settlement
between Ontario and Rosa. The sole basis the motion judge offered for rejecting
the Estates submission that the approval motion should not be heard in the
face of an outstanding contested forfeiture application was that s. 18.1
confers courts with a broad power to approve settlements. In support of his
view, the motion judge stated that [n]otably, it is not required [under s.
18.1] that any amount to be paid out of the preserved funds be first
established to be proceeds of crime.
ISSUES ON APPEAL
[25]
The appellants advance three submissions with
respect to the order under appeal.
[26]
First, their principal submission is that the
motion judge erred in law in determining that the approval of a settlement
under s. 18.1 of the
Civil Remedies Act
did not require a prior
determination that the funds seized were the proceeds of unlawful activity.
[27]
Second, the appellants argue that Rosa is not a
legitimate owner or responsible owner of the Cassone Court property, but a
mere creditor incapable of entering into a settlement within the meaning of s.
18.1 of the Act, and that the motion judge erred in finding otherwise.
[28]
Third, the appellants submit that the motion
judge erred in deciding the approval motion based on hearsay evidence from a
lawyer about the nature of the agreement between Rosa and Michael. On this
ground, the appellants raise other related legal objections to the motion
judges findings that I need not recount.
[29]
For reasons that follow, I would accept the
first ground of appeal. As this disposes of the appeal, I will not comment on
the second and third grounds. Suffice it to say that my silence should not be
taken as either a favourable or unfavourable comment on the appellants
remaining grounds of appeal or on the motion judges reasoning relating to
those issues.
ANALYSIS
[30]
Section 18.1(1) of the
Civil Remedies Act
authorizes a court to approve a settlement in relation to a proceeding under
this Act. In my view, the agreement between Ontario and Rosa was not a
settlement in relation to a proceeding under the
Civil Remedies Act
and therefore not properly subject to judicial approval.
[31]
I will begin the analysis that leads me to this
conclusion by setting out or describing the relevant provisions of the Act.
A.
The Material Provisions of the
Civil
remedies Act
Purpose of the Act
[32]
The purpose of the
Civil
Remedies
Act
is specified in s. 1, as follows:
The purpose of this Act is to
provide civil remedies that will assist in,
(a)
compensating persons who suffer
pecuniary or non-pecuniary losses
as a result of unlawful activities
;
(b)
preventing persons who engage in
unlawful activities and others from keeping property that was
acquired as a
result of unlawful activities
;
(c)
preventing property, including
vehicles as defined in Part III.1, from being
used to engage in certain
unlawful activities
; and
(d)
preventing injury to the public that
may result from
conspiracies to engage in unlawful activities
. [Emphasis
added.]
Forfeiture
[33]
Although the
Civil Remedies Act
provides
in some cases for damages or monetary payments, forfeiture is the primary
mechanism to accomplish its purpose.
[34]
The Act does not define forfeiture. However, in
Chatterjee v. Ontario (Attorney General)
, 2009 SCC 19, [2009] 1 S.C.R.
624, at para. 18, Binnie J. described forfeiture under the
Civil Remedies
Act
as the transfer of property from the owner to the Crown. As such, until
forfeiture occurs and the consequential transfer of property from the owner to
the Crown has taken place, Ontarios rights in the subject property do not
materialize, nor are the rights of others expunged.
[35]
The
Civil Remedies Act
provides for
three categories of forfeiture of property linked to unlawful activity: proceeds
of unlawful activity (Part II); instruments of unlawful activity (Part III); and
vehicles linked to vehicular unlawful activity (Part III.1). The nature of the required
link between the subject property and the unlawful activity varies with each
category; hence my practice at times in this judgment of speaking generally
about the requisite link between the property and the unlawful activity.
Unlawful activity
[36]
Unlawful activity is defined under Parts II and
III, in ss. 2 and 7(1), as follows:
unlawful activity means an act or
omission that,
(a) is an offence under an Act of
Canada, Ontario or another province or territory of Canada, or
(b) is an offence under an Act of
a jurisdiction outside Canada, if a similar act or omission would be an offence
under an Act of Canada or Ontario if it were committed in Ontario,
whether the act or omission occurred
before or after this Part came into force.
Forfeiture of property that is proceeds or an
instrument of unlawful activity
[37]
Ontario brought its forfeiture application
relating to the proceeds of the Cassone Court property and the Silver Dollar
pursuant to Parts II and III of the
Civil
Remedies
Act
.
The application is based in part on the allegation that, in Michaels hands,
the Cassone Court property was the proceeds and/or an instrument of unlawful
activity. As ss. 3 and 8 provide, for forfeiture under either Part II or III to
occur, a court must find that the property is tainted by unlawful activity.
[38]
Section 2 of the Act defines proceeds of
unlawful activity as property acquired directly or indirectly, in whole or in
part, as a result of unlawful activity.
[39]
Section 7(1) defines instrument of unlawful
activity as property that is likely to be used to engage in unlawful activity
that, in turn, would be likely to or is intended to result in the acquisition
of other property or in serious bodily harm to any person, which includes any
property that is realized from the sale or other disposition of such property.
[40]
Section 3(1), under Part II, states:
In a proceeding commenced by the
Attorney General, the Superior Court of Justice shall, subject to subsection
(3) and except where it would clearly not be in the interests of justice, make
an order forfeiting property that is in Ontario to the Crown in right of
Ontario
if the court finds that the property is proceeds of unlawful
activity
. [Emphasis added.]
[41]
Section 8(1), under Part III, is identical except
that the requisite finding supporting forfeiture is that the property is an
instrument of unlawful activity.
Legitimate owner, uninvolved interest holder
and responsible owner
[42]
Section 3(3), the provision referred to in s.
3(1), has been amended since the order under appeal was made.
[1]
[43]
Namely, the term legitimate owner in s. 3(3)
has now been replaced by the term uninvolved interest holder, as follows:
If the court finds that property is
proceeds of unlawful activity and a party to the proceedings proves that he,
she or it is
a legitimate owner
[now,
an uninvolved interest holder
]
of the property, the court, except where it would clearly not be in the
interests of justice, shall make such order as it considers necessary to
protect the legitimate owners interest in the property. [Emphasis added.]
[44]
Likewise, the definition of uninvolved interest
holder now in force under s. 2 is identical to the former definition of
legitimate owner, which was as follows at the time of the order under appeal:
legitimate owner
[now,
uninvolved
interest holder
] means, with respect to property that is proceeds of
unlawful activity, a person who did not, directly or indirectly, acquire the
property as a result of unlawful activity committed by the person, and who
(a)
was the rightful owner of the property before
the unlawful activity and was deprived of possession of the property by means
of the unlawful activity,
(b)
acquired the property for fair value after the
unlawful activity occurred and did not know and could not reasonably have known
at the time of the acquisition that the property was proceeds of unlawful
activity, or
(c)
acquired the property from a person mentioned in
clause (a) or (b).
[45]
The term responsible owner is used under Part
III in ss. 8(1) and 8(3), the comparable provisions to ss. 3(1) and 3(3) with
respect to instruments of unlawful activity.
[46]
Section 7(1) defines responsible owner as
follows:
responsible owner means, with
respect to property that is an instrument of unlawful activity, a person with
an interest in the property who has done all that can reasonably be done to
prevent the property from being used to engage in unlawful activity, including,
(a)
promptly notifying appropriate law enforcement
agencies whenever the person knows or ought to know that the property has been
or is likely to be used to engage in unlawful activity, and
(b)
refusing or withdrawing any permission that the
person has authority to give and that the person knowns or ought to know has
facilitated or is likely to facilitate the property being used to engage in
unlawful activity.
Standard of proof in proceedings under the
Civil
Remedies Act
[47]
Part V is the General part of the
Civil
Remedies Act
. Under Part V, s. 16 specifies that, subject to exceptions
not relevant to this appeal, findings of fact in proceedings under the Act shall
be made on the balance of probabilities.
[48]
When the requisite standard of proof is applied
to the material factual issues referred to in the preceding sections, the
scheme of the Act as it relates to forfeiture applications under Parts II and
III can be described in the following simple terms. If Ontario establishes on
the balance of probabilities that the subject property is the proceeds and/or an
instrument of unlawful activity, the court is authorized and required to make
an order forfeiting the subject property, subject to the following two
exceptions arising from elements of Parts II and III of the Act referenced
above.
Exceptions to forfeiture
[49]
The first exception, pursuant to ss. 3(1) and
8(1), provides that no forfeiture order may be made if the court finds that
such an order would clearly not be in the interests of justice.
[50]
Pursuant to ss. 3(3) and 8(3), the second
exception is engaged if a claimant satisfies the court on the balance of
probabilities that they are a legitimate owner (now, an uninvolved interest
holder) or a responsible owner of property that has been proven as the
proceeds or an instrument of unlawful activity, respectively. If so satisfied,
the court must make an order that is necessary to protect the legitimate or
responsible owners interest in the property, unless it would clearly not be in
the interests of justice to do so.
Special purpose account
[51]
Where Ontario succeeds in obtaining forfeiture by
proving the subject property is the proceeds or an instrument of unlawful
activity, and where the forfeited property has been converted into money, ss. 6
and 11 provide for its payment into a special purpose account.
[52]
Money from a special purpose account may be used
to compensate Ontario for its costs incurred in the proceedings, and/or to make
payments for designated purposes, including compensating persons who suffered
losses as the result of the impugned unlawful activity, assisting victims of
unlawful activity generally, or compensating Ontario, a municipal corporation,
or a public institution for pecuniary losses suffered as a result of unlawful
activity.
[53]
Finally, three further provisions found in Part
V are relevant to this appeal.
Actions
in rem
[54]
First, s. 15.6(1) provides:
All proceedings, including
proceedings for an interlocutory order, under Parts II, III and III.1, whether
by action or application, are
in rem
and not
in personam
.
Where possession unlawful
[55]
Second, s. 18 stipulates that a person cannot have
a claim in property subject to proceedings under the Act if their possession of
the subject property is unlawful:
For the purposes of a proceeding
under this Act, a person cannot claim to have an interest in property
if,
under the law of Canada or Ontario, it is unlawful for the person to possess
the property.
Settlements
[56]
Third, s. 18.1 the provision authorizing court
approval of settlements which is the primary focus of this appeal provides as
follows:
(1) Despite anything to the contrary
in this Act, the court may approve a settlement in relation to a proceeding
under this Act, on the motion of the Attorney General or of any other party to
the proceeding with the Attorney Generals consent.
(2) For greater certainty, the power
to approve a settlement under subsection (1) includes a power to approve a
settlement that provides for the full or partial forfeiture of the property
that is the subject of the proceeding.
(3) For greater certainty, the power
to approve a settlement under subsection (1) includes a power to approve a settlement
that provides for payment of a monetary amount instead of the full or partial
forfeiture of property that is the subject of the proceeding.
[57]
Of note, ss. 18.1(1) and (2) were added to the
Civil
Remedies Act
shortly after the Divisional Courts decision in
Ontario
(Attorney General) v. $29,900 in Canadian Currency (in rem)
, 2017 ONSC
2003, 137 O.R. (3d) 221 (Div. Ct.). In that case, Nordheimer J. (as he then
was) upheld the application judges decision below refusing to approve Ontarios
proposed agreement that would have resulted in the partial forfeiture of $4,000
to a claimant who had not proved she was the legitimate owner of any of the subject
property. Nordheimer J. explained his reasoning as follows, at para. 36:
In my view, the application judge was correct
in concluding,
once he was satisfied that the monies were proceeds of
unlawful activity
, that the entire amount had to be forfeited, absent any
evidence that could satisfy the court that any other order was necessary,
either in the interests of justice [under the terms of s. 3(1)], or in order to
protect the interests of the legitimate owner of the monies [under the terms of
s. 3(3)]. [Emphasis added.]
[58]
Sections 18.1(1) and (2), enacted in 2018, now
authorize the approval of proposed agreements for partial forfeiture like the
one refused in
$29,900 in Canadian Currency (in rem)
, a point I will revisit
below.
B.
The Correct Interpretation of section 18.1
[59]
Ontario submits that any agreement between the
Attorney General and any party to forfeiture proceedings constitutes a
settlement within the meaning of s. 18.1, even if Ontario has not yet secured a
finding that the property is the proceeds of unlawful activity.
[60]
I do not agree. In my view, correctly
interpreted, s. 18.1 authorizes courts to approve settlements that relate to the
in rem
interests
in property subject to forfeiture
proceedings (in my analysis that follows, I will refer to this as the
in
rem
settlement interpretation). As I will explain, before Ontario
can achieve an agreement that settles the
in rem
interests in
the subject property, it must first secure a finding that the required link
between that property and unlawful activity exists.
[61]
In the case before us, the requisite finding was
that the proceeds of the Cassone Court property were the proceeds and/or
instruments of unlawful activity. Absent such a finding, I would find that the
motion judge erred in granting the order under appeal.
Prior judicial interpretation of s. 18.1
[62]
The authority put before us on this appeal supports
this view.
[63]
While Ontario relies in its submissions on
AGO
v. $80 Cdn., et al.
, 2021 ONSC 988, that decision is not consistent with
Ontarios position. In fact, it is consistent with the
in rem
settlement
interpretation I have just described. In
$80 Cdn.
, one of five
respondents to Ontarios s. 18.1 settlement approval motion, Ms. Flynn, was the
registered owner of a vehicle from which the subject property was seized. Nicholson
J. approved a settlement between Ontario and Ms. Flynn releasing some of the subject
property to her, but not before satisfying himself on the balance of
probabilities that all the property at issue was either the proceeds or an
instrument of unlawful activity: at para. 24.
[64]
Similarly, in
Ontario (Attorney General) v. 269
Weldrick Road West (in rem)
, 2020 ONSC 4605, Ontario sought the forfeiture
of property as either the proceeds or instruments of unlawful activity. Ontario
entered into an agreement to release a motor vehicle and around $280,000 out of
approximately $550,000 liquidated from seized assets to a claimant whose common
law spouse had been convicted of fraud and forgery offences. Ontario maintained
that Sanfilippo J. could approve the agreement without inquiring into the
substantive requirements of the
Civil
Remedies
Act
,
including whether the subject property was the proceeds or instruments of
unlawful activity. Sanfilippo J. disagreed. Like Nicholson J. in
$80 Cdn.
,
before approving the settlement Sanfilippo J. made a finding on the balance of
probabilities that the subject property was either the proceeds or instruments
of unlawful activity: at para. 27.
[65]
In my view, the judges who rendered these decisions
were correct to make the requisite unlawful activity findings before approving
the proposed settlements before them. As I have indicated and will explain in
more detail below, the need for a finding of unlawful activity arises from a
correct statutory interpretation of the words a settlement in relation to a proceeding
under this Act in s. 18.1 of the
Civil
Remedies
Act
.
The governing legal principles in
interpreting s. 18.1
[66]
There is no dispute about the legal principles
governing the interpretive exercise to be conducted on this appeal. Watt J.A.
stated the core rule in
R. v. Stipo
, 2019 ONCA 3, 144 O.R. (3d) 145,
at paras. 175-76:
It is well settled that statutory
interpretation cannot be founded on the wording of the legislation alone.
Instead, the approach is that advocated by Elmer Driedger in his
Construction
of Statutes
(2nd ed., 1983):
Today there is only one principle
or approach, namely, 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.
See,
Bell ExpressVu Limited Partnership v.
Rex
,
2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26;
Rizzo &
Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at para. 21;
Wilson v.
British Columbia (Superintendent of Motor Vehicles)
, 2015 SCC 47,
[2015] 3 S.C.R. 300, at para. 18.
This preferred approach recognizes the
significant role that context must play when courts construe the written words
of a statute. No statutory provision is an island in itself. Its words take
their colour from their surroundings:
Bell ExpressVu
, at para. 27. All
issues of statutory interpretation involve the fundamental question of what
Parliament intended. To discover what Parliament intended, we look at the words
of the provision, informed by its history, context and purpose:
R. v. Mabior
,
2012 SCC 47, [2012] 2 S.C.R. 584, at para. 20.
Ontarios proposed interpretation of s. 18.1
[67]
Ontario urges that the modern approach to
statutory interpretation, as articulated in
Stipo
,
favours its proposed
interpretation of s. 18.1. It advances three supporting arguments in this
regard: (1) the ordinary and grammatical meaning of s. 18.1(1) gives courts
broad discretion to approve settlements without a prior finding of unlawful
activity; (2) this broad interpretation aligns with the object and purpose of
the Act and the intention of the legislature; and (3) the expansive authority flowing
from this interpretation will be duly confined by the Attorney Generals obligation
to act in the public interest and by the proper bounds of judicial discretion.
[68]
I would reject these submissions. I am persuaded
that the broad interpretation of s. 18.1 that Ontario offers is incorrect and
that the
in
rem
settlement interpretation I have
articulated is correct.
[69]
In outlining the analysis that leads me to this
conclusion, I will address each of Ontarios arguments in turn. It is convenient
to begin with Ontarios last point.
(1)
The Role of the Attorney General and the
Approving Judge
[70]
Ontario urges us to have confidence that the
broad settlement authority it claims s. 18.1 provides will not be used unfairly
because, (a) the Attorney General, in his or her dual role as Minister of
Justice, is obliged to act fairly and in the public interest when agreeing to
settlements, and (b) judges must exercise their discretion reasonably in
approving settlements.
[71]
I would not accept this submission. The fact
that the Attorney General is also the Minister of Justice and therefore bound to
act reasonably and responsibly is irrelevant to the proper interpretation of s.
18.1. The underlying challenge in interpreting a legislative provision is to
identify the meaning intended by the legislation. The task is not to determine
whether a public official with delegated legislative power would properly exercise
that power.
[72]
For the same reason, the fact that judicial
discretion must be exercised reasonably is equally irrelevant in identifying
the proper interpretation of legislation. Our interpretive task with respect to
s. 18.1 is to determine the reach of the legal authority that the legislation
confers on the judge asked to approve a settlement. Confidence that appellate review
is available if a judge acts unreasonably within the scope of the authority conferred
by legislation plays no role in the interpretation of that legislation.
(2)
The Grammatical and Ordinary Meaning of the
Words
[73]
Ontario also argues that the ordinary and
grammatical meaning of s. 18.1 is clear and gives courts broad discretion to
approve any settlement in a forfeiture proceeding. Ontario points out that s. 18.1(1)
does not expressly require a finding that the subject property is the proceeds
or an instrument of unlawful activity before a settlement may be approved. In
making this submission, Ontario relies on the opening words of s. 18.1(1):
Despite anything to the contrary in this Act, the court may approve a
settlement
. It calls this phrase unambiguously expansive, arguing that the
phrase, and indeed s. 18.1 itself, would be rendered meaningless if settlements
could be approved only after a finding of unlawful activity has been made.
[74]
I do not accept Ontarios position that the
grammatical and ordinary meaning of the words used in s. 18.1 supports its proposed
expansive interpretation. The words of the Act are to be read in their entire
context. Section 18.1(1) does not simply say, Despite anything to the contrary
in this Act, the court may approve a settlement. Crucially, it provides that,
Despite anything to the contrary in this Act, the court may approve a
settlement
in relation to a proceeding under this Act
(emphasis added).
[75]
In this regard, it is important to recall that a
proceeding under the applicable parts of the
Civil Remedies Ac
t
is an
in rem
proceeding engaged to settle title to property
that is allegedly linked to unlawful activity. It is not an
in personam
proceeding conducted to resolve disputes
between individuals about their relative rights. When the words a settlement in
relation to a proceeding under this Act are read in this context, it is clear that
they describe a settlement that relates to the
in rem
interests in the property
being litigated in the proceedings. This is what I have already characterized
as the
in rem
settlement interpretation. In my view, to
constitute a settlement relating to the
in rem
interests in
the property, an agreement must resolve the
in rem
rights in
the subject property. In other words, it must be capable of settling, to the
exclusion of all others, the rights of the parties before the approving judge.
[76]
Quite clearly, the agreement between Ontario and
Rosa could not resolve the
in rem
rights in the subject
property. Even leaving aside the potential
in
rem
interests
of non-parties to the litigation, the Estate claims an interest in the proceeds
of sale of the Cassone Court property that has not been displaced by any
forfeiture order. An agreement between Ontario and Rosa might well settle their
personal dispute relating to ownership of the Cassone Court property, but that
agreement is incapable of resolving the Estates
in
rem
rights
in that property. Therefore, on a proper contextual, grammatical, and ordinary reading
of the language of s. 18.1, in my view the agreement between Ontario and Rosa
could not be a settlement in relation to a proceeding under this Act.
[77]
I see nothing in the language of s. 18.1 or
elsewhere in the Act that could alter this conclusion. Section 18.1 does not,
by its terms, authorize some of the parties in the
in
rem
proceeding
to settle the
in
rem
claims of all others in the
subject property. The only authority s. 18.1 provides is that of courts to
approve settlements in relation to a proceeding under this Act. Since I would
find that the personal agreement between Ontario and Rosa is not a settlement
within the meaning of s. 18.1, the motion judge had no authority under s. 18.1(1)
to approve that agreement.
[78]
Things would be different, however, if before
approving the agreement the motion judge had made a finding that the proceeds
of sale of the Cassone Court property were proceeds and/or instruments of
unlawful activity and that forfeiture was clearly not contrary to the interests
of justice. Had that determination been made, subject to Rosas outstanding
claim that she was a legitimate or responsible owner, Ontario would have had
a claim to the subject property to the exclusion of all others, including the Estate.
Since, in this scenario, only Ontario and Rosa would have had outstanding
claims to the Cassone Court property, they could have agreed to settle the
in
rem
interests in that property.
[79]
Ontario resists the
in
rem
settlement
interpretation just described. It argues that to require an unlawful activity
finding before a settlement can be approved would denude s. 18.1 of meaning. If
Ontario were right about this, the
in
rem
settlement
interpretation would be contrary to the well accepted principle of statutory
interpretation that no legislative provision should be interpreted so as to
render it mere surplusage:
R v. Proulx
, 2000 SCC 5, [2000] 1 S.C.R.
61, at para. 28.
[80]
However, I do not agree with Ontario on this
point. Once a determination has been made that the subject property is linked
to the applicable unlawful activity, the grammatical and ordinary language of s.
18.1 permits a wide range of settlements between Ontario and those asserting
claims to the property. As I have indicated, if Ontario had shown that the
proceeds of the Cassone Court property are the proceeds and/or instruments of
unlawful activity, Ontario would have been free to settle with Rosa on the
agreed upon terms, or any other lawful terms.
[81]
Similarly, I do not accept Ontarios position
that this interpretation renders meaningless the phrase, Despite anything to
the contrary in this Act. Once Ontario establishes the requisite link between
the subject property and unlawful activity to support forfeiture, this broad
language empowers courts to approve any settlement that Ontario enters into,
even where the agreed outcomes are not otherwise contemplated by the Act. As
Nicholson J. explained in
$80 Cdn.
, at para. 29, s. 18.1 now permits courts
to approve settlements based on compromise between the parties, thereby avoiding
all or nothing outcomes. This kind of compromise settlement was not
permissible prior to the passage of s. 18.1, as confirmed by Nordheimer J.s 2017
decision in
$29,900 in Canadian Currency (in rem)
.
[82]
Section 18.1 also now permits courts to approve
settlements that approximate a claimed amount, without a determination of the
precise entitlement contemplated by the
Civil Remedies Act
:
$80
Cdn.
, at paras. 32-33. Moreover, under s. 18.1 courts may approve payments
to claimants without first showing that their claim as an uninvolved interest
holder or responsible owner has merit:
$80 Cdn.
, at para. 31.
[2]
[83]
I am therefore persuaded that the grammatical
and ordinary meaning of s. 18.1 is incompatible with Ontarios interpretation
and compatible with the
in
rem
settlement
interpretation I have described.
(3)
The Scheme and Object of the Act and the
Legislatures Intention
[84]
Finally, Ontario urges that the broad
interpretation it offers is in keeping with the object and purpose of the
Civil
Remedies
Act
and with legislative intent, since
settlements are to be encouraged in preference to litigation. It argues that
interpreting s. 18.1 to confer broad settlement approval authority advances the
purposes of the Act and the intention of the legislature by promoting
efficiency and flexibility in achieving the benefits of forfeiture, including
compensation and support for victims.
[85]
I would not accept these submissions, either. As
I will explain, in my view the
in
rem
settlement
interpretation, not Ontarios interpretation, is consistent with the scheme of
the Act, the object of the Act, and the intention of the legislature. I will
begin with the object, or purpose, of the Act.
(i) The object of the
Civil Remedies
Act
[86]
Professor Ruth Sullivan describes formal purpose
statements appearing in the body of legislation as the most direct and
authoritative evidence of legislative purpose: Ruth Sullivan,
Sullivan on
the Construction of Statutes
, 6th ed. (Toronto: LexisNexis Canada, 2014),
at
§
9.45.
[87]
Section 1 contains the formal purpose statement
appearing in the
Civil
Remedies
Act
. Reproduced
above, at para. 32 of these reasons, s. 1 characterizes each of the four
express purposes of the Act as providing civil remedies to address certain
harms arising from unlawful activities.
[88]
In
Chatterjee
, while exploring the
vires
of the
Civil Remedies Act
, Binnie J. had occasion, at para. 23, to
comment on its purposes:
In essence, therefore, the [
Civil
Remedies
Act
] creates a property-based authority to seize money and other
things shown on a balance of probabilities to be tainted by crime and
thereafter to allocate the proceeds to compensating victims of and remedying
the societal effects of criminality. The practical (and intended) effect is also
to take the profit out of crime and to deter present and would-be perpetrators.
[89]
In my view, Ontarios interpretation is not in
keeping with the object of the
Civil Remedies Act
as articulated in s.
1 and
Chatterjee
. To the contrary, it would enable property to be
forfeited without any regard to whether it is tainted by unlawful activity. In
contrast, the
in
rem
settlement interpretation is true
to the purpose of the Act because it ensures that before forfeiture occurs, the
subject property
has
been tainted by unlawful activity.
(ii) The scheme of the
Civil Remedies
Act
[90]
Not only is Ontarios interpretation not in
keeping with the object of the
Civil Remedies Act
, for related reasons
it is also inconsistent with the scheme of the Act.
[91]
In a disputed proceeding,
[3]
the scheme of the Act empowers
a court to eradicate a citizens lawful interest in the subject property through
a forfeiture order, but only after making a finding that Ontario has established
the requisite link between the property and unlawful activity. Yet Ontarios
position is that s. 18.1 authorizes a court to permit a citizens interest in
the property to be extinguished without such a finding, and without Ontario having
to meet any burden of proof relating to unlawful activity. Quite simply, this
interpretation is not in keeping with the scheme of the Act.
[92]
Further, I would reject the two overarching arguments
Ontario offers in contending that its proposed interpretation is consistent
with the scheme and purpose of the
Civil Remedies Act
.
[93]
First, although I agree with Ontarios
submission that settlements are generally to be encouraged, the settlements to
be encouraged are those which are consistent with the scheme and object of the
Act. As I have sought to demonstrate, the settlements that Ontarios
interpretation would support, such as the one between Ontario and Rosa, are not
consistent with the scheme and object of the Act.
[94]
Second, I would reject entirely Ontarios
submission that its proposed interpretation pursues the object of the Act by
promoting efficiency and flexibility in achieving the benefits of forfeiture,
including compensation and support for victims. Absent a determination that the
subject property is the proceeds or instruments of unlawful activity, there is
a risk that a settlement eradicating the interest of others would deprive a
legitimate owner of their property. In this regard, the words of Nordheimer J.
in
$29,900 in Canadian Currency (in rem)
, at para. 36, are apt: [I]t
is necessary to ensure that the interests of the legitimate owner of property,
that is seized under this statute, are not trampled over by a rush to conclude
the proceeding.
(iii) The intention of the legislature in enacting
the
Civil Remedies Act
[95]
Finally, Ontarios interpretation cannot find
support in legislative intention. As Watt J.A. instructed in
Stipo
, at
para. 175, To discover what Parliament intended, we look at the words of the
provision, informed by its history, context and purpose. As I have just
described, the context and purpose of s. 18.1 are not in keeping with Ontarios
proposed interpretation.
[96]
Nor does the history of s. 18.1 support Ontarios
interpretation. I do agree with Ontarios submission that s. 18.1 was enacted
in response to Nordheimer J.s decision in
$29,900 in Canadian Currency (in
rem)
and that this history strongly suggests that the legislature
intended s. 18.1 to redress the shortcoming exposed in that decision, namely,
the inability of judges,
after making the requisite unlawful activity
finding
, to order anything other than full forfeiture unless one of the two
statutory exceptions is satisfied. However, that shortcoming can be overcome
without interpreting s. 18.1 as Ontario contends, which would confer judicial
discretion to approve proposed settlements entered into by some parties to forfeiture
proceedings even where those settlements purport to eradicate the
in
rem
property interests of others.
[97]
Indeed, the shortcoming exposed in
$29,900
in Canadian Currency (in rem)
can be resolved through the
in
rem
settlement interpretation, which would empower judges,
after
making the requisite unlawful activity finding
, to make orders other than
full forfeiture. Simply put, Ontarios proposed interpretation of s. 18.1 goes
further than required to satisfy the apparent historical objective of the
provision, whereas the
in
rem
settlement
interpretation is better targeted to achieve that historical objective.
The legislature did not intend for s. 18.1 to
produce absurd consequences
[98]
I would offer one additional point related to
the legislatures intention in enacting s. 18.1 of the
Civil Remedies Act
.
The absurdity principle (often called the golden rule of statutory
interpretation), holds that if an interpretation would lead to an absurdity, a
court may reject it in favour of a plausible alternative which avoids the
absurdity:
Ontario v. Canadian Pacific Ltd.
[1995] 2 S.C.R. 1031, at
para. 65;
Schnarr v. Blue Mountain Resorts Limited
, 2018 ONCA 313, 140
O.R. (3d) 241, at para. 72, leave to appeal refused, [2018] S.C.C.A. No. 187; Sullivan,
at §10.5.
[99]
In
Stipo
, at para. 177, Watt J.A.
affirmed the well-established principle of statutory interpretation holding
that the legislature does not intend to produce absurd consequences. Watt
J.A. reminded us that absurdity occurs if a proposed interpretation:
i.
leads to ridiculous or frivolous consequences;
ii.
is extremely unreasonable or inequitable;
iii.
is illogical or incoherent;
iv.
is incompatible with other provisions or with
the object of the enactment; or
v.
defeats the purpose of the statute or renders
some aspect of it pointless or futile.
[100]
Where a potential absurdity is identified,
Gonthier
J. explained the relevant interpretive exercise as follows, at para. 65 of
Canadian
Pacific
:
One method of avoiding absurdity is through
the strict interpretation of general words
Where a provision is open to two
or more interpretations, the absurdity principle may be employed to reject
interpretations which lead to negative consequences, as such consequences are
presumed to have been unintended by the legislature.
[101]
The absurdity principle, as articulated above, reinforces my view to
reject Ontarios proposed interpretation in favour of the
in
rem
settlement interpretation. I have already
explored
the incompatibility between Ontarios interpretation and the object of the Act;
I need say no more on this point. However, at least two additional forms of
absurdity recounted by Watt J.A. in
Stipo
could apply.
[102]
First, Ontarios interpretation is illogical and incoherent. It will
be recalled that the motion judge approved a settlement in which Rosa was to be
paid
some
, not all, of the sale proceeds of the Cassone Court property.
If the order under appeal were to stand, in order to resolve what is to happen
to the balance of those proceeds, an adjudicated hearing would be required to
determine whether forfeiture is appropriate. What if, at that hearing, the court
found that Ontario had not met its burden of establishing that the sale
proceeds of the Cassone Court property are the proceeds and/or instruments of
crime? Would Rosa be entitled to keep the $120,000, or would she have to return
it?
[103]
Ontario could not answer these questions. As I see it, neither
alternative is logical or coherent. If Rosa were permitted to keep the money,
under a proceeds of crime statute she would have received property that is not
the proceeds or instruments of crime. If she were required to return the money,
even leaving aside the logistical problems this would present, the law would,
illogically and incoherently, be treating the settlement as having been lawful
pursuant to s. 18.1, yet invalid.
[104]
Second, Ontarios interpretation would produce extremely
unreasonable or inequitable outcomes. I am certain I have already betrayed my
conviction that it would be unreasonable and inequitable in the extreme to
permit courts to approve settlements between Ontario and others that deprive
third parties of their rights in private property, without any inquiry into
whether the subject property was tainted by unlawful activity. This outcome,
which violates due process, is not merely hypothetical. It is the very position
Ontario seeks to uphold in this appeal.
[105]
Indeed, Ontario argues before us that s. 18.1 enables it to seek
court approval for settlements it enters into with anyone authorized to receive
payments from a special purpose account, pursuant to ss. 6 and 11 of the Act,
without the need for prior judicial determination that the property was tainted
by unlawful activity. If Ontario is correct, it would be permitted to seek
approval for settlements it arrives at with alleged victims of entirely
unproven crimes to compensate them using money that legally belongs to a
suspect from whom it has been seized. In my view, if this court were to accept
Ontarios proposed interpretation, the potential for well-intentioned but
abusive settlements is palpable.
[106]
In contrast, there is nothing absurd about the
in
rem
settlement interpretation of s. 18.1 I
have described. I do not accept Ontarios objection that this interpretation
would bar the release of seized property to a claimant without a judicial
determination on unlawful activity. Ontario can accomplish the release of
seized property by simply abandoning its application. Where there is common
ground that some of the seized property is not, in fact, tainted by unlawful
activity, or that a claimant is, in fact, an uninvolved interest holder or
responsible owner and therefore exclusively entitled to the property interest
they claim, Ontario can accomplish the release of that property by withdrawing
the forfeiture proceedings against it, pursuant to s. 1.7 of the
Civil Remedies Act
.
[107]
Nor do I accept Ontarios submission that the
in
rem
settlement interpretation would require
a full hearing on the merits, even where all interested parties consent or
agree to the proposed settlement. In that scenario, where no one opposes the
settlement, the requisite hearing is apt to be simple and efficient.
[108]
In sum, applying the golden rule against absurd consequences, in my
view Ontarios interpretation must be rejected in favour of the
in
rem
settlement interpretation.
Conclusion on the
correct contextual and purposive interpretation of s. 18.1
[109]
In light of the foregoing application of the modern approach to
statutory interpretation, I would find that the
in
rem
settlement interpretation of s. 18.1, rather than Ontarios proposed
interpretation, best accords with the words of the
Civil
Remedies
Act
, 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 the legislature.
[110]
Accordingly, I would accept the appellants submission that the
motion judge erred in approving the agreement between Ontario and Rosa as a
settlement in the meaning of s. 18.1.
(4)
Residual Principles: Resolving Ambiguity Through
Strict Construction
[111]
Assuming I am wrong, and Ontarios interpretation and the
in
rem
settlement interpretation are equally in accord with the purpose
of the
Civil Remedies Act
and the intentions of the legislature, I
would still reject Ontarios interpretation.
[112]
This alternative conclusion is based on the presumption that
legislation designed to curtail the rights of citizens must be strictly
construed: Sullivan, at §15.37. This presumption is available to assist in
resolving a real ambiguity, meaning an ambiguity between two or more equally
plausible interpretations that remains even after interpreting the provision at
issue according to the modern purposive and contextual approach described above:
Bell ExpressVu Limited Partnership v. Rex
, 2002 SCC 42, [2002] 2
S.C.R. 559, at paras. 28-30; Sullivan, at §15.38.
Strict construction
and private property
[113]
As Major J. stated in
Crystalline Investments Ltd. v. Domgroup
Ltd.
, 2004 SCC 3, [2004] 1 S.C.R. 60, at para. 43, [E]xplicit statutory
language is required to divest persons of rights they otherwise enjoy at law.
[114]
In explaining the link between this general presumption of strict
construction and state confiscation of private property, Cory J. said as
follows in
Toronto Area Transit Operating Authority v. Dell Holdings Ltd.
,
[1997] 1 S.C.R. 32, at para. 20:
The expropriation of property is one of the
ultimate exercises of governmental authority. To take all or part of a persons
property constitutes a severe loss and a very significant interference with a
citizens private property rights. It follows that the power of an
expropriating authority should be strictly construed in favour of those whose rights
have been affected.
[115]
Similar statements of principle can be found in
Harrison v.
Carswell
, [1976] 2 S.C.R. 200, at p. 219, and
Pacific National
Investments Ltd. v. Victoria (City)
, 2000 SCC 64, [2000] 2 S.C.R. 919, at
para. 27.
[116]
In my view, the presumption of strict construction favours the
in
rem
settlement interpretation over Ontarios interpretation of s. 18.1 of
the
Civil
Remedies
Act
. As such, even if I
were persuaded that the provision could support both interpretations on a
proper application of the modern approach, I would arrive at the same
conclusion.
CONCLUSION
[117]
Properly interpreted, to constitute a settlement in relation to a
proceeding under this Act in the meaning of s. 18.1(1) of the
Civil
Remedies Act
, a proposed agreement must relate to the
in
rem
property interests being litigated in the underlying forfeiture proceedings.
[118]
Since Ontario did not establish that the proceeds of sale from the
Cassone Court property were subject to forfeiture as the proceeds and/or
instruments of unlawful activity, it never acquired a higher claim to the
in
rem
rights in that property than all non-parties to its agreement
with Rosa. It follows that Ontarios agreement with Rosa was not a settlement
in relation to a proceeding under this Act within the meaning of s. 18.1(1). Therefore,
in my view, the motion judge erred in law in approving that agreement.
[119]
Accordingly, I would allow the appeal and set aside the order under
appeal, dated June 4, 2020, which purported to approve the settlement between
Ontario and Rosa.
[120]
As agreed between the parties, I would award costs to the appellants
in the amount of $15,000 inclusive of HST and disbursements.
Released: July 6, 2021 G.H.
David M. Paciocco J.A.
I agree. Grant Huscroft J.A.
I agree. M. Jamal J.A.
[1]
The
amendment is inconsequential; it is nothing more than a change in terminology.
However, I must describe the change because later in these reasons I will
address recent authority where the new terminology is used.
[2]
I have
serious reservations about the holding to the contrary in
269 Weldrick Road West (in rem)
, 2020
ONSC 4605, at paras. 18, 23, 29. When Sanfilippo J. held that he could not
approve a settlement without first deciding whether the claimant was a lawful
owner, he had not been alerted that s. 18.1 was not in force when the
Divisional Court decision in
$29,900 in
Canadian Currency (in rem)
was rendered. He mistakenly believed himself
bound by that decision. Sanfilippo J. subsequently issued a supplementary
endorsement in which he noted that, had it come to his attention that s. 18.1
was enacted after the decision in
$29,900
in Canadian Currency (in rem)
, this might have affected the analysis
but does not change my decision: 2020 ONSC 4657, at para. 4. To be clear, for
the reasons I provide in this judgment, it is my view that Sanfilippo J. was
correct to insist on proof that the seized property was either the proceeds of
unlawful activity or the instrument of unlawful activity, and that he was
entitled to approve the settlement before him. The reservations I have about
his reasoning relate to his insistence that, before he could approve the
settlement, it had to be proved that the claimant was a lawful owner. For the
purposes of this appeal, however, this issue need not be resolved.
[3]
Administrative
forfeiture is possible without a finding of unlawful activity, but only where:
(1) Ontario has reason to believe that the property is the proceeds of
unlawful activity or an instrument of unlawful activity; (2) Ontario has
provided proper notice of intention to forfeit; and (3) Ontario has not
received any notice of dispute regarding the proposed forfeiture on or before
the statutory deadline:
Civil Remedies
Act, 2001
, S.O. 2001, c. 28, at ss. 1.2-1.3 and 1.8.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Carignan, 2021 ONCA 496
DATE: 20210706
DOCKET: C65806
Doherty, Trotter and Thorburn JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Patrick Carignan
Appellant
Jeff Marshman, for the appellant
Michael S. Dunn, for the respondent
Heard: June 1, 2021 by video
conference
On appeal from the conviction entered on
November 21, 2017 by Justice Cindy A.M. MacDonald of the Superior Court of
Justice, sitting with a jury.
REASONS
FOR DECISION
INTRODUCTION
[1]
The appellant was convicted of second degree
murder for killing Emanuelle DAmours. He was sentenced to life imprisonment
with no parole eligibility for 16 years.
[2]
The appellant appeals his conviction on two
grounds. First, he submits that the trial judge erred in finding that his
statements were voluntary. Second, the appellant contends that the trial judge
erred in permitting the jury to find that the statements were fabricated and to
use them as evidence of guilt.
[3]
At the conclusion of the appellants
submissions, we dismissed the appeal. The following reasons explain why we
reject both grounds of appeal.
FACTUAL BACKGROUND
[4]
Ms. DAmours was found dead in the appellants
house at about 8:35 a.m. on February 18, 2015. She had been strangled with a
ligature. The appellant was found, apparently unconscious, with a ligature
around his neck. Police officers thought that he too was dead. However, when he
gasped for air, his ligature was removed with a knife and he started to breathe
on his own.
[5]
The appellant and Ms. DAmours were romantically
involved, although she had a partner. The appellant helped her out financially.
[6]
From the beginning of the investigation, the
appellant told the police that he and Ms. DAmours were attacked by an intruder.
However, the police came to believe that the appellant had killed Ms. DAmours
and then staged the scene to support the intruder scenario. This was borne out by
the timeline of events, the appellants communications on social media, the use
of his cell phone, and forensic evidence.
(a)
The timeline
[7]
Ms. DAmours left her house at about 7:45 p.m.
on February 17, 2017, leaving her children with a babysitter. She was expected
home by 11 p.m. When she did not return by 12:15 a.m., the babysitter called
911 to report her missing.
[8]
The police searched for Ms. DAmours truck.
They found it in the appellants driveway at 3:30 a.m. There was a purse and
iPhone inside the truck. The engine was off. However, ice pellets under the
exhaust pipe suggested that it had been left running for more than 30 minutes.
The appellants next-door neighbours reported seeing the parked truck with its
lights on and engine running at 9:00 p.m., 9:30 p.m., 12:00 a.m., and 2:30 a.m.
The keys to the truck were subsequently found inside the appellants residence,
which was locked when the police arrived.
[9]
The police knocked loudly on the appellants door
at 3:30 a.m., 3:45 a.m., 5:15 a.m., and 5:30 a.m. They received no response. They
called the appellants phone at 4:19 a.m. The phone rang and then closed off.
The police tried again; this time it would appear that the appellants phone
was dead. The police knocked again and then breached the door at 8:35 a.m.
[10]
When the police were at the appellants
residence from 3:30 a.m. onwards, nobody entered or left the house.
(b)
Forensic evidence
[11]
The ligature found around the Ms. DAmours neck
was a pillowcase. She had hand injuries that were consistent with attempting to
relieve the pressure from her neck. The appellant had scratches on his neck and
lower face. DNA evidence established that the appellant could not be excluded
as the source of blood under Ms. DAmours fingernails, on the ligature, and on
her jeans.
(c)
Electronic communications
[12]
The appellant sent Facebook messages to a friend
at 12:02, 12:09 a.m., 12:21 a.m., 12:52 a.m., and 6:14 a.m. The last message
was sent well after the police had been on the scene and knocking loudly on his
door. In his messages, the appellant said that someone came into his house,
tied him up, put something in his mouth, and stole money from him.
[13]
Forensic analysis determined that Ms. DAmours
phone connected to the WiFi in the appellants house at 9:18 p.m. This was
after the appellants neighbour first noticed Ms. DAmours truck parked, but
still running, in the driveway.
[14]
Examination of the appellants phone was even
more revealing. Forensic analysis proved that the Facebook messages were sent
from his phone. It also showed that someone physically declined the call made
to his phone by the police at 4:19 a.m. Evidence also showed that someone was
using his phone to send, draft, or look at messages between 6:14 a.m. to 6:27
a.m. The appellants phone was plugged in between 6:14 am. and 7:59 a.m., but
it was not within arms length of where the police found him with a ligature
around his neck.
[15]
All of this evidence pointed to the appellant
placing the ligature around his own neck well after reporting the intruder
scenario to his friend, and while the police were outside his residence. In his
closing address to the jury, defence counsel acknowledged that the evidence was
consistent with the appellant placing the ligature on himself, but that it could
be evidence that the appellant panicked and tried to reconstruct the situation.
(d)
The appellants statements
At the house
[16]
After the appellant was revived, he told an
officer, They tied my, they, they tied my hands up and I couldnt breathe and
I got loose. He told this same officer that he had been seeing Ms. DAmours
for a while and she was supposed to move in with him. He also said that he and
Ms. DAmours had been followed and that someone had sent photos of them to Ms.
DAmours partner. At this point, the appellant was cautioned and all further
interactions with him were recorded.
[17]
As discussed below, there was a good deal of
evidence about the appellant feeling cold while he was at the house. He was
asked to put his shoes on but he refused to do so without first having socks.
He was told he could not have socks because the house was now a crime scene.
When he was assessed by paramedics in the ambulance, the appellant
spontaneously said, We were supposed to die together. He refused to go to the
hospital.
In the police car and at the police station
[18]
On the way to the station, the appellant spoke
spontaneously, but did not say much. He said, her [
sic
]
wants to
run away with me and I didnt touch her.
[19]
At the police station, when identification
officers went into the interview room to take photographs and obtain DNA, they
asked the appellant whether he had any questions. He said, alright when I did
uh tried to
like the thing was hard around her neck so I tried to take it off.
When he was asked why his eye looked sore, I got punched in the eye. The
appellant also said something about Valentines Day and that he had sex with her
and her ex-boyfriends
pretty jealous. He told the officers that he and Ms.
DAmours were being followed and that proof of that was on his cell phone.
[20]
The appellant was interviewed for about 3 hours
and 45 minutes by Detective Sergeant Darryl Sigouin. He told the officer that
Ms. DAmours came to his house earlier in the night. She had a key to his
house, but he believed he may have left the door unlocked for her. When she
arrived, they hugged and kissed for 10 to 15 minutes. Ten minutes later,
someone was knocking on his door. When the appellant answered the door, he was
punched in the face by a man he did not recognize. He was pushed down the
stairs and his head went through the drywall. The intruder tied him up and put
a sock in his mouth when he resisted. Both his hands and Ms. DAmours were
restrained with zip ties. The intruder said something about cheating and took
an envelope containing $12,000.
[21]
The appellant said that Ms. DAmours was able to
loosen his ligature enough so that he could talk a bit. He lost consciousness
two times and was choking on his vomit for two hours. At least four hours
later, the appellant went upstairs to get a knife and came back downstairs to
cut his zip ties. He checked on Ms. DAmours but he did not try to help her
because she was already dead.
[22]
The appellant repeatedly denied killing Ms. DAmours.
He provided the same narrative and denial to other officers a few weeks later,
on March 11, 2015.
ANALYSIS
(a)
Voluntariness
[23]
The appellant contested the admissibility of all
of his statements on the basis they were involuntary. His approach was
multi-faceted. However, he focused mostly on the presence of oppressive
circumstances, including the following: the failure to provide him with socks
(even though blankets were provided); the delay in obtaining water; not
allowing him to use the washroom when he asked; and not accounting for his apparent
fatigue (evidenced by the fact that he repeatedly fell asleep in the hours
leading up to the formal interview). The appellant also contended that the
interrogation itself was oppressive.
[24]
On appeal, the appellant submits that the trial
judge failed to conduct a contextual inquiry; instead, she dealt with the
evidence in a piecemeal fashion. He further contends that the trial judge
misapprehended the evidence and failed to consider relevant evidence, resulting
in an unreasonable decision that the statements were voluntary. We disagree.
[25]
This court recently said in
R. v. Al-Enzi
,
2021 ONCA 81, at para. 80: Where a trial judge applies the correct test and
considers all relevant circumstances, deference is owed to the trial judges
ultimate determination on voluntariness. See also
R. v. Oickle
, 2000
SCC 38, [2000] 2 S.C.R. 3, at para. 71;
R. v. Spencer
, 2007 SCC 11,
[2007] 1 S.C.R. 500, at para. 17; and
R. v. Pearson
, 2017 ONCA 389, 348
C.C.C. (3d) 277, at para. 14, leave to appeal refused, [2017] S.C.C.A. No. 465.
[26]
The trial judge identified the correct legal
principles for determining voluntariness. Relying on
Oickle
, she
recognized that determining whether a statement or utterance is voluntary goes
beyond merely running through a checklist of items. The question is whether the
Crown has proven beyond a reasonable doubt that the will of the accused person
is not overborne by the police:
Spencer
, at paras. 13-15.
[27]
The trial judge considered the evidence under
the headings identified in
Oickle
threats and promises, oppressive
circumstances, an operating mind, and police trickery. This is how counsel
structured their submissions on the
voir dire
.
[28]
The trial judge was especially focused on whether
oppressive circumstances had any bearing on the will of the appellant. This was
responsive to the evidentiary foundation on the
voir dire
, and the
submissions of counsel. She concluded this portion of her analysis by saying,
at para. 80:
To conclude on the issue of oppression, Mr. Carignan
was denied socks but he was offered blankets. He was not immediately given
water or bathroom breaks upon request but did have reasonable opportunities to
use the washroom. He was given water and Gatorade at reasonable intervals. The
tone of the interrogation was not overly aggressive. In fact, for the most
part, it was quite pleasant. The tone became more accusatory and
confrontational at times, but never intimidating or aggressive.
On the second
occasion, Mr. Carignan was in the interview room from 20:02 to 23:42. During
that time he continued to be offered food and drink and was kept reasonably
comfortable in the circumstances.
[29]
The evidence supported these findings. We reject
the appellants submission that they were unreasonable. Having applied the
correct test, they are entitled to deference.
[30]
Having addressed the
Oickle
factors on the
record before her, the trial judge emphasized, more than once, that she
considered the overall circumstances in coming to the conclusion that the
appellants statements were voluntary. As she said in the concluding passages
of her ruling, at paras. 89 and 98-99):
Considering the overall circumstances
, the question is whether the Crown has proven that the statement was
given voluntarily.
This must be considered contextually
and keeping in
mind the Courts twin goals of protecting the rights of the accused without
unduly limiting societys need to solve crimes.
. . .
Considering all of the circumstances
, I am convinced that the statement was voluntary. I am convinced
beyond a reasonable doubt that the overall circumstances, in combination, were
not sufficiently objectionable to affect voluntariness. The circumstances may
have been unpleasant, however the will of the accused was not overborne by such
conditions.
I find, beyond a reasonable doubt that the
statements made during the interviews and interactions considered on this voir-dire
were given voluntarily by Mr. Carignan. [Emphasis added.]
[31]
The appellant submits that, although the trial
judge said she considered all of the circumstances, her analysis suggests
otherwise. We disagree. The trial judge focused on the areas that counsel
emphasized, but within the context of the broader framework established in the
case law.
[32]
We dismiss this ground of appeal.
(b)
Fabrication
[33]
The appellant submits that the trial judge erred
by instructing the jury that it could infer that his statements were not just
false, but fabricated, and could be used as circumstantial evidence of guilt. He
submits that the manner in which this issue arose was procedurally unfair
because the trial judge did not make a fabrication ruling on the voluntariness
voir
dire
. He also submits that there was no independent evidence of
fabrication, only falsity. We reject these arguments.
[34]
This court held in
R. v. OConnor
(2002),
170 C.C.C. (3d) 365 (Ont. C.A.), at para. 30, that when the Crown seeks to
introduce evidence to show that an accused has fabricated out-of-court
statements, the trial judge should determine whether there is sufficient independent
evidence of falsity at the admissibility stage: see also
R. v. Hall
,
2010 ONCA 724, 263 C.C.C. (3d) 5, at para. 164, leave to appeal refused, [2010]
S.C.C.A. No. 499;
R. v. Clause
, 2016 ONCA 859, 133 O.R. (3d) 321, at
para. 56. However, the failure to do so is not necessarily fatal.
[35]
In
OConnor
, on a
voir
dire
into voluntariness and whether there had been a breach of s. 10(b) of the
Charter
,
defence counsel did not object to the proposed use of the statements to
demonstrate fabrication and there was no formal ruling: at para. 29. The appeal
was allowed on another basis. Similarly, in
Clause
, Brown J.A. observed
that the trial judge did not make such a ruling because he was not asked to do
so; nonetheless, the court dismissed the appeal because there was ample
evidence of fabrication on the record: at paras. 55-58. The same reasoning was
employed in
R. v. Pomeroy
, 2008 ONCA 521, 91 O.R. (3d) 261, in which
Weiler J.A. said, at para. 69: However, because I am of the opinion that such
evidence did exist, the omission of the Crown to seek such a determination is
of no import.
[36]
The purpose of making a ruling at the
admissibility stage is to ensure that the accused person is aware of the case
to meet, and to prevent the jury from being exposed to statements that have no
evidentiary value. In this case, although the trial judge did not rule on the
issue of fabrication, she was not asked to. The appellant now submits that, had
he been put on notice that his statements could be used as evidence of
fabrication, he would have approached the case differently. He submits that he
was denied the opportunity to make full answer and defence by, for example,
conducting examinations, calling evidence, making submissions as to why a fabrication
instruction should not be given, or making submissions aimed at rebutting the
inference that his statement was fabricated. However, when pressed on this
submission during the oral hearing, counsel gave no concrete examples to
support this claim.
[37]
The manner in which the trial unfolded on this
issue reflected no unfairness. The appellant submits that he anticipated that
his statements were admitted to be used only for the purposes of
cross-examination in the event that he testified. However, this is not borne
out by the record. Had this been the case, the statements would likely have been
marked as lettered exhibits and would only have become known to the jury if and
when the appellant testified. Instead, the appellants statements were
introduced before the jury as part of the Crowns case, with no objection from defence
counsel.
[38]
That a broader use of the statements was
contemplated is reflected in the pre-charge proceedings. The trial judges
draft instructions included an instruction on fabrication. When asked about this
instruction (discussed below), defence counsel expressed no surprise, nor did
he assert unfairness. Instead, he merely made reference to the submissions he
had made about the trial judges more general instruction on after-the-fact
conduct, in terms of word changes and a no probative value instruction on the
issue of intent.
[39]
Accordingly, there was no procedural unfairness
in the manner in which this issue developed at trial. As in
Pomeroy
, the
failure to obtain a ruling was of no import.
[40]
Moreover, there was ample evidence of
fabrication. The appellant submits that the evidence that the trial judge
referred to in this context provided no independent proof of fabrication. Her
instruction referred to the following: (a) evidence of the officers that the
appellant had a ligature around his neck and his face was dark, grey, or blue
when they first entered the home; (b) the ligature was so tight it had to be
cut with a knife to remove it; (c) as soon as the ligature was removed, the
appellants colour returned to normal; (d) evidence that the appellant rejected
a call to his phone after the alleged assault; and (e) his evidence that he
walked upstairs in the middle of the night to get a knife to cut off his zip
ties.
[41]
The question of whether there is independent
evidence of fabrication is a case and fact-specific inquiry. Examples of
independent evidence of fabrication include the following: the timing of the
statement; whether the statement was given when the accused was not a suspect;
the scope of exculpation in the statement; the degree of detail provided; and
post-arrest statements that are inherently implausible: see
OConnor
, at
paras. 24-31;
R. v. Wright
, 2017 ONCA 560, 354 C.C.C. (3d) 377, at para.
48.
[42]
There was strong independent evidence of
fabrication in this case. Recall the appellants Facebook messages to his
friend, the first of which was sent roughly eight hours before the police
arrived. Then there was evidence of the appellants use of his phone during the
night. Evidence concerning Ms. DAmours truck and when it was turned off and
the subsequent location of her keys was also capable of contributing to a
conclusion that the statements were fabricated. Finally, and most importantly,
the observations of the officers on the scene the appellant with a ligature
tied so tightly around his neck that his face was blue, hours after the
apparent intruder attack.
[43]
If accepted by the jury, this body of evidence
demonstrated an intent to mislead the police or others or an intent to deflect
suspicion:
OConnor
, at para. 26. Taken together, this was evidence the
appellant staged the crime scene to look like someone else had killed Ms. DAmours.
It was cogent evidence of fabrication.
[44]
In her closing address, the Crown reviewed the
internal and external inconsistencies in the appellants lengthy statement to
Detective Sergeant Sigouin. However, she concluded this part of her address by
saying, [T]he Crown does not ask you to convict the accused because of the
inconsistencies in his statement. The Crown submits that the evidence of
guilt
is overwhelming on its own.
[45]
There was nothing wrong with this submission.
However, it necessitated that the jury be provided with guidance on the
difference between simply disbelieving a statement and finding that it had been
fabricated. Without it, the jury may have mistakenly equated disbelief with
fabrication. The trial judge provided such an instruction, which included the
following passage:
There is a big difference between disbelief of
a version of events and fabrication of that same version of events. Disbelief
of a version of events does not mean that the version of events was fabricated.
Not at all. Evidence that leads you only to disbelieve a version of events is
not independent evidence that the version of events was fabricated.
[46]
There was no objection to the fabrication
instruction, either before or after it was delivered. No issue is taken with
the correctness of this instruction on appeal. It was correct (see
Al-Enzi
,
at para. 41) and it was balanced.
[47]
We dismiss this ground of appeal.
Disposition
[48]
The appeal against conviction is dismissed.
POSTSCRIPT
[49]
Following the dismissal of his conviction appeal
at the conclusion of the hearing on June 1, 2021, the appellant filed a Notice
of Appeal for Inmate Appeal at the institution where he is incarcerated, dated June
22, 2021. The Notice lists several grounds of appeal against conviction, some
of which were not advanced as part of his solicitor appeal. The appellant also
claims that the sentence he received was excessive.
[50]
The appeal against conviction has already been
dismissed. Therefore, we decline to consider the further grounds of appeal now
advanced by the appellant. As for the appeal against sentence, the appellant
did seek leave to appeal his sentence in an Amended Notice of Appeal, filed on
August 23, 2018. However, a Notice of Abandonment of the sentence appeal was
filed on October 5, 2020. Consequently, the fitness of the appellants sentence
was not properly before this court when his appeal was heard.
Doherty J.A.
Gary Trotter J.A.
J.A. Thorburn J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Ruddy, 2021 ONCA 490
DATE: 20210706
DOCKET: C65944
Watt, Pardu and Trotter JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Patrick Ruddy
Appellant
Eric Granger, for the appellant
Maria Gaspar, for the respondent
Heard: June 28, 2021 by video
conference
On appeal from the sentence imposed on
September 7, 2018 by Justice Paul R. Currie of the Ontario Court of Justice.
REASONS
FOR DECISION
[1]
The appellant was an officer with the Canada
Border Services Agency (CBSA) for 13 years. On April 13, 2018, he entered
guilty pleas to one count each of conspiring to import cocaine (
Controlled
Drugs and Substances Act
, S.C. 1996, c. 19,
s. 6(1)) and
breach of trust (
Criminal Code
, R.S.C. 1985, c. C-46, s.
122). He was sentenced to 10 years imprisonment and made subject to other
ancillary orders.
Background
[2]
The investigation began after the appellant was
seen at a secure cargo facility removing a package from a container sent from
Pakistan. He provided no receipt or documentation when he removed the package.
Over a seven-month period, from September 7, 2016 until the end of April 2017,
RCMP investigators intercepted private communications between the
appellant and three co-conspirators, including another CBSA officer and Roberto
Leyva. The intercepts captured the co-conspirators planning to import multiple
shipments of cocaine through Toronto Pearson International Airport.
Drawing on his knowledge and experience as a CBSA officer, the
appellant advised Leyva on an ongoing basis about how to import
cocaine undetected, including means, methods, and opportune
times.
[3]
On April 20, 2017, the RCMP intercepted a
conversation between the appellant and Leyva discussing a cocaine shipment
that was arriving on a flight from Kingston, Jamaica, the next
evening. The appellant confirmed that it was five that was coming on that
flight. The following night, the CBSA seized 5.5 kilograms
of cocaine from a flight from Kingston, Jamaica, shortly after it
landed at Pearson. The circumstances of the seizure were consistent with many
of the details discussed in the intercepted communications.
[4]
At the time of the offence, the value of the
cocaine that was seized, if sold at the kilogram or multi-kilogram level, was
between $45,000 and $65,000.
[5]
The appellant was 37 years old at the time of
the offences. Being a trusted CBSA officer, he had no criminal record. The
appellant is a member of the Bonnechere Algonquin First Nation, of Métis
descent. At the time of sentencing, he was married. The appellant enjoyed the
support of his family and friends. He expressed what the sentencing judge
regarded as sincere remorse for his actions.
[6]
The Crown sought a sentence of 10 to 12 years,
whereas the appellant sought a sentence of 5 to 6 years.
The sentencing judges reasons
[7]
In his reasons, the sentencing judge outlined
the applicable principles of sentencing for this type of case, placing heavy
reliance on the decision of this court in
R. v. Hamilton
(2004), 186
C.C.C. (3d) 129 (Ont. C.A.). He also referred to
R. v. Duncan
, 2016
ONSC 1319, in which Code J. identified ranges of sentence for cocaine
importers, based on the role played by the accused in the enterprise and amount
of cocaine involved. Based on that case, the sentencing judge identified the
appropriate range as 12 to 19 years. However, given the appellants guilty
plea, the Crown suggested a range of 10 to 12 years.
[8]
The sentencing judge held that the appellants
role as a CBSA offer significantly increase[d] his moral culpability in this
case. After taking into account a number of mitigating circumstances, the
sentencing judge imposed a sentence of 10 years imprisonment, at the lower end
of the range submitted by the Crown.
Discussion
[9]
The appellant submits that the sentencing judge
did not correctly identify the proper range. Instead of a 10- to 12-year
spread, he submits that the proper range was 8 to 12 years. Given the numerous
mitigating factors, the appellant submits that he should fall at the lower end
of this range. We disagree.
[10]
Assuming that the range extends as low as the
appellant submits on appeal, we are of the view that the appellants sentence
is properly located within this range. The sentencing judge identified the
applicable aggravating and mitigating circumstances in this case. The
importation of cocaine requires a sentence that emphasizes the principles of
denunciation and general deterrence. The egregious breach of trust in this case
was a serious aggravating factor. We must show deference to how the sentencing
judge balanced the aggravating and mitigating factors. It cannot be said that a
sentence of 10 years imprisonment was demonstrably unfit:
R. v. Lacasse
,
2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 36-55;
R. v. Friesen
,
2020 SCC 9, at paras. 25-29.
[11]
The appellant submits that the sentencing judge
erred by failing to give credit for the time that the appellant spent on strict
bail conditions that included roughly 15 months on house arrest. In
R. v.
Downes
(2006), 205 C.C.C. (3d) 488 (Ont. C.A.), at para. 33, this court
held that it is an error in principle for a judge to fail to take into
account as a mitigating circumstance in sentencing time spent on stringent bail
conditions, especially house arrest. See also:
R. v. Ijam
, 2007 ONCA
597, 87 O.R. (3d) 81, at para. 67,
per
Sharpe J.A. (concurring).
However, there is no prescribed formula for taking this mitigating factor into
account; it is within the discretion of the sentencing judge:
R. v. Place
,
2020 ONCA 546, at para. 20.
[12]
The sentencing judge did take house arrest into
account in determining the ultimate sentence he imposed. He said, In [defence
counsels] submissions that an appropriate range of sentence would be some five
to six years, he asks the court to look at the fact that Mr. Ruddy has been
essentially on house arrest since his release from custody. Later in his
reasons, the sentencing judge said, Mr. Ruddy, I give you full credit for all
of the mitigating factors in your case.
[13]
It would have been preferable had the sentencing
judge said more about the time the appellant spent on house arrest, however, we
are satisfied that he took it into account in determining the ultimate sentence
he imposed, which fell in the middle of the appropriate range submitted by the
appellant on appeal.
[14]
The appellant submits that the sentencing judge
failed to credit the appellant for the five days he spent in pre-sentence
custody before being released on bail. The sentencing judge made no mention of
this time, even though it was raised in submissions. There was no reason to
refuse credit for the time the appellant spent in pre-sentence custody. The five
days spent will be credited on a 1.5:1 basis, for a total credit of eight days,
rounded.
[15]
At the sentencing hearing, the Crown requested a
mandatory firearms and weapons prohibition under s. 109 of the
Criminal
Code
for a period of 10 years. The sentencing judge made a lifetime order.
On appeal, the Crown agrees that, pursuant to s. 109(2)(a), the order should be
for 10 years.
[16]
Finally, the sentencing judge imposed a victim surcharge.
He made this order before the Supreme Court of Canadas decision in
R. v.
Boudreault
, 2018 SCC 58, [2018] 3 S.C.R. 599. The Crown concedes that this
order should be set aside.
Disposition
[17]
Leave to appeal sentence is allowed. The
appellant is entitled to be credited with eight days of pre-sentence custody.
Accordingly, the custodial portion of his sentence is reduced by eight days.
The mandatory firearms and weapons prohibition is reduced to 10 years. The
victim surcharge is set aside.
David Watt 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 complainants 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. Rule, 2021 ONCA 499
DATE: 20210706
DOCKET: M52571 (C69544)
Brown J.A. (Motions Judge)
BETWEEN
Her Majesty the Queen
Respondent
and
Arthur Rule
Applicant
Fredrick R. Schumann, for the applicant
Adam Wheeler, for the respondent
Heard: June 18, 2021 by video conference
ENDORSEMENT
A.
OVERVIEW
[1]
The applicant, Arthur Rule, applied for leave to
appeal his custodial sentence and bail pending appeal. The following
endorsement was read at the end of the hearing on June 18, 2021:
For reasons to follow, the application for
leave to appeal sentence and the application for bail pending appeal are
granted. The terms of bail shall be those in the draft order submitted by
counsel.
[2]
These are those reasons.
[3]
Mr. Rule is 71 years old. He pleaded guilty to
three counts of possessing and one count of accessing child pornography,
contrary to ss. 163.1(4) and (4.1) of the
Criminal Code
. By reasons
dated May 4, 2021, the sentencing judge concluded that the appropriate sentence
was a term of imprisonment for a period of 22 months, concurrent on all counts,
followed by probation for three years. She deferred the imposition of sentence
until June 18, 2021.
[4]
Mr. Rule applied for leave to appeal sentence
and, if leave were granted, bail pending appeal. The Crown did not oppose Mr.
Rules application for leave to appeal his sentence:
Criminal Code
, s.
675(1)(b). I therefore granted leave to appeal.
[5]
The contested matter at the hearing was Mr.
Rules application for bail pending appeal:
Criminal Code
, s. 679(4). The
Crown acknowledged that Mr. Rules sentence appeal is not frivolous.
However, it opposed the application on two grounds: (i) the sentence appeal
lacks sufficient merit that, in the circumstances, it would not cause
unnecessary hardship if the applicant were retained in custody; and (ii) the
applicant has not demonstrated that his detention is not necessary in the
public interest.
B.
BACKGROUND
[6]
The applicant is a retired teacher who lives in
Kenora. Prior to his conviction on these charges, he had no criminal record.
[7]
A police investigation resulted in the search of
Mr. Rules home and the seizure of his computer. As described by the sentencing
judge, at paras. 9-11:
The items seized from Mr. Rules computer
revealed a vast collection of images and videos of children being sexually
abused and exploited. Over 100,000 images and videos were examined by the OPP
child sexual exploitation unit. The police categorized 22,429 images, 204
movies or videos and determined these images fit the definition of child
pornography. 92,984 images were not categorized, but the Crown noted these
items would have met the criteria for child pornography.
Approximately two thirds of the material focus
on the genitals of the children depicted. One third of the images depict persons
under the age of 18 engaged in graphic sexual activity. There appeared to be a
preponderance of images involving prepubescent girls and less so of boys under
age 18. The additional 92,000 + images were not categorized because of the time
and resources needed to fully examine the contents of Mr. Rule's extensive
collection.
In addition, the police noted that Mr. Rule's
screen saver on the computer was an image of a prepubescent girl, naked with
her legs spread. He had the other images and videos saved under various folders
on his computer.
C.
ANALYSIS
[8]
Under
Criminal Code
s. 679(4)(a), the
applicant must establish that his appeal has sufficient merit that, in the
circumstances, it would cause unnecessary hardship if he were detained in
custody. The extent of the inquiry into the merits of the appeal under that
criterion has variously been described as asking whether the appeal has
arguable merit, some hope or prospect of success, or it is more probable
than not that a successful sentence appeal would result in a significantly
lower sentence:
R. v. McIntyre
, 2018 ONCA 210, at para. 24;
R. v.
Hewitt
, 2018 ONCA 293, at para. 18.
[9]
In his notice of appeal, the applicant argues
that the custodial sentence of 22 months was demonstrably unfit for two main
reasons: (i) the sentencing judge erred in not granting a conditional sentence;
and (ii) she disregarded the evidence of Mr. Rules health problems, the care
he requires, and the hardship incarceration would impose.
[10]
On the issue of the availability of a conditional
sentence, the Crown concedes that the sentencing judge mis-stated the law when
she wrote, in para. 47:
Section 163.1 (4)(a) of the
Criminal Code
sets out a range of punishment for offenders on indictment to be a minimum of
12 months to a maximum of 10 years imprisonment for accessing child
pornography. The
Criminal Code
also sets out that conditional
sentences are not available for offenses under this section. I have reviewed
the jurisprudence provided by counsel, all the relevant post-
Friesen
jurisprudence, and the amendments to the
Criminal Code
, in the result,
I cannot entertain a conditional sentence here.
[11]
In fact, the former 6-month minimum for
possession of child pornography was struck down by this court in
R. v. John
,
2018 ONCA 702, 142 O.R. (3d) 670, as violating s. 12 of the
Canadian
Charter of Rights and Freedoms
. As well, in subsequent cases, in light of
John
the Crown has conceded the likely unconstitutionality of the minimum sentence
for accessing child pornography in
Criminal Code
s. 163.1(4.1): see,
for example,
R. v. Rytel
, 2019 ONSC 5541, at para. 8. As
this court observed in
R. v. M.N.
, 2017 ONCA 434, 37 C.R. (7th) 418,
at para. 40, the identical penalties for accessing and possession of child
pornography indicate a legislative view that the moral culpability for the two
offences is the same.
[12]
Although the sentencing judge returned to the
issue of the availability of a conditional sentence later in her reasons, she
proceeded on the basis that a conditional sentence would offend the
proportionality principle and not constitute a fit sentence because of the
requirements set out in the
Criminal Code
, the nature of the offences,
and recent jurisprudence: at para. 57.
[13]
The applicant submits that the sentencing judge
failed to adequately consider a conditional sentence as an alternative to
incarceration, as required under the statutory principle of restraint in s.
718.2(e) of the
Criminal Code
. Given that her analysis got off on the
wrong legal footing, there certainly is merit in this submission.
[14]
Indeed, there is sufficient merit that, in the
circumstances, it would cause Mr. Rule unnecessary hardship if he were detained
in custody. Mr. Rule suffers from several medical conditions. One is rectal
cancer, for which Mr. Rule has received chemotherapy and radiation treatment.
As a result of cancer-related surgery, Mr. Rule has to wear an ostomy bag. In
his affidavit, he describes the daily challenge of wearing an ostomy bag:
The ostomy bag needs to be changed frequently.
This involves the following:
(a) In my bathroom, pulling the pouch off
while sitting on a toilet to catch any spillage;
(b) Cleaning the stoma site with warm
water;
(c) Waiting for the excretions from the
site to stop;
(d) Moving to the dining room where I keep
the ostomy equipment;
(e) Using a mirror to see the underside of
the hernia (described below), and using scissors to cut out the portion of the
ostomy pouch that fits overtop;
(f) Further cleaning and drying the skin
around the stoma;
(g) Applying a glue sealer to the ostomy
pouch;
(h) Pressing the pouch into place on my
stomach;
(i) Lying down and pressing on the pouch
with my hand for around fifteen minutes to use heat to seal the glue; and
(j) Applying special elastic tape on the
outside of the pouch to further attach it to my body.
Generally this process is required once a day,
but it may be twice a day, or once every two days. The time that the changing
is required is not at all predictable, and may be any time of the day or night.
I need a great deal of equipment for the
ostomy care. It takes up the surface of my dining room table.
I have experienced some internal leakage at
the site of the operation where my intestines were affected. This leakage has
caused excretions of fecal matter and blood from my rectum. This is called an
anastomosis. There is also a hernia underneath the stoma site, meaning that
some of my internal organs are pushing through a hole in my abdominal muscles.
The result is a large lump at the stoma site the size of half a grapefruit.
[15]
While the sentencing judge acknowledged the need
for this daily procedure, she was satisfied that [t]his regimen can be
addressed in a correctional facility as it is the states responsibility to
protect and provide proper medical care for those in its care or custody.
Although the Crown submitted that the correctional facility could accommodate
Mr. Rules medical needs, given their extraordinary nature I concluded that it
would cause Mr. Rule unnecessary hardship if he were detained in custody.
[16]
As to the criterion in
Criminal Code
s.
679(4)(c) that Mr. Rule establish his detention is not necessary in the public
interest, a qualitative and contextual assessment is required to resolve the
balance between enforceability and reviewability:
R. v. Oland
,
2017 SCC 17, [2017] 1 S.C.R. 250, at para. 49. While, as the Crown submits, the
offences for which Mr. Rule has been convicted are very serious ones, I
conclude that this is a case where the public interest in reviewability
overshadows the enforceability interest: there are no public safety or flight
concerns, and the grounds of appeal clearly surpass the not frivolous
criterion:
Oland
, at para. 51.
[17]
For these reasons, I granted Mr. Rules
application for bail pending appeal.
David
Brown J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Weisberg v. Dixon, 2021 ONCA 491
DATE: 20210706
DOCKET: C68364
Fairburn A.C.J.O., Lauwers and
Harvison Young JJ.A.
BETWEEN
Dr. Fay Weisberg and Fay G.
Weisberg Medicine Professional Corporation
Plaintiffs
(Appellants
/
Respondents
by way of cross-appeal)
and
Dr. Marjorie Dixon and 2435665
Ontario Inc.
Defendants
(Respondents/
Appellants
by way of cross-appeal)
Arthur
Yallen and James Lawson, for the appellants
/respondents by way of cross-appeal
Kevin
OBrien, Lauren Harper and Marleigh Dick, for the respondents/appellants by way
of cross-appeal
Heard: June 8, 2021 by video conference
On appeal from the judgment of Justice Shaun
S. Nakatsuru of the Superior Court of Justice, dated April 24, 2020, with
reasons reported at 2020 ONSC 2536.
REASONS FOR DECISION
Factual Overview
[1]
Dr. Fay Weisberg and Dr. Marjorie Dixon are
fertility doctors who practised together for a number of years.
[2]
While the parties, along with another doctor, were once the officers and
directors of First Steps Fertility Inc., that entity was defunct and had not
filed income tax returns for some time. Dr. Dixon eventually planned to open a
new fertility clinic at a new location.
[3]
In September 2014, Dr. Dixon incorporated
2435665
Ontario Inc
. with the intention of naming her new fertility clinic
First Steps Reproductive Health. This clinic was eventually named Anova
Fertility & Reproductive Health. While she offered Dr. Weisberg the opportunity
to invest as a minority shareholder in the new corporation, Dr. Weisberg
eventually declined to do so on August 21, 2015.
[4]
On October 28, 2015, Dr. Dixon completed and submitted a funding
application to obtain lucrative government funding for fertility treatments. Dr.
Dixon stated that the name of the fertility clinic applying for funding was
First Steps Reproductive Health. Therefore, the funding application was made
for Dr. Dixons new fertility clinic. In that funding application, Dr. Dixon
made reference to Dr. Weisberg and her experience and Electronic Medical
Records data. While Dr. Weisberg testified at trial that she was unaware that Dr.
Dixon had received and filled out the funding application until the day it was
due and that she did not know that the application was filled out on behalf of
the new fertility clinic, the trial judge rejected her evidence on this point,
preferring the evidence of Dr. Dixon.
[5]
As well, although Dr. Weisberg testified that she never intended to move
to the new location, the trial judge rejected her evidence on this point,
instead finding that, while she was originally intending to move to the new
location at the time of the preparation of the funding application, she changed
her mind soon after receiving Dr. Dixons draft Senior Associate Agreement on
January 20, 2016. This Agreement placed Dr. Dixon as the principal physician of
the new fertility clinic, while Dr. Weisberg would be an associate. It also
contained terms that Dr. Weisberg found to be insulting. On February 4, 2016,
Dr. Weisberg informed Dr. Dixon that she would not be moving to the new fertility
clinic. That conversation led to the breakdown of their professional
relationship.
[6]
Dr. Weisberg sued Dr. Dixon, claiming that Dr. Dixon had filled out the
government funding application without her knowledge, thereby depriving her of that
funding. She said that this constituted a breach of fiduciary duty. Dr.
Weisberg also claimed that Dr. Dixon was unjustly enriched by her actions. In
lengthy and considered reasons, rooted squarely in factual findings linked to
credibility assessments, the trial judge rejected Dr. Weisbergs arguments and dismissed
the action.
Analysis
[7]
First, this appeal is predicated largely on objections to the trial
judges findings of fact. According to Dr. Weisberg, the trial judge made
numerous palpable and overriding errors in his factual determinations regarding
the alleged fiduciary duty and unjust enrichment. We do not intend to explore
every factual issue raised. In our view, Dr. Weisberg is attempting to
relitigate the factual issues that were live before the trial judge, issues
that he directly confronted and resolved. The trial judges factual findings
are grounded in the evidence and solid assessments of credibility. As the trial
judge said, he was not able to accept [Dr. Weisbergs] testimony on the key factual
matters where it differed from Dr. Dixon.
[8]
It is not for this court to revisit those credibility assessments
or factual conclusions. We have been shown no basis upon which to do so. Simply
put, there are no palpable and overriding errors in the trial judges factual
findings.
[9]
Second, Dr. Weisberg maintains that the trial
judge erred by finding that Dr. Dixon did not owe her a fiduciary duty. We see
no error in the trial judges approach to this issue. He correctly concluded
that one of the fundamental prongs of a fiduciary relationship an
undertaking by the alleged fiduciary to act in the best interests of the
beneficiary was absent:
Alberta v. Elder Advocates of Alberta Society
,
2011 SCC 24,
[2011] 2 S.C.R. 261, at para. 36
. On the evidence and the factual conclusions reached by the trial
judge, the absence of an express undertaking or even an implied undertaking was
fatal to the claim. Moreover, even if a fiduciary duty existed, Dr. Dixon did
not breach that duty because, based on the trial judges factual conclusions, Dr.
Dixon acted honestly and did what the parties agreed to do regarding the
funding application.
[10]
Third, and finally, in claiming that Dr. Dixon
was unjustly enriched by her actions at Dr. Weisbergs expense, Dr. Weisberg argues
that the trial judge erred by concluding that there was a juristic reason for Dr.
Dixons enrichment. The difficulty with this argument is that the trial judge
concluded that Dr. Dixon filled out the application for government funding in
an honest way, in accordance with the agreement of the parties. Specifically,
the trial judge found as a fact that at the relevant time the funding application
was made, Dr. Weisberg had agreed to move to the new fertility clinic at the
new location, where she would benefit from the funding. It was only later that Dr.
Weisberg changed course on this decision.
[11]
Therefore, we see no error in the trial judges
approach to this issue, simply returning to the trial judges finding, as
supported by the evidence, that Dr. Weisbergs ultimate exclusion from the
funding arose from decisions she made before and after the funding had been
obtained: she declined to invest as a minority shareholder in Dr. Dixons new
corporation on August 21, 2015; and she ultimately decided not to move to the new
fertility clinic on February 4, 2016.
[12]
It was open to the trial judge to find, based
upon the factual backdrop at trial, that Dr. Dixon met her onus in establishing
a juristic reason for her enrichment. As the trial judge said: morally, Dr.
Dixons claim to the enrichment is not at all tenuous. There is no wrong-doing
by her that she is profiting from. It was effectively decisions made by Dr.
Weisberg that have led to the situation where she is unable to access
[the]
funding.
[13]
In light of our conclusions on the previous
points, there is no need to address the alleged errors in the trial judges
assessment of damages, an assessment he gave in the alternative should he have
been found to have erred in dismissing the claim. We have concluded that he did
not err, and so there is no need to reach the issues regarding damages. This is
equally true as it relates to the cross-appeal, which need not be addressed.
Disposition
[14]
The appeal is therefore dismissed.
[15]
Costs will be paid to the respondents in the agreed
upon amount of $15,000, inclusive of disbursements and applicable taxes.
Fairburn
A.C.J.O.
P.
Lauwers J.A.
A.
Harvison Young J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Fabbro, 2021 ONCA 494
DATE: 20210705
DOCKET: C69106
Simmons, Gillese and Huscroft
JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Justin James Fabbro
Appellant
Donald Orazietti, for the appellant
Adam Wheeler, for the respondent
Heard: May 26, 2021 by video conference
On appeal from the sentence imposed on February
12, 2021, by Justice John P. Condon of the Ontario Court of Justice.
Gillese J.A.
:
[1]
This appeal exposes the ongoing challenges for
sentencing judges arising from the opiate scourge in our province.
I. OVERVIEW
[2]
Justin James Fabbro, the appellant, comes before
this court because of an incident that took place on January 20, 2019, in Sault
Ste. Marie, Ontario. He was 36 years old at that time and in the throes of a
heroin addiction. His domestic situation had broken down. He wanted to end his
life.
[3]
The appellants addiction started when he was overprescribed
Percocet and OxyContin
[1]
at age 25, following a boating accident. Later, he had surgery on his shoulder
and knees. After four or five years of taking pain medication, the doctors
would no longer prescribe them and he began buying drugs on the street.
[4]
The appellant also suffered from serious unresolved
trauma arising from three events. In the year before the boating accident: he
found the body of a neighbor who had committed suicide by hanging; he saw a
friend decapitated in front of him; and, he saw a snowmobiler go over a cliff. His
resulting grief and trauma issues had not been addressed.
[5]
In the month leading up to the incident, the
appellant went to the Sault Area Hospital on three occasions to get medical help
for suicidal ideation but was sent away each time. Two earlier visits to the
hospital had also been unsuccessful.
[6]
Just before 10:00 a.m. on the day of the
incident, the police received information that the appellant had been seen leaving
a residence with a gun and that he might harm himself. At the time, the
appellant was wanted on a surety revocation warrant related to outstanding
firearm charges. He was also bound by a recognizance not to possess firearms.
[7]
Shortly after receiving the call, the police located
the appellant, who was driving a truck. They initiated a traffic stop. The
appellant pulled into the driveway of a residence with which he had no
connection and put a shotgun in his mouth. The police officer on the scene
called for backup. More police officers, the Emergency Services Unit, and a
negotiator arrived on the scene.
[8]
The appellant spoke to the police officers. He was
emotional and upset. He repeatedly said that he did not want to hurt the police
or anyone else, only himself. He also said he had a tough life, was still using
heroin but wanted to stop, did not want to go to jail, and did not know if he
wanted to live.
[9]
While negotiations with the appellant were
taking place, the occupants in the residence were evacuated.
[10]
After a standoff of several hours, the appellant
threw the gun out of the passenger-side window and got out of the truck. The
gun had been sawed off. It was not loaded but it was capable of firing. He was
arrested and taken to hospital where he was admitted pursuant to the
Mental
Health Act
,
R.S.O. 1990, c. M.7.
[11]
The appellant was eventually released on bail
and undertook sustained, significant steps to address his substance addiction and
mental health challenges. Those steps included: attending and successfully
completing a residential treatment program; enrolling in another such program and
attending until it was shut down due to COVID-19; participating in the
methadone program at the addiction treatment centre in Sault Ste. Marie; and, being
under the care of a psychiatrist to address his addiction and the root issues
that were affecting his mental health.
[12]
As a result of the incident, the appellant was
charged with
carrying a weapon for a purpose dangerous
to the public peace (
Count 1
). Later, he was charged with: possessing
a prohibited firearm with readily accessible ammunition while not being the
holder of a license; while on recognizance, failing without lawful excuse to
comply with the condition that he not possess any weapons; and, having a
sawed-off shotgun in his possession while prohibited from doing so under a
recognizance.
[13]
The appellant pleaded guilty to the offences and
was sentenced to two years less a day in prison, followed by three years of
probation. Several ancillary orders were also made.
[14]
The sentencing judge acknowledged that the
appellant
was suffering from compromised mental health
and a drug addiction at the time of the incident and had since
chosen a path of significant rehabilitation. He described the
incident as the catalyst for an awakening or intervention
causing the
pursuit of a course of rehabilitation and reformation. However, because the incident
involved a firearm in particular, a sawed-off shotgun he viewed the primary
sentencing principles to be denunciation and deterrence.
[15]
The sentencing judge also acknowledged that the
appellant had pleaded guilty and expressed remorse. Further, he found that,
during the incident, the appellant never threatened harm against anyone but himself
and his actions were consistent with that. As well, the trial judge observed that
the appellant had been on strict bail conditions for over two years following the
incident and there had been no breaches in that time.
[16]
On appeal, the appellant submits that the
sentence is demonstrably unfit. He does not appeal the conditions of probation
or the ancillary orders.
[17]
For the reasons that follow, I would allow the
appeal and substitute a conditional sentence on the terms that the parties have
agreed to.
II. THE ISSUES
[18]
The appellant argues that the sentence is
demonstrably unfit because the sentencing judge:
1.
placed undue emphasis on the principle of
protection of society;
2.
failed to award
Downes
[2]
credit
for time he spent under house arrest; and,
3.
erred by not imposing a conditional sentence due
to the appellants mental health.
III. ANALYSIS
[19]
Sentencing judges are in the best position to
determine just and appropriate sentences and are entitled to considerable
deference:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para.
41. Appellate intervention is warranted in only two situations. First, where
the sentencing judge commits an error in principle, fails to consider a
relevant factor, or erroneously considers an aggravating or mitigating factor,
and the error had an impact on the sentence:
Lacasse
, at para. 44.
Second, where the sentence is demonstrably unfit:
Lacasse
, at para.
51. In either situation, the appellate court may set aside the sentence and
conduct its own analysis to determine a fit sentence in all the circumstances.
[20]
In my view, the sentencing judge erred in
principle in two regards. First, he failed to consider a relevant factor, which
led to an undue emphasis on the principles of denunciation and deterrence. Second,
he failed to consider whether there was a causal link between the appellants
mental health condition and his criminal conduct when deciding whether a
conditional sentence was warranted. As both errors had an impact on the
sentence, in my view, it falls to this court to conduct its own analysis and
determine a fit sentence.
[21]
In terms of the first error, the sentencing
judge pointed to this courts jurisprudence to conclude that, because the offences
involved firearms, the primary sentencing principles were denunciation and
deterrence. In my view, this fails to take into consideration the relevant fact
that the appellant had the gun because he intended to use it to commit suicide.
In Canada, it is not an offence to commit suicide or attempt to commit suicide.
The appellants offence was that he was carrying a weapon for a purpose
dangerous to the public peace.
[22]
There can be no doubt that when a person carries
a firearm, there is always the potential for danger to the public. However, the
danger was much attenuated in the circumstances of the present case: the shotgun
was not loaded (although the appellant had ammunition nearby); the appellant said
he was not going to hurt anyone other than himself and the trial judge found
that his actions [were] consistent with that; and, the officers at the scene
indicated they did not feel any direct threat against them.
[23]
The appellant had the gun because he intended to
use it to commit suicide. An act of attempted suicide is the ultimate plea for
help. It does not cry out for a denunciatory sentence. This consideration, coupled
with the much-attenuated danger to the public, leads me to conclude that the
primary sentencing principles in this case are not limited to denunciation and
deterrence they include rehabilitation. This view finds support in the second
pre-sentence report where the author provides this
assessment:
If we remove the weapon from the equation of the
offence we are dealing with a young man with undiagnosed/untreated mental
health issues combined with substance addiction
[H]is intent was not to harm
anyone other than himself, numerous times he expressed attempts to seek help
through the hospital and being turned away. In dealing with the offenders
mental health and continued abstinence of substance use the risk to further
self-harm to himself and collateral harm to the community is very minimal at
best.
Continued involvement with professional
services, abstinence, and community supports will even lessen the risk of the
offender contemplating self-harm in the future.
The offender has proven for the past 10 months
that with community and family supports he is capable of being a productive
member of the community.
[24]
In terms of the second error, the Crown submits that
the evidence did not indicate a causal link between the appellants mental
state and the offences. It argues that there was no evidence the appellant was
experiencing a delusion or in a mental state that rendered him incapable of
appreciating the consequences of his actions. He did not challenge his
criminal responsibility or mental capacity at sentencing.
[25]
Respectfully, the Crowns argument misses the
point. The question is not whether the appellant was suffering from delusions
or a mental disorder. For mental health to be considered a mitigating factor in
sentencing, the offender must show a causal link between their illness and
their criminal conduct. That is, the illness must be an underlying reason for
the conduct. And, there must be evidence that a lengthy sentence would have a
serious negative effect on the offender such that it should be reduced on
compassionate grounds. See
R. v. Megill
, 2021 ONCA 253, at para. 171;
R.
v. Hart
, 2015 ONCA 480, at para. 6; and
R. v. Pioriello
, 2012
ONCA 63, 288 O.A.C. 198, at paras. 11-12. In
Hart
, on a Crown appeal,
this court upheld the conditional sentence imposed by the trial judge where the
mitigating factors included the inference that the appellants mental health
played a causal role in the commission of the offence. At para. 6, this court
found that was a proper inference. And, at para. 8, this court stated:
The record also supports the trial
judges conclusion at para. 50 of her reasons, namely: To now impose a
custodial sentence would likely destroy any progress that has been made by Mr.
Hart with respect to his mental health and in my view serve no genuine societal
purpose.
[26]
While the sentencing judge acknowledged the
appellants addiction and mental health challenges, he did not consider whether
there was a causal link between them and the offences. He was required to
determine the extent to which those matters contributed to the appellants conduct
and the impact of that finding on the appropriate sentence:
R. v. Ellis
,
2013 ONCA 739, 303 C.C.C. (3d) 228, at para. 116, leave to appeal refused,
[2014] S.C.C.A. No. 53. There was ample evidence of that causal link in the: two
pre-sentence reports; medical records which included the appellants attempts
to get treatment at the Sault Area Hospital in the months leading up to the
incident; and, reports from Dr. Pistor (psychiatrist), John Mertes
(therapist), and Frank Perri (social worker). The conclusion that there was
such a causal link is virtually inescapable on the evidence: the appellant
wanted to commit suicide (using the shotgun) because of his addictions, his
unresolved mental health issues, and the ensuing breakdown of his life. That
the appellants mental health problems and addiction played a central role in
the offences is borne out by the appellants conduct once on bail and being
treated. He abided by strict bail conditions for over two years without a
breach and fully complied with the rules and regulations of the John Howard
Society Bail and Supervision Program.
[27]
Even if denunciation and deterrence were the
overriding objectives in this case, a sentence of imprisonment was not the only
route to achieve them. A conditional sentence recognizes the seriousness of the
offences while at the same time acknowledging and promoting the significant
strides in rehabilitation that the appellant has made with the help of his
family and the medical community. Imposing a custodial sentence was likely to
have a serious negative effect on the appellants progress and would not serve the
genuine societal interest.
[28]
Finally, I reject the appellants submission
that the sentencing judge erred in failing to give him credit for the time he
spent under house arrest.
While the sentencing judges
reasons on
Downes
credit are sparse, a careful reading of
paras. 62-63 shows that the appellant was given credit for that time.
[29]
In para. 62, the sentencing judge acknowledged
that there had been no further breaches of bail on charges that arose over two
years earlier. He then stated, Credit must be given to [the appellant] for
compliance with those restrictive bail conditions. The sentencing judge went
on, in para. 62, to describe the extensive progress the appellant had made
while following a path of significant rehabilitation.
[30]
When he sentenced the appellant on Count 1 to 20
months custody, at para. 63 of his reasons, the sentencing judge stated that he
had factored in the appellants considerable rehabilitation and lengthy
compliance with the current bail order. He concluded that In the absence of
these mitigating factors, a penitentiary sentence would have been imposed. From
this, it is clear that the sentencing judge reduced the sentence imposed for
Count 1 by at least four months in consideration of his rehabilitation efforts
and as
Downes
credit.
IV.
DISPOSITION
[31]
For these reasons, I would grant leave to appeal
sentence, allow the appeal and substitute a two-year-less-a-day conditional sentence
for the two-year-less-a-day custodial sentence, on the terms that the parties
have agreed to. The conditional sentence order, containing these agreed-upon
terms, is attached to the final order. The probation order and ancillary orders
imposed by the sentencing judge remain undisturbed.
Released: July 5, 2021 J.S.
E.E. Gillese
J.A.
I agree. Janet
Simmons J.A.
I agree. Grant
Huscroft J.A.
[1]
The appellant
said he was prescribed 300 Percocet and 180
OxyContin per month after the boating accident. The author of the first pre-sentence
report was unable to confirm this because the initial prescribing physician had
been suspended from practicing medicine.
[2]
R. v. Downes
, 79 O.R.
(3d) 321.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Tanase v. College of Dental Hygienists of Ontario, 2021 ONCA
482
DATE: 20210705
DOCKET: C68512
Feldman, MacPherson, Juriansz,
Huscroft and Jamal JJ.A.
BETWEEN
Alexandru Tanase
Appellant (Appellant)
and
The College of Dental Hygienists
of Ontario
Respondent (Respondent)
Seth P. Weinstein and Michelle M.
Biddulph, for the appellant
Julie Maciura and Erica Richler, for
the respondent
S. Zachary Green, for the intervener
Attorney General of Ontario
Heard: May 11, 2021 by video conference
On appeal from the order of the
Divisional Court (Justices Julie Thorburn, David L. Edwards and Lise G. Favreau)
dated September 9, 2019, with reasons reported at 2019 ONSC 5153.
Huscroft J.A.:
OVERVIEW
[1]
Ontario has a zero-tolerance policy for sexual
abuse by members of the regulated health professions in Ontario. Members are
guilty of professional misconduct under s. 51(1) of the
Health Professions
Procedural Code
(the
Code
), being Schedule 2 to the
Regulated
Health Professions Act,
1991,
S.O.
1991, c. 18,
if they commit sexual abuse against a patient, which
is defined in s. 1(3) as including
sexual
intercourse or other forms of physical sexual relations between the member and
the patient.
[2]
A finding of sexual abuse does not depend on establishing
that a sexual relationship is inherently exploitive or otherwise wrongful; the
prohibition of sexual relations between members and patients is categorical in
nature. Sexual relationships with patients are prohibited, period, subject only
to a spousal exception that may apply. With the approval of the government, the
Council of the College of a regulated health profession may make a regulation
permitting members to provide treatment to their spouses, but the exception is
narrow in scope: spouse is defined as including only someone to whom the
member is married or with whom the member has been cohabiting in a conjugal
relationship for a minimum of three years. The Council of the College of Dental
Hygienists of Ontario (the College) has a regulation adopting the spousal
exception, but that regulation did not come into force until October 2020, well
after the occurrence of the events that are the focus of this appeal.
[3]
The facts in this case are not contested. The
appellant is a dental hygienist who entered into a sexual relationship with S.M.,
a woman he was treating. Eventually they married and the appellant continued to
treat S.M. following their marriage.
[4]
In 2016, a complaint was made to the College and
a Discipline Committee was convened. The Committee found the appellant guilty
of professional misconduct, revoked his registration as required by s. 51(5) of
the
Code
, and issued a reprimand. The Divisional Court dismissed the appellants
appeal.
[5]
The appellant describes revocation of his
registration as an absurdity and invites this court to revisit its caselaw in
order to remedy this unfairness. A five-member panel was convened in order to
allow the appellant to challenge this courts decisions in
Leering
v.
College of Chiropractors of Ontario
, 2010 ONCA 87, 98 O.R. (3d) 561, in
which the court held that sexual abuse is established by the concurrence of a
health care professional-patient relationship and a sexual relationship, and
Mussani
v. College of Physicians and Surgeons of Ontario
(2004)
, 248 D.L.R. (4th) 632 (Ont. C.A.),
in which the court held that the penalty of mandatory revocation of a health
professionals certificate of registration for sexual abuse does not infringe
either s. 7 or s. 12 of the
Charter
.
[6]
In my view,
Leering
and
Mussani
remain good law and
the Divisional Court made no error in applying them. It follows that this
appeal must be dismissed and the appellant is subject to the mandatory penalty
of revocation of his certificate of registration.
[7]
Revocation of the appellants certificate of registration
is an extremely serious penalty, but it is not absurd. It follows from the
Ontario Legislatures decision that sexual abuse in the regulated health
professions is better prevented by establishing a bright-line rule prohibiting sexual
relationships an approach that provides clear guidance to those governed by
the rule than by a standard pursuant to which the nature and quality of sexual
relationships between practitioners and patients would have to be evaluated to
determine whether discipline was warranted in particular circumstances. This
decision to adopt this rule was open to the Legislature and must be respected
by this court. It does not violate the
Charter
and
there is no basis for this court to
frustrate or interfere with its operation.
[8]
I would dismiss the appeal for the reasons that
follow.
BACKGROUND
[9]
The facts in this matter are taken from an
agreed statement of facts.
[10]
The appellant was a duly registered member of
the College of Dental Hygienists of Ontario. He and S.M. met in 2012 and became
friends. S.M. confided in the appellant that she was afraid of dental treatment
and had not sought dental care for several years.
[11]
The appellant gained S.M.s trust and he
provided dental hygiene treatment to her at his workplace on two occasions,
January 22, 2013 and September 13, 2013, at no charge. At the time of these treatments
the relationship between the appellant and S.M. was platonic.
[12]
The appellant rented a room in S.M.s house in late
2013 and he and S.M. commenced a sexual relationship in mid-2014. Once their
sexual relationship began, the appellant stopped treating S.M. because he
understood he was not permitted to do so. However, in April 2015, a colleague
told the appellant that the rules had changed and dental hygienists were
permitted to treat their spouses. This advice was in error, but the appellant
did not attempt to confirm that he was permitted to treat S.M. The College had
proposed a Spousal Exception Regulation, but the enabling regulation had not
yet been submitted to the Ontario government for approval. Moreover, the
appellant admitted that if he had read the proposed regulation he would have
understood that he was not permitted to treat S.M.
[13]
The proposed regulation was not submitted to the
Ontario government for approval until October 2015 and was not in force when
the appellant provided treatment to S.M. on April 30, 2015, June 20, 2015,
September 25, 2015, December 2, 2015, March 24, 2016, June 2, 2016, and August
26, 2016, while they were engaged in a sexual relationship. The latter three
treatments occurred following the appellants marriage to S.M. in January 2016.
[14]
The Colleges spousal exception did not come
into force until October 8, 2020, with the passage of O. Reg. 565/20, made under
the
Dental Hygiene Act
,
1991
, S.O. 1991, c. 22.
[15]
In August 2016, a member of the College submitted
a complaint to the College after seeing a post S.M. had made on Facebook on
June 2, 2016 expressing her gratitude to the appellant for treating her. On
September 19, 2016, the appellant was notified that the College was
investigating him for professional misconduct. On June 19, 2018, the Discipline
Committee found that the appellant had engaged in professional misconduct and
ordered a reprimand and revocation of his certificate of registration. The
Divisional Court stayed the Discipline Committees decision to revoke the
appellants certificate of registration pending appeal, but on September 9,
2019, dismissed the appellants appeal of the Discipline Committees decision.
On October 10, 2019, this court stayed the revocation pending the determination
of this appeal.
THE LEGISLATION
[16]
The relevant legislative provisions of the
Code
are set out below.
Sexual abuse of a patient
1(3) In this Code,
sexual abuse of a patient by a
member means,
(a) sexual intercourse or other
forms of physical sexual relations between the member and the patient,
(b) touching, of a sexual nature,
of the patient by the member, or
(c) behaviour or remarks of a
sexual nature by the member towards the patient.
Exception
, spouses
1(5) If the Council has made a
regulation under clause 95(1)(0.a), conduct, behaviour or remarks that would
otherwise constitute sexual abuse of a patient by a member under the definition
of sexual abuse in subsection (3) do not constitute sexual abuse if,
(a) the patient is the members
spouse; and
(b) the member is not engaged in
the practice of the profession at the time the conduct, behaviour or remark
occurs.
(6) For the purposes of subsections
(3) and (5),
spouse, in relation to a member,
means,
(a) a person who is the members
spouse as defined in section 1 of the
Family
Law Act
, or
(b) a person who has lived with
the member in a conjugal relationship outside of marriage continuously for a
period of not less than three years.
Professional misconduct
51(1) A panel shall find that a
member has committed an act of professional misconduct if,
(b.1) the member has sexually
abused a patient; or
(c) the member has committed an
act of professional misconduct as defined in the regulations.
(5) If a panel finds a member has
committed an act of professional misconduct by sexually abusing a patient, the
panel shall do the following in addition to anything else the panel may do
under subsection (2):
1. Reprimand the member.
2. Suspend the members certificate
of registration if the sexual abuse does not consist of or include conduct
listed in paragraph 3 and the panel has not otherwise made an order revoking
the members certificate of registration under subsection (2).
3. Revoke the members
certificate of registration if the sexual abuse consisted of, or included, any
of the following:
i. Sexual intercourse.
THE DECISIONS BELOW
The Discipline Committees decision
[17]
The Discipline Committee concluded that there
was no significant change in the law that would warrant deviating from the
decision of this court in
Mussani
, which upheld the constitutionality
of the mandatory registration revocation provisions. That being so, the agreed
statement of facts required a finding of professional misconduct.
[18]
The Committee ordered the appellants certificate
of registration revoked and issued the following reprimand:
One of the rules that the Ontario legislature
has enacted for health professionals is that they cannot have a concurrent
sexual relationship with a patient they are treating. This policy of zero
tolerance is backed up by mandatory revocation of the certificate of
registration of the health professional. It is not discretionary. In your
circumstances, where you were involved in a consensual spousal relationship, it
appears a harsh penalty. In the societal interest of preventing
sexual abuse, this penalty can be avoided by dental hygienists, like other
health professionals, by ensuring that they comply with the rule of not engaging
in a sexual relationship with a client/patient. While we are sympathetic to
your personal situation, our hands are tied by a strong legal rule designed to
protect patients. You have paid a heavy price for breaking the rule. We
sincerely hope to see you again as an active member of the dental hygiene
profession.
The Divisional Courts decision
[19]
The Divisional Court dismissed the appellants
appeal from the Committees decision. The court held, based on
Mussani
,
that the appellant has neither a constitutionally protected right to engage in
sexual relations with a patient nor a right to practice as a dental hygienist.
The court held, further, that the imposition of professional consequences as a
result of the appellants breach of the
Code
did not engage the right
to liberty or security of the person under s. 7 of the
Charter
, which
does not protect economic interests, citing
R. v. Schmidt
, 2014 ONCA
188, 119 O.R. (3d) 145, at paras. 37-38, leave to appeal refused, [2014] S.C.C.A.
No. 208. Nor did the mandatory revocation provisions engage security of the
person by preventing access to health care, as the law did not involve state
intrusion into bodily integrity or create significant delays in obtaining
health care. The court concluded that the prohibition would not be considered
overbroad under s. 7 in any event, again applying
Mussani
.
[20]
The Divisional Court also rejected the argument
that mandatory revocation constituted cruel and unusual treatment within the
meaning of s. 12 of the
Charter
. The court applied this courts
decision in
Mussani
in holding that mandatory revocation of
registration did not constitute treatment within the meaning of s. 12 and would
not be considered cruel or unusual in any event, as it was neither so excessive
as to outrage the standards of decency nor grossly disproportionate to what was
appropriate in the circumstances. The court concluded, further, that the combined
effect of mandatory revocation and publication of the appellants discipline
history did not constitute cruel and unusual treatment.
[21]
The Divisional Court rejected the argument that
there had been a significant change in circumstances since the decision in
Mussani
had been released, such that the decision should be revisited.
DISCUSSION
[22]
The appellant argues that the
Code
s
zero-tolerance scheme infringes s. 7 and/or s. 12 of the
Charter
and
that
Mussani
must be distinguished or overruled. In the alternative,
the appellant says that the court should revisit its decision in
Leering
to give effect to what he submits was the Legislatures intent: to prohibit sexual
abuse of patients while permitting regulated health professionals to treat
their spouses in circumstances where sexual abuse is not present.
[23]
The first question that must be addressed is
whether the courts decision in
Leering
is correct. If it is not, it
is unnecessary to address the
Charter
arguments.
Leering
remains good law
[24]
Leering
involved a chiropractor who was living with the complainant in a conjugal
relationship when he began treating her as a patient. He treated her 28 times
during the course of their relationship, which lasted for under 12 months, and
billed her for the treatments. A dispute over fees owing at the end of the
relationship led to a complaint to the College, which determined that the
chiropractor should be charged with sexual abuse. The Discipline Committee of
the College of Chiropractors found the chiropractor guilty of sexual abuse and
imposed the mandatory penalty of revocation of registration. The Divisional
Court reversed the decision on appeal, holding that the Discipline Committee
was required to inquire into whether the sexual relationship arose out of a spousal
or professional relationship in order to determine whether there was sexual
abuse.
[25]
The Court of Appeal held that the Divisional
Court erred by imposing an obligation on the Discipline Committee to inquire
into the nature of the parties sexual relationship. As Feldman J.A. explained,
at para. 37:
The disciplinary offence of sexual abuse is
defined in the
Code
for the purpose of these proceedings as the
concurrence of a sexual relationship and a healthcare professional-patient
relationship. There is no further inquiry once those two factual determinations
have been made.
[1]
[26]
The appellant argues that the Legislature overruled
Leering
by amending the
Code
in 2013 to authorize individual
colleges to enact regulations permitting practitioners to treat their spouses.
Although the spousal exception regulation for dental hygienists was not in
place when treatment in this case took place, the appellant says that the Legislatures
clear rebuke of
Leering
means that the decision ought to be revisited
in order to give the Discipline Committee the discretionary authority to
determine whether treatment of a spouse involves actual sexual abuse. On any
reasonable view, the appellant asserts, the concerns about exploitation of a
power dynamic or the inducement of consent simply do not arise where the
professional and patient are in a pre-existing spousal relationship. Moreover,
the appellant argues, the mandatory revocation provisions were never intended
to apply to a member who, on a limited basis, treats his or her spouse or
romantic partner where the romantic relationship preceded any treatment
rendered.
[27]
This argument must be rejected. In essence, it
invites the court to convert the bright-line rule prohibiting sexual
relationships into a standard requiring the nature and quality of sexual
relationships between practitioners and patients to be evaluated to determine
whether discipline is warranted in particular circumstances. It finds no
support in the language of the
Code
and would frustrate its clear
purpose. Moreover, it begs the question by assuming that no concerns arise in
the context of pre-existing sexual relationships, regardless of the nature or
duration of those relationships.
[28]
The
Code
is clear when it comes to
sexual relationships. It is neither ambiguous nor vague. Professional
misconduct is established once sex occurs between a member of a regulated
health profession and a patient. That the misconduct is termed sexual abuse
neither mandates nor permits an inquiry as to the nature of a sexual
relationship. The Legislature did not prohibit only sexual relationships that
are abusive, leaving it to disciplinary proceedings to determine what
constitutes abuse; it prohibited sexual relationships between regulated health
practitioners and their patients
per se
. This approach obviates the
need for discipline committees bodies composed of health care professionals
and laypeople to inquire into the nature of sexual relationships and whether,
as the appellant would have it, they give rise to actual sexual abuse because
they arise out of coercion or exploitation. Justice Feldmans observation in
Leering
, at para. 41,
remains apt:
The discipline committee of the College has
expertise in professional conduct matters as they relate to chiropractic
practice. Their expertise is not in spousal relations or dynamics, nor would it
be fruitful, productive or relevant to the standards of the profession for the
committee to investigate the intricacies of the sexual and emotional
relationship between the professional and the complainant. That is why the
Code
has defined the offence in such a way that the fact of a sexual relationship
and the fact of a doctor-patient relationship are what must be established.
[29]
The purpose of the rule-based approach
established by the
Code
is to avoid any doubt or uncertainty by
establishing a clear prohibition that is easy to understand and easy to follow.
Sexual relationships with patients are forbidden and members of the regulated
health professions must govern themselves accordingly, regardless of whether
the rule seems harsh or unfair in their personal circumstances.
[30]
Rules may be subject to exceptions, of course,
but the Legislatures decision to amend the
Code
to permit colleges to
establish a spousal treatment exception cannot be taken to have overruled
Leering
.
On the contrary, it acknowledged the decision while permitting individual
colleges to mitigate the strictures of the rule by adopting a narrow and
specific exception if they consider it appropriate to do so. And while that
exception has since been adopted by the College of Dental Hygienists, it came
into effect only
after
the appellant provided the treatment that gave
rise to the finding of misconduct in this case. The appellant was required to
comply with the rule prohibiting sexual relationships with patients at all
relevant times even after he and S.M. married.
[31]
That said, it is important to clear up a
misconception that underlies the decisions of both the Committee and the
Divisional Court, as well as the appellants submissions, all of which use the
term spouse without regard to its definition in s. 1(6) of the
Code
.
[32]
As I have said, that definition is narrow and
specific. It requires either (i) marriage or (ii) cohabitation in a conjugal
relationship
for a
minimum period of three years
.
In
other words, the exception applies only to sexual relationships of some
permanence. Even if the exception had been in effect when he treated S.M.
during their cohabitation in a conjugal relationship prior to their marriage, the
appellant would have been in violation of the rule because that relationship had
not run for the required three-year period.
[33]
The appellants marriage to S.M. does not have
retrospective effect, nor does it operate to render the definition of spouse
irrelevant in the application of the exception. Treatment cannot be given to
sexual partners outside the context of a spousal relationship, as defined by
the
Code
, regardless of whether marriage occurs subsequently.
[34]
In summary, the decision of this court in
Leering
remains good law. The Committees decision that the appellants actions
violated the
Code
is correct. Even if it had been in force at the
relevant time, the spousal exception would not have operated to excuse the
appellants pre-marital treatment of S.M. after they began their sexual
relationship. And because it was not in force, the spousal exception did not
excuse the appellants post-marital conduct either.
Mussani
remains good law
[35]
In
Mussani
this court held that there
is no constitutional right to practice a profession and that the penalty of
mandatory revocation of a health professionals certificate of registration
affects an economic interest that is not protected by ss. 7 or 12 of the
Charter
.
Security of the person was not engaged by the revocation of registration regardless
of the stress, anxiety, and stigma to which disciplinary proceedings inevitably
give rise in the context of sexual abuse allegations, nor was a liberty right
engaged. The court concluded that the provisions of the
Code
were in
accordance with the principles of fundamental justice in any event. Further,
the court held that revocation of registration does not constitute punishment
or treatment and that, even if it did, it would not be considered cruel and
unusual as it is neither so excessive as to outrage standards of decency nor
grossly disproportionate to what is appropriate in the circumstances.
[36]
Although the Supreme Court has made clear that
s. 7 of the
Charter
is not limited to the criminal law context and, in
particular, to legal rights in that context, the application of the right outside
the criminal law and the administration of justice has been limited. The
generality of the rights that engage the protection of the principles of
fundamental justice life, liberty, and security of the person does not mean
that all laws necessarily trigger the application of s. 7. Thus, the right to
liberty is not to be understood as a
prima facie
freedom from any
restraints on action as though it protects a right to do whatever one wants.
As Newman and R
é
gimbald point
out in
The Law of the Canadian Constitution
, 2nd ed. (Toronto:
LexisNexis, 2017) at §23.28, it protects only those fundamental choices
concerning which individuals have a genuine and legitimate claim grounded in
the values of human autonomy and dignity. It is a protection of the fundamental
and not the petty and of that which is rightfully claimed rather than what
someone merely asserts to be important. And while security of the person has
been found to embrace psychological as well as physical security of the person,
such that it includes bodily integrity and the choices relevant to bodily
integrity, including serious psychological stress, as I will explain these concepts
remain limited and it is clear that they do not extend to the economic
interests advanced by the appellant, as this court held in
Mussani
.
[37]
The appellant submits that
Mussani
is
based on outdated case law that has been supplanted by an expansive interpretation
of the liberty interest in s. 7. However, the appellants argument focuses on
security of the person. He submits that the court must consider whether the
permanent notation of the details of a finding of sexual abuse on the
appellants record, and the requirement to publicize those findings a
requirement added in 2007 engages the right to security of the person in a
manner that was not considered in
Mussani
.
[38]
The appellant says that the issue is properly characterized
not as whether s. 7 protects a positive right to practice a profession
unfettered by standards and regulations, but instead, as whether it encompasses
the negative right not to be deprived of a state-granted privilege to practice
a profession except in accordance with the principles of fundamental justice. The
appellant argues that psychological stress flows directly and automatically
from the revocation of registration, and that this stress should be considered
analogous to the possibility of the removal of a child, which was held to have
engaged security of the person in
New Brunswick (Minister of Health and
Community Services) v. G.(J.)
, [1999]
3 S.C.R. 46
.
[39]
These arguments must be rejected.
[40]
The basic holding in
Mussani
is
supported by what the Attorney General aptly describes as an unbroken line of
authority from the Supreme Court of Canada confirming that s. 7 of the
Charter
does not protect the right to practice a profession or occupation, an example
of what that court has described as pure economic interests. The cases
include
Walker v. Prince Edward Island
,
[1995] 2 S.C.R. 407,
in which the Court summarily affirmed the decision of the Prince Edward
Island Court of Appeal that s. 7 does not protect the right to practice a
profession (in that case, public accounting) and
Siemens v. Manitoba
(Attorney General)
,
2003 SCC 3, [2003] 1 S.C.R. 6, at para. 45, in
which the Court held that s. 7 encompasses fundamental life choices, not pure
economic interests (in that case, the ability to generate business revenue by
ones chosen means).
[41]
Nor is there a common law right to practice a
profession free of regulation. As the Court held in
Green v. Law Society of
Manitoba
, 2017 SCC 20, [2017] 1 S.C.R.
360
, at para. 49, the right to practice a profession (in that case,
law) is a statutory right an important right, to be sure, but a right that is
subject to adherence to the governing legislation and rules made under it. There
is no common law, proprietary or constitutional right to practice medicine, as
this court reiterated in
Christian Medical and Dental Society of Canada v.
College of Physicians and Surgeons of Ontario,
2019 ONCA 393, 147 O.R. (3d) 444, at para. 187
.
[42]
In my view, the holdings in these cases extend
to all the regulated health professions. Revocation of the appellants certificate
of registration for violating the
Code
engages neither the right to
liberty nor the right to security of the person.
[43]
The appellants attempt to repackage the
Charter
argument by expressing the claim negatively rather than positively arguing
that this case is concerned with the negative right not to be deprived of his
state-granted privilege to practice his profession, rather than the positive
right to practice his profession neither distinguishes nor undermines
Mussani
.
Mussani
was concerned with the loss of professional registration, and
security of the person is not engaged whether the claim is packaged negatively
or positively. Rather, security of the person is engaged when there is either
interference with bodily integrity and autonomy or serious state-imposed
psychological stress:
Carter v. Canada (Attorney General)
, 2015 SCC 5, [2015] 1 S.C.R. 331,
at
paras. 66-67. Neither has occurred in this case.
[44]
Publication of the decision to revoke the
appellants certificate of registration for sexual abuse does not alter the analysis.
Professional discipline is stressful, to be sure, but it does not give rise to
constitutional protection on that account. In
Blencoe v. British Columbia
(Human Rights Commission)
, 2000 SCC
44, [2000] 2 S.C.R. 307,
and in
G.(J.)
,
the Supreme
Court articulated the need for a serious and profound effect on a persons
psychological integrity before security of the person is engaged:
Blencoe
,
at para. 81;
G.(
J
.)
, at para. 60. The threshold was crossed in
G.(J.)
because a mother was facing the possibility that the state would sever her
relationship with her child. This is a profound interference with family
autonomy and decisions taken in the context of regulating health care
practitioners pale alongside it.
[45]
In saying this, I do not mean to minimize the
significance of professional discipline. But s. 7 does not apply simply because
legislation gives rise to serious consequences. Psychological integrity is a
narrow and limited concept, and the right to security of the person is engaged only
if there is a serious and profound effect on psychological integrity. The matter
is to be judged on an objective basis, having regard to persons of ordinary
sensibilities. It is irrelevant whether state action causes upset, stress, or
worse. There must be a serious and profound impact on psychological integrity before
the protection of s. 7 is engaged. Nothing in this case suggests that this
threshold has been crossed, nor has the appellant proffered any basis for this
court to revisit that threshold.
Revocation of registration is not inconsistent with the
principles of fundamental justice
[46]
Given that the rights protected by s. 7 are not
engaged by the discipline process, it is unnecessary to determine whether
mandatory revocation is contrary to the principles of fundamental justice. But
for completeness, I am satisfied that it is not.
[47]
The appellant argues that the impugned provisions
are overbroad. The test for overbreadth is whether the law goes too far and
interferes with some conduct that bears no connection to its objective:
Canada
(Attorney General) v. Bedford
, 2013
SCC 72, [2013] 3 S.C.R. 1101,
at para. 101; reiterated in
Carter
,
at para. 85. As the Court explained in
Carter
,
the test is not whether the legislature has chosen the least restrictive means;
it is whether the chosen means infringe life, liberty or security of the
person in a way that has
no connection with the mischief contemplated by
the legislature
: at para. 85 (emphasis added).
[48]
This is a difficult test to meet and it is not
met in this case. Indeed, as the Attorney General notes, the
Code
is
more narrowly tailored than it was when
Mussani
was decided; it now
includes a spousal exception, which colleges can choose to adopt, and in
addition the regulations have been amended to remove the provision of minor or
emergency treatment from the prohibition: see
Code
, s. 95(1)(0.a);
Regulated Health Professions Amendment Act (Spousal Exception)
, 2013,
S.O. 2013, c. 9, s. 2; and
Patient Criteria Under Subsection 1 (6) of the
Health Professions Procedural Code
, O. Reg. 260/18, s. 1.2. Subject to
these exceptions, the law establishes a zero-tolerance policy concerning
treating relationships that are sexual.
[49]
The
Code
s
rule-based approach
is connected to the Legislatures purpose in prohibiting sexual abuse of
patients. It assures patients that their relationships with health care
providers will not become sexualized that they will not have to negotiate a
sexualized atmosphere in seeking health care. Plainly, it is within the
mischief contemplated by the Ontario Legislature and would not constitute
overbreadth within the meaning of s. 7.
The rights of the spouse are not engaged
[50]
For completeness, I would also reject the
appellants argument that the impugned provisions of the
Code
engage
the liberty or security of the person rights of spouses of health care
practitioners, an argument not addressed in
Mussani
. The appellant
argues that the
Code
engages the rights of spouses by forcing them to
choose between their spousal relationship and their place of residence, and by
requiring them to travel to seek treatment rather than be treated by their
health practitioner spouses.
[51]
It is not clear that it is appropriate to
address this argument in the context of this case, which concerns the rights of
practitioners rather than spouses. But in any event, I see no merit in the
argument. Even assuming (without deciding) that the rights of spouses under s.
7 of the
Charter
are engaged in the present context, on the facts here
travelling for health care treatment would constitute an inconvenience rather
than an infringement of liberty or security of the person. The appellant draws
a long bow in likening this case to
R. v. Morgentaler
, [1988] 1 S.C.R.
30, in which access to abortion was criminalized but permitted subject to
compliance with a regulatory scheme that operated differently across the
country. The inconvenience posited by the appellant in this case is minor, if
not trivial. And to the extent that a health care professional provides care that
is minor in nature or is required on an emergency basis, it is permitted on the
basis that it does not establish a practitioner-patient relationship. In short,
nothing in this case rises to the level of an infringement of s. 7 from
the perspective of the spouse of a practitioner.
The fresh evidence application
[52]
The respondent brings a fresh evidence
application designed to demonstrate that there was no factual basis for the
argument that S.M. would have suffered stress and anxiety if not treated by the
appellant. In light of the rejection of the appellants s. 7 argument, the
fresh evidence could not be expected to have affected the result in this case
and I would not admit it.
Revocation of registration does not infringe section 12 of
the
Charter
[53]
The appellant argues that the rejection of a s.
12 breach in
Mussani
was premised on the erroneous rejection of the
very facts of this case as a reasonable hypothetical, because the court did not
think these circumstances were possible. Further, the appellant says, the
combined effect of mandatory revocation of registration and the permanent
notation on the public register constitutes cruel and unusual treatment.
[54]
The appellants submissions founder at the first
stage of the inquiry. Although treatment may extend the protection of s. 12
beyond instances of punishment and other state action associated with the
criminal law that affects individuals, there is no authority supporting the
premise that professional regulation constitutes treatment within the meaning
of s. 12. I see no basis for concluding that regulation of the health care
professions is subject to s. 12, and no basis for concluding that it would meet
the very high bar established by the Supreme Court in any event.
[55]
Contrary to the appellants argument, this court
did not reject the very facts of this case as a reasonable hypothetical in
Mussani
.
The hypothetical in
Mussani
at para. 101 was premised on the
provision of
incidental
care to a spouse, which the court considered
unlikely to establish a physician/patient relationship. Moreover, Blair J.A. rejected
the argument that the law wrongly included relationships that began during the
course of treatment, as occurred in this case. As he explained at para. 79:
The fact that an intimate sexual relationship
which began during treatment may blossom into a truly loving one but still lead
to revocation of a health professionals certificate of registration, does not
necessarily make the Mandatory Revocation Provisions unconstitutionally broad,
in the sense that they overshoot the legislative objectives. The health
professional need only terminate the treatment relationship to avoid the
problem. The issue is whether the means chosen by the Legislature mandatory
revocation of the certificate of registration are overly broad
in
relation to the purpose of the legislation
.
If they are not, the legislature
has the right to make difficult policy decisions that may, in rare cases,
override what might otherwise be considered permissible conduct. [Emphasis in
original; citations omitted.]
[56]
The appellants argument that s. 12 is infringed
must be rejected.
Mussani
remains good law.
The relevance of the
Charter
and fairness concerns
[57]
Rejection of the appellants
Charter
arguments does not mean that health care practitioners do not enjoy the
protection of the
Charter
. It means only that revocation of the
appellants certificate of registration does not limit his rights in either ss.
7 or 12 of the
Charter
. The severity of the impact of this regulatory penalty
on the appellant does not alter this analysis.
[58]
In answer to a question from the panel during
the hearing of the appeal, the appellant invited the court to stay the decision
of the Discipline Committee pursuant to s. 106 of the
Courts of Justice Act
,
R.S.O. 1990, c. C.43, even if it upheld the decisions in
Leering
and
Mussani
,
on the basis that it was harsh or unfair. In effect, the court was invited to
nullify the legislation.
[59]
The short answer to this invitation is no. The
court cannot refuse to give effect to the lawful decision of an administrative
tribunal on the basis that it disapproves of the outcome in a particular case.
[60]
The courts power to stay a matter in s. 106 is
far more limited in nature: it is concerned with staying any proceeding in the
court, rather than the decisions of administrative tribunals, and is typically
invoked to stay judicial proceedings based on jurisdiction, convenience of
forum, choice of law or venue clauses, or pending criminal or civil proceedings
or arbitration. It is not available in this case. Nor is there any other basis
to refuse to give effect to the Discipline Committees decision. If the penalty
of mandatory revocation of a certificate of registration is considered unfair or
unwise, it is a matter for the Legislature to address.
CONCLUSION
[61]
In summary, as this court held in
Leering
,
the
Code
defines sexual abuse as the concurrence of a sexual
relationship and a health care professional-patient relationship. And as this
court held in
Mussani
, neither this definition nor the penalty of revocation
of registration establishes limits on either s. 7 or s. 12 of the
Charter
.
It follows from the dismissal of the appeal that the decision of the Discipline
Committee must be given effect.
[62]
I would dismiss the appeal and award the
respondent costs in the agreed amount of $5,000, all inclusive.
Released: July 5, 2021 K.F.
Grant Huscroft
J.A.
I agree. K.
Feldman J.A.
I agree. J.C.
MacPherson J.A.
I agree. R.G.
Juriansz J.A.
I agree. M.
Jamal J.A.
[1]
The Court acknowledged that there was some room for interpretation
when it comes to whether or not a complainant was a patient of the health care
practitioner, involving cases of incidental treatment, an issue not relevant in
this case.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Debassige, 2021 ONCA
484
DATE: 20210702
DOCKET: C66290
Watt, Benotto and Jamal JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Daniel Debassige
Appellant
Richard Litkowski and Jessica Zita
, for the appellant
Gregory J. Tweney
, for the respondent
Heard: March 4, 2021 by video conference
On appeal from the
conviction entered by Justice W. Danial Newton of the Superior Court of
Justice, sitting with a jury, on May 25, 2017.
Watt J.A.:
[1]
A few days before Christmas, Monica Spence and
Daniel Debassige (the appellant) were drinking wine at Richard Spence's (the
deceased) apartment in Thunder Bay. Feeling the effects of the wine and percs
she had consumed over several hours, Ms. Spence lay down on the deceased's bed.
She was fully clothed.
[2]
Sometime later, Ms. Spence was awakened by
someone pounding at the apartment door. The deceased was on top of her. They were
on the living room couch. Ms. Spence had no clothes on below her waist. Apparently,
no one else was in the apartment.
[3]
Ms. Spence pushed the deceased off her. She
punched and kicked him. She tried to escape. The deceased tried to prevent her
from leaving his apartment. Ms. Spence did escape. She ran out of the
apartment, naked from the waist down.
[4]
Later the same day, the deceased was found dead
on the floor in his bedroom. A police investigation followed. Ms. Spence and
the appellant were charged with second-degree murder.
[5]
Ms. Spence and the appellant were tried
together. The jury found Ms. Spence guilty of manslaughter and the appellant
guilty of second-degree murder.
[6]
The appellant appeals against his conviction.
The reasons that follow explain why I would dismiss the appeal and affirm the
conviction.
The Background Facts
[7]
The principal grounds of appeal allege errors in
the charge to the jury. Those grounds do not require an elaborate recitation of
the evidence adduced at trial. However, the appellant also contends that the
jury's verdict was unreasonable. A brief overview of the essence of the case as
it unspooled before the jury will provide the background necessary to
understand the claims of error advanced.
The Principals
[8]
The appellant and his co-accused, Ms. Spence,
had been in a relationship for several years. Ms. Spence had known the deceased
for nearly two decades, and she often drank alcohol with the deceased, together
with several others.
[9]
Evidence was introduced at trial that the
deceased had sexually assaulted Ms. Spence several years before his death. In
her testimony at trial, Ms. Spence explained that she had put those previous
events behind her and had forgiven the deceased, who had admitted his
responsibility.
The Morning Visit
[10]
Ms. Spence and the appellant had sexual
intercourse on the morning of December 20, 2014. The appellant did not wear a condom.
Ms. Spence then called the deceased. She asked the deceased whether he had bus
fare for her and the appellant. The deceased agreed to provide it.
[11]
The appellant and Ms. Spence went to the
deceased's apartment later that morning. The deceased gave the couple four
dollars. He also offered them something to drink. Later that morning, a cousin
of the deceased called. He and the deceased spoke on the phone. The cousin also
spoke with Ms. Spence. He heard another male voice, not that of the deceased,
in the background.
The Afternoon
[12]
As morning gave way to afternoon, the deceased, Ms.
Spence and the appellant continued to drink wine in the deceased's apartment. Ms.
Spence had been to the apartment several times previously, but this was the
first time the appellant had been there. Ms. Spence also consumed some percs.
[13]
At some point, the appellant left the deceased's
apartment. Ms. Spence remained there. She and the deceased were alone.
Monica Spence Becomes Intoxicated
[14]
During the afternoon, Ms. Spence began to feel wobbly
as she stood up in the deceased's apartment. She fell and struck her head on
the table. Her nose began to bleed. She decided to lie down. She went into the
deceaseds bedroom and lay down on the bed. She was fully clothed. She passed
out.
The Awakening
[15]
Sometime later, a banging on the door to the
deceased's apartment awakened Ms. Spence. She was no longer on the bed in the
deceased's bedroom. She was no longer wearing all her clothes. She was on the
couch in the deceased's living room. She was naked from the waist down. And the
deceased was on top of her.
The Altercation
[16]
Ms. Spence pushed the deceased off her onto the
floor. She punched and kicked him. She tried to escape. The deceased tried to
prevent her from escaping. The struggle continued.
The Dark Figure
[17]
As Ms. Spence made her way to and through the
door to the deceased's apartment, she saw a dark figure standing outside the
door. She did not recognize this person. It appeared to be a man. It could have
been the appellant. But she was not sure.
The Escape
[18]
When Ms. Spence fled from the apartment, the
deceased remained inside and alive. As she left the building, Ms. Spence was
naked from her waist down. It was December 20, 2014. In Thunder Bay.
The Appellant and Ms. Spence Meet
[19]
At some point later, Ms. Spence met the
appellant outside an Italian bar, a short distance from the deceased's
apartment. The appellant did not say how he came to be outside the bar. The
appellant did not ask Ms. Spence, his partner, why she was wearing no clothes
from her waist down.
The Finding of the Deceased
[20]
Edward Finlayson, a lifelong friend of the
deceased, had been at the local casino. He walked over to the deceased's
apartment so he could go to sleep. He knocked on the apartment door and called
out to the deceased. He got no response. He checked a local bar the deceased
frequented. Again, no sign of the deceased.
[21]
Mr. Finlayson returned to the deceased's
apartment. He knocked again, then tried the door. It was unlocked. He went
inside. He walked to the fridge to get a drink. He saw a trail of blood. Then
he thought he saw the deceased on the bedroom floor. He left the apartment to
return to the casino in search of the police.
[22]
At the casino, Mr. Finlayson encountered a
cousin of the deceased, and the two of them located the deceaseds sister. Mr.
Finlayson explained what he had seen at the deceaseds apartment. The
deceaseds sister called 911, and the three of them drove to the deceased's
apartment. They went inside.
[23]
Inside the apartment, the deceased's cousin
noticed liquor bottles and blood on the floor. He and the deceaseds sister
went into the bedroom. There they saw the deceased, face down on the floor. His
pants were down. He was unresponsive. Emergency personnel arrived.
The Admissions of the Appellant
[24]
Ellen Marratt lived near the appellant. She had
known the appellant and Ms. Spence for over three years. As she was outside her
home smoking a cigarette, the appellant walked by. It was the evening of
December 20, 2014. They greeted each other briefly. The appellant then said
that he had killed a rapist. Ms. Marratt did not believe the appellant, nor ask
him any questions about what he had said.
[25]
A second witness gave similar evidence. Diane
Hanson and the appellant lived in the same boarding house. She testified that in
the afternoon on the day the deceased was killed, the appellant returned home.
He told Ms. Hanson that he had killed a rapist. He said he had entered the
deceased's apartment. There he saw the deceased and Ms. Spence, both in a state
of undress. He then got into an altercation with the deceased. The appellant
then left the boarding house.
[26]
Later the same day, the appellant returned to
the boarding house. Ms. Spence was with him. She was intoxicated and had blood
on her nose. Ms. Hanson heard the appellant say to Ms. Spence, [N]obody was,
he was never gonna touch her, or her grandchildren, or her daughter, or
whatever, again. Ms. Hanson did not provide this information to the police
during any of three interviews. She only did so around the time of the
appellant's arrest.
The Admissions of Ms. Spence
[27]
The jury also heard evidence of some admissions
that witnesses attributed to Ms. Spence. While not admissible against the
appellant at their joint trial, these admissions provide some background to the
narrative of events.
[28]
Donald Churchill was a friend of both Ms. Spence
and the deceased. He had met the appellant a few times. He called Ms. Spence when
he saw police officers outside the deceased's apartment. Ms. Spence came over
to Mr. Churchill's apartment.
[29]
Mr. Churchill testified that Ms. Spence said, Don,
I think, um, that was me that did it to, uh, Richard. Ms. Spence explained
that she woke up with the deceased on top of her, sexually assaulting her. She
pushed, punched and kicked the deceased before fleeing the apartment. When she
left, the deceased was coherent, yelling at her as she fled.
[30]
Christine Churchill is Mr. Churchill's sister.
She spoke to Ms. Spence after Ms. Spence had talked to her brother. Ms. Spence
said that she woke up with her pants off, but she did not say whether she had
been sexually assaulted. Later, Ms. Spence indicated that she had stomped on
the deceased's head or something.
The Forensic Evidence
[31]
A forensic biologist examined samples of body
fluids found at or on items located at the scene of the deceased's death. The
appellant could not be excluded as the source of DNA found in blood smears
located on pillars leading into the deceased's apartment. Nor could he be
excluded as the source of semen located in boxer shorts from Ms. Spence or a
penile swab taken of the deceased. These latter findings could have been the
result of transfer from Ms. Spence, with whom the appellant had engaged in
unprotected sex before the couple arrived at the deceased's apartment.
[32]
A bloodstain pattern analyst, who reviewed
photographs of the scene and reports from investigators who had attended there,
explained that patterns of staining found on the floor, door, walls and sheets
revealed that the deceased was likely struck where his body was found.
The Cause of Death
[33]
A forensic pathologist concluded that the
deceased died from blunt impact facial trauma with aspiration of blood. The
deceased was in a state of acute ethanol intoxication when he died, as well as
coronary artery, or coronary atherosclerotic and hypertensive heart disease. At
death, the deceased's blood alcohol concentration was 270 mg of alcohol in 100
ml of blood. A person with such a blood alcohol concentration might stagger and
be lethargic.
[34]
The deceased had suffered 74 separate injuries,
two-thirds of which were to his neck and head. There was an extensive
hemorrhage from his left temple and a small hemorrhage to the right side of his
brain. Some of the injuries could have been caused by a fall, but neither a
single fall nor several falls could explain all the injuries, especially those
around his head.
The Grounds of Appeal
[35]
The appellant urges five grounds of appeal. He
contends that the trial judge erred:
i.
in instructing the jury on the statutory partial
defence of provocation in accordance with a provision that was inapplicable to
the offence charged;
ii.
in failing to instruct the jury in express terms
that intoxication negates the fault element required to be proven to make an
unlawful killing murder;
iii.
in failing to fully and fairly put the defence position to the jury;
and
iv.
in failing to provide a
W.(D.)
instruction
with respect to the appellant's defence.
[36]
The final ground of appeal is that the verdict
of the jury was unreasonable.
Ground #1: The Jury Instruction on Provocation
[37]
This ground of appeal does not require any
further reference to the evidence adduced at trial. A snapshot of the recent
procedural history of s. 232(2) of the
Criminal Code
, R.S.C. 1985, c. C-46
is sufficient
prelude for what follows.
The Procedural Background
[38]
The offence charged was alleged to have occurred
on December 20, 2014. At that time, the provoking conduct requirement in s.
232(2) of the
Criminal Code
was expressed as [a] wrongful act or an insult.
Neither constituent was defined in or for the purposes of the provision.
[39]
On July 17, 2015, an amendment to s. 232(2) came
into force. It replaced [a] wrongful act or an insult with [c]onduct of the
victim that would constitute an indictable offence under this Act that is
punishable by five or more years of imprisonment. The objective and subjective
standards or tests in the subsection remained unchanged. The amending
legislation contained no transitional provisions with respect to s. 232:
Zero
Tolerance for Barbaric Cultural Practices Act
, S.C. 2015, c. 29.
[40]
The appellants trial was held in May 2017. At
the pre-charge conference, it was common ground that the instructions on
provocation should accord with the amended legislation. The charge, delivered
on May 24, 2017, followed this course.
The Charge to the Jury
[41]
In instructing the jury on provocation, the
trial judge described the provocative conduct as the deceaseds sexual assault
and unlawful confinement of Ms. Spence. He told the jury that both sexual
assault and unlawful confinement were indictable offences punishable by
imprisonment for five or more years.
[42]
No objection was taken to this or any other
aspect of the trial judges instruction on provocation.
The Arguments on Appeal
[43]
The appellant says that the trial judge erred in
instructing the jury on the post-amendment standard for provocative conduct. In
the absence of any contrary legislative provisions, the common law presumes
legislation does not apply retrospectively to events or conduct that occurred
before the legislation came into force. It is all the more so where the
legislation, as here, is substantive in nature. Like the legislation amending
the statutory justification of self-defence, this legislation amending the
statutory partial defence of provocation is, by nature, substantive. Absent a
specific statutory provision or a discernible legislative intent of Parliament
to have the legislation apply retrospectively, the legislation applies
prospectively only. In this case, that means that the trial judge erred in
charging the jury based on the amended legislation, as the relevant events took
place before the amending legislation came into force.
[44]
This error, the appellant continues, was
prejudicial to the defence at trial. The new standard for provocative conduct
is much narrower than the former, more limitative of the range of conduct that
may engage the defence. In this case, the Crown did not accede to the defence
assertion that a sexual assault had occurred, thus leaving the issue at large
for the jury to decide.
[45]
The respondent acknowledges that the trial judge
erred in instructing the jury on the post-amendment standard for provocative
conduct. But, the respondent says, this error caused the appellant no prejudice
in the circumstances of this case.
[46]
The respondent asks us to recall the defence
position as advanced in the closing address of trial counsel. It had several
components. The deceased died by accident. The appellant was not there when the
deceased died. In the alternative, the appellant acted in lawful defence or
protection of his intimate partner, Ms. Spence, who was being sexually
assaulted by the deceased. Or in the further alternative, the appellant was
provoked by the deceased's sexual assault of Ms. Spence, such that his unlawful
killing of the deceased was manslaughter, not murder.
[47]
In this case, the respondent continues, the
trial judge told the jury that both sexual assault and unlawful confinement met
the standard required for provocative conduct. It would have been equally the
case had the standard been [a] wrongful act or an insult, as it should have
been. The critical question was whether this conduct, as alleged by Ms. Spence,
ever occurred and satisfied the objective standard for provocation. This would
have been no different had the correct characterization of the engaging conduct
been applied. The appellant suffered no prejudice.
The Governing Principles
[48]
Two sources of principle control our decision on
this ground of appeal. The first has to do with the temporal application of
amending legislation to existing prosecutions when Parliament has not enacted
any transitional provisions. The second concerns the nature and extent of the
amendment to the threshold standard for the statutory partial defence of
provocation.
[49]
As a matter of general principle, legislation
affecting substantive rights is presumed to have prospective effect unless it
is possible to discern a clear legislative intent that it apply
retrospectively. On the other hand, new procedural legislation designed to
govern only the manner in which rights are asserted or enforced, which does not
affect the substance of the rights, applies immediately to pending and future
cases:
R. v. Dineley
, 2012 SCC 58, [2012] 3 S.C.R. 272, at para. 10;
R.
v. Bengy
, 2015 ONCA 397, 325 C.C.C. (3d) 22, at para. 40.
[50]
The amendment in this case relates to the
statutory partial defence of provocation. In particular, the amendment alters
an essential element of the defence the threshold requirement of provocative
conduct. In place of the former [a] wrongful act or an insult, the amendment
substitutes a narrower range of conduct that may constitute provocation. The
objective and subjective standards the provocative conduct must meet remain the
same.
[51]
In recent years, Parliament also amended the
statutory justifications of self-defence and defence of property. A single
section for each replaced several provisions often criticized for their
complexity. As here, the amending legislation was bankrupt of any transitional
provisions. These amendments were held to be substantive in nature. Nothing in
the legislation suggested any intention on the part of Parliament to have the
legislation apply retrospectively. Thus, the presumption against retrospective
application applied and the amendments operated prospectively only:
Benjy
,
at paras. 50, 31, 67 and 71.
[52]
Turning to the nature and effect of the
amendments to s. 232(2) themselves.
[53]
Provocation is a statutory partial defence to
murder. When applicable, provocation reduces what otherwise would be murder to
manslaughter:
Criminal Code
, s. 232(1). Provocation, as a statutory
defence, has nothing to do with the mental or fault element in murder, since
murder must be proven first before the statutory partial defence can become
engaged:
R. v. Bouchard
, 2013 ONCA 791, 305 C.C.C. (3d) 240, at para. 60,
affd 2014 SCC 64, [2014] 3 S.C.R. 283;
R. v. McGregor
, 2019 ONCA 307,
145 O.R. (3d) 641, at para. 149.
[54]
The statutory partial defence of provocation
consists of three essential elements:
i.
provocative conduct;
ii.
an objective standard; and
iii.
a subjective standard.
The provocative conduct must satisfy
both the objective and subjective standards for the defence to reduce murder to
manslaughter.
[55]
The amendment to s. 232(2) with which we are
concerned relates to the provocative conduct element of the defence.
[56]
Under the now repealed s. 232(2), the provoking
conduct required to engage the defence was [a] wrongful act or an insult. Neither
wrongful act nor insult was defined. Despite the absence of clearly defined
boundaries for [a] wrongful act, however, no one would deny that the
commission of an indictable offence punishable by imprisonment for five years
or more by the victim would meet this standard. Whatever may be the outer
reaches of wrongful act, the term would seem to include an unlawful act, a criminal
offence under the
Criminal Code
.
[57]
The only change to the statutory partial defence
of provocation made by the amendment to s. 232(2) with which we are concerned
has to do with the threshold requirement of provocative conduct. Instead of [a]
wrongful act or an insult, the subsection requires conduct by the victim that
would constitute an indictable
Criminal Code
offence punishable by
imprisonment for five years or more. The balance of the section, which requires
that the provocative conduct meet both an objective and a subjective standard,
remains unchanged.
The Principles Applied
[58]
Despite my conclusion that the trial judge erred
in instructing the jury in the statutory partial defence of provocation, I
would not give effect to this ground of appeal. In the circumstances of this
case, the error was harmless.
[59]
The amendment to s. 232(2) substituted a new
formula for determining what constitutes provocative conduct for the purposes
of the statutory partial defence of provocation. This affects a substantive
right, the scope of a defence, albeit partial, to a charge of murder. Such an
amendment is, by nature, substantive. As a substantive provision, the amendment
is subject to the presumption against retrospective operation absent any
evidence of a legislative intention to the contrary. No such contrary intention
is suggested. None appears.
[60]
In the result, I agree with counsel on both
sides that the trial judge erred in instructing the jury in accordance with the
current version of s. 232(2), rather than its predecessor which required that
the provocative conduct be [a] wrongful act or an insult.
[61]
However, I am satisfied that in the
circumstances of this case, the error was harmless.
[62]
First, the nature of the allegedly provocative
conduct in this case.
[63]
The provocative conduct alleged in this case
consisted of the commission of two criminal offences: sexual assault and
unlawful confinement. When prosecuted on indictment, each is punishable on
conviction by a term of imprisonment of more than five years. As criminal offences,
the victims conduct would also constitute [a] wrongful act for the purposes
of the former s. 232(2). In other words, this is a case in which the allegedly
provocative conduct would have been left to the jury as the basis for the
partial statutory defence under the applicable version, the former s. 232(2).
[64]
Second, in his final instructions, the trial
judge told the jury that the allegations of sexual assault and unlawful
confinement amounted to conduct that constituted an offence punishable under
the
Criminal Code
by five or more years of imprisonment. The trial
judge went on to identify both the objective and subjective standards the
conduct must meet for the defence to reduce proven murder to manslaughter. The
instructions on those issues are not affected by the error in the provocative
conduct requirement and are not the subject of complaint here.
[65]
The trial Crown disputed that a sexual assault
or unlawful confinement had occurred and that it met either standard essential
to the statutory partial defence. But that dispute likely would have also
occurred had [a] wrongful act or an insult been the governing characterization.
That the applicable characterization was not applied caused no prejudice to the
appellant.
[66]
Third, trial counsel were provided ample
opportunity to review the proposed charge before it was delivered. No one
raised any objection about how the threshold issue the characterization of
provocative conduct itself was left to the jury.
[67]
In the result, what occurred here when the wrong
qualifying requirements of provocative conduct were left with the jury was
harmless error. The evidence adduced reveals no conduct beyond the alleged
sexual assault and unlawful confinement that would have been captured by [a]
wrongful act or an insult but was beyond the borders of the current
formulation.
Ground #2: The Instruction on Intoxication
[68]
The second ground of appeal also alleges a fatal
omission in the charge to the jury. As with the first ground of appeal, this
submission relates to an issue on which the trial judge instructed the jury.
But, unlike the first ground of appeal, the issue to which this claim of error
relates was not the focus of the multi-faceted position advanced to the jury by
trial counsel.
[69]
A brief reference to the charge to the jury will
furnish the background necessary to an understanding of the error alleged and
an assessment of its impact.
The Charge to the Jury
[70]
The trial judge instructed the jury on the mental
or fault element the Crown was required to prove beyond a reasonable doubt
before the appellant (or Ms. Spence) could be found guilty of second-degree
murder. The instruction included reference to the common-sense inference of
intention from conduct and the relationship between evidence of intoxication and
the availability of that inference in proof of the fault or mental element. The
trial judge made it clear that, in determining whether to draw the inference,
the jury was required to consider all the evidence, including evidence of
impairment and intoxication from drug and alcohol consumption.
[71]
The trial judge also devoted several pages of
the charge to intoxication. After repeating the fault element required to make
an unlawful killing murder, the trial judge instructed the jury in these terms:
To decide whether Crown counsel has proven
beyond a reasonable doubt that Monica Spence and or Daniel Debassige had the
state of mind required for second degree murder, you should take into account
the evidence about her and or his consumption of alcohol and drugs, along with
the rest of the evidence that throws light on her and or his state of mind at
the time the offence was allegedly committed.
[72]
The trial judge also included evidence of
alcohol and drug consumption, together with evidence of anger and instinctive
reaction, in a rolled-up instruction in connection with proof of the mental
or fault element required for murder.
The Arguments on Appeal
[73]
The appellant acknowledges that the trial judge
did instruct the jury on the issue of intoxication based on the evidence of Ms.
Spence about the consumption of alcohol and drugs over a period of several
hours on December 20, 2014. But the appellant says the instructions given were
deficient in that they failed to include an express direction that a finding
that the appellant was intoxicated when he unlawfully killed the deceased would
require the jury to return a verdict of manslaughter. This failure, despite the
inclusion of a rolled-up instruction, essentially deprived the appellant of a
manslaughter verdict.
[74]
The respondent accepts that the evidence adduced
warranted an instruction about the legal effect of evidence of intoxication on
proof of the mental or fault element required to establish an unlawful killing
as murder.
[75]
In this case, the respondent points out, the
trial judge provided counsel with copies of his proposed charge. Apart from
some minor comments about the use of footnotes, trial counsel for the appellant
and his co-accused were content with the proposed instruction. In these
instructions, the trial judge dealt with the obligation of the Crown to prove
the mental or fault element in murder in three ways. He explained the substance
of the element. He directed the jury to consider all the evidence, including
but not only evidence of intoxication, in determining whether the Crown had
proven the required fault element beyond a reasonable doubt. And he
specifically told the jury about the legal effect of evidence of intoxication
on proof of the fault element both on its own and as part of the combined
effect of several factors.
The Governing Principles
[76]
Three sources of principle help us assess this
ground of appeal.
[77]
The first involves the effect of evidence of an
accuseds intoxication on proof of the fault element in murder.
[78]
It is uncontroversial that a jury should be
instructed that they are to consider evidence of an accuseds consumption of
alcohol and drugs, together with evidence of the other circumstances
surrounding an unlawful killing, in deciding whether the Crown has proven the
mental or fault element required for murder beyond reasonable doubt:
R. v.
Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 48;
R. v. Robinson
,
[1996] 1 S.C.R. 683, at paras. 48-49.
[79]
It is commonplace for jurors to be instructed
that in deciding whether the mental or fault element in murder has been proven
beyond a reasonable doubt, they are entitled to rely on the common-sense
inference that a person intends the natural and probable consequences of their
acts. However, the jurors must also understand that the inference can only be
drawn after they have considered the whole of the evidence, including evidence
of the accused's consumption of alcohol and drugs:
Daley
, at para. 58;
R. v. Seymour
, [1996] 2 S.C.R. 252, at para. 23.
[80]
The second relates to the rolled-up instruction.
The purpose of the rolled-up instruction is to advise the jury not to take a
compartmentalized approach to the evidence by considering it only in connection
with a discrete defence, such as intoxication. The rolled-up instruction
ensures that the jury understands that the probative value of evidence, for
example of intoxication, is not spent simply because they reject the
substantive defence to which it relates. Insufficient on its own to raise a
reasonable doubt about proof of the mental or fault element in murder, evidence
of intoxication may gain sufficient strength, when combined with other
evidence, to do so:
Robinson
, at para. 59;
R. v. Phillips
,
2017 ONCA 752, 355 C.C.C. (3d) 141, at para. 155. No specific word formula need
be followed to convey this principle to the jury:
Phillips
, at para.
160.
[81]
The final point relates to the principles
governing appellate review of the adequacy of jury instructions.
[82]
Appellate courts are instructed to adopt a
functional approach in our review of jury instructions. Our purpose is to
ensure that the jury has been properly instructed, not perfectly instructed.
Instructions are proper if, when considered as a whole in the context of the
trial in which they were given, they leave the jury with an adequate
understanding of the applicable legal principles and the evidence relating to
the issues that require their decision:
R. v. Jacquard
, [1997] 1 S.C.R.
314, at paras. 2, 32 and 62;
Daley
, at para. 58. In assessing the
adequacy of the instructions, we may consider counsel's failure to object,
especially where the proposed instructions were provided to counsel in advance
of their delivery:
Jacquard
, at paras. 36-38.
The Principles Applied
[83]
I would reject this ground of appeal.
[84]
The trial judge explained to the jury the mental
or fault element the Crown was required to prove beyond a reasonable doubt
before the jury could find the appellant guilty of second-degree murder. The
judge explained this element in detail and emphasized that the jury was to
consider all the evidence in deciding this issue. This evidence, the trial
judge expressly pointed out, included evidence of intoxication from the
appellant's consumption of alcohol and drugs.
[85]
The trial judge defined for the jury the role of
the common-sense inference of intention in proof of the mental or fault element
in murder. He described the permissive nature of the inference and the
relationship between evidence of intoxication and the availability of the
inference in proof of this element.
[86]
In several pages of the charge, under the
heading Intoxication, the trial judge advised the jury of the legal effect of
evidence of intoxication on proof of the mental or fault element, the
distinguishing feature between murder and manslaughter. Intoxication was linked
to proof of the appellant's actual state of mind.
[87]
To ensure that the jury did not take a
compartmentalized approach to the evidence of intoxication, the trial judge
also included a rolled-up instruction with intoxication as one of its
components. This made it clear to the jury that even if evidence of
intoxication on its own did not raise a reasonable doubt about proof of the
essential mental or fault element, the jury understood that they had to decide
whether it did so when combined with other evidence.
[88]
Trial counsel was provided with the proposed
charge in advance. Neither then nor after delivery was any objection raised to
what is now said to have been a fatal omission.
Ground #3: Failure to Review the Position of the Defence
[89]
The appellant also contends that the trial judge
failed to adequately review the position of the defence as it was put forward
by trial counsel.
[90]
Although this ground of appeal does not require
any recitation of the evidence adduced at trial, it is informed by a brief
reference to the concluding moments of the trial when counsel discussed the
contents of the charge and addressed the jury and the trial judge delivered his
charge.
The Essential Background
[91]
This was a joint trial. Ms. Spence testified in
her own defence. The appellant neither testified nor called evidence. As a
result, defence counsel addressed the jury first, followed by the Crown.
The Pre-Charge Conference
[92]
Before counsel gave their closing addresses, the
trial judge discussed with them what he proposed to include in his charge.
Counsel had been provided with drafts of the proposed instructions in advance
and had the opportunity to review them before the pre-charge conference.
[93]
At the pre-charge conference, the trial judge
asked and received from counsel statements of their positions as they wished
the trial judge to instruct the jury on those positions.
The Closing Addresses
[94]
In their closing addresses, all three counsel
made extensive reference to the evidence adduced at trial and the inferences
and findings of fact they invited the jury to draw and make from that evidence.
The addresses were completed in a single day.
[95]
In a somewhat meandering closing address, which
included several references to Ockhams Razor, trial counsel for the appellant (not
Mr. Litkowski) advanced a multi-faceted defence:
i.
the deceased died by accident (repeated falls);
ii.
the appellant was not present when the deceased
died;
iii.
in the alternative, the appellant was acting in defence of Monica Spence;
iv.
in the further alternative, the appellant was provoked by the sexual
assault on Monica Spence.
Trial counsel asked the jury to find
the appellant not guilty.
The Charge to the Jury
[96]
The trial judge divided his charge into several
parts, including one part that summarized the position of each of the parties
as counsel had earlier provided them to him. With minor language adjustments,
the positions of each party were provided in the language of counsel's choosing.
[97]
In his canvass of the position of the appellant,
the trial judge included references to the evidence on which trial counsel
relied in support of his position. The judges review of the appellants
position was the most detailed of any, about the same length as those of the Crown
and the co-accused combined.
The Arguments on Appeal
[98]
The appellant underscores the requirement that,
in final instructions, a trial judge must review the substantial parts of the
evidence and clearly articulate the position of the defence, so that the jury
appreciates the value and effect of the evidence and how the law applies to the
facts as they may find them to be. The trial judge, the appellant says, fell
short of this requirement. He neither accurately conveyed the defence position to
the jury, nor did he fairly summarize the evidence that supported that
position.
[99]
In his charge to the jury, the trial judge, the
appellant urges, failed to mention the evidence of Ms. Spence that the
appellant had left the deceased's apartment before the sexual assault and any
response to it occurred. Further, there was no mention of the dark figure at
the door as Ms. Spence fled from the apartment. She did not identify this man
as the appellant.
[100]
The respondent contends that, applying a functional approach in
considering the charge as a whole in light of the evidence adduced at trial,
the charge properly equipped the jury to apply the evidence to the issues that
required their decision.
[101]
A trial judge, the respondent continues, has a well-established
discretion about how to organize their final instructions and how much of the
evidence adduced at trial they will review for the jury. The extent of an
evidentiary review is a function of the evidence adduced at trial. The trial
judge is under no obligation to review all the evidence or repeat evidentiary
references where the same evidence is relevant to more than one issue.
[102]
The first issue the jury was required to decide was whether the Crown
had proven beyond a reasonable doubt that either or both accused caused the deceased's
death. On this issue, the trial judge instructed the jury that the Crown was
required to prove this essential element beyond reasonable doubt. The jury was
told that they were to consider all the evidence, including but not limited to
the testimony of the pathologist and of any witness who described the relevant
events. The trial judge made specific reference to the evidence of Ms. Spence,
including her testimony that the deceased seemed fine when she left.
[103]
The trial judge's instructions on the position of the defence
reflected what trial counsel provided at the trial judge's request. It
included, in the words of counsel's choosing, not only the position advanced,
but also the evidence on which counsel relied. This included the testimony of Ms.
Spence that the appellant had left the apartment before the sexual assault
occurred and was not the dark figure outside the door as she fled from the
apartment. The evidentiary references also included the defence position on the
limited value of the forensic evidence linking the appellant to the scene and
his submission about the unreliability of the testimony of his I killed a
rapist admissions.
The Governing Principles
[104]
In addition to the principles already discussed in connection with
the second ground of appeal, some further brief references are worthy of
reminder.
[105]
First, the structure or organization of a jury charge is largely a
matter within the discretion of the trial judge who is an eye and ear witness
to the entire proceedings:
Daley
, at para. 30.
[106]
Second, applying a functional approach, we assess the adequacy of
jury instructions in the context of the evidence adduced, the positions
advanced and the trial proceedings taken as a whole:
R. v. Pickton
,
2010 SCC 32, [2010] 2 S.C.R. 198, para. 10.
[107]
Third, a trial judge is under no obligation to review all the
evidence adduced at trial in their charge, or to repeat the evidence if it
bears on more than one issue the jury has to decide. The judge's obligation is
to review the substantial parts of the evidence and to relate it to the issues
raised so that the jury understands the value and effect of that evidence and
how it applies to these issues:
Azoulay v. The Queen
, [1952] 2 S.C.R.
495, at pp. 497-8.
[108]
Further, the extent to which a trial judge reviews the evidence in
final instructions varies from one case to the next and resides largely within
the discretion of the trial judge:
R. v. Rodgerson
, 2015 SCC 38,
[2015] 2 S.C.R. 760, at para. 30;
Daley
, at para. 57; and
R. v.
Royz
, 2009 SCC 13, [2009] 1 S.C.R. 423, at para. 3.
[109]
A final point concerns the effect of a failure to refer to an item
of evidence in final instructions. Without more, non-direction on an item of
evidence is not misdirection. Nor does it amount to a failure to put the
position of the defence to the jury. Non-direction on an item of evidence only
becomes misdirection where the item of evidence omitted is the foundation of a
defence:
Young v. R.
, [1981] 2 S.C.R. 39, at p. 56;
Thériault v. The
Queen
, [1981] 1 S.C.R. 336, at p. 344; and
R. v. Demeter
(1975),
25 C.C.C. (2d) 417 (Ont. C.A.), at p. 436-37, affd on other grounds, [1978] 1
S.C.R. 538.
The Principles Applied
[110]
I would not accede to this ground of appeal.
[111]
In this case, the trial judge first instructed the jury on their
duties as jurors and on the general rules of law applicable in all criminal
cases and thus to their decision at trial. The judge then turned to the
specific legal principles that apply and explained the essential elements that
the Crown was required to prove beyond a reasonable doubt to establish the
guilt of the appellant and Ms. Spence of the offence charged. He described
these elements as:
i. that Monica Spence and or Daniel Debassige
caused Richard Spence's death;
ii. that Monica Spence and or Daniel Debassige
were not acting in self defence or defence of another; and
iii. that Monica Spence and or Daniel Debassige
had the state of mind required for murder.
[112]
The trial judge converted each essential element into a question,
followed that question with the legal principles that informed the jury's decision
on it and then reviewed some of the evidence that was relevant to the jury's
decision on the question. He concluded his instructions on each issue with a
reminder about the burden and standard of proof imposed on the Crown and the further
deliberation and verdict consequences of the findings available to the jury.
[113]
The manner in which the charge was organized was an issue for the
trial judge to determine. That another judge might have done it in another way
is beside the point. Examined in a functional way, the charge was neither
unorganized nor so disorganized that it failed to fairly place the position of
the defence before the jury.
[114]
Second, the extent to which the trial judge reviewed the salient
features of the evidence and where he located those references in the charge
were equally issues for the trial judge to determine. The trial was brief. The
evidence was uncomplicated. Three counsel had painstakingly reviewed the
evidence the day before the charge was delivered.
[115]
Third, the defence position and the evidence relied on in support of
it was more fully canvassed during the trial judge's review of the positions of
the parties. This portion of the charge was drafted with the input and approval
of trial counsel. It expressly recited the items of evidence the appellant now
says were missing from other parts of the charge and linked it to the defence
position. These references included the core elements of the defence:
i.
that the appellant had left the apartment and
was not present when Ms. Spence was sexually assaulted;
ii.
that the forensic evidence linking him to the
apartment and the deceased could be explained; and
iii.
that if the jury accepted that he was there, he was acting in
defence of his partner Ms. Spence.
[116]
Finally, the appellant has not identified any specific aspect of the
evidence the trial judge failed to mention that formed the basis of a defence
advanced at trial. That more could have been said or parts of what was said
repeated affords no sufficient basis for our intervention. These instructions
adequately equipped the jurors to fulfill their obligations and attracted no
objection from trial counsel.
Ground #4: The
W.(D.)
Instruction
[117]
This ground of appeal alleges another deficiency in the charge to
the jury. Its focus is the testimony of the co-accused, Ms. Spence, about the
circumstances in which she was awakened and responded to the sexual assault and
other conduct by the deceased. More narrowly, that portion of the co-accused's
testimony in which she said that the appellant had left the apartment before
the deceased sexually assaulted her.
[118]
However, there was evidence that the appellant was present when the deceased
was killed if the jury accepted the testimony of two witnesses who said the
appellant told them I killed a rapist.
The Charge to the Jury
[119]
The trial judge included a
W.(D.)
instruction in his charge
to the jury. That instruction related to the testimony of the co-accused, Ms.
Spence, and her potential liability for the killing of the deceased. Even
though her testimony was evidence for and against the appellant, the trial
judge did not, in express terms at least, link this instruction to the issue of
the appellant's liability.
[120]
Trial counsel for the appellant did not seek a
W.(D.)
instruction
in relation to his client and did not object to its omission from the charge.
The Arguments on Appeal
[121]
The appellant submits that the need for a
W.(D.)
instruction
arises even when an accused does not testify, or the defence calls no evidence.
In this case, the obligation to provide such an instruction was engaged by the
evidence of the co-accused, Ms. Spence, whose testimony was exculpatory of the
appellant. This was direct evidence that the appellant was not in the
deceased's apartment when the events leading to the deceased's death occurred.
[122]
In this case, the trial judge was required to include the appellant
in the
W.(D.)
envelope. This meant including an instruction that, even
if the jury did not accept Ms. Spence's testimony that the appellant was not
present at the material time, if that testimony left them with a reasonable
doubt about the appellant's participation, they were required to find him not
guilty.
[123]
The respondent accepts that where credibility is the central issue
at trial, a trial judge is required to explain the relationship between the
assessment of credibility and the burden and standard of proof. Although the
word formula often used to explain this relationship is that of
W.(D.)
,
no express language is required, so long as the jury is not left, expressly or
by necessary implication, with the impression that they are simply required to
choose between competing versions. The jury must understand that they are only
to find an accused guilty if the evidence, taken as whole, establishes their
guilt beyond a reasonable doubt.
[124]
In this case, the respondent accepts, the co-accuseds evidence that
she did not kill the deceased or cause him bodily harm that could have caused
his death was properly the subject of a
W.(D.)
instruction. But the
appellant did not testify or adduce evidence. A
W.(D.)
instruction was
not sought, and its omission attracted no objection. In these circumstances, a
W.(D.)
instruction was only required when a credibility assessment required the
resolution of conflicting evidence on a vital issue. That is not this case.
And, in any event, a
W.(D.)
or equivalent instruction is not
necessarily required where there is potentially exculpatory evidence, provided
the jury is properly instructed on the burden and standard of proof and not
left to choose between competing versions of events.
[125]
Here, Ms. Spence's testimony about the appellant's whereabouts when
she fled the deceased's apartment, if believed, did not conflict with the
evidence adduced by the Crown on this point. She testified that she was
awakened by the sound of someone banging on the door. She discovered that the
deceased was trying to have sex with her. She fought him off and ran out of the
apartment. She noticed a dark figure outside the door. It looked like a man. It
might have been the appellant. She ran past this person and kept running. She later
ran into the appellant at a bar a few blocks away from the deceased's
apartment. She did not tell the appellant what had happened, nor did he ask why
she was not wearing any pants. Ms. Spence's testimony could not exclude the
possibility that the man outside the door was the appellant, a version of
events that did not conflict with the evidence from Ms. Hanson. There was no
need for a
W.(D.)
instruction in these circumstances.
The Governing Principles
[126]
In any prosecution, irrespective of the nature of the evidence, the
issue for the trier of fact is whether the evidence adduced, taken as a whole,
establishes the guilt of the person charged beyond a reasonable doubt. Of
particular importance in cases in which the evidence reveals two (or more)
competing narratives, the trier of fact must not decide the case simply by
choosing between the narratives presented. To do so would not be faithful to
the burden and dilute the standard of proof.
[127]
The decision in
R. v. W.(D.)
, [1991] 1 S.C.R. 742 set out a
series of three steps to ensure that a trier of fact remained focused on the
principle of reasonable doubt where confronted with conflicting versions of
relevant events:
R. v. C.L.Y.
, 2008 SCC 2, [2008] 1 S.C.R. 5, at para.
6;
W.(D.)
, at p. 758. The trial proceedings in
W.(D.)
were
before a judge sitting with a jury, and the steps suggested an instruction to
jurors to ensure fidelity to the burden and standard of proof. From
W.(D.)
itself and myriad decisions following its lead, it is clear that the steps need
not be rigidly expressed by a judicial trier of fact, nor articulated in
exactly the way that
W.(D.)
suggests to a lay trier of fact:
W.(D.)
,
at p. 758;
R. v. S. (W.D.)
, [1994] 3 S.C.R. 521, at p. 533; and
C.L.Y.
,
at para. 7.
[128]
The principles explained in the
W.(D.)
formula have been
extended beyond its oath-versus-oath origins to cases in which defence evidence
other than the testimony of the person charged has contradicted the narrative
presented by the Crown. This includes other evidence adduced as part of the
defence case and conflicting evidence favourable to the defence emerging in the
case for the Crown:
R. v. B.D.
, 2011 ONCA 51, 266 C.C.C. (3d) 197, at
para. 114;
R. v. Dayes
, 2013 ONCA 614, 301 C.C.C. (3d) 337, at para.
52.
[129]
In each case, what is critical is not so much whether the precise
formula proposed in
W.(D.)
has been faithfully uttered in final
instructions to the jury, but rather whether the jury has been properly informed
on the burden and standard of proof they are to apply in deciding whether the Crown
has proven the essential elements of the offence charged beyond a reasonable
doubt:
C.L.Y.
, at para. 7;
B.D.
, at para. 104.
[130]
The principles expressed in the
W.(D.)
formula underscore the
relationship between credibility and reasonable doubt. They make it clear that
reasonable doubt applies to credibility. In a jury instruction, this
relationship must be explained. From what is said or left unsaid a jury must
not
be left with the impression or understanding that they are to decide the case
according to their preference of the competing versions advanced in the
evidence. Instead, the jury must understand that their verdict must be based on
whether, on the whole of the evidence, they are left with a reasonable doubt
about the guilt of the person charged.
The Principles Applied
[131]
I would reject this ground of appeal.
[132]
In this case, the trial judge properly instructed the jury on the
burden and standard of proof, both generally and in respect of each of the two
statutory defences defence of another and provocation that the appellant
advanced as alternatives to his principal claim that he was not involved in the
death of the deceased. Nothing said or left unsaid in those instructions would
have left the jury with the impression that they were to decide the case by
simply choosing one position or the other.
[133]
In accordance with the prevailing practice in this province, the
trial judge divided the offence charged second-degree murder into its
essential elements. He converted each essential element into a question, then
explained what Crown counsel had to prove to establish the relevant element. In
each case, the trial judge made it clear that the jury was to decide whether
the essential element had been proven, or the related defence of defence of
another had been disproven, by the Crown beyond a reasonable doubt based on all
the evidence.
[134]
The evidence on which the appellant relies as the basis for a
W.(D.)
instruction is the testimony of the co-accused, Ms. Spence, that the appellant
had left the apartment before the sexual assault by the deceased began. By
necessary implication, this meant that the appellant did not cause the death of
the deceased. To the opposite effect was the testimony of two witnesses each of
whom said that the appellant told them I killed a rapist. In one instance,
the appellant, who had a split knuckle, described returning to the deceased's
apartment and being involved in an altercation with him.
[135]
It is open to question whether Ms. Spences testimony about the
appellants whereabouts when she fled the deceaseds apartment, if believed,
was of such a nature as to require a
W.(D.)
instruction. Recall that Ms.
Spence was awakened by the sound of someone banging on the door of the deceaseds
apartment. She discovered the deceased on top of her. Neither were fully
clothed. The deceased was trying to have sex with her. She fought off the
deceased and fled the apartment. As she fled, she noticed a dark figure that
looked like a man outside the door. She did not know whether it was the
appellant, but it could have been him. She ran past the man and kept running.
She encountered the appellant a few blocks away from the deceaseds apartment.
She was naked from the waist down. She did not tell the appellant what had
happened to her at the deceaseds apartment and the appellant did not ask her
about her state of undress.
[136]
Ms. Spence's testimony was not in conflict with that of the Crown
witness, Ms. Hanson, who lived in the same rooming house as the appellant. The
appellant told her that he returned to the apartment and engaged in an
altercation with the deceased. He also told Ms. Hanson I killed a rapist. The
testimony of Ms. Spence could not exclude the possibility that the appellant
was the man outside the apartment door when she fled the apartment.
[137]
Even if a
W.(D.)
instruction might have been preferable
with respect to this issue, I am satisfied that the jury was properly
instructed on the burden and standard of proof. They were not instructed,
expressly or by necessary implication, that they were entitled to resolve the
case, or any essential element of the offence charged, simply by choosing which
narrative of events they preferred.
[138]
Before concluding on this ground of appeal, it is necessary to
assess the impact of an error in the
W.(D.)
instruction the trial
judge did include in his charge.
[139]
The trial judge included in his charge a section entitled TESTIMONY
OF ACCUSED. In that section, he provided a
W.(D.)
instruction in
connection with the testimony of Ms. Spence. In doing so, the judge limited the
application of the evidence to the verdict for Ms. Spence.
[140]
This was a joint trial. When Ms. Spence testified, her evidence was
available for use by the jury not only in deciding whether the case against her
had been proven beyond a reasonable doubt, but also in connection with the case
against the appellant. Unlike an out-of-court statement by one of several
accused jointly charged and tried that is admissible only in respect of its
maker, the testimony of one accused in a joint trial is evidence for and
against all accused in that joint trial. The limitations imposed here, which
repeated an error in the closing address of defence counsel, were incorrect.
[141]
Despite the erroneous limitation of the effect of the evidence of Ms.
Spence to the case against her, I am satisfied that the appellant suffered no
prejudice by the omission of a
W.(D.)
instruction with respect to the
appellant. No such instruction was sought, nor was its omission the subject of
objection. The evidence was left to the jury for their consideration of whether
either accused caused the death of the deceased. And the evidence itself, taken
as a whole, was of limited exculpatory value.
Ground #5: Unreasonable Verdict
[142]
The final ground of appeal challenges the reasonableness of the
jury's verdict. A brief reference to some aspects of the evidence adduced at
trial will provide the background necessary for an evaluation of this ground.
The Essential Background
[143]
The appellant fastens on two aspects of the case for the Crown to
advance this ground of appeal: the absence of evidence that the appellant
caused the death of the deceased and a similar evidentiary vacuum on the state
of mind necessary to establish the unlawful killing as murder.
[144]
Expert evidence suggested the appellants DNA was in blood smeared
on the wall by the entrance to the deceased's apartment and in fingernail
scrapings from the deceased's left hand. Ms. Spence gave no evidence of any conduct
by the appellant while he was present in the deceased's apartment that would
account for either finding. Ms. Spence testified about being awakened by
pounding on the apartment door as she was being sexually assaulted by the
deceased. She also testified that she saw a dark figure standing outside that
door as she fled, half-naked, from the apartment. The figure appeared to be a
man. She could not exclude the appellant as that man.
[145]
A short time later, Ms. Spence, still half-naked, met the appellant
at a local bar not far from the deceased's apartment. The appellant did not say
how he came to be there, when he had arrived or where he had come from. Nor did
he ask his domestic partner, Ms. Spence, why she was not wearing any pants.
[146]
In addition, two witnesses testified about admissions the appellant
made on the day of the deceased's death. Each recalled the appellant as having
said I killed a rapist. One said that the appellant told her that he returned
to the deceased's apartment, entered it and got into an altercation with the
deceased. She noticed he had a split knuckle, an injury that was still visible
on arrest several days later.
[147]
A forensic pathologist testified that the deceased suffered 74
injuries, nearly two-thirds of which were around his head and neck area.
Although a fall could have caused some of the injuries, repeated falls could
not account for all the injuries, especially those around his head. The pattern
of blood splatter at the scene indicated that the deceased was likely struck
where he was found on the floor of his bedroom.
The Arguments on Appeal
[148]
The appellant says that the verdict is unreasonable because there
was no evidence of two essential elements of the offence of which he was
convicted:
i.
that he caused the death of the deceased; and
ii.
that he had the state of mind necessary to make an unlawful killing
murder.
[149]
The case for the Crown, the appellant suggests, consisted entirely
of circumstantial evidence. As a result, the issue in this court is whether, on
the evidence adduced, the jury, acting judicially, could reasonably be
satisfied that the appellant's guilt was the only reasonable conclusion
available on the totality of that evidence.
[150]
The evidence of the appellants admissions was highly suspect and
contradicted by other evidence. Ms. Spences evidence was that the appellant
had been present in the deceased's apartment earlier that day but had left
before she was sexually assaulted by the deceased. The injuries to the deceased
and the bloodstain pattern could have been caused by repeated falls by a highly
intoxicated deceased. At most, the evidence could sustain a finding that the
appellant had been involved in some unlawful act that led to the death of the
deceased. There was no evidence that could support a finding that the unlawful
act was accompanied by a state of mind necessary for murder.
[151]
The respondent says that this complaint fails. The standard of
review is well-settled. It is whether the jury, acting judicially, could
reasonably be satisfied that the appellants guilt was the only reasonable
inference available on the evidence taken as a whole. The availability of
competing inferences does not render the verdict unreasonable. It is for the
trier of fact to decide whether any alternative inferences are reasonable
enough to raise a reasonable doubt and to separate reasonable doubt from
speculation.
[152]
The jury was entitled to reject the claim of Ms. Spence that the
appellant had been at the deceased's apartment earlier and left but did not
return there. Evidence of the appellant's blood on the wall of the apartment,
coupled with the absence of any suggestion that an altercation had taken place
before he left, put paid to this claim. As did the appellants DNA in the
deceased's fingernail scrapings. There was also Ms. Spence's evidence about the
dark figure outside whom she could not say was not the appellant. And the later
meeting with no questions asked about how Ms. Spence came to be missing her
pants. And finally, the telling admissions I killed a rapist, and a visibly split
knuckle.
[153]
In connection with evidence about the mental element in murder, the
respondent points to the number, nature and location of the injuries; the
location in the apartment where the deceased was struck; the incompatibility of
the injuries with repeated falls; and the appellants admissions to the effect
that he had killed a rapist.
The Governing Principles
[154]
The applicable standard of review is uncontroversial. A verdict is
unreasonable if it is one that a properly instructed jury, acting judicially,
could not reasonably have rendered:
R. v. W.H.
, 2013 SCC 22, [2013] 2
S.C.R. 180, at para. 26. We must ask not only whether there is evidence in the
trial record to support the jury's verdict, but also whether the jury's
conclusion conflicts with the bulk of judicial experience:
W.H.
, at
para. 28;
R. v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 40.
To succeed, the appellant must demonstrate that no properly instructed jury acting
judicially could reasonably have found guilt established on the evidence
adduced at trial:
R. v. Jackson
, 2007 SCC 52, [2007] 3 S.C.R. 514, at
para. 2.
[155]
In the exercise of our authority under s. 686(1)(a)(i) of the
Criminal
Code
, we must, within the limits of appellate disadvantage, re-examine and
re-weigh the evidence, and consider, through the lens of judicial experience,
whether judicial fact-finding precludes the verdict reached by the jury:
Biniaris
,
at para. 36;
R. v. Yebes
, [1987] 2 S.C.R. 168, at p. 186. Where a
verdict is based on a credibility assessment, the verdict will be unreasonable
if that assessment cannot be supported on any reasonable view of the evidence:
R.
v. Burke
, [1996] 1 S.C.R. 474, at para. 7. One factor we may consider in
determining whether the verdict is unreasonable is the failure of the appellant
to testify:
R. v. Lights
, 2020 ONCA 128, 149 O.R. (3d) 273, at para.
33;
R. v. George-Nurse
, 2018 ONCA 515, 362 C.C.C. (3d) 76, at para.
33, affd 2019 SCC 12, [2019] 1 S.C.R. 570.
[156]
In a case consisting of circumstantial evidence in which the verdict
is challenged as unreasonable, we must consider whether the jury, acting
judicially, could reasonably have been satisfied that the guilt of the accused
was the only reasonable conclusion available on all the evidence:
R. v.
Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56.
The Principles Applied
[157]
I would not give effect to this ground of appeal.
[158]
The forensic evidence adduced at trial supported an inference that
the appellant was in physical contact with the deceased and shed blood in the
deceased's apartment. He was observed shortly afterwards with a split knuckle
that remained visible almost two weeks later when he was arrested. He admitted
to two witnesses I killed a rapist. This was consistent with Ms. Spence's
description of what had happened in the deceased's apartment before she fled
the premises partially clad. The manner in which the appellant described his altercation
with the deceased to Ms. Hanson was also consistent with Ms. Spence's evidence
about hearing pounding on the door and a dark figure outside who she claimed
not to be able to identify.
[159]
As for proof of the fault or mental element essential to make the
unlawful killing murder, the deceased died from blunt impact facial trauma and
aspiration of blood. He suffered 74 separate injuries, the vast majority around
his head and neck. With those injuries and in a grossly intoxicated state, he
was left on his bedroom floor, where blood spattered patterns indicated that
the injuries were likely inflicted. Shortly thereafter, the appellant said I
killed a rapist.
[160]
The jurys verdict that the appellant was guilty of murder was not
unreasonable.
Disposition
[161]
For these reasons, I would dismiss the appeal and affirm the
conviction.
Released: July 2, 2021 DW
David Watt J.A.
I agree. M.L. Benotto J.A.
I agree. M. Jamal J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Tolias (Re), 2021 ONCA 478
DATE: 20210702
DOCKET: C68995
Hourigan, Paciocco and Zarnett
JJ.A.
IN THE MATTER OF: Helen Tolias
AN APPEAL UNDER PART XX.1 OF THE
CODE
Suzan E. Fraser, for the appellant
Manasvin Goswami, for the respondent,
Attorney General of Ontario
No one
appearing for the respondent, Person in Charge of Providence Care Hospital Kingston
Heard: June 25, 2021 by
videoconference
On appeal from the disposition of the Ontario
Review Board, dated October 1, 2020, with reasons dated October 30, 2020.
REASONS FOR DECISION
[1]
Helen Tolias is currently under the jurisdiction
of the Ontario Review Board (the Board) as the result of a 2006 verdict of
not criminally responsible on account of mental disorder (NCR) arising from non-violent
criminal harassment charges. Sadly, Ms. Tolias has been under detention orders
since that time, including, more recently, at the Secure Forensic Unit of Providence
Care Hospital, Kingston (Providence Care SFU).
[2]
Ms. Tolias most recent disposition review occurred
on September 17, 2020, by videoconference, in Ms. Tolias absence. The Board
decided to proceed
in
absentia
after learning that Ms.
Tolias was not comfortable having a videoconference hearing, and after being
informed that she had discharged her lawyer. The Board appointed Ms. Tolias
discharged lawyer as
amicus
before proceeding with the hearing.
[3]
On October 1, 2020, the Board released its
disposition arising from the September 17, 2020 hearing (the October 2020
Disposition). The October 2020 Disposition ordered Ms. Tolias to be detained forthwith
at the Forensic Psychiatry Program of St. Josephs Health Care Hamilton (St.
Josephs FPP), on conditions.
[4]
Ms. Tolias now appeals the October 2020
Disposition. She argues that:
(1) The Board committed a jurisdictional error in proceeding by
videoconference without her consent;
(2) The Board erred in law by applying the wrong test in determining
that she poses a significant threat to the safety of the public; and
(3) The Boards finding that detention on conditions is the least
onerous and restrictive disposition, rather than a conditional or absolute
discharge, is unreasonable.
[5]
It is unnecessary for us to consider the last
two grounds of appeal, since the Crown correctly concedes the first ground. In
Woods
(Re)
, 2021 ONCA 190, 154 O.R. (3d) 481, at para. 7, this court determined
that the Board did not have jurisdiction to proceed by videoconference without
the consent of the NCR accused. By doing so in this case, the Board committed
a jurisdictional error.
[6]
The Crown nonetheless submits that we should
dismiss the appeal pursuant to s. 672.78(2)(b) of the
Criminal Code
,
R.S.C. 1985, c. C-46, notwithstanding the Boards legal error. The Crown
argues that no substantial wrong or miscarriage of justice occurred because, in
this unique situation, the Boards decision to proceed was reasonable and the
subsequent hearing was fair.
[7]
In our view, s. 672.78(2)(b) does not apply
because the authority to dismiss an appeal from a disposition under s.
672.78(2)(b) is confined to decisions based on a wrong decision on a question
of law. The Boards error in conducting a videoconference hearing without Ms.
Tolias consent was not simply a wrong decision on a question of law or a mere
procedural error. It was a jurisdictional error that rendered the disposition
null and void:
Woods (Re)
, at para. 7. A disposition arrived at
without jurisdiction constitutes a miscarriage of justice which cannot be
saved pursuant to s. 672.78(2)(b).
[8]
In the alternative, the Crown submits that if we
allow Ms. Tolias appeal, we should exercise our jurisdiction pursuant to s.
672.78(3)(a) of the
Code
to make a disposition that is identical to
the Boards October 2020 Disposition.
[9]
Ms. Tolias also asks us to make a disposition,
but she requests an absolute discharge, or, alternatively, a conditional
discharge.
[10]
Mindful that Ms. Tolias is prepared to permit us
to do so, we do not consider it to be in the interests of justice to arrive at a
disposition based on a record generated in a hearing that proceeded without
jurisdiction and was conducted without Ms. Tolias participation.
CONCLUSION
[11]
Accordingly, the appeal is allowed, the October
2020 Disposition is set aside, and a new hearing is ordered. The new hearing is
to be held at the earliest possible opportunity once in-person Board hearings
resume, or, if Ms. Tolias consents in writing to a videoconference or telephone
hearing, at the earliest available opportunity for a videoconference or
telephone hearing.
[12]
The Boards disposition of January 29, 2020 (the
January 2020 Disposition) therefore remains in force pending a new disposition.
However, it is in the interests of justice to vary the January 2020 Disposition,
which required Ms. Tolias to be detained at Providence Care SFU in Kingston.
Pursuant to the October 2020 Disposition, now set aside, Ms. Tolias was ordered
to be detained at St. Josephs FPP in Hamilton, which is closer to where her family
resides. Due to a wait list delay, Ms. Tolias was only recently moved to St.
Josephs FPP. It is not in the interests of justice, nor in Ms. Tolias interest,
to return her to Providence Care SFU.
[13]
Therefore, s. 1 of the January 2020 Disposition
is varied to replace the term Secure Forensic Unit of the Providence Care
Hospital, Kingston, Ontario, with Forensic Psychiatry Program at St. Josephs
Health Care Hamilton, West 5th Campus.
[14]
Section 2 of the January 2020 Disposition is varied
as follows:
(i) to replace all references to Providence Care Hospital in
s. 2 with St. Josephs Health Care Hamilton;
(ii) to replace the term Secure Forensic Unit of the Providence
Care Hospital, with Forensic Psychiatry Program at St. Josephs Health Care
Hamilton; and
(iii) to replace all references to Kingston in s. 2 with
Hamilton.
[15]
Sections 3 and 4 of the January 2020 Disposition,
as well as the COMMAND to the person in charge of the Providence Care
Hospital, are all varied to replace the term Providence Care Hospital with
St. Josephs Health Care Hamilton.
C.W. Hourigan J.A.
David M. Paciocco J.A.
B. Zarnett J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: K.M. v. Banik, 2021 ONCA 481
DATE: 20210630
DOCKET: C68652
Doherty, Benotto and Brown JJ.A.
IN THE
MATTER OF Appeal from a decision of the
Consent
and Capacity Board,
Pursuant
to the
Mental Health Act
,
R.S.O.
1990, chapter M.7,
As
amended,
IN THE
MATTER OF Appeal from a decision of the
Consent
and Capacity Board,
Pursuant
to the
Health Care Consent Act
,
S.O.
1996, chapter 2, Schedule A,
As
amended,
BETWEEN
K.M.
Appellant (Appellant)
and
Dr. Tapan Banik
Respondent (Respondent)
Eyitayo F. Dada, for the appellant
Jennifer L. Hunter and Ashley Boyes,
for the respondent
Heard: June 25, 2021 by video conference
On
appeal from the order of Justice Andrew A. Sanfilippo of the Superior Court of
Justice, dated August 11, 2020, with reasons reported at 2020 ONSC 4829,
affirming a decision of the Consent and Capacity Board, dated April 14, 2020,
with reasons dated April 21, 2020.
REASONS FOR DECISION
[1]
The appellant appeals the decision of the Superior Court which dismissed
his appeal from the Consent and Capacity Board decision affirming his Community
Treatment Order.
Facts
[2]
The appellant K.M. was diagnosed with schizophrenia. The respondent Dr. Tapan
Banik is his treating psychiatrist. On January 31, 2020, the appellants mother
called the police because his behaviour gave her concern for his well-being. The
appellant had six times before been admitted to Brampton Civic Hospital as
a psychiatric patient and discharged on a Community Treatment Order. Once his
Community Treatment Order was revoked, the appellant had refused to see his
doctor or take injections of the prescribed anti-psychotic medicine and had
decompensated as a result. The police brought the appellant to Brampton Civic
Hospital where he was admitted as an involuntary psychiatric patient.
[3]
The respondent examined the appellant on February 3 and 4, 2020 and
determined that the appellant was unable to appreciate the reasonably
foreseeable consequences of treatment or lack of treatment and was not capable
of consenting to treatment of his mental disorder with anti-psychotic
medications. On February 4, the respondent informed the appellant of his
determination and prepared a Community Treatment Plan for the appellant based
on his determination that the appellant was incapable of giving or refusing
consent to the Plan. Under the Plan, the appellant would be given community
support by the Peel Assertive Community Treatment Team (ACT team).
[4]
The Plan required the appellant to present himself to the ACT team one
to three times every week for medication compliance and to receive monthly
injections of anti-psychotic medication. The appellants mother agreed to act
as his substitute decision maker and consented to the appellant resuming
treatment with antipsychotic medication. The respondent issued the Community Treatment
Order on March 5, 2020. The appellant was discharged on March 20, 2020. The
appellant applied to the Consent and Capacity Board to review the respondents
finding of incapacity and the issuance of the Community Treatment Order.
Decision of the Consent and
Capacity Board
[5]
The Consent and Capacity Board recognized that the onus is on the
physician who issued the Community Treatment Order to establish on a balance of
probabilities that the appellant lacked the capacity to consent to treatment.
The Board followed the test in s. 4(1) of the
Health Care
Consent Act, 1996
, S.O. 1996, c. 2, Sched. A,
which
provides:
Capacity
4
(1) A person is capable with respect to a treatment, admission to or
confining in a care facility or a personal assistance service if the person is
able to understand the information that is relevant to making a decision about
the treatment, admission, confining or personal assistance service, as the case
may be, and able to appreciate the reasonably foreseeable consequences of a
decision or lack of decision.
[6]
The Board was satisfied that the appellant was unable to appreciate the
reasonably foreseeable consequences of a decision or lack of decision about his
treatment. The Board relied on the evidence with respect to his readmissions to
hospital due to non-compliance, his refusal of injections, his aggressive
conduct when not being medicated, his inability to appreciate the severity of
his mental condition and his inability to recognize incontrovertible facts.
[7]
The Board affirmed the Community Treatment Order.
Decision of the Superior Court
[8]
On appeal to the Superior Court, the appellant argued that:
(1) the Board had erred in finding that he was unable to
appreciate the reasonably foreseeable consequences of a decision or lack of
decision about the recommended treatments; and
(2) the Board erred in confirming the validity of the Community
Treatment Plan.
[9]
The court rejected the appellants argument that, in applying the test
for finding the appellant capable to consent, the Board incorrectly required
the appellant to accept, acknowledge or appreciate that he suffered from a
mental illness. The court found that the Board correctly identified and
interpreted the two-part test for capacity to consent to treatment under s.
4(1) of the
Health Care Consent Act
as
explained in
Starson v. Swayze
, 2003 SCC 32,
[2003] 1 S.C.R. 722.
[10]
On
the first part of the test, the Board had found the appellant was able to
understand the information relevant to making a treatment decision. On the
second part of the test, the Board had found the appellant unable to appreciate
the reasonably foreseeable consequences of a decision or lack of a decision
about the recommended treatments based on the two criteria laid down in
Starson
, at para. 79. The Board accepted the
respondents evidence that the appellant had a mental condition and that the
condition deteriorated when untreated. The Board also found the appellant
believed he did not have a mental health condition at all. It was not merely
that he disagreed with the respondents diagnosis of the condition, he disputed
that he had any mental health issues. He was also unable to appreciate that his
condition improved with treatment and deteriorated when he discontinued
treatment.
[11]
The
court was satisfied that the evidence of the respondent as well as the
appellant supported the Boards findings. The court found that it was open to
the Board to reject the appellants submission that the respondent did not
provide him with the necessary information to make a treatment decision.
[12]
On
the second issue, the appellant submitted that the Board erred in finding the
Community Treatment Plan compliant with the statutory requirements in ss.
33.1(4) of the
Mental Health Act
, R.S.O. 1990,
c. M.7, which sets out the criteria for a Community Treatment order as follows:
33.1 (4) A physician may issue or
renew a community treatment order under this section if,
(a) during the previous three-year
period, the person,
(i) has been a patient in a
psychiatric facility on two or more separate occasions or for a cumulative
period of 30 days or more during that three-year period, or
(ii) has been the subject of a
previous community treatment order under this section;
(b) the person or his or her
substitute decision-maker, the physician who is considering issuing or renewing
the community treatment order and any other health practitioner or person
involved in the persons treatment or care and supervision have developed a
community treatment plan for the person;
(c) within the 72-hour period before
entering into the community treatment plan, the physician has examined the person
and is of the opinion, based on the examination and any other relevant facts
communicated to the physician, that,
(i) the person is suffering from
mental disorder such that he or she needs continuing treatment or care and
continuing supervision while living in the community,
(ii) the person meets the
criteria for the completion of an application for psychiatric assessment under
subsection 15 (1) or (1.1) where the person is not currently a patient in a
psychiatric facility,
(iii) if the person does not
receive continuing treatment or care and continuing supervision while living in
the community, he or she is likely, because of mental disorder, to cause
serious bodily harm to himself or herself or to another person or to suffer
substantial mental or physical deterioration of the person or serious physical
impairment of the person,
(iv) the person is able to comply
with the community treatment plan contained in the community treatment order,
and
(v) the treatment or care and
supervision required under the terms of the community treatment order are
available in the community.
(d) the physician has consulted with
the health practitioners or other persons proposed to be named in the community
treatment plan;
(e) subject to subsection (5), the
physician is satisfied that the person subject to the order and his or her
substitute decision-maker, if any, have consulted with a rights adviser and
have been advised of their legal rights; and
(f) the person or his or her
substitute decision-maker consents to the community treatment plan in
accordance with the rules for consent under the
Health Care Consent Act,
1996
.
[13]
The
court examined each criterion and concluded each had been complied with. In
addition, the court rejected the appellants submission that the Board erred in
finding the appellant likely to suffer substantial mental deterioration if he
did not receive treatment while living in the community. The court held that
the fact that the appellant could cope in the community for some time before
deteriorating did not mean his deterioration was not substantial. The court
also held that the Board did not err in concluding that the appellant was able
to comply with the Community Treatment Plan, including the requirement to meet
with the ACT team up to three times a week, despite the COVID-19 pandemic. This
argument was not raised before the Board, and the court found no evidence to
support the appellants argument that he was unable to attend treatment during
the pandemic.
[14]
The
Superior Court of Justice dismissed the appeal, finding no palpable and
overriding error in the Boards decision.
Issues on this appeal
[15]
The
appellant raises the same issues on appeal to this court and relies on the same
submissions made to the Superior Court. In oral submissions, the appellant
focused on the second part of the
Starson
test
and the evidence that the appellant was able to appreciate the benefits of
treatment.
Analysis
[16]
The
second part of the
Starson
test is that the
patient must be able to recognize the
possibility
that he is affected by the condition: at para 79
(emphasis added). The appellant submits that his testimony discloses that he
admitted the manifestations of his situation and consequently this provision is
satisfied.
[17]
We
do not accept this submission. The evidence before the Board was the appellant
denied he had a mental health condition at all and explained his conduct in
barricading himself in his room because he didnt really want to talk to [any]
one, didnt really want to eat and just wanted to lay in [his] stuff. He
explained his prior admissions as related to domestic issues. The Board
considered the whole of the appellants evidence. It was open to the Board to
accept the respondents evidence that the appellant had been floridly
psychotic with symptoms including delusions or persecutions, withdrawal and
isolation, lack of self-care, auditory hallucinations, paranoid delusions and
disorganization of thought. There was evidence for the Board to conclude that
he does not recognize the possibility that he is affected by his illness.
[18]
The
appellant also submits that he was able to appreciate the benefits of treatment
as demonstrated by his history of taking antipsychotic medication and following
previous Community Treatment Plans. However, this ignores that evidence that
the appellant discontinued treatment, decompensated as a result and was
re-admitted to hospital. Upon resuming treatment, he improved and was able to
be discharged. This has been the pattern since 2012. There was evidence before
the Board to conclude that he did not appreciate the benefits of his treatment.
[19]
Nor
did the Board misapply the test by requiring the appellant to agree with the
respondents diagnosis or characterize his condition in negative terms. The
Board recognized that he did not have to agree with the diagnosis.
[20]
Contrary
to the appellants argument, the evidence showed the respondent explained the
benefits and potential side effects of antipsychotic medication to the appellant
and it was open to the Board to reject the appellants evidence in this regard.
[21]
Finally,
the court did not refuse to consider the COVID-19 issue but found no evidence
that the pandemic had impaired the appellants ability to attend treatment or
the health professionals ability to treat the appellant.
[22]
We
see no reason to interfere with the decision of the Superior Court which upheld
the decision of the Consent and Capacity Board.
Conclusion
[23]
Despite the able submissions of counsel for the appellant, the
appeal is dismissed. No costs were requested, and none are ordered.
Doherty
J.A.
M.L.
Benotto J.A.
David
Brown 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 complainants 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.S., 2021 ONCA 479
DATE: 20210630
DOCKET: C69323
Miller, Paciocco and Nordheimer
JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
S.S.
Appellant
Adam Weisberg and Samiyyah Ganga, for the appellant
Rebecca Law, for the respondent
Heard: June 16, 2021 by video conference
On appeal from the order of Justice Antonio Skarica
of the Superior Court of Justice, dated April 15, 2021 with reasons at 2021
ONSC 2995, allowing an application for certiorari with mandamus and prohibition
in aid, from the order of Justice Gethin B. Edward of the Ontario Court of
Justice dated February 12, 2021.
Nordheimer J.A.:
[1]
S.S. appeals from the order of the review judge,
who allowed an application for certiorari from the order of the application
judge, who found that the appellant was entitled to a preliminary inquiry
pursuant to s. 535 of the
Criminal Code
, R.S.C. 1985, c. C-46. At the
conclusion of the hearing, we dismissed the appeal with reasons to follow. I
now provide those reasons.
Background
[2]
The appellant is charged with one count of sexual
assault on a person under the age of 16 contrary to s. 271 of the
Criminal
Code
and one count of sexual interference contrary to s. 151. The
offences are alleged to have occurred between January 1, 2009 and December 31,
2010.
[3]
At the time that the offences were alleged to
have occurred, the maximum penalty for both offences was 10 years. On July 17,
2015, the maximum penalty for the offence of sexual assault on a person under
the age of 16 was increased to 14 years, if the Crown proceeds by way of
indictment, which it had in this case. The maximum penalty for the offence of
sexual interference was also increased to 14 years.
[4]
On December 11, 2020, the appellant elected to
be tried by a judge and jury in the Superior Court. He requested a preliminary
inquiry. The Crown sought a ruling that the appellant was not entitled to a
preliminary inquiry because, at the time the offences were alleged to have
occurred, the maximum penalty for the offences was 10 years.
[5]
The issue arises because, on September 19, 2019,
s. 535 of the
Criminal Code
was amended to restrict the right to a preliminary
inquiry to persons charged with an indictable offence that is punishable by imprisonment
for 14 years or more. Section 535 now reads:
If an accused who is charged with an
indictable offence that is punishable by 14 years or more of imprisonment is
before a justice and a request has been made for a preliminary inquiry under
subsection 536(4) or 536.1(3), the justice shall, in accordance with this Part,
inquire into the charge and any other indictable offence, in respect of the
same transaction, founded on the facts that are disclosed by the evidence taken
in accordance with this Part.
The decisions
below
Ontario Court of Justice
[6]
The respondents application was heard before a
judge of the Ontario Court of Justice. The application judge noted that, in the
circumstances of this case, the appellants maximum jeopardy was 10 years
because s. 11(i) of the
Canadian Charter of Rights and Freedoms
provides
that any person charged with an offence has the right if the punishment for
the offence has been varied between the time of commission and the time of sentencing,
to the benefit of the lesser punishment.
[7]
The application judge then said that, in his
view, the
Criminal
Code
must, wherever possible,
provide certainty. He said:
In summary, a court, and more importantly, the
accused should be able to rely on the plain wording of the [s]tatute as opposed
to then engaging in some exercise to determine its applicability to the unique
circumstances of the accused, or the potential ramifications of the
Charter
.
[Italics added.]
[8]
The application judge concluded that as the offences
currently provide for a penalty of 14 years, the appellant was entitled to a
preliminary inquiry.
Superior Court of Justice
[9]
The respondent sought a review of the
application judges decision. That review was heard by a judge of the Superior
Court of Justice. The review judge allowed the application for review. After
reviewing the amendments to the
Criminal Code
,
and various
decisions that have since addressed the issue of entitlement to a preliminary
inquiry, the review judge concluded that the appellant was not entitled to a
preliminary inquiry because the maximum penalty he faced was 10 years.
[10]
The review judge also addressed another issue
raised by the appellant. On the review, the appellant said that he had waived
his right under s. 11(i) of the
Charter
and was, consequently, facing
a penalty of 14 years.
[11]
The review judge questioned whether an accused
person could waive their right under s. 11(i). He noted that he had not been
provided with any authority that would authorize that procedure. The review
judge reviewed and relied on s. 43 of the
Interpretation Act
, R.S.C.
1985, c. I-21 which provides, in s. 43(d), that the repeal of an enactment does
not affect any offence committed against or contravention of the provisions of
the enactment so repealed, or any punishment, penalty or forfeiture incurred
under the enactment so repealed. The review judge also relied on the decision
in
R. v. Stengel
, 2021 ONSC 1413, which had dealt with the same issue.
The judge in that case had concluded, relying in part on s. 43, that the
accused person was not entitled to a preliminary inquiry.
[12]
In the end result, the review judge concluded
that the appellant could not use his purported waiver of s. 11(i) as a
mechanism to obtain a preliminary inquiry. The review judge said: I would not
give effect to this questionable procedure that has, as I have determined, no
precedent.
Analysis
[13]
It is not necessary to once again review the history
of the legislative changes that have been made to s. 535 respecting the right
to a preliminary inquiry. They have been reviewed in a number of decisions,
including recently in
R. v. Windebank
, 2021 ONCA 157, 154 O.R. (3d)
573, leave to appeal requested, [2021] S.C.C.A. No. 122.
[14]
It is sufficient to say that limiting the right
to preliminary inquiries was intended to free up court time and resources in
provincial courts, while, at the same time, reducing the burden on some
witnesses and victims by preventing them from having to testify twice in cases where
there was, until then, an entitlement to a preliminary inquiry: see
Windebank
,
at para. 19.
[15]
The route that Parliament took to limit
preliminary inquiries focussed on restricting them to the most serious
offences. It chose to do so by limiting preliminary inquiries to persons who
are charged with an offence that is punishable by 14 years or more of
imprisonment. Parliament expressly coupled the entitlement to a preliminary
inquiry to the maximum sentence for the offence charged.
[16]
The appellant is not facing a punishment of 14
years or more in this case. In reaching that conclusion, I need not decide
whether an accused person can waive their rights under s. 11(i) of the
Charter
.
Even if they can, s. 43(d) of the
Interpretation
Act
would preclude a court from imposing a sentence of more than 10 years. This
result is reinforced by s. 43(e), which provides that a legislative change does
not affect any legal proceeding in respect of any punishment, penalty or
forfeiture referred to in paragraph (d).
[17]
My conclusion in this regard is also consistent
with the conclusion reached in
Tran v. Canada (Public Safety and Emergency
Preparedness)
,
2017 SCC 50, [2017] 2 S.C.R. 289. In that case, the
issue was the immigration consequences of a person convicted of an offence where
the maximum penalty was, at the time of the commission of the offence, seven
years. However, before conviction, the penalty was raised to 14 years with the
result that a conviction for the offence would fall within the definition of
serious criminality for immigration purposes. The immigration authorities began
proceedings to remove the accused from Canada on the basis that he had been
convicted of an offence involving serious criminality within the meaning of s.
36(1)(a) of the
Immigration and Refugee Protection Act
, S.C. 2001, c.
27 (
IRPA
). The accused sought judicial review of the decision to
refer his case for an admissibility hearing under the
IRPA
. In the end
result, the Supreme Court of Canada found that the immigration authorities
could not rely on the serious criminality provision in part because the maximum
sentence for the accuseds offence at the time he committed it was seven years.
In reaching that conclusion, C
ô
t
é
J. said, at para. 35:
Turning to the interpretation of punishable
by a maximum term, in my view, a contextual reading of s. 36(1)(a) [of
the
IRPA
] supports only one conclusion: the phrase punishable by a maximum
term of imprisonment of at least 10 years
refers to the maximum sentence
that the accused person could have received at the time of the commission of
the offence
. [Emphasis added].
[18]
The appellant attempts to counter this interpretation
by submitting that it looks at the circumstances of the offender rather than at
the offence itself and thus offends the point made in
Windebank
, at para. 36:
In my view, the flaw, both in the respondents argument and in the
decisions below, is that they confuse the seriousness of the offence with the
seriousness of the offender, that is, their individual circumstances.
[19]
I do not agree. The situation here and the one
in
Windebank
are not
comparable. Here we are dealing with the maximum punishment that was stipulated
for the offence at the time that the offence is said to have been committed. Thus,
the issue in this case does not involve the personal characteristics of the
appellant, in the sense that those personal characteristics might drive the appropriate
sentence, such as the possible application of the dangerous offender provisions.
Rather, it involves the penalty that can be imposed on the appellant, and
anyone else in the same situation, arising from the timing of the offence, as
the key for determining the seriousness of the offence for the purpose of s.
535. The personal characteristics of the appellant are not engaged in this
analysis. The only connection to the appellant in his personal capacity is that
it is the timing of his alleged actions leading to the offence that are of
importance.
[20]
Further on this point, in
Tran
, the court supported its
conclusion that the timing of the offence determined the maximum sentence for
the purpose of s. 36(1)(a) of the
IRPA
, in part, based on the presumption against retrospectivity, which applies
independent of s. 11(i) of the
Charter
: at para
43. In words that are apt to the situation here,
C
ô
t
é
J. said, at para. 43: The purpose of this
presumption is to protect acquired rights and to prevent a change in the law
from look[ing] to the past and attach[ing] new prejudicial consequences to a
completed transaction (Driedger (1983), at p. 186).
Conclusion
[21]
It is for these
reasons that the appeal was dismissed.
Released:
June
30, 2021 B.M.
I.V.B. Nordheimer J.A.
I agree. B.W. Miller J.A.
I agree. David M. Paciocco J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Di Franco v. Bueckert, 2021 ONCA
476
DATE: 20210629
DOCKET: C68341
Tulloch, Roberts and Thorburn JJ.A.
BETWEEN
Michele Di Franco
Plaintiff
(Respondent)
and
Michael Bueckert
Defendant
(Appellant)
Daniel S. Tucker-Simmons and Yavar Hameed, for the appellant
Jean-François Lalonde, for the respondent
Heard and delivered orally: June 18, 2021 by video
conference
On appeal from the order of
Justice Sally A. Gomery of the Superior Court of Justice dated March 30, 2020,
with reasons reported at 2020 ONSC 1954.
REASONS FOR DECISION
[1]
We see no error in the
motion judges dismissal of the appellants Anti‑SLAAP motion. Even
though she did not have the benefit of the Supreme Courts decision in
1704604
Ontario Ltd. v. Pointes Protection Association
,
2020 SCC 22, the
motion judges application of the relevant factors and the limited weighing of
the evidence that she was required to carry out under s. 137.1 of the
Courts
of Justice Act
, R.S.O. 1990, c. C.43, are not inconsistent with the
Supreme Courts articulated framework in
Pointes
.
[2]
We also see no error in the
motion judges consideration of the evidence on the record before her. As the motion
judge indicated, she was not to engage in a deep dive into the record and make definitive
findings of fact and credibility on this early-stage motion, which should be
left to a summary judgment motion or trial. She was satisfied that the
respondent had met his onus under s. 137.1(4); her decision is supported by the
record. She did everything she was required to do on this threshold motion.
[3]
There is no basis for appellate
intervention. As a result, the appeal is dismissed.
[4]
As agreed, the respondent is
entitled to his costs of the appeal of $15,915.00, all inclusive. With respect
to the appellants abandoned motion, we order that there be no costs, since we
view the results as being mixed.
M. Tulloch J.A.
L.B.
Roberts J.A.
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 complainants 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. B.W.S., 2021 ONCA 471
DATE: 20210629
DOCKET: C68501
Rouleau, van Rensburg and Miller
JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
B.W.S.
Appellant
B.W.S., acting in person
Matthew Gourlay, appearing as duty
counsel with respect to the appeal against conviction
Michael Fawcett, for the respondent
Heard: January 12 and 13, 2021 by video
conference
On appeal from the convictions entered
on March 12, 2020 and the sentence imposed on June 23, 2020 by Justice Calum U.
C. MacLeod of the Superior Court of Justice.
B.W. Miller J.A.:
Overview
[1]
The complainant and the appellant were in an
unstable and tempestuous intimate relationship. During an argument on May 13, 2019,
the complainant refused the appellants demand for sexual intercourse, and the
appellant responded with violence towards her and threats of greater violence
against both her and her young daughter. The police became involved. The next
day the two reconciled and the complainant told police she did not want to
press charges. The reconciliation did not last, and there were further incidents
of violence and threats on the part of the appellant.
[2]
Ultimately, the appellant was convicted of
multiple offences including assault, sexual assault, and uttering threats. He
received a custodial sentence of 26 months, less a credit of 13.9 months,
leaving a total sentence of 12 months and three days incarceration. The
appellant appeals against conviction and sentence. For the reasons that follow,
I would dismiss the appeals.
Background
(1)
The First Incident
[3]
The appellant had been recently released from
jail and was living itinerantly, sometimes at the complainants residence.
[4]
On May 12, 2019, following an argument, the
appellant left to spend the night somewhere else.
[5]
Early the next morning, the appellant texted the
complainant to ask if he could come back to patch things up. She agreed. The
appellant arrived at about 6:40 a.m. He had something to eat and then showered.
What happened afterwards is contested.
[6]
On the complainants evidence, the appellant
came upstairs to the bedroom and told the complainant they were going to have
sex. She said no. The appellant told her she was alone and there was nothing
she could do about it, pinned her to the bed, began groping her, and attempted to
reach under her clothes. She was able to push him away and they exchanged
heated words. The complainant told him to leave and that she would report him
to the police. The appellant pushed her against a door, reminded her that he
knew where her daughter went to daycare, and threatened to kill them both if
she went to the police. He left.
[7]
The complainant phoned her brother and told him
that she had been sexually assaulted and threatened. Her brother called the
police. The police arrived and the complainant provided a statement. After the complainant
and the appellant reconciled the next day, the complainant contacted the police
and told them she no longer wished to press charges. She did not, however,
recant her allegations.
[8]
The appellant agreed with the complainants
testimony that he and the complainant argued on May 13, but claimed that he
then left without incident to meet his probation officer. He testified that the
assaults and threats described by the complainant never happened and were
concocted by her to help get rid of him. He argued that she had recanted when
she told police she did not want to press charges.
[9]
There were two further incidents after the
post-May 13 reconciliation that led to further criminal charges.
(2)
The Second Incident
[10]
On June 9, 2019, some friends of the complainant
were at her home counselling her to end the relationship. The appellant was
downstairs, listening to what was going on. The appellant was angered by what
he overheard, armed himself with a hammer, and went to push his way into the
bedroom. A friend of the complainant had been standing outside the bedroom, so
that the complainant and the others could speak privately, and blocked the
appellant. During what the trial judge described as a fist fight, the
appellant punched the friend multiple times in the face and head before he was
subdued.
(3)
The Third Incident
[11]
Two days later, the complainant was at the mall
with friends. While there, she received threatening text messages from the
appellant. She contacted the police.
[12]
The police asked the appellant to turn himself
in. The appellant responded that he would never be apprehended, destroyed his
cell phone, stole a vehicle, and fled. He was subsequently apprehended.
Issues on Appeal
[13]
The appellant raises a single issue on his appeal
from conviction: that the trial judge erred in his analysis under
R. v. W.(D.)
, [1991] 1 S.C.R. 742,
by failing to find
that there was an inconsistency between the complainants evidence and the
evidence of her brother, and not finding that this inconsistency was sufficient
to raise a reasonable doubt that the appellant had assaulted, threatened, and
sexually assaulted the complainant on May 13, 2019.
[14]
The appellant also appeals the sentence imposed,
on the basis that it was excessive and that he ought to have received credit
for harsh conditions imposed due to COVID-19.
Analysis
(1)
Appeal Against Conviction
(a)
Overview
[15]
The appellant argues that the trial judge failed
to resolve an inconsistency between the complainants evidence and the evidence
of her brother as to the timing of events on May 13. Specifically, the
appellant argues that the chronology of events provided by the complainant is
inconsistent with the objective evidence of the timing of three phone calls between
the complainant and her brother. He claims the discrepancy was not
satisfactorily resolved by the trial judge and it ought to have raised a
reasonable doubt.
[16]
It was undisputed at trial that the appellant
arrived at the complainants residence at 6:40 a.m. No one testified as to
precisely when he left. The complainant testified that the sexual assault began
about two hours after he arrived, which would have been approximately 8:40 a.m.
The appellant started acting disrespectfully and she told him to leave. The
complainant testified that the appellant said no and that they were going to
have sex. The sexual assault began, followed by the appellant pushing the
complainant against the bathroom door and hitting her. She yelled at him to get
him to go downstairs. Once they were downstairs, she told him she wanted to
call the police. He told her if she did, to remember that he knew where her
daughters daycare was and that he would hurt her. The complainant testified
that they both went downstairs and eventually the appellant left, although
she testified repeatedly that she could not say when that was.
[17]
The complainant testified that after the
appellant left, she was frantic about what to do. He had said he would harm her
daughter if she went to the police. She decided to phone her brother. She said
it was a quick two-minute call that ended with her brother telling her he would
phone 911, which he did.
[18]
Records showed that the complainant first called
her brother at 9:53 a.m. Her brother testified this was a five-minute call in
which the complainant said she had an argument with the appellant, that she was
done with him, and that she was looking at kicking him out and removing him
from the home. There was no discussion in this call about the complainant
having been sexually assaulted.
[19]
Records showed the complainant called her
brother again at 11:40 a.m. The brother testified that he was busy with his
children and did not notice the call.
[20]
About an hour later at 12:55 p.m. the
brother returned her call. He testified that, although she was not sobbing, she
was hyperventilating and obviously upset. She told him that the appellant had
sexually assaulted her and threatened her and her daughter. Her brother
testified that he became upset, ended the call, and immediately called 911.
[21]
The complainant, when asked on cross-examination
about the first call to her brother, had no memory of it. She did not deny
making it but did not remember doing so and could not testify as to what was said.
She only testified about the 12:55 p.m. call, in which she first disclosed the
sexual assault and threats.
(b)
The Trial Judge Did Not Err
[22]
The question on appeal is whether there is an
inconsistency between the evidence of the brother and the complainant, and
whether this ought to have given rise to a reasonable doubt. For the reasons
that follow, I do not agree that there is either a conflict in the evidence or
a reversible error.
[23]
The trial judge accepted the complainants
evidence as truthful and credible and concluded that the sexual assault and
threats occurred as the complainant described. He rejected the argument that
she had recanted: she never said the events had not occurred when she told
police she did not want to press charges. Although there were some
inconsistencies brought out in her cross-examination, they were explained by
the complainant. The trial judge accepted her evidence about the assault. He
rejected the argument that the timing of the phone calls between the
complainant and her brother and whether she was upset cast doubt on her
account. His treatment of this issue is the focus of the conviction appeal.
[24]
The complainant did not venture any definitive
timing of events, other than to state that she thought the arguments leading to
the sexual assault, assault, and threats began about two hours after the
appellant arrived. This would be approximately 8:40 a.m.
[25]
If that was the case, then it would have made
sense that, by the time the complainant made the first call at 9:53 a.m., the
assaults had already taken place and the appellant had likely left. And yet the
brothers evidence and the timing of his call to 911 suggest the complainant
did not disclose the sexual assault and threats until the 12:55 p.m. call.
[26]
The appellant argues that this delay in
reporting ought to have raised a reasonable doubt that he committed the acts
alleged. How could the complainant be calm in a conversation with her brother
at 9:53 a.m. in the immediate aftermath of a sexual assault and not
disclose it, or the threats to harm her daughter, but then be hyperventilating
at 12:55 p.m.?
[27]
The trial judge noted the argument but was
undisturbed by it. He did not make a finding of when the appellant left, or
whether the sexual assault took place before or after the 9:53 a.m. call. The
appellant, for his part, did not give evidence about when he left and was
unable to elicit evidence from his parole officer that he must have left by
9:00 a.m. in order to make it to an appointment they had for the early
afternoon.
[28]
On the trial judges understanding of events, it
was entirely consistent with the evidence either that the appellant assaulted
and threatened the complainant and left before the complainant made the first
call, or that the incident had taken place after the first call. But, as
explained below, even if he had accepted that the appellant had left by 9:00
a.m. which he found he did not have to decide - it would not have been inconsistent
with the complainants evidence or raised a reasonable doubt.
[29]
The complainant did not testify that she
disclosed the incident to her brother as soon as it happened which would have
meant that she disclosed it on the first call - only that she disclosed it
after it happened. She was consistent on cross-examination that she did not
remember the first call with her brother, did not know at what time the
appellant left, and would not estimate how much time had passed between the
incident complained of and when the appellant left. His departure was not
immediate.
[30]
The trial judge was not prepared to draw an
inference that someone in the circumstances of the complainant who had
experienced a sexual assault would necessarily disclose it immediately to her
brother, or that she would present on the phone as more upset at 9:53 a.m. than
at 12:55 p.m., assuming the incident had taken place prior to 9:53 a.m. He did
not find that the timing of the two phone calls, the content of those calls, or
her demeanour on those calls was inconsistent with her evidence as to the
sexual assault, assault, and threats. None of this evidence raised a reasonable
doubt in his mind.
[31]
I see no reason to interfere. Contrary to the
appellants argument, there was no material inconsistency between the evidence
of the complainant and her brother that the trial judge had to resolve: they
agreed that there was a phone call in which she disclosed a sexual assault. It
was open to the trial judge to conclude that the sequence of events or the
manner in which the complainant evidenced distress do not damage her evidence
or raise any doubt in my mind, and to reject the argument that the complainant
would necessarily have disclosed the sexual assault immediately to her brother.
The factual findings the trial judge made, and the inferences he drew from them
were all open to him, and he made no reversible error in his
W.(D.)
analysis.
(2)
Appeal Against Sentence
[32]
In
R. v.
Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11, a majority of the
Supreme Court concluded that except where a sentencing judge makes an error of
law or an error in principle that has an impact on the sentence, an appellate
court may not vary the sentence unless it is demonstrably unfit.
The appellant has not identified any basis upon which it would be
appropriate to interfere with the sentence imposed. The sentence is not
demonstrably unfit and the trial judge made no legal error or error in
principle.
[33]
The trial judge did not err in emphasizing denunciation and
specific deterrence. As the trial judge explained, the appellant has a history
of sexual offences and committed the offences that are the subject of this
appeal while on probation. The trial judge was unimpressed with the appellants
argument attempting to minimize the sexual assault as a simple touching. As the
trial judge noted, it was sexual touching accompanied by a threat of forced
intercourse, in circumstances where the complainant was fully aware of the
appellants history of forcing intercourse on others.
[34]
I reject the appellants argument that he was thereby unfairly
penalized for having been honest with the complainant by disclosing his history
of sexual assault. Being honest with an intimate partner about his discreditable
past was the least he could have been expected to do. He is not entitled to a
lesser sentence because the experience would have been less terrifying for her
if she had never known what he had done to other women.
[35]
With respect to the argument that the appellant
ought to receive enhanced credit due to harsh conditions resulting from
institutional efforts to combat COVID-19, the appellant has not argued any
particular impact that COVID-19 measures have had on him. I would dismiss this
ground of appeal.
Disposition
[36]
I would dismiss the appeals against conviction
and sentence.
Released: June 29, 2021 P. R.
B.W.
Miller J.A.
I
agree. Paul Rouleau J.A.
I
agree. K. van Rensburg J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Carillion Canada Holdings Inc.
(Re), 2021 ONCA 468
DATE: 20210628
DOCKET: M52316
Gillese, Tulloch and Roberts
JJ.A.
In
the Matter of the
Companies Creditors Arrangement Act
,
R.S.C. 1985,
c. C-36, as amended
And
In the Matter of a Plan of Compromise or Arrangement of Carillion Canada
Holdings Inc., Carillion Canada Inc., Carillion Canada Finance Corp., Carillion
Construction Inc., Carillion Pacific Construction Inc., Carillion Services
Inc., Carillion Services (FSCC) Inc., Bearhills Fire Inc., Outland Camps Inc.,
Outsand Resources Inc., Rokstad Power GP Inc., 0891115 B.C. Ltd., Golden Ears
Painting & Sandblasting Ltd., Plowe Power Systems Ltd. and Carillion
General Partner (B.C.) Limited
Applicants
And In the Matter of
Section 101 of the
Courts Of Justice Act
and the Receivership of 491313 B.C. Ltd., Carillion
Investments (Canada) Inc., 2447586 Ontario Inc., Twd Roads Management Inc.,
Vanbots Capital Corporation and Carillion Canada (WOHC) Inc.
Debtors
Paul H. Le Vay
and Carlo Di Carlo, for the moving party the Monitor
John Salmas and Dennis
Wiebe, for the responding party HSBC Bank plc
Heard: in
writing
Motion for leave to appeal from the
order of Justice Glenn A. Hainey of the Superior Court of Justice, dated March
2, 2021
.
REASONS
FOR DECISION
OVERVIEW
[1]
This leave motion arises in the context of a
CCAA proceeding. The Applicants in the proceeding include Carillion
Construction Inc. (Carillion Construction) and Carillion Canada Inc. They are
part of a global construction conglomerate (Carillion Group). HSBC Bank plc
(HSBC UK), the responding party on this motion, provided banking services to
the Carillion Group.
[2]
Shortly before the start of these insolvency
proceedings, Carillion Construction, a general contractor for a number of major
construction projects, received $28,844,390.53 from the owners of four
different Ontario-based construction projects. The payments were on account of
improvements to those projects. There were unpaid suppliers and subcontractors
at each project. Pursuant to the cash sweep and pooling arrangements that the
Carillion Group had with HSBC UK, these funds were swept from Carillion
Constructions Canadian bank account and ended up in an account at HSBC UK in
England.
[3]
Ernst & Young Inc., the court-appointed
monitor of the Applicants (the Monitor) brought a motion for a declaration
that, pursuant to s. 8 of the
Construction Lien Act
, R.S.O. 1990, c.
C.30, $21,699,020.71 in the HSBC UK account was subject to a statutory trust.
[4]
By order dated March 2, 2021 (the Order), the
CCAA judge dismissed the motion. He found that the Monitor had failed to
establish the certainty of subject-matter requirement for a trust, saying:
[T]he payments that are said to be the subject of the [
Construction Lien
Act
] trust are not identifiable because they have been irreconcilably
commingled and converted by seven different companies in two countries.
Tracing in equity cannot be used to enforce a [
Construction Lien Act
]
trust in an insolvency proceeding where identification of specific trust
property is impossible. He further explained that tracing the trust funds in
common law did not apply because the payments were deposited into and
transferred among mixed accounts, and put to various uses.
[5]
The Monitor moves for leave to appeal the Order.
It submits that, among other things, the CCAA judge erred in: conflating
ascertainability of subject matter of a trust with the ability to trace;
holding that equitable tracing is not available in the insolvency context; and,
holding that common law tracing is not permitted into mixed accounts. The
Monitor also seeks leave to adduce fresh evidence of the Monitors 33rd Report,
including a letter appended to the Report from the Surety Association of Canada
(the Letter).
[6]
For the reasons that follow, we would not admit
the fresh evidence and we would refuse leave.
THE FRESH EVIDENCE IS NOT ADMITTED
[7]
The responding party asks this court to dismiss
the Monitors request to adduce fresh evidence. It submits that the only substantive
component of the proposed fresh evidence is the Letter, which is the authors
subjective opinion of the impact of the motion judges decision on the
construction and surety industries; it is devoid of factual information,
statistics, or data to support the authors views. Moreover, the Letter is not
appended to an affidavit sworn by its author and so is inadmissible hearsay.
[8]
We accept the responding partys submission and,
accordingly, do not admit the fresh evidence.
THE TEST FOR LEAVE IS NOT MET
[9]
Leave to appeal is granted sparingly in CCAA proceedings,
and only where there are serious and arguable grounds that are of real and
significant interest to the parties. In deciding whether to grant leave, the
court will consider whether: (1) the proposed appeal is
prima facie
meritorious or frivolous; (2) the point on the proposed appeal is of
significance to the practice; (3) the point on the proposed appeal is of
significance to the action; and, (4) the proposed appeal will unduly hinder the
progress of the action: see, for e.g.,
Crystallex
International Corporation
(
Re
)
,
2021 ONCA 87, at para. 10.
[10]
In our view, this is not one of those rare cases
in which leave to appeal should be granted. We are not satisfied that the
proposed appeal is
prima facie
meritorious or that the case is of significance to the practice.
[11]
The CCAA judge is the supervising judge in this
proceeding. He is deeply familiar with the Applicants varied, multi-industry
corporate and banking structures, construction projects, and the general body
of unsecured creditors. His findings of fact are entitled to considerable
deference.
[12]
The CCAA judge found that the money claimed to
be the subject matter of the
Construction Lien Act
trust is not identifiable because it
had been irreconcilably commingled and converted by seven different companies
in two countries. Tracing at common law and in equity fails where
identification of trust property is not possible:
B.M.P.
Global Distribution Inc. v. Bank of Nova Scotia
,
2009 SCC 15, [2009] 1 S.C.R. 504, at para. 85;
Citadel
General Assurance Co. v. Lloyds Bank Canada
,
[1997] 3 S.C.R. 805 at paras. 57-8. Further, the CCAA judge did not hold that,
as a general rule, equitable tracing is not available in the insolvency
context, as the Monitor urges. He held that tracing in equity cannot be used to
enforce a
Construction Lien Act
trust in an insolvency proceeding
where identification of specific trust property is impossible. As the CCAA
judge found, that is the situation in this case.
[13]
Nor did the CCAA judge confuse the
ascertainability of the subject matter of a trust with the ability to trace.
His finding that the trust property was not identifiable due to commingling and
conversion disposed of the tracing argument.
[14]
We do not view the CCAA judges decision as of significance to the
practice for two reasons. First, the decision is fact specific: the nature and
operation of the Carillion Groups unique banking structure were critical
factors. Second, the decision does not create uncertainty because it is
consistent with established jurisprudence.
[15]
As neither of the first two considerations of
the leave test are satisfied, we refuse leave.
DISPOSITION
[16]
The motion for leave to appeal is dismissed,
with costs to the responding party fixed at $15,000, all inclusive.
E.E. Gillese
J.A.
M. Tulloch J.A.
L.B. Roberts
J.A.
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COURT OF APPEAL FOR ONTARIO
CITATION: Deswal v. ADT LLC (ADT Security
Services), 2021 ONCA 475
DATE: 20210628
DOCKET: C65881
Doherty, Benotto and Brown JJ.A.
BETWEEN
Rinku
Deswal and Tajinder Oberoi
Plaintiffs (Appellants)
and
ADT LLC c/o/b as ADT Security Services, and
ADT Security Services Canada
Defendants
(Respondents)
Mark A. Klaiman, for the appellants
Chad M. Leddy, for the respondents
Heard: June 25, 2021 by video conference
On
appeal from the judgment of Justice Lucy K. McSweeney of the Superior Court of
Justice, dated August 27, 2018.
REASONS FOR DECISION
OVERVIEW
[1]
In 2013, the appellants, Rinku Deswal and her husband, Tajinder Oberoi,
purchased a house already equipped with a security alarm system provided by the
respondents, ADT LLC and ADT Security Services Canada (ADT). They entered
into a six-page Residential Alarm Services Agreement with ADT to activate and
upgrade the system. In March 2015 their house was robbed. The appellants filed
a proof of loss with their insurer for $139,330.73, consisting of claims for
loss of contents and repairs to the house. As well, they commenced this action
against ADT seeking damages of $500,000, plus $100,000 for aggravated,
exemplary, or punitive damages. In their action, the appellants claim the
security system did not operate when thieves broke into their house. ADT moved
for summary judgment dismissing the action, which the motion judge granted.
[2]
In her reasons, the motion judge noted that the appellants advanced
three arguments in opposition to the respondents motion for summary judgment:
1.
the respondents failure to inform the appellants about a cellular
backup option amounted to negligence;
2.
the respondents sales agent was under a duty to draw the appellants
attention to limitation of liability and entire agreement clauses in the
Agreement, which he failed to do; and
3.
the limitation of liability clause, which stated that ADT is not an
insurer and limited any liability to 10% of the annual service charge of $335
or $250, whichever was greater, was unenforceable as it was unconscionable and
contrary to public policy.
The motion judge rejected each of the appellants
submissions and granted summary judgment dismissing their action.
[3]
The appellants appeal. At the hearing, we dismissed the appeal, with
reasons to follow. These are those reasons.
ISSUES ON APPEAL
[4]
The appellants submit that the motion judge erred in: (i) holding that
the respondents had no duty to advise the appellants of the alarm systems
vulnerabilities and how they could be mitigated; and (ii) concluding that the
limitation of liability clause was enforceable.
DUTY TO ADVISE
[5]
In their first submission, the appellants argue that the motion judge
erred in her analysis of the alleged acts of commission and omission by the
respondents sales agent when he met the appellants at their home.
Specifically, they contend the agent committed negligence by: failing to tell
them about a cell-backed communication option for their alarm system; assuring
them that their house would be monitored 24/7, with no possibility of
interruption, when, in fact, an interruption happened at the time of the
robbery; and failing to explain how a security system could be circumvented.
The appellants contend that these were material details that the respondents
were under a duty to disclose to them and the trial judge erred by failing to
find such a duty.
[6]
The motion judge did not accept this submission because the appellants
did not adduce legal authority to support their contention that the respondents
had a duty to advise them about other offered services. As well, she found that
the appellants position was not consistent with the general obligations between
parties that are found in a written contract entered into between them. The
Agreement contained an entire agreement clause that stated, in part: This
agreement constitutes the entire agreement between the customer and ADT. In
executing this agreement, customer is not relying on any advice or
advertisement of ADT.
[7]
In
Fraser Jewellers (1982) Ltd. v. Dominion
Electric Protection Co.
(1997), 34 O.R. (3d) 1 (C.A.), this court
emphasized that, in a commercial setting, in the absence of fraud or other
improper conduct that induced a plaintiff to enter the alarm services contract,
the plaintiff bore the onus to review the contract and satisfy itself of its
advantages and disadvantages before signing it. As this court stated at para.
32, [t]here is no justification for shifting the plaintiffs responsibility to
act with elementary prudence onto the defendant.
[8]
Although the Agreement in this case arose in a consumer setting, not a
commercial one, the appellants are sophisticated individuals: Ms. Deswal is a
practicing litigation lawyer who runs her own practice; Mr. Oberoi has a Masters
Degree in Finance and his aviation consulting work involves the drafting of
business and leasing contracts. Significantly, Ms. Deswal acknowledged that she
signed the Agreement without reading it.
[9]
Had the appellants taken the time to read the Agreement, they would have
understood from the first page that a cellular back-up service was available.
As well, the following clauses pointed out that the operation of the system
could be interrupted:
(i)
The entire agreement clause just above the signature line stated:
Customer acknowledges that he/she is aware that no alarm system can guarantee
prevention of loss, that human error on the part of ADT or the municipal
authorities is always possible, and that signals may not be received if the
transmission mode is cut, interfered with, or otherwise damaged;
(ii)
On page 5, the Agreement stated, in capital letters: Customer
understands that ADT will not receive alarm signals when the telephone line or
other transmission mode is not operating or has been cut, interfered with or is
otherwise damaged
That clause continued: Customer understands that ADT
recommends that customer also use an additional back-up method of communication
to connect customers alarm system to ADTs alarm monitoring center regardless
of the type of telephone service customer uses.
[10]
The
motion judge held that, in the circumstances, it was the appellants
responsibility to read the agreement and ask about its terms. That was a
conclusion open to the motion judge on the record before her.
THE LIMITATION OF LIABILITY CLAUSE
[11]
The
Agreement contained a limitation of liability clause that read, in part, as
follows:
Limit of liability - It is understood that ADT is not an
insurer, that insurance, if any, shall be obtained by the customer and that the
amounts payable to ADT hereunder are based upon the value of the services and
the scope of liability as herein set forth and are unrelated to the value of
the customers property or property of others located in customers premises. Customer
agrees to look exclusively to customer's insurer to recover for injury or damage
in the event of any loss or injury and releases and waives all right of
recovery against ADT arising by way of subrogation ... if ADT should be found
liable for loss, damage or injury due to a failure of service or equipment in
any respect, its liability shall be limited to a sum equal to 10% of the annual
service charge or $250 whichever is greater, as the agreed upon damages and not
as a penalty, as the exclusive remedy
[12]
We
are not persuaded that the motion judge erred in her application of the three-part
analysis set out in
Tercon Contractors Ltd. v. British
Columbia (Transportation and Highways))
, 2010 SCC 4, [2010] 1
S.C.R. 69, to determine the enforceability of the limitation clause for the
following reasons:
(i)
The Agreements limitation of liability clause applied in the
circumstances;
(ii)
When the motion judges oral reasons are read as a whole, it is clear
that she held the clause was not unconscionable. That finding was open to her
on the evidence: the contractual limitations on liability were clearly set out
in several provisions of the Agreement; they were not hidden or concealed in
ways that would make it unfair to treat them as part of the contract;
immediately above the signature line the contract contained language that the
customer had read the entire agreement, including the limitation of liability
clause; there was no pre-existing relationship between the appellants and ADT
in which the appellants looked to the company for advice; the appellants are
sophisticated and educated individuals; there was no evidence of duress or
limits placed on the appellants time to review the Agreement at the time of its
execution; and Ms. Deswal chose not to read the Agreement presented to her,
notwithstanding the provision, in bold capital letters just above her signature
line, acknowledging that she had read both sides of this agreement and
understands all terms and conditions of both this and the reverse side of this
agreement, in particular, paragraph 1, Limited Warranty, and paragraph 7, Limit
of Liability; and
(iii)
The motion judge held that public policy favoured upholding the contract
on its terms, relying on decisions of this court in
Fraser
Jewellers
and
Suhaag Jewellers Ltd. v. Alarm
Factory Inc. (AFC Advance Integration)
, 2016 ONCA 33, at para. 4,
leave to appeal to S.C.C. refused, 36887 (June 23, 2016) the latter a post-
Tercon
decision. The motion judge adopted the public
policy rationale supporting the limitation of liability clauses in alarm system
service contracts set out by this court in
Fraser Jewellers
,
at paras. 38 and 39,
specifically that the service provider is not an insurer and its monitoring fee
bears no relationship to the area of risk and the extent of exposure ordinarily
taken into account in the determination of insurance policy premiums. We see no
error in her so doing.
[13]
Finally,
in both written and oral submissions, the appellants argued that the
circumstances of their case are analogous to those of the plaintiffs in the
decision of this court in
Singh v. Trump
, 2016
ONCA 747, 408 D.L.R. (4th) 235, leave to appeal refused, [2016] S.C.C.A. No.
548. We see no such analogy.
DISPOSITION
[14]
For
the reasons set out above, the appeal is dismissed.
[15]
In accordance with the parties agreement on
costs, the appellants shall pay the respondents their costs of the appeal fixed
in the amount of $6,000, inclusive of disbursements and applicable taxes.
Doherty
J.A.
M.L.
Benotto J.A.
David
Brown J.A.
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COURT OF APPEAL FOR ONTARIO
CITATION: Thrive Capital Management Ltd. v.
Noble 1324 Queen Inc., 2021 ONCA 474
DATE: 20210628
DOCKET: M52469 & M52474 (C69156)
Zarnett
J.A. (Motions Judge)
DOCKET:
M52469
BETWEEN
Thrive
Capital Management Ltd., Thrive Uplands Ltd., 2699010 Ontario Inc. and 2699011
Ontario Inc.
Plaintiffs (Respondents/Moving Parties)
and
Noble
1324 Queen Inc.,
Michael Hyman, Giuseppe Anastasio
, David Bowen, Noble
Developments Corporation,
Hampshire and Associates Incorporated
, Lisa
Susan Anastasio, Rajeree Etwaroo and Con-Strada Construction Group Inc.
Defendants (
Appellants/Responding Parties
)
DOCKET:
M52474
AND BETWEEN
Thrive
Capital Management Ltd., Thrive Uplands Ltd., 2699010 Ontario Inc. and 2699011
Ontario Inc.
Plaintiffs (Respondents/Responding Parties)
and
Noble
1324 Queen Inc.,
Michael Hyman, Giuseppe Anastasio
, David Bowen, Noble
Developments Corporation,
Hampshire and Associates Incorporated
, Lisa
Susan Anastasio, Rajeree Etwaroo and Con-Strada Construction Group Inc.
Defendants (
Appellants/Moving Parties
)
Brian Radnoff and Joshua Suttner, for
the respondents, moving parties in M52469 and responding parties in M52474
Justin Necpal and Justin Nasseri, for
the appellants, responding parties in M52469 and moving parties in M52474
Heard: June 1, 2021 by videoconference
ENDORSEMENT
Introduction
[1]
As a penalty for their disobedience of a
Mareva
injunction, the appellants were ordered to pay the respondents the amount of
their claim approximately $9 million. The appellants were also ordered to pay
around $195,000 in costs to the respondents, and to attend a judgment debtor
examination (the examination order). The appellants do not contest that they
were properly found in contempt but will argue on appeal that the penalty was wholly
disproportionate and the product of an unfair process.
[2]
The respondents move for security for costs of
the appeal and the proceeding. The appellants resist that request and bring
their own motion that the examination order be determined to have been
automatically stayed, or, if there is no automatic stay, that a stay be granted.
[3]
For the reasons that follow, I grant in part the
motion for security for costs. The appellants contempt of an order designed to
preserve their assets for the protection of the respondents constitutes a good reason
for ordering security, as it is both compelling and related to the reason
security is granted to provide a measure of protection for costs. I dismiss
the motion relating to the examination order. I find that the examination order
is not automatically stayed and, since the appellants are already under court
imposed obligations to disclose their assets and can be examined on that
disclosure, compliance with the examination order while the appeal is pending would
not give rise to irreparable harm; it would not be in the interests of justice
to grant a stay.
Background
[4]
On April 20, 2020, the respondents commenced an
action against the appellants, amongst others, seeking substantial damages.
Various causes of action were asserted, including fraudulent misrepresentation,
breach of fiduciary duty, and breach of contract.
[5]
The action arose out of the advance, by the
respondents, of approximately $9 million for the purchase of certain
properties. The respondents allege that their investment was not used for the
purpose for which it was advanced, and that the appellants misappropriated large
sums of it.
[6]
On April 23, 2020, Koehnen J. (the motion judge)
granted a
Mareva
injunction and related orders against the appellants,
restraining them (subject to limited exceptions) from selling, transferring, or
dissipating any of their assets, requiring them to provide an accounting and
disclosure of information, and directing them to complete the acquisition of
one of the properties that the respondents funds had been advanced to
purchase.
[7]
On May 19, 2020, the motion judge declared that
the appellants had materially breached his April 23 orders and gave them a
further opportunity to comply. On June 1, 2020, the motion judge suspended the
exceptions to the
Mareva
injunction due to the appellants continuing
non-compliance.
[8]
On June 19, 2020, the motion judge conducted a
contempt hearing. He found the appellants in contempt for having breached the
Mareva
injunction and related orders. In his reasons dated August 21, 2020, the motion
judge described the breaches as including failure to provide an accounting and
other disclosure, failure to close the purchase of property, failure to provide
contact information for individuals or entities who received funds from certain
bank accounts or from the appellants and, in the case of the appellant Hyman
and Noble Developments Corporation (a company Hyman controlled), transferring
funds when prohibited from doing so.
[9]
On November 5, 2020, the motion judge held a
sentencing hearing. On January 21, 2021, he released reasons finding that the
appellants had not purged their contempt and remained in breach of his orders. He
gave judgment (the judgment) with a number of provisions.
[10]
One provision was that, as the sanction for the
contempt, the appellants were to pay the respondents the amount of their
investment, less amounts recovered, in the sum of $8,794,606.09.
[11]
A further provision was the examination order
that directed the appellants to attend for a judgment debtor examination, even
if they appealed the judgment.
[12]
The judgment also included provisions containing
awards of costs to the respondents as follows: $36,011.97 for the contempt
hearing; $48,816.31 for the sentencing hearing; and 109,142.80 for the action.
[13]
The appellants have appealed the judgment
contending that the motion judge erred in imposing, as a sanction for their contempt,
a judgment for the amount of the respondents claim, in an action they never
had a chance to defend. In their appeal factum, the appellants confirm that
they are not appealing the contempt finding against them. They acknowledge
that they did not sufficiently comply with court orders and they know there
are consequences for that. It might be a large fine. It might be jail time. But
it is not final judgment for $9M...
[14]
The appellants have refused to attend the
judgment debtor examination.
The Motion for Security for Costs
[15]
Rule 61.06(1) of the
Rules of Civil
Procedure
, R.R.O. 1990, Reg. 194 provides:
In an appeal where it appears that,
(a) 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;
(b) an order for security for costs could
be made against the appellant under rule 56.01; or
(c) for other good reason, security for
costs should be ordered,
a judge of the appellate court, on motion by
the respondent, may make such order for security for costs of the proceeding
and of the appeal as is just.
[16]
The respondents seek security for costs as
follows: $25,000 for the appeal and $193,971.08 for the proceeding. The latter
sum is the total of the three costs awards included in the judgment.
[17]
The ordering of security for costs is
discretionary; a two-step reasoning process is involved. The first question is
whether the requirements of r. 61.06(1)(a), (b), or (c) are met. If so, the
second question is whether it would be just to order security, considering the
circumstances and the interests of justice
: Yaiguaje v. Chevron Corporation
,
2017 ONCA 827,
138 O.R. (3d) 1
, at
paras. 18-19.
[18]
The respondents rely on r. 61.06(1)(c) which
provides that security may be ordered for other good reason. This phrase must
be understood in the context of the rest of r. 61.06(1). Subrule (a)
contemplates security being ordered where the appeal appears to be frivolous
and the appellant has insufficient assets in Ontario to pay the costs of the
appeal. Subrule (b) contemplates security where an order could be made against
the appellant under r. 56.01, the rule that governs when security may be
ordered against a plaintiff at the trial level. Resort to subrule (c) is made
where the other subrules do not apply. Invoking it should not be routine:
Combined Air
Mechanical Services Inc. v. Flesch
,
2010 ONCA 633
, 268
O.A.C. 172, at para.
8
.
[19]
The list of what might qualify as an other good
reason is not closed. But the reason must be (i) compelling, and (ii) related
to the purpose of ordering security, which is to provide a respondent with a
measure of protection for costs:
Combined Air
, at para. 8;
Heidari
v. Naghshbandi
, 2020 ONCA 757, 153 O.R. (3d) 756, at para. 6.
[20]
I am satisfied that, in this case, the other
good reason requirement in r. 61.06(1)(c) has been met.
[21]
The
Mareva
injunction and related
orders granted by the motion judge required the appellants, among other things,
to make disclosure and to preserve assets. Orders of this nature are designed
to ensure that a plaintiffs recovery will not be defeated by the defendant
dissipating its assets before judgment. The propriety of those orders is not at
issue in the appellants appeal; they concede that they breached those orders
and do not contest the findings of the motion judge that held them in contempt.
[22]
The violation of these orders constitutes a
reason to grant security that is compelling, given the serious nature of the orders
and their violation, and directly relates to the purpose for which security
for costs may be ordered.
[23]
An other good reason to order security has
been found in cases where misconduct is such as to present an unacceptable risk
that any costs order made on the appeal will not be obeyed. For example, in
York
University v. Markicevic
, 2017 ONCA 651, at para. 58, Epstein J.A. considered
that, a finding that the appellant has committed fraud
in conjunction with a
finding that the appellant has taken steps to put his assets out of the reach
of his creditors, provide other good reason to justify an order for security
for costs under r. 61.06(1)(c).
[24]
Here, the appellants have been found in contempt
of orders that were designed to ensure they would honour their obligations if
found liable. This also presents an unacceptable risk about whether they would
comply with a costs award if unsuccessful on their appeal.
[25]
Having concluded that the respondents have met
the requirements of r. 61.06(1)(c):
I must go on to determine whether an order for
security for costs would be just. Such a determination requires balancing the [appellants]
right to access to justice against the [respondents] right to protection from
having to defend unmeritorious positions in circumstances in which it is
unlikely to recover its costs:
Markevic
, at para. 22.
[26]
The appellants argue that a requirement to post
security in the amount sought by the respondents would create a barrier to the
pursuit of their appeal and deny them access to justice. The onus of showing
that a party should not be ordered to post security due to its impecuniosity is
on the party making that allegation
: Zeitoun v. Economical Insurance Group
(2008), 91 O.R. (3d) 131 (Div. Ct.), at paras. 45-46, aff'd
2009 ONCA 415
, 96 O.R. (3d) 639
.
[27]
The appellants do not expressly allege impecuniosity.
In affidavits that they were required to file under the motion judges April
23, 2020 order, the appellants depose to having negligible assets. However, the
motion judge, in making his contempt finding, pointed to significant
discrepancies between what was disclosed in those affidavits and other evidence
or indications that their assets were far more substantial: 2020 ONSC 4921, at
paras. 21-30. The appellants filed no evidence on this motion, and have to date
resisted being examined as to the full extent of their assets under the
examination order.
[28]
Moreover, the appellants make certain submissions
that are inconsistent with impecuniosity. They suggest that it is speculative
to assume they would not honour a reasonable costs award on the appeal and point
out that they have paid some costs orders in the past.
[29]
Given the above, I am not satisfied that a
reasonable order for security for costs would result in the appellants being
unable to pursue their appeal.
[30]
As to the quantum of security, the amount of
$25,000 for costs of the appeal was not seriously contested. In addition, the
respondents argue that the security should also include costs of the proceeding,
particularly two elements of those costs. They submit that the costs of the
contempt hearing should be posted as security since that award is highly
unlikely to be disturbed regardless of the result of the appeal, as the
appellants are not contesting the contempt finding. They make a similar
argument about the costs of the sentencing hearing. They argue that, given that
the appellants are not challenging the contempt finding, some sanction would
have been warranted. Therefore, even if the sanction is varied on appeal, the
costs order would likely stand. The appellants do not concede these points.
[31]
In the end, a security for costs order,
including its quantum, is discretionary and must be just. It bears repeating that
its purpose is to provide a measure of protection, not perfect protection, for
costs. The need for protection is strongest with respect to costs of the
appeal, as the respondents should not have to continue incurring expenses to
respond to the appeal without the prospect of some recovery if costs are
awarded in their favour. The need for protection exists, but is more attenuated,
with respect to the costs of the proceeding. The appeal is not causing those costs
to be incurred they already have been. On the respondents hypothesis that
the costs orders for the contempt and sentencing hearings will not be disturbed
on appeal, the appeal is merely delaying their collection.
[32]
Balancing all factors, I direct that the
appellants post security for costs of the appeal in the sum of $25,000, and of the
proceeding in the total sum of $45,000, within 30 days of the release of these
reasons.
The Motion for a Stay
[33]
As noted above, the judgment provided that the
appellants attend a judgment debtor examination even if they appealed the judgment.
The precise wording of the examination order provisions of the judgment are as
follows:
5.
THIS COURT ORDERS
that,
notwithstanding any appeals of this order which may be pending, the plaintiffs
may immediately take steps to enforce the Judgment by conducting judgment
debtor examinations and pursuing tracing remedies.
6.
THIS COURT FURTHER ORDERS
that the
Developer Defendants shall attend a judgment debtor examination on a date to be
determined by the plaintiffs. The Developer Defendants shall each produce all
documents listed in their Notices of Examination at least 14 days prior to
their respective examinations and the Developer Defendants shall answer all
questions arising on any examinations to enforce the Judgment, shall not refuse
to answer any questions and these examinations may be conducted before Justice
Koehnen.
[34]
The motion judge gave the following explanation
for making the examination order:
In addition, I direct that the plaintiffs may
begin enforcing that judgment by conducting judgment debtor examinations and
pursuing tracing remedies even if the Defendants appeal this judgment. This is
appropriate because the net effect of a judgment debtor examination or a
tracing remedy arising out of it would be the same as having the Defendants comply
with the Mareva injunction. Among the relief ordered under the Mareva
injunction was a requirement that Messrs. Hyman and Anastasio provide
affidavits of assets. I have commented on the complete inadequacy of those
affidavits in earlier reasons. If the Defendants succeed on an appeal of this
judgment, the appeal would allow them to defend, as a result of which the
plaintiffs would continue to have whatever rights they have now, including the
right to pursue further remedies under the court orders already issued which
would include the right to cross-examine the Defendants on their statements of
assets, the accounting and whatever disclosure they have produced.
[35]
The parties subsequently attended before the
motion judge who refused to give effect to the appellants submission that he had
no jurisdiction to order examinations with an appeal pending.
[36]
Examinations were scheduled for May 19 and 20,
but the appellants refused to attend, taking the position that the motion judge
did not have jurisdiction to order them to attend a judgment debtor examination
when the judgment was under appeal. They then brought this motion.
[37]
The appellants primary position is that the
appeal automatically stayed any provision of the judgment for the payment of
money until the appeal is determined: r. 63.01(1). A judgment debtor
examination is a step under or for the enforcement of the money provisions of
the judgment, and the effect of the stay is that no such step may be taken
until the appeal is determined: r. 63.03(3). The provision that the judgment
debtor examination may take place notwithstanding any appeals is ineffective,
as only a judge of this court can lift the automatic stay: r. 63.01(5). If a
stay is required, they ask that I grant one under r. 63.02(1).
[38]
The respondents argue that the examination order
was made as part of the sanction for the appellants contempt; it is not in and
of itself an order for the payment of money and is not automatically stayed. It
should not be equated with an ordinary judgment debtor examination, which the
holder of a money judgment that is not stayed can compel under r. 60.18. While
the motion judge called the examination a judgment debtor examination, he could
as easily have directed the appellants to be cross examined on the affidavits
they were required to file under the
Mareva
injunction. The
respondents also argue that since the appellants moved before this court only
after they failed to comply with the examination order, they should not be
given an audience. They submit that a stay of the examination order is not
warranted; and if it is automatically stayed, the stay should be lifted.
[39]
I agree with the appellants that the fact that
the motion judge stated that the examination order applied even if there were
an appeal does not make it so, as only a judge of this court can remove an
automatic stay. But in my view, the examination order is not automatically stayed
under r. 63.01(1). It is not an order for the payment of money, nor is the
examination a prohibited step under r. 63.03, given the existence of a court order
requiring that examination. While, under r. 63.03, the effect of a stay of a
provision for the payment of money is that no step under that provision or for
its enforcement can be taken, the examination sought by the respondents is not being
pursued under the provision for the payment of money, but under the examination
order, a separate provision of the judgment which is not automatically stayed.
[40]
Nor, in the unusual circumstances of this case,
would I grant a stay of the examination order. The overarching consideration in
whether to grant a stay pending appeal is whether doing so is in the interests
of justice. Three factors are considered: (1) whether, on a preliminary
assessment, the appeal raises a serious question, recognizing that this is a
low threshold; (2) whether the applicant would suffer irreparable harm if the
application were refused; and, (3) the balance of convenience, namely which of
the parties would suffer greater harm from the granting or refusal of the
remedy pending a decision on the merits. The factors are not watertight; the strength
of one may compensate for the weakness of another:
Zafar v. Saiyid
,
2017 ONCA 919, at paras.
17-19
.
[41]
The appellants identify no prejudice, let alone
irreparable harm, that they would suffer if they had to be examined. They are
not in an analogous position to a defendant appealing a money judgment who, if
they win their appeal, will never have to make disclosure or be subjected to
intrusive probing of their financial affairs and who can therefore credibly
claim that they would suffer irreparable prejudice if they had to undergo the
examination before the appeal is heard. The appellants were required under the
Mareva
injunction to file affidavits disclosing their assets and are subject to cross-examination
on those affidavits. They are not entitled, under existing court orders that
are not being appealed, to keep their financial affairs secret from the
respondents.
[42]
It is not in the interests of justice to grant
the stay requested. In light of that conclusion, it is unnecessary to address
the respondents other arguments.
Conclusion
[43]
The motion for security for costs is granted to
the extent described in para. 32 above. The motion for a stay is dismissed.
[44]
The respondents are entitled to the costs of
these motions in the total sum of $6,000, inclusive of disbursements and
applicable taxes.
B. Zarnett J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Weinstein v. Toronto Standard
Condominium Corporation No. 1466, 2021 ONCA 470
DATE: 20210628
DOCKET: M52496 (C69195)
Doherty, Feldman and Benotto
JJ.A.
BETWEEN
Stuart
Weinstein
Respondent (Appellant)
and
Toronto Standard Condominium
Corporation No. 1466
Moving Party (Respondent)
Timothy M. Duggan, for the moving party
(respondent)
Stuart Weinstein, acting in person
Heard: June 24, 2021 by video conference
On
appeal from the decision of Justice B. Davies of the Superior Court of Justice,
dated May 13, 2021.
REASONS FOR DECISION
[1]
This is a motion to quash the appeal for want of
jurisdiction. We agree with the respondent that s. 49 of the
Arbitration
Act, 1991
applies. Mr. Weinstein needs leave to appeal the decision of
Davies J.
[2]
In oral submissions, Mr. Weinstein maintained
his position that he had a right of appeal. However, he submitted that if the
court determined leave was required, he was prepared to argue for leave to
appeal today based on the material before the court on this motion. Counsel for
the respondent was also prepared to proceed on that basis.
[3]
Consequently, the court determined that it would
quash the appeal, but allow Mr. Weinstein to proceed with a motion for leave to
appeal based on the materials filed on this motion. The court heard submissions
from both parties.
[4]
It is not the practice of this court to give
reasons on motions for leave to appeal and we see no reason to depart from that
practice here. Mr. Weinstein has not established that the criteria for granting
leave to appeal are met in this case. The appeal is quashed. Leave to appeal is
refused. No costs.
Doherty
J.A.
K.
Feldman J.A.
M.L.
Benotto J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Moncur v. Plante, 2021 ONCA 462
DATE: 20210625
DOCKET: C68511
Fairburn A.C.J.O., Harvison
Young and Jamal JJ.A.
BETWEEN
David Daniel Moncur
Applicant (Respondent)
and
Stéphanie Ginette Plante
Respondent (Appellant)
Michael H. Tweyman, for the appellant
Mimi Marrello, for the respondent
Heard: June 11, 2021 by video
conference
On appeal from the orders of Justice Robert
Pelletier of the Superior Court of Justice, dated February 20, 2020 and May 15,
2020.
Jamal
J.A.:
[1]
This appeal involves the courts power to make
findings of contempt of court to sanction the breach of a parenting order in a high-conflict
family law dispute.
[2]
The appellant mother appeals from (1) the order of
the motion judge made on February 20, 2020, finding her in contempt of court
for four breaches of the final parenting order of Kershman J. made on consent on
November 20, 2018 (parenting order); and (2) the order of the motion judge made
on May 15, 2020, ordering the appellant to comply strictly with the parenting
order and to pay the respondent father $2,500 as sanctions for contempt and $10,000
in costs.
Background
[3]
The parties married in 2007, had a child
together in 2010, and separated in 2015. Parenting issues were resolved through
the parenting order in 2018, when both parties were represented by counsel. The
parenting order, which runs to 43 paragraphs over 12 pages, governs in meticulous
detail the parties joint decision‑making responsibility and parenting
time, including parenting decisions, their parenting schedule, communication
between them, residence, travel, and documents and registrations. It also provides
for resolving parenting disputes by negotiation, then mediation, and, finally,
binding arbitration.
[4]
On November 12, 2019, the respondent appeared
before the motion judge seeking an order that the appellant be found in
contempt of court for breaching the parenting order 10 times between December
2018 and July 2019. The respondent was represented by counsel and the appellant
was self-represented. The respondent alleged that the appellant overheld the
child twice, attended the childs activities and school several times during the
respondents parenting time, unilaterally changed the date of the childs First
Communion without appropriately advising the respondent, and failed to provide him
with a copy of the childs Social Insurance Number card.
[5]
On November 25, 2019, the motion judge held the matter
in abeyance until the parties completed an arbitration being scheduled for
December 2019 (they had attended two mediation sessions, without success). Noting
his strong sense of dismay at the acrimony that permeates the parents
relationship at this point, he stated that deciding the contempt motion now
would only serve to harden positions and add further to the atmosphere of
mistrust and conflict. He also ruled that the childs best interests, which he
said must remain central in these proceedings, would be best served by
allowing the parties to negotiate collaborative parenting solutions. He asked them
to advise him of the result of the arbitration and stated that he would then release
his ruling on the contempt motion and would seek submissions on sanctions if
necessary.
[6]
However, the matter did not proceed to
arbitration and the parties appeared before the motion judge again on February
3, 2020. Counsel for the respondent explained that the arbitration was at an
impasse and that the court was causing more conflict by not releasing the
contempt ruling, and asked for the ruling to be released without delay. The appellant
expressed concern that the contempt motion was being weaponized against her
and used to avoid the arbitration. The motion judge advised that he would
release his ruling soon.
[7]
On February 20, 2020, the motion judge found the
appellant in contempt for four of the 10 alleged breaches of the parenting
order. He ruled that the appellant had violated the parenting order by
unilaterally modifying the childs schedule with each parent twice,
unilaterally changing the childs First Communion date without effective notice
to or consultation with the respondent, and failing to provide the respondent with
a copy of the childs Social Insurance Number card as required under the
parenting order. The motion judge ruled that in each case the appellant had
deliberately and defiantly disregarded the quite specific and detailed
parenting order without just cause.
[8]
On May 15, 2020, the motion judge ordered the
appellant to pay the respondent $2,500 as a sanction for the contempt and
$10,000 in costs. He ruled that a monetary sanction was appropriate given the extent
of the contempt and to impress upon the [appellant] her obligation to abide
specifically by the [parenting] order, particularly in the context of this case
where there is a complete lack of cooperation and flexibility between the [parties].
He also ordered the appellant to comply strictly with the parenting order.
Issues
[9]
The appellant claims that the motion judge erred
by (1) ruling that the appellant deliberately breached the parenting order and (2)
failing to consider discretionary factors before making
findings of contempt of court.
Discussion
[10]
The following general principles govern the use
of the courts power to find a party in civil contempt of court for breaching a
court order:
1.
For a party to be found in contempt of court for
breaching a court order, three elements must be proved beyond a reasonable
doubt: (1) the order alleged to have been breached must state
clearly and
unequivocally what should
and should not
be done; (2) the party alleged to
have breached the order must
have had actual
knowledge of it
; and (3) the party allegedly in breach must have
intentionally done the act that the order prohibits or intentionally failed to
do the act that the order compels:
Carey v. Laiken
, 2015 SCC 17,
[2015] 2 S.C.R. 79, at paras. 32-35;
Greenberg v. Nowack
, 2016 ONCA 949,
135 O.R. (3d) 525, at paras. 25-26.
2.
Exercising the contempt power is discretionary.
Courts discourage the routine use of this power to obtain compliance with court
orders. The power should be exercised cautiously and with great restraint as an
enforcement tool of last rather than first resort. A judge may exercise
discretion to decline to impose a contempt finding where it would work an injustice.
As an alternative to making a contempt finding too readily, a judge should
consider other options, such as issuing a declaration that the party breached
the order or encouraging professional assistance:
Carey
, at paras.
36-37;
Chong v. Donnelly
, 2019 ONCA 799, 33 R.F.L. (8th) 19, at paras.
9-12;
Valoris pour enfants et adultes de Prescott-Russell
c. K.R.
, 2021 ONCA 366, at para.
41; and
Ruffolo
v. David
, 2019 ONCA 385, 25 R.F.L. (8th) 144, at paras. 18-19.
3.
When the issue raised on the contempt motion
concerns access to children, the paramount consideration is the best interests
of the children:
Ruffolo
, at para. 19
;
Chong
,
at para. 11; and
Valoris
, at para. 41.
Issue #1: Did the motion judge err in concluding that the appellant
deliberately breached the parenting order?
[11]
The appellant asserts that the motion judge erred
in concluding that the appellant deliberately breached the parenting order in
four respects.
[12]
First, although the appellant admits she
breached the parenting order by overholding the child in the week of June 28,
2019, when the child was to be with the respondent, she says she was justified in
doing so because the respondent had not told her which camp the child would attend
the next week. I do not agree. I see no error in the motion judges conclusions
that the respondent was not required to comply with the [appellants]
pre-conditions for the exchange to take place and that the overholding was
unnecessary, unjustified and in deliberate defiance of the [parenting] order.
[13]
Second, although the appellant admits that she overheld
the child on July 27, 2019 by registering him in a camp during the respondents
parenting time, she says she told the respondent about this when she booked the
camp but received no response from him. However, the respondent did object, through
his counsel. Again, I see no error in the motion judges conclusion that the
appellants conduct was in strict violation and deliberate defiance of the
[parenting] order.
[14]
Third, the appellant says she unilaterally changed
the date of the childs First Communion only to avoid traffic congestion from a
large event in the city that weekend and says she emailed the respondent beforehand
but used an old email address. Again, I do not agree that the motion judge
erred. The motion judge was entitled to find that the parenting order required the
appellant to notify the respondent of this change using Our Family Wizard, a
co-parenting app, not email, and that this was more than an inadvertent lapse,
and therefore a deliberate violation of the order.
[15]
Finally, although the appellant admits that she
did not provide the respondent the childs Social Insurance Number card, even
though the parenting order requires her to share all of the childs government
issued identification documents with the respondent, she says the Social
Insurance Number card is not government identification and in any event the
respondent already knew the number. Once again, I disagree with her submission that
the motion judge erred. I see no basis to interfere with the motion judges
conclusion that the parenting order requires the timely exchange of governmental
information held by the mother and that [t]hat obligation was clearly not
met by the appellant failing to provide the respondent with the childs Social
Insurance Number card. The motion judge was entitled to find in the
circumstances that the appellants conduct demonstrate[d] a level of control
by the [appellant] which the [parenting] order set out to specifically prevent.
[16]
I thus see no basis to interfere with the motion
judges ruling that the appellant intentionally breached the parenting order in
four respects.
Issue #2: Did the motion judge fail to consider discretionary
factors before making findings of contempt of court?
[17]
The appellant asserts that the motion judge
failed to consider relevant discretionary factors before making findings of contempt
of court, namely, the best interests of the child and whether a contempt
finding was a remedy of last resort.
[18]
I see no basis for the suggestion that the motion
judge failed to consider the best interests of the child. The motion judge
expressed concern for the childs best interests throughout the proceedings:
·
In holding the matter in abeyance to allow the
parties to proceed to arbitration, the motion judge highlighted that the
childs best interests must remain central in these proceedings and would be
best served by allowing the parents to arrive at collaborative solutions to
the challenges they face.
·
In ruling on the contempt motion, the motion judge
emphasized that the larger issue was the well-being of a 9-year-old boy who
has had to endure the very toxic and hostile relationship between his parents,
which over time would have a devastating effect on [him].
·
The motion judge repeatedly stressed his concern
for the childs best interests during the hearings, which, despite the parental
acrimony, he presided over with laudable patience, sensitivity, and decorum.
[19]
I do, however, agree with the appellants argument
that the motion judge did not appear to consider whether a declaration of contempt
was a remedy of last resort or whether there were alternative enforcement options,
such as a declaration that the appellant had breached the order or encouraging
professional assistance. Without considering any alternative options, he
appears to have proceeded directly from conclusions that the appellant
intentionally breached the parenting order to declarations of contempt. Although
the motion judge had earlier properly held the contempt ruling in abeyance to
allow the parties to arbitrate their parenting conflicts, and offered to help the
parties resolve their issues, his reasons do not suggest that he considered
other enforcement options in lieu of ultimately making his declarations of contempt.
The motion judge had to consider not only when he should issue his decision on the
contempt motion, but also whether he should exercise his discretion to resort
to a less severe enforcement option than declaring the appellant in contempt of
court. In fairness to the motion judge, such other options do not appear to
have been raised by the appellant, who was self‑represented, or by the respondent.
Even so, I conclude that it was an error of law not to have considered such
options:
Chong
, at para. 12.
[20]
It is especially important for courts to
consider such options in high-conflict family disputes such as this one:
Chong
,
at para. 12;
Valoris
, at para. 41. Otherwise, there is a danger that
contempt proceedings may exacerbate the parental conflict to the detriment of
the children. In appropriate cases, a staged approach, in which a declaration
of breach precedes the opprobrium of a formal contempt order, can give the
parties pause to reflect on their conduct and work on cooperative solutions in
the best interests of their children. When, however, the court considers that a
contempt order is truly a last resort and would not work an injustice, it may still
decide in its discretion to make a formal order of contempt.
Conclusion
[21]
I would allow the appeal. I would set aside the findings
of contempt of court and the sanctions imposed and replace them with
declarations that the appellant intentionally breached the parenting order in the
four respects found by the motion judge.
[22]
In all the circumstances, I would make no order
as to costs, here or in the court below.
Released: June 25, 2021 J.M.F.
M.
Jamal J.A.
I agree.
Fairburn A.C.J.O.
I
agree. Harvison Young J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Moore v. 7595611 Canada Corp.,
2021 ONCA 459
DATE: 20210625
DOCKET: C67757
Fairburn A.C.J.O., Harvison
Young and Jamal JJ.A.
BETWEEN
Janet Moore and Robert Lamers
Plaintiffs (Respondents)
and
7595611 Canada Corp. and Konstantin
Lysenko
Defendants (Appellants)
Konstantin Lysenko, acting in person
for the appellants
Christopher I.R. Morrison, Michael
Smitiuch and Luke Hamer, for the respondents
Heard: June 11, 2021 by
videoconference
On appeal from the judgment of Justice
Erika Chozik of the Superior Court of Justice, sitting with a jury, dated
November 6, 2019.
Fairburn A.C.J.O.:
A.
OVERVIEW
[1]
The respondents daughter, Alisha Lamers, died
from severe injuries suffered in a horrific fire. The fire broke out in the early
morning hours of November 20, 2013, while she was asleep in the bedroom of her
basement apartment located in a rooming house. That apartment was owned by the
appellants, Konstantin Lysenko and his numbered corporation. Mr. Lysenko was
Alishas landlord.
[2]
Alisha was trapped in an inferno with no way to
escape. The windows were barred, and the only exit to the apartment was
engulfed in flames and smoke. The interior access stairway connecting the
basement apartment to the main rooming house was blocked off, thereby leaving only
one potential exit and entry point to the basement apartment. Alishas rescue
had to await the firefighters who arrived on scene.
[3]
Alisha clung to life for a few days with her
parents at her bedside at Sunnybrook Hospital. Alishas parents witnessed the terrible
reality of seeing their only child with third-degree burns over half of her
body and parts of her body disintegrating before their eyes. They also watched
as Alisha went into cardiac arrest on multiple occasions. Ultimately, the
parents had to make the excruciating decision to remove their child from life
support given that a brain scan showed that Alisha was without brain activity.
[4]
The respondents commenced an action against the
appellants for their negligent conduct that led to the death of their daughter.
Following a trial, the jury found the appellants fell below the standard of
care of a reasonable landlord and found them responsible for Alishas death.
The jury made the following damages awards:
1. Loss of care, guidance, and companionship: $250,000 to each
respondent;
2. Mental distress: $250,000 to each respondent;
3. Future costs of care for the respondent father: $174,800; and
4. Future costs of care for the respondent mother: $151,200.
[5]
Mr. Lysenko advances multiple grounds of appeal
on behalf of the appellants. For the reasons that follow, I would dismiss the
appeal in its entirety.
B.
THE Jury Selection
[6]
First, Mr. Lysenko claims that the jury was
improperly selected because of an irregularity that occurred before the trial.
Specifically, there were 41 prospective jurors who had been inadvertently
released from the jury pool. Technically, those 41 prospective jurors should
have been in the jury pool used to select the jury in this case. Despite those
41 people having been released from jury duty, the pool of prospective jurors
was not exhausted before the jury was selected.
[7]
The trial judge learned of the irregularity
after the jury was selected. She raised the issue with the parties and invited their
input. The respondents counsel took no objection. However, Mr. Lysenko raised
an objection, noting the appellants preference to proceed with a new jury
selection. He then specified that the appellants would be prepared to move
ahead with a judge alone trial if needed. The respondents counsel reiterated
that the respondents preferred a jury and that the trial should proceed with
the jury that has already been selected. In response, Mr. Lysenko raised an objection
that was unrelated to the procedural glitch that had resulted from the release
of the prospective jurors. His objection was that there were ladies dominating
in the jury and that he had a preference for some representation of
both
genders.
[8]
Section 44(1) of the
Juries Act
, R.S.O.
1990, c. J.3, makes it clear that any omission to observe a provision of the
Juries
Act
respecting the selection of jurors is not a ground for impeaching or
quashing a verdict or judgment in any action. At most, the release of the 41
prospective jurors was a minor irregularity that resulted in no prejudice to
the appellants. Accordingly, I would not give effect to this ground of appeal.
C.
Section 76 of the
Fire Protection AND PREVENTION Act
[9]
Second, Mr. Lysenko argues that s. 76 of the
Fire
Protection and Prevention Act, 1997
,
S.O. 1997, c. 4,
precluded the respondents action in this
case because it was not proven that the fire started from anything other than
an accidental source. Section 76 of the
Fire Protection and Prevention Act
reads as follows:
No action shall be brought against any person
in whose house or building or on whose land any fire accidentally begins, nor
shall any recompense be made by that person for any damage suffered thereby;
but no agreement between a landlord and tenant is defeated or made void by this
Act.
[10]
While it is correct that the cause of the fire
remained undetermined at trial, there is no need to delve into the inner
workings of the
Fire Protection and Prevention Act
to resolve this ground of appeal because of what the jury
found
in relation to
the appellants negligent acts. At a minimum, the
genesis of a fire
does not immunize a landlord from a failure to take reasonable precautions to
protect the occupants of a building from a fire, even if that fire breaks out
accidentally.
[11]
In this case, the jury found that the appellants
were responsible for Alishas death for the following reasons: the failure to ensure
that a safety plan for the building was prepared, approved, and implemented; the
failure to maintain smoke alarms in operating condition; and the failure to
provide at least two exits from each floor area of the rooming house. Therefore,
the jurys finding of negligence had nothing to do with the source of the fire.
Rather, the jury found that because of the appellants negligent acts, Alisha
was left helpless in the face of a fire, which led to her injuries and eventual
death. Therefore, I would not give effect to this ground of appeal.
D.
The Reasonableness of the Verdict
[12]
Third, Mr. Lysenko argues that the jurys verdict
was unreasonable and that the circumstances surrounding the fire and Alishas
death were suspicious. There is no basis upon which to advance this argument on
appeal.
[13]
As just previously set out, the jurys verdict
listed three bases upon which they found the appellants responsible for
Alishas death: a lack of a properly implemented safety plan; inoperative smoke
alarms; and insufficient exits. Importantly, there was a clear factual
foundation for those findings. Indeed, prior to this matter going to trial, the
appellants pled guilty to and were convicted of numerous offences under
Ontarios
Fire Code
,
O. Reg. 213
/
07,
made pursuant to the
Fire Protection and Prevention Act
. Those
offences included: failing to provide at least two exits from each floor of the
rooming house where Alisha lived; failing to maintain smoke alarms in operating
condition; and failing to ensure a fire safety plan was prepared, approved, and
implemented in the building. For those offences, the numbered corporation was
fined $40,000, and Mr. Lysenko received a suspended sentence and probation for
18 months and a fine of $20,000.
[14]
In my view, there is no basis upon which to
suggest that the jurys verdict was unreasonable. This ground of appeal must
therefore be rejected.
E.
Damages
[15]
Fourth, Mr. Lysenko maintains that the various awards
for damages are too high. I do not accept these arguments.
(1)
Mental Distress
[16]
Regarding the mental distress damages, Mr.
Lysenko argues that the jury award is wrong. Mr. Lysenko seems to be suggesting
that the damages were directed at the respondents grief and, therefore, should
not have been awarded. I do not accept this submission, as the mental distress
claim was rooted in much more than the understandable grief experienced by the
respondents.
[17]
The quantum of damages reflected compensation
for psychological injuries sustained by the respondents, not only because their
daughter had died but also because she died in horrific circumstances witnessed
by the respondents. Ultimately, the respondents had to make the difficult
decision to remove Alisha from life support.
[18]
Also, there was clear, expert evidence
supporting both respondents claims involving the mental distress they suffered
as a result of their daughters death. Notably, according to the psychological
assessments of the respondents, following the death of Alisha, the respondent
mother has suffered a marked deterioration in her mood and daily functionality
and has also experienced passive suicidal ideation with previous serious
contemplation of ending her own life, while the respondent father is now
experiencing exacerbated PTSD symptoms with persecutory anxiety. The respondents
also testified in exquisitely painful detail at trial about what they saw, what
they experienced, and how they had been impacted by the death of Alisha. Based
upon all of that evidence, there is no basis to interfere with the award of
$250,000 in mental distress damages to each respondent.
(2)
Future Costs of Care
[19]
The appellants also object to the jurys finding
that the respondents are entitled to damages to address their future costs of care.
Although not advanced in oral argument, Mr. Lysenko suggests in his factum that
the respondents had not shown that they would require a damages award for their
future costs of care.
[20]
This position is contrary to the evidence at
trial. For both of the respondents, the future costs of care awards were predicated
on expert evidence, including in relation to their medication needs,
counselling, and alternative treatment. The jury reduced the amounts
substantially from what the experts suggested they should be, with the $403,247
suggested for the respondent mother reduced to $151,200 by the jury, and the
$349,560 suggested for the respondent father reduced to $174,800 by the jury.
[21]
In my view, there is no merit to this ground of
appeal. The appellants do not object to the jury charge, only to the amounts
awarded. Therefore, based upon the evidentiary foundation laid at trial, there
is no basis upon which to interfere with the damages awarded for the
respondents future costs of care.
(3)
Loss of Care, Guidance, and Companionship
[22]
The appellants also challenge the jurys award for
loss of care, guidance, and companionship. Mr. Lysenko claims that the award is
simply too high, given that this court in
To v. Toronto Board of Education
(2001), 204 D.L.R. (4th) 704 (Ont. C.A.), at para. 37, established that
$100,000 adjusted for inflation represents the high end of an accepted range
of guidance, care and companionship damages. Therefore, according to the
appellants, the $250,000 awarded to each respondent for loss of care, guidance,
and companionship goes against this courts established case law.
[23]
In
Young v. Bella
,
2006 SCC 3,
[2006] 1 S.C.R. 108,
at para. 66, the Supreme
Court of Canada drew upon and reinforced its decision in
Hill v. Church of
Scientology of Toronto
,
[1995] 2 S.C.R. 1130,
at para. 163, finding that in the
context of non-pecuniary damages, an appellate court should only interfere with
a jurys assessment where it shocks the conscience of the court. In
To
,
at para. 31, a 2001 case of this court involving damages for loss of care,
guidance, and companionship, Osborne A.C.J.O. characterized the standard of
review as follows: In the circumstances where there was no error in the
[jury]
charge
, the jurys assessment
must be so inordinately high
(or low) as to constitute
a wholly erroneous estimate
of the guidance, care and
companionship loss (emphasis added). This standard was also used by this court
in
Fiddler v. Chiavetti
, 2010 ONCA 210, 260 O.A.C. 363, at para. 77,
and in
Vokes Estate v. Palmer
, 2012 ONCA 510, 294 O.A.C. 342, at para.
12.
[24]
Whether using the language of
Young
, at para. 66, citing
Hill
, at para. 163
(shocks the
conscience of the court), or
To
,
at para. 31
(so inordinately high
as to constitute a wholly
erroneous estimate), the message is clear: the threshold for interfering with
a jurys award of damages on appeal is extremely high:
Vokes Estate
,
at para. 12.
[25]
Mr. Lysenko argues that this threshold is met in
this case. He relies upon
To
, at para. 37, where this court established
that $100,000 in February 1992 dollars
might be viewed
as being the high end of an accepted range of guidance, care and companionship damages
(emphasis added). I would also note that almost 10 years after
To
was
decided, in
Fiddler
, at para. 78, LaForme J.A. referred to the $100,000
quantum of damages awarded in
To
as the high end of an
accepted range for guidance, care and companionship damages. See also
Rodrigues
v. Purtill
, 2019 ONCA 740, at para. 14. Properly adjusted for inflation
using the consumer price index, the damages in
Fiddler
were
decreased from $200,000 to $125,000, roughly representing the equivalent of the
$100,000 awarded in
To
but in January 2005 dollars:
Fiddler
,
at para. 80.
[26]
If the
To
amount of $100,000
from February 1992 is adjusted for inflation to the date of Alishas death in
November 2013 using the consumer price index, it would amount to just shy of $150,000.
Despite the difference between that indexed amount and the quantum of damages
awarded in this case, the respondents contend that this court should not
interfere, as the high standard for appellate intervention has not been met. I
agree.
[27]
First, it is important to recognize that, while Osborne
A.C.J.O. referred to the $100,000 in
To
as perhaps being viewed at the
high end of an accepted range for damages of this nature, he just as quickly
pointed out that, unlike Alberta with s. 8(2) of its
Fatal Accidents Act
,
R.S.A. 2000, c. F-8, for example,
the legislature in Ontario did not
establish an upper limit on these types of damages:
To
, at para. 29. In
the absence of any such legislative cap, each case must be given separate
consideration by the courts to determine the appropriate quantum of damages:
To
,
at para. 30. Of course, locating the right amount for the loss of the
guidance, care, and companionship of a child who has died because of anothers
negligence verges on the near impossible to calculate, as the courts are called
upon to measure the immeasurable and to calculate the incalculable:
To
,
at para. 30, citing
Gervais v. Richard
(1984), 48 O.R. (2d)
191 (H.C.),
at p. 201. See also
Fiddler
,
at para. 76.
Quite simply, there is no neat mathematical formula that can be applied to
determine the correct amount.
[28]
Second, despite the damages awards given in both
To
and
Fiddler
, both courts were careful to reinforce
the idea that, like the absence of a legislative cap for damages of this
nature, there is no judge-made cap for this form of non-pecuniary damages:
To
,
at para. 29;
Fiddler
, at para. 76. While one can look to other
guidance, care, and companionship assessments in similar cases to test the
reasonableness of a jurys determination of damages in any given case, these
types of comparative exercises are not determinative of the outcome:
To
,
at para. 31. To the contrary, Each case must be considered in light of the
evidence material to the guidance, care and companionship claims in that case:
To
, at para. 31. This includes, as LaForme J.A. set out in
Fiddler
,
at para. 77, considering each case in light of the particular family
relationships involved in that case.
[29]
This case-by-case approach to the quantification
of damages for loss of guidance, care, and companionship will necessarily
result in damages awards that will fluctuate. Coming back to the standard of
review on appeal, it is only where the quantum of damages set by the jury shocks
the conscience of the court or is so inordinately high that it is wholly
erroneous that appellate intervention will be appropriate:
Young
, at
para. 66, citing
Hill
, at para. 163;
To
, at para. 31.
[30]
Therefore, while there is no question that the
jury award for loss of care, guidance, and companionship in this case is high, in
light of the factual backdrop of this case, it does not constitute an amount
that shocks the conscience of the court:
Young
, at para. 66, citing
Hill
,
at para. 163. Nor does it represent an amount that is so inordinately high
that it is wholly erroneous in nature:
To
, at para. 31.
[31]
Importantly, this is not a case where the
appellants object to the jury charge itself. Rather, this case is strictly
about the quantum determined by the jury. That quantum was clearly informed by
how the jury saw the facts of this case. Alisha was an only child. Her parents
were divorced when she was younger. Despite that divorce, the family remained
unified by the common love the respondents had for Alisha and that the
respondents received from Alisha. While Alisha resided with her mother
following the divorce, she would still see her father almost daily.
[32]
Both respondents testified at trial about the
strong relationships they had with Alisha. They also testified about how, as
she reached adulthood and right up to the night before the fire, she provided
her parents with love, affection, emotional support, and more. Indeed, the respondent
father testified about how Alisha had been instrumental in seeing him through
some very difficult mental health challenges involving PTSD: She was my
everything
. She was the reason why I
kept on going to get through that at
that time.
[33]
In short, Alisha was a loving, supportive
daughter who had already demonstrated that her dedication to her parents as she
moved further into adulthood was strong, as she started giving more than she
was receiving. The impact of a loss of ones child was nicely captured by
Robins J.A. in
Mason v. Peters
(1982),
139 D.L.R. (3d)
104 (Ont. C.A.), at p. 111, leave to appeal refused,
[1982]
S.C.C.A. No. 51,
where he said:
Whatever the situation may have been in
earlier times when children were regarded as an economic asset, in this day and
age, the death of a child does not often constitute a monetary loss or one
measurable in pecuniary terms. The most significant loss suffered, apart
from the sorrow, grief and anguish that always ensues from such deaths, is not
potential economic gain, but deprivation of the society, comfort and protection
which might reasonably be expected had the child lived in short, the loss of
the rewards of association which flow from the family relationship and are
summarized in the word companionship.
[34]
The November 20, 2013 fire destroyed all hope of
the society, comfort, and protection that Alisha would give to her parents. The
respondents never got to experience these rewards of association past Alishas
24th year. The fire eradicated their future together, ripping parenthood apart,
the family away, and leaving both respondents childless.
[35]
In light of the facts of this case, while the
jury award was undoubtedly high, it was not so inordinately high that it would
shoc
[
k
]
the conscience of the court:
Young
, at para. 66, citing
Hill
,
at para. 163;
To
, at para. 31. In the circumstances of this case,
there is therefore no basis to interfere with the jurys award of $250,000 for
loss of care, guidance, and companionship damages to each respondent.
F.
Fresh Evidence
[36]
Lastly, Mr. Lysenko seeks the admission of fresh
evidence on appeal, which evidence includes the unredacted records of the
Toronto Police Service. The subject report was previously provided to the
appellants counsel. Although Mr. Lysenko says that he did not know that the
report was provided to his counsel, this is not the test applicable for
adducing fresh evidence. Applying the criteria from
Palmer v. The Queen
,
[1980] 1 S.C.R. 759, at p. 775, the subject evidence is not sufficiently cogent
to have in any way impacted the result at trial. At the end of the day, Alisha
found herself in a trap when the fire broke out. There was no working smoke alarm
to alert Alisha to the need to get out quickly by the only possible exit. The
jurys verdict turned on those facts. Therefore, the appellants motion to
adduce fresh evidence is dismissed.
G.
Disposition
[37]
I would dismiss the appeal in its entirety and
award costs in favour of the respondents in the amount of $30,000, inclusive of
disbursements and applicable taxes.
Released: JMF June 25, 2021
Fairburn
A.C.J.O.
I
agree Harvison Young J.A.
I
agree M. Jamal J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Fiorilli, 2021 ONCA 461
DATE: 20210625
DOCKET: C63004
Feldman, Paciocco and Coroza
JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Michele Fiorilli
Appellant
John Kaldas, for the appellant
Hannah Freeman and Elise Nakelsky, for
the respondent
Heard: March 11 2021 by videoconference
On appeal from the convictions entered
on September 24, 2013 by Justice Gary T. Trotter of the Superior Court of
Justice, with reasons reported at 2013 ONSC 5999, [2013] O.J. No. 4343.
Paciocco J.A.:
OVERVIEW
[1]
Michele Fiorilli was prosecuted for his
involvement in two series of Toronto real estate transactions, the first relating
to 450 Clinton Street (the Clinton property), and the second relating to 30
Buttonwood Avenue (the Buttonwood property). Each series of transactions
culminated with mortgage funds being fraudulently obtained from the Royal Bank
of Canada (RBC). The Canada Mortgage and Housing Corporation (CMHC), a
Government of Canada Crown Corporation that insured the RBC mortgages,
ultimately bore the combined loss of $267,083.
[2]
At his trial in connection with these two series
of transactions, Mr. Fiorilli faced four counts of fraud, contrary to s.
380(1)(a) of the
Criminal Code
, R.S.C. 1985, c. C-46. Two of those
counts related to the Clinton property; count 1 alleged that Mr. Fiorilli defrauded
the Government of Canada and count 2 alleged that he defrauded RBC. Counts 3
and 4 were an identical set of charges relating to the Buttonwood property.
[3]
On September 24, 2013, a judge of the Superior
Court of Justice, sitting alone, found Mr. Fiorilli guilty of all four charges.
To avoid double jeopardy, the trial judge convicted Mr. Fiorilli of the two
charges involving the Government of Canada, and conditionally stayed the two
RBC charges. Mr. Fiorilli received a global sentence of one year in prison. A
restitution order was also imposed, with a fine of $110,000 in lieu of
forfeiture and two years imprisonment in the event of default.
[4]
Mr. Fiorilli now appeals his convictions and the
findings of guilt made against him. He advances one ground of appeal. He
submits that he received ineffective assistance of counsel from his trial counsel,
resulting in a miscarriage of justice. He claims that the manner of his
representation resulted in unreliable verdicts of guilt and deprived him of a
fair trial. The multiple challenges Mr. Fiorilli makes about the incompetence
and misconduct of his trial counsel include allegations that trial counsel:
(1)
prohibited Mr. Fiorilli from testifying, and
acted incompetently when advising him about testifying;
(2)
lost crucial evidence inconsistent with Mr.
Fiorillis guilt;
(3)
failed to raise a theory of Mr. Fiorillis
defence, or marshal available evidence of Mr. Fiorillis innocence;
(4)
failed to pursue or review disclosure;
(5)
failed to competently discredit key Crown
witnesses; and
(6)
acted outside of his expertise, and otherwise
contravened the Law Society of Ontarios
Rules of Professional Conduct
.
[5]
Despite the range of challenges made by Mr.
Fiorilli, for reasons that follow I am not persuaded that he has met the burden
required to succeed on an ineffective assistance of counsel appeal. I would therefore
dismiss Mr. Fiorillis appeal.
MATERIAL FACTS & PROCEEDINGS BELOW
[6]
The subject series of transactions involving the
Clinton and Buttonwood properties were initiated by an Ontario company called Camera
Capital Investments Inc. (CCI). Mr. Fiorilli was, at the material time,
President and one of two directors of CCI, and he had signing authority for
CCI.
A.
The Clinton PRoperty
[7]
There were three material transactions involving
the Clinton property, which I will refer to as the CCI Clinton transfer, the
Cirillo transfer and the Gutnikov transfer.
The CCI Clinton Transfer
[8]
The Clinton property was purchased in April 2004
by CCI for $265,000. CCI placed three mortgages on the property which together,
at approximately $295,000, exceeded the purchase price. Mr. Fiorilli personally
guaranteed the mortgages.
The Cirillo Transfer
[9]
On August 19, 2004, CCI transferred the Clinton property
to Mr. Salvatore (Sam) Cirillo. Suspiciously, no consideration was provided.
Mr. Cirillo testified as a Crown witness at trial and denied any knowledge of
the transfer. He testified that he was Mr. Fiorillis uncle. He said that in
2004 he was a drug addict, and that Mr. Fiorilli knew he was an addict at that
time. Mr. Cirillo testified that he told Mr. Fiorilli he could use his name to
do whatever he wanted, so long as it was legitimate.
[10]
As I will note again below, there were
credibility and reliability problems relating to Mr. Cirillos testimony. The
trial judge called him a most difficult witness.
The Gutnikov Transfer
[11]
On August 23, 2004, the Clinton property was transferred
to Ms. Natalia Gutnikov for $469,000. The circumstances of this transfer were
suspicious, as well. The sale price was approximately $200,000 more than CCI
had paid for the property four months before. At trial the Crown presented
evidence that, as of August 2005, the Clinton property was worth between
$280,000 and $295,000. In addition, the agreement of purchase and sale had been
executed on July 30, 2004, weeks before Mr. Cirillo even owned the property.
Moreover, the agreement of purchase and sale identified RE/MAX Performance
Realty Inc. (RE/MAX) as the broker for the transaction. The agreement of
purchase and sale also reflected a deposit of $20,000 to be paid by CCI and
held by RE/MAX. Yet RE/MAX had no record of the deposit having been received,
or of any real estate commission having been paid. Ms. Gutnikov testified as a
Crown witness at Mr. Fiorillis trial. She denied ever paying the $20,000
deposit.
[12]
Ms. Gutnikov further testified that she became
involved with Mr. Fiorilli after being introduced to Slava, a business
associate of Mr. Fiorilli. Slava told her that Mr. Fiorilli had an uncle who
needed to transfer his house for three months because of marital problems. She would
receive $5,000 if she assisted. She agreed. Slava, Mr. Fiorilli, and another
associate, Fred Procopio, had Ms. Gutnikov sign many documents, some of which
were blank. She testified that Slava drove her to an office in Mississauga to
sign some of the documents.
[13]
Ms. Gutnikov also testified that at one point
during their dealings, Mr. Fiorilli was hospitalized.
[14]
Evidence showed that documentation signed by Ms.
Gutnikov was used to secure cash back mortgage financing from RBC in the
amount of $444,226. A cash back mortgage provides a payment to the mortgage borrower
as an incentive to attract their business.
[15]
In support of the cash back mortgage application,
RBC had also been provided with an employment letter signed by Mr. Wesel Peart,
which represented that Ms. Gutnikov was employed by a company called Mr.
Vigorous Roots Tonic with an income of $146,000. Ms. Gutnikov testified that
she was, in fact, unemployed and impecunious at the time, and had never heard
of Mr. Vigorous Roots Tonic.
[16]
Mr. Peart also testified at trial as a Crown
witness. He confirmed that he operated Mr. Vigorous Roots Tonic. He denied
knowing Ms. Gutnikov but confirmed knowing Mr. Fiorilli. He lived near, and
parked his car on, a property Mr. Fiorilli owned, and would occasionally visit
Mr. Fiorillis office. Mr. Peart denied supplying letterhead to Mr. Fiorilli.
However, he said that his office was always open, and someone could have taken
his letterhead.
[17]
An RBC mortgage specialist, Mr. Jack Abboud, who
testified for the Crown, participated in processing the mortgage. Mr. Abboud
would later become the subject of an internal RBC investigation involving
numerous other suspicious mortgage transactions.
[18]
When the Gutnikov transfer was completed, the
CCI mortgages were discharged with the proceeds of sale, thereby releasing Mr.
Fiorilli from the guarantees he had signed for over $290,000. Mr. Fiorilli also
received $102,435.49 from the closing funds, even though the property was in
Mr. Cirillos name, not his. Mr. Procopio also received approximately $32,000. An
individual named Mr. Siva Suthakaran received $9,200. There is no record that
Mr. Cirillo received anything.
[19]
Ms. Gutnikov testified that she was paid the
promised $5,000 after accompanying Mr. Fiorilli when he visited an RBC branch.
She said that it had been agreed that Mr. Fiorilli would give her the money
required to make the mortgage payments until the property was re-transferred to
his uncle. She testified that, for a time, Mr. Fiorilli provided her with the
money to make those payments, but that he eventually stopped doing so. Entries
in Ms. Gutnikovs bank records, admitted into evidence, were consistent with
this testimony. Those bank records confirmed that until early 2005, mortgage
payments of approximately $3,000 per month were paid. Shortly before each
payment, deposits of approximately that amount were made into her account.
[20]
Ms. Gutnikov also testified that when the money stopped
coming, she went to see Mr. Fiorilli. She testified that he refused to pay her,
and instead put a tape recorder on the desk and said that he had never seen her
before. Ms. Gutnikov said she was thereby left with a mortgage debt that she
could not afford.
[21]
After the mortgage fell into default, RBC took
possession of the Clinton property. RBC eventually sold the property to recoup
the money loaned to Ms. Gutnikov, but there was a significant shortfall. CMHC
ultimately sustained a loss on the Clinton property of $172,637.82.
[22]
Mr. Procopio and Mr. Suthakaran did not testify
at the trial. Neither did any real estate agents allegedly involved in the material
transactions, nor anyone from the law firm of Mr. Zeyaul (Zeya) Haque (the
Haque law firm), which handled the legal end of the Clinton property transfers
and the Buttonwood property transfers described below.
B.
THE BUTTONWOOD Property
[23]
There were two relevant transactions involving
the Buttonwood property, which I will refer to as the CCI Buttonwood transfer
and the Smith transfer.
The CCI Buttonwood Transfer
[24]
CCI purchased the Buttonwood property in October
2003 for $167,250. CCI obtained mortgage financing on the property under three
mortgages, totalling approximately $220,000, mortgage funding that was, once
again, well in excess of the purchase price. As he had done with respect to the
CCI Clinton transfer, Mr. Fiorilli personally guaranteed the mortgages on the
Buttonwood property.
The Smith Transfer
[25]
On September 8, 2004, CCI transferred the Buttonwood
property to Mr. Orville Smith for $262,000, once again, significantly more than
the purchase price paid by CCI. The Crown presented evidence of an appraisal
showing that the value of the Buttonwood property as of August 2005 was between
$190,000 and $214,000, well below the purchase price of the Smith transfer from
September 2004, a little less than a year earlier.
[26]
Once again, the agreement of purchase and sale for
the Smith transfer identified RE/MAX as the broker of record and provided for a
deposit of $10,000 to be held by RE/MAX. As was the case with the Gutnikov
transfer of the Clinton property, evidence was presented that RE/MAX had no
record of this deposit, nor of any commission having been paid for the Smith
transfer.
[27]
Mr. Smith testified as a Crown witness. He said that
he never paid the $10,000 deposit. He described how his purchase materialized.
He said that at the time of the purchase, he had a modest annual income of
between $25,000 and $30,000 as a filmmaker but wanted to purchase a house for
himself and his son. He said he mentioned this to Mr. Peart, with whom he was
acquainted. Mr. Peart introduced him to Mr. Fiorilli to help him secure a home.
Mr. Smith testified that he went to Mr. Fiorillis office and, with Mr.
Fiorillis assistance, he signed documents, including for mortgage financing
through RBCs $10,000 cash back promotion. Under Mr. Fiorillis direction, Mr.
Smith said he also went to other locations accompanied by Mr. Procopio to sign
documents. Once again, Mr. Abboud participated on RBCs behalf in the mortgage
transaction.
[28]
Mr. Smith testified that he knew some of the
statements about his financial background that Mr. Fiorilli had provided for
use in his RBC mortgage application were false, including an employment letter
from Mr. Vigorous Roots Tonic showing Mr. Smiths income to be $92,000. Based
on the documentation admitted into evidence, RBC advanced Mr. Smith $248,087 to
acquire the Buttonwood property.
[29]
Other documentation admitted into evidence
showed that when the Smith transfer closed, the CCI mortgages that had been
guaranteed by Mr. Fiorilli were paid off. Other funds were disbursed to several
individuals, including Mr. Procopio ($10,140) and Mr. Suthakaran ($3,851.84). A
further $8,720 was advanced to CCI under Mr. Fiorillis direction. Another
individual named Mr. Farida Khan received $2,500.
[30]
Mr. Smith testified that after the closing he
had difficulty getting keys to the Buttonwood property. He also had difficulty accessing
the home because there were tenants occupying it. With the assistance of a
lawyer, Mr. Smith obtained possession as well as funds from Mr. Fiorilli that
he used to make mortgage payments. Mr. Smith said he understood the funds he
obtained from Mr. Fiorilli were those owing to him from the RBC cash back
program, which Mr. Fiorilli had wrongfully withheld. Bank documents confirmed
that Mr. Smith received approximately $14,000 through cheques signed by Mr.
Fiorilli.
[31]
It was put to Mr. Smith during cross-examination
that Mr. Fiorilli in fact paid this money to Mr. Smith in settlement of a
dispute relating to the number of bedrooms in the house. Mr. Smith confirmed that
there had been such a dispute but insisted that the payments consisted of the
cash back funds Mr. Fiorilli owed him.
[32]
Mr. Smith further testified that when this money
dried up, RBC took possession of the house. Once again, when RBC sold the
property there was a shortfall in repaying the mortgage, this time resulting in
a loss to CMHC of $94,445.42.
C.
The Trial and the decision
[33]
During the trial, no issue was taken with
whether there were fraudulent transactions relating to the Clinton and Buttonwood
properties. It was the position of the defence that Mr. Fiorilli was not
complicit in the fraud. Mr. Fiorilli did not advance this defence by testifying
or offering affirmative evidence relating to his involvement. Instead, Mr.
Fiorillis trial counsel contended that the Crown evidence could not establish
that Mr. Fiorilli acted dishonestly beyond a reasonable doubt, given
credibility and reliability problems with the Crown witnesses, the many
unanswered questions about the transactions left by the Crowns evidence, and
the number of other individuals implicated in the transactions.
[34]
The trial judge accepted that there were credibility
and reliability problems with many Crown witnesses, that there were unanswered
questions, and that other people were, or may have been, complicit in the
fraudulent conduct. However, the trial judge disagreed with Mr. Fiorillis
position that the Crown had not proved its case. He concluded that the
evidence adduced at this trial points directly at Mr. Fiorilli as the person at
the helm of both scenarios.
Findings regarding the Clinton property
[35]
With respect to the Clinton property
transactions, the trial judge did not find Mr. Cirillo to have been a credible
witness. He expressed skepticism about Mr. Cirillos assertion that he had no knowledge
of the real nature of the Clinton transactions. Nevertheless, he held that
even if Mr. Cirillo was complicit, it does not help Mr. Fiorilli.
[36]
Nor did the trial judge accept Mr. Pearts
evidence. He said that Mr. Peart minimized his relationship with Mr. Fiorilli,
and that Mr. Peart may have been complicit in preparing the false employment
letter that was used to secure Ms. Gutnikovs RBC financing.
[37]
The trial judge was also skeptical of Ms.
Gutnikovs claim that she did not think her involvement was wrong. Nonetheless,
he found her testimony to be credible as it was completely confirmed by
documentation. He accepted that there was some confusion in her evidence
relating to meetings and who was in attendance, which he attributed to the
passage of time.
[38]
The trial judge ultimately found that the
agreement of purchase and sale executed by Ms. Gutnikov was fraudulent and
created to lend the appearance of legitimacy to the transaction. He found
indicia of fraud in the absence of the usual RE/MAX records of the transaction
relating to the payment of the deposit and commission. He also noted the
appraisal evidence showing the significant inflation in the value of the
Clinton property over a short time. However, with respect to the appraisal
disparity, the trial judge said, the Crown need not prove this aspect of its
allegations to succeed in establishing fraud in this case; it merely speaks to
the extent of the loss incurred by RBC (and CMHC) in this straw purchaser arrangement.
[39]
After finding beyond a reasonable doubt that Mr.
Fiorilli was an active participant in the fraud, the trial judge found him
guilty of defrauding the Government of Canada and defrauding RBC in the transactions
involving the Clinton property.
[40]
In coming to this conclusion, the trial judge
considered Mr. Procopios involvement in the fraudulent transactions. He said
he had no doubt that Mr. Procopio was involved in these scenarios. The trial
judge went on to say, It would appear that [Mr. Procopio] was paid a fee for
his services in both transactions. However, this fact does not detract from the
case against Mr. Fiorilli.
Findings regarding the Buttonwood property
[41]
With respect to the transactions involving the Buttonwood
property, the trial judge expressed concerns about Mr. Smiths claim that he
expected to receive a home from a stranger without investing any of his own
money. The trial judge also concluded that Mr. Peart may have been complicit in
preparing the false employment letter used to obtain Mr. Smiths mortgage on
the Buttonwood property. He found, however, that the Crown allegation relating
to the Buttonwood property transactions was supported by the documentary
evidence. The trial judge held that whether or not Mr. Smith and/or Mr. Peart
were complicit, he was satisfied that Mr. Fiorilli was a guiding hand, if not
the directing force, in the process leading to what the trial judge found to
be fraudulent transactions involving the Buttonwood property.
[42]
In finding the Buttonwood property transactions
to be fraudulent, the trial judge once again noted that the deposit had not
been made, the real estate commission had not been paid, and that there would
have been no need for a real estate agent in the circumstances, given how Mr. Smith
came to be involved in the transaction through Mr. Peart. He noted, as well,
the apparently inflated purchase price, although once again commenting that such
a finding is not necessary to sustain a finding of guilt on these counts.
[43]
Ultimately, the trial judge found that Mr.
Fiorilli assisted and facilitated the fraudulent mortgage applications for Mr.
Smith, who could not afford the mortgage, and that Mr. Fiorilli was able to
discharge existing mortgages on the Buttonwood property that he had guaranteed,
and to walk away with a little extra cash for himself and his associates,
including Mr. Procopio. The trial judge therefore found Mr. Fiorilli guilty of
defrauding the Government of Canada and defrauding RBC in the transactions involving
the Buttonwood property.
ISSUES ON APPEAL
[44]
Mr. Fiorilli does not take any issue on appeal
with the trial judges handling of the trial, or with his decision. Mr.
Fiorilli argues instead that a miscarriage of justice occurred because he
received ineffective assistance from his trial counsel.
[45]
As I will explain immediately below, the burden
is on Mr. Fiorilli to establish this ground of appeal. There is therefore only
one issue in this appeal: Has Mr. Fiorilli established that he received
ineffective assistance of counsel, resulting in a miscarriage of justice?
[46]
In the context of answering this question, I
will identify and consider each of the multiple challenges Mr. Fiorilli makes
to the performance of his trial counsel. Before doing so, I will identify the
relevant principles of law.
THE RELEVANT LEGAL
PRINCIPLES
[47]
The right to effective assistance of counsel is
of such importance that effective representation is a principle of fundamental
justice:
R. v. G.D.B.
, 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 24.
However, [c]ounsels failure to meet competence standards does not automatically
lead to a reversal of a conviction, as [t]he ultimate purpose of the
appellate inquiry is not to grade counsels performance, but to determine
whether a miscarriage of justice occurred:
R. v. Joanisse
(1995), 102
C.C.C. (3d) 35 (Ont. C.A.), at p. 62, leave to appeal refused, [1996] S.C.C.A.
No. 347.
[48]
A three-part test is used to determine
ineffective assistance of counsel appeals, with the appellant bearing the onus
of proof and persuasion with respect to each part. The structure of the test was
neatly summarized by Watt J.A. in
R. v. Girn
, 2019 ONCA 202, 145 O.R.
(3d) 420, at para. 91:
An appellant must establish:
i.
the facts on which the claim is grounded [the
factual
component];
ii.
the incompetence of the representation provided
by trial counsel (the
performance
component); and
iii.
a miscarriage of justice as a result of the
incompetent representation by trial counsel (the
prejudice
component).
[49]
Naturally, the factual component is examined
first, since there is no point in assessing the competence of unproven acts or
omissions. As Watt J.A. affirmed, Once the facts that underpin the claim have
been established, the ineffective assistance analysis begins with the prejudice
component:
Girn
, at para. 92. This is because if the prejudice
component cannot be met, there is no reason to subject the performance of
counsel to judicial inquiry:
R. v. G.D.B.
, at para. 29. Put simply, it
will usually be the case that the proper analytical order of the three-part
test is (i), (iii), and then (ii).
[50]
Each of the three parts of the test requires
elaboration.
(i) The Factual Component
[51]
The factual component requires the appellant to establish
the facts material to the claim of ineffective assistance on the balance of
probabilities:
R. v. K.K.M.
, 2020 ONCA 736, at para. 55. In
determining whether an appellant has done so, allegations of incompetent
representation must be assessed in light of the strong presumption of
competence in favour of counsel:
R. v. Archer
(2005), 202
C.C.C. (3d) 60 (Ont. C.A.), at para. 140. Courts should also be mindful of the
incentive there may be for a convicted appellant to make false allegations, particularly
in light of the ease with which false allegations can be made, and the
potential unreliability that can arise when events are recalled through the
bars of a jail cell:
Archer
, at para. 142. As Doherty J.A. noted in
Archer
,
at para. 141, Common sense dictates a cautious approach to allegations against
trial lawyers made by convicted persons who are seeking to avoid lengthy jail
terms.
(ii) The Performance Component
[52]
To meet the performance component of the test the
appellant must demonstrate that counsels acts or omissions amounted to
incompetence, with incompetence measured against a reasonableness standard:
Archer
,
at para. 119. The test for establishing incompetence is a strict one; the
appellant must show that the acts or omissions of counsel could not have been
the result of reasonable professional judgment:
R. v. Prebtani
, 2008
ONCA 735, 243 O.A.C. 207, at para. 3 (quoting from
R. v. G.D.B.
, at
para. 27), leave to appeal refused, [2009] S.C.C.A. No. 153.
[53]
In assessing the performance component, an
appellate court must be mindful that the art of advocacy yields few, if any,
absolute rules, and that there exists a broad spectrum of professional
judgment that might be considered reasonable:
R. v. White
(1997), 114
C.C.C. (3d) 225 (Ont. C.A.), at p. 247, leave to appeal refused, [1997]
S.C.C.A. No. 248. In
Archer
,
at para. 119, Doherty J.A. helpfully
elaborated on the highly deferential standard that applies when assessing the
performance component:
That assessment is made having regard to the
circumstances as they existed when the impugned acts or omissions occurred.
Hindsight plays no role in the assessment. Allegations of incompetent
representation must be closely scrutinized. Many decisions made by counsel at
trial will come to be seen as erroneous in the cold light of a conviction. The
reasonableness analysis must proceed upon a strong presumption that counsels
conduct fell within the wide range of reasonable professional assistance.
[Citations omitted.]
(iii) The Prejudice Component
[54]
To satisfy the prejudice component, the
appellant must show the ineffective representation resulted in a miscarriage of
justice, ether by rendering the trial unfair or the verdict unreliable:
R.
v. K.K.M.
, at para. 55. Put otherwise, the appellant must meet either or
both of two alternative prejudice branches, the trial fairness branch, and the
unreliable verdict branch.
The trial fairness branch of the prejudice
component
[55]
The trial fairness branch of the prejudice
component is concerned with the adjudicative fairness of the process used to
arrive at the verdict:
Joanisse
, at p. 57. Occasionally, appellate
courts refer to procedural fairness instead of trial fairness to describe this
branch: see e.g.,
R. v. G.D.B.
, at para. 34;
Prebtani
, at
para. 4.
In
Joanisse
,
when illustrating the kinds of
infirmities in legal representation that might cause a trial to become unfair, at
pp. 62-63, Doherty J.A. spoke of lawyers who are intoxicated throughout a
trial, or who are acting in a conflict of interest. In such cases, the
incompetence is so pervasive that it destroys the fairness of the adjudicative
process at trial, thereby amounting to a constructive denial of the assistance
of counsel:
Joanisse
, at pp. 62-63.
[56]
Some of the decisions that must be made during
the course of a trial, such as the mode of trial, whether to testify or plead
guilty, or whether to advance the defence of not criminally responsible, are so
fundamental to procedural fairness that counsels failure to permit the
appellant to make the decision, or to provide effective advice on the matter,
can raise questions of procedural fairness:
R. v. G.D.B.
, at para. 34;
R. v.
Trought
, 2021 ONCA 379, at paras. 46-50.
[57]
Where the trial fairness branch of the
prejudice component is at issue, the focus is, in fact, on the appearance of
the fairness of the trial:
Archer
, at para. 120. This is in keeping
with the principle that justice must not only be done, but must manifestly be
seen to be done:
Joanisse
, at p. 63, citing
R. v. Cook and Cain
(1980), 53 C.C.C. (2d) 217 (Ont. C.A.), at p. 224. If counsels performance
has undermined the appearance of trial fairness, no further prejudice need be
established:
R. v. Stark
, 2017 ONCA 148, 347 C.C.C. (3d) 73, at para. 14.
The unreliable verdict branch of the
prejudice component
[58]
The unreliable verdict branch of the prejudice
component operates differently than the trial fairness branch. As its name
suggests, the unreliable verdict branch is concerned with the confidence that
can be placed in the validity or reliability of the result of the trial:
R.
v. Dunbar
, 2007 ONCA 840, at para. 23;
R. v. Nwagwu
, 2015 ONCA
526, [2015] O.J. No. 3695, at para. 7. In
Joanisse
, at p. 63, Doherty
J.A. explained this branch as follows:
Some claims of incompetence relate to specific
decisions made or actions taken by counsel in the course of the defence. These
claims do not assert an actual or constructive denial of the assistance of
counsel, but instead contend that the assistance given was so deficient that it
was ineffective. These claims come down to the assertion that because of
counsels incompetence, the defence was not properly put, or the Crowns case
was not properly challenged. In these situations, the effect on the fairness of
the trial of counsels incompetence is measured by reference to the impact of
the error or errors on the reliability of the result.
[59]
This court spoke in
Archer
, at para.
120, of the appellant satisfying the unreliable verdict branch of the prejudice
component by demonstrating that had counsel performed in a competent fashion,
there is a
reasonable possibility
that the verdict could have been
different (emphasis added). However, the authorities coalesce in requiring the
appellant to establish a
reasonable probability
that the result would
have been different: see e.g.,
Joanisse
, at p. 64;
Prebtani
,
at para. 4;
R. v. R.S.
, 2016 ONCA 655, 341 C.C.C. (3d) 530, at para.
44;
R. v. Al-Shammari
, 2016 ONCA 614, 350 O.A.C. 369, at para. 75. In
Joanisse
,
at p. 75, Doherty J.A. described a reasonable probability as more than a
mere possibility, but less than a likelihood. In
Al-Shammari
, at para.
75, Juriansz J.A. said a reasonable probability is established when the
reviewing court is satisfied that because of counsels incompetence, the
verdict cannot be taken as a reliable assessment of the appellants
culpability.
[60]
I will now apply the foregoing principles to Mr.
Fiorillis appeal.
ANALYSIS
[61]
Below, I consider each of Mr. Fiorillis claims
of incompetent or ineffective representation. I am not satisfied, examining
those claims in turn or collectively, that Mr. Fiorilli has satisfied the
ineffective assistance of counsel test. With some claims, he has not satisfied
the factual component of the test. With others, he has not demonstrated
prejudice, or he has failed to establish incompetence. I would therefore reject
Mr. Fiorillis appeal.
(1)
Did trial counsel prevent Mr. Fiorilli from
testifying, or act incompetently when advising Mr. Fiorilli about testifying?
[62]
An ineffective assistance of counsel claim can
succeed where: (a) trial counsel has prevented the appellant from testifying,
or (b) trial counsel has acted incompetently in giving the appellant client the
full benefit of legal advice on whether to testify:
Trought
, at para.
50. Although both claims engage the trial fairness branch of the prejudice
component, the analysis required differs modestly depending on which claim is
being made.
[63]
In
Archer
, at para. 139, Doherty J.A. described
the analysis required if a lawyer is alleged to have prevented an appellant
from testifying:
While counsel owes an obligation to advise his
client as to whether he or she should testify, the ultimate determination is made
by the client. If the appellant can show that it was trial counsel and not the
appellant who decided that the appellant would not testify, and that the
appellant would have testified had he understood that it was his decision, it
seems to me that it must be accepted that his testimony could have affected the
result, thereby establishing that a miscarriage of justice occurred. The
crucial question becomes who made the decision? [Citations omitted.]
[64]
Where the allegation is that the advice counsel gave
to the client about testifying was not competent, the central issue is whether the
appellant has established that counsel acted unreasonably by failing to give
the client the full benefit of their advice, including an explanation of the
reason for that advice:
R. v. K.K.M.
, at paras. 66 and 82.
[65]
As can readily be seen, this inquiry addresses
the performance component of the ineffective assistance of counsel test. In
R.
v. K.K.M.
, after resolving the factual component of an ineffective
assistance of counsel claim by identifying the advice that had been given, Doherty
J.A. went directly to the performance component without first addressing the
prejudice component: at para. 62. He no doubt approached the ineffective assistance
of counsel claim in this unconventional order because the performance and
prejudice components are inextricably linked where the allegation is that,
because of incompetent advice, an appellant has been deprived of the ability to
make an informed choice on whether to testify. Where this has occurred, and it
is shown there is a reasonable probability that the appellant would have
testified had they been given competent advice, adjudicative fairness will have
been undermined.
[66]
As I understand Mr. Fiorillis argument before
us, he appears to be straddling both these claims. He contends that trial
counsel prevented him from testifying, and he complains that trial counsel undermined
his choice to testify by mocking his desire to do so and by failing to provide
fulsome advice on the matter.
[67]
In my view, no matter how one characterizes Mr.
Fiorillis claim relating to his failure to testify, it must fail. As I will describe
below, he has not satisfied me on the balance of probabilities that trial
counsel prevented him from testifying, nor has he established that trial
counsels advice or conduct relating to whether he should testify was outside the
range of reasonable professional judgment.
[68]
In coming to this decision, I have chosen to
ignore trial counsels testimony relating to Mr. Fiorillis right to testify. I
have made the choice to do so, instead of resolving Mr. Fiorillis challenge to
trial counsels credibility, because trial counsels testimony is not needed to
reject Mr. Fiorillis complaint. As I will explain, Mr. Fiorillis claim that
trial counsel was incompetent relating to his right to testify fails because the
affirmative evidence Mr. Fiorilli relies upon is incapable of proving the
allegations he makes. Moreover, my decision to ignore trial counsels testimony
will not prejudice Mr. Fiorilli. Trial counsel said nothing that would support
Mr. Fiorillis claims relating to the decision that he not testify, and I have
no other use for findings relating to trial counsels credibility since I do
not rely on trial counsels evidence to resolve any of the other issues in this
appeal.
(a) Did trial counsel prevent Mr. Fiorilli from
testifying?
[69]
Had trial counsel obtained written instructions
from Mr. Fiorilli relating to whether to testify, as he should have, this would
likely have been a simple matter to resolve (see the sage advice to defence
counsel on this point offered in
Trought
, at paras. 76-78). Unfortunately,
trial counsel did not obtain written instructions. Nonetheless, as I will
explain, I am satisfied that Mr. Fiorilli has failed to satisfy the factual
component of the ineffective assistance of counsel test relating to his claim
that trial counsel prevented him from testifying.
[70]
First, Mr. Fiorilli has not presented
affirmative evidence to support this allegation. Although in his fresh evidence
affidavit he baldly asserts that trial counsel failed to let [him] take the
stand to clarify points in [his] defence, the testimony Mr. Fiorilli provided
when examined on his fresh evidence affidavit does not support this claim. On a
fair reading, Mr. Fiorillis testimony suggests he let trial counsel know on
several occasions that he wanted to testify, but ultimately acceded to trial
counsels advice not to do so.
[71]
Most notably, during questioning, appellate
counsel for Mr. Fiorilli offered him a summary of the evidence he had given on
the subject by saying: you wanted to testify; he advised you against it and
thats it? Mr. Fiorilli answered, A hundred percent.
[72]
When Crown counsel pressed Mr. Fiorilli on this
issue, Mr. Fiorilli said, All I know is [trial counsel] said it wouldnt be a
good idea. Hows that in plain English? Mr. Fiorilli then specified what he
meant by saying, In the gist of the conversation [with trial counsel] that I
wouldnt I shouldnt take the stand.
[73]
Mr. Fiorillis daughter, Girardina Fiorilli, swore
in her fresh evidence affidavit to having been at a Korean restaurant where her
father and his trial counsel discussed the prospect of Mr. Fiorilli testifying.
She swore that when her father said he wanted to take the stand, trial counsel
told him not to be an idiot and that he should not take the stand. At no
point does Ms. Fiorilli suggest in her affidavit that trial counsel prohibited her
father from testifying.
[74]
Put simply, although the affirmative evidence
shows on its face that Mr. Fiorilli expressed the desire to testify on several
occasions, and that trial counsel was forceful in his views to the contrary, Mr.
Fiorillis understanding of counsels position was that Mr. Fiorilli
should
not testify, not that he
could
not testify. This evidence is
insufficient, in my view, to satisfy the factual component of Mr. Fiorillis
claim that trial counsel prevented him from testifying.
[75]
Moreover, even had Mr. Fiorilli asserted clearly
and consistently that his trial counsel prevented him from testifying, I would
have arrived at the same result. It is simply not plausible that Mr. Fiorilli
would have passively accepted the decision by his counsel not to permit him to
testify. I reject this suggestion. In doing so, I make four material observations
from Mr. Fiorillis fresh evidence testimony.
[76]
First, Mr. Fiorilli is not passive or retiring.
He was brash and assertive when cross-examined by the Crown.
[77]
Second, based on Mr. Fiorillis own testimony, he
was not shy about confronting trial counsel. When describing one of their
conversations, Mr. Fiorilli testified that he confronted trial counsel by asking
him, Do you f-----g have a hearing problem? He also testified that when trial
counsel told him he was an idiot for wanting to testify, he was ready to punch
[trial counsel]
right in the face.
[78]
Third, Mr. Fiorilli did not hesitate to raise
concerns in court about trial counsel. He testified that prior to trial, and
because of disagreements they were having, he asked a judge to remove trial
counsel from the record.
[1]
[79]
Fourth, if Mr. Fiorillis version of events is
true, his urge to reject trial counsels attempt to prevent him from testifying
would have been irresistible. Specifically, Mr. Fiorilli testified he had
evidence to give that could have clarified the record in his favour. He also expressed
the belief that trial counsel did not want him to testify in order to shorten
the trial, and that trial counsel did not care about the result. In these circumstances,
it defies belief that Mr. Fiorilli would have passively accepted an effort by
trial counsel to prevent him from testifying.
[80]
I make one further observation. In
Nwagwu
,
this court faced a claim that counsel had coerced the appellant into not
testifying. In rejecting this claim as unproven, this court noted, at para. 13,
that the appellants long-standing relationship with counsel, which continued
even after his conviction in this matter, causes us to be highly sceptical of
his version of events. Similar considerations operate here. Trial counsel had represented
Mr. Fiorilli in the past, as well as Mr. Fiorillis daughter on several
occasions. Moreover, there is evidence before us that Mr. Fiorilli attempted to
retain trial counsel to conduct his appeal after counsel supposedly prevented
him from testifying. In my view, this is not the conduct of someone who,
against his wishes, has been prevented from testifying.
[81]
Accordingly, I would find that Mr. Fiorilli has
not satisfied the factual component of the ineffective assistance of counsel
test relating to this allegation of incompetence.
(b) Did trial counsel otherwise act incompetently when advising
Mr. Fiorilli about testifying?
[82]
Mr. Fiorilli raises multiple concerns about
trial counsels actions relating to whether he would testify at trial. In my
view, those remaining concerns can be framed fairly as three arguments, namely,
that counsel acted incompetently by: (i) describing Mr. Fiorilli as an idiot; (ii)
failing to adequately explain why Mr. Fiorilli should not testify; and (iii)
recommending that Mr. Fiorilli not testify. I would not accept any of these
arguments.
(i)
Describing Mr. Fiorilli as an idiot
[83]
In framing his ineffective assistance of counsel
arguments, Mr. Fiorilli objects to trial counsel telling him that he would be
an idiot if he testified. Trial counsel denied that this exchange occurred, but
I need not resolve this dispute. Even if it happened, in my view this event has
no impact on Mr. Fiorillis ineffective assistance of counsel appeal. I come to
this conclusion by looking at the two possible uses to which this event might
be put.
[84]
First, I would reject any suggestion that trial
counsels comment undermined Mr. Fiorillis ability to choose whether to
testify. As indicated, Mr. Fiorilli and trial counsel had a long-standing
relationship that was frank and familiar, and Mr. Fiorilli has a strong
personality. This insult would not have intimidated or otherwise undermined his
ability to decide whether to testify.
[85]
I would equally reject any suggestion that
addressing a client in this way is an act of incompetence caught by the
ineffective assistance of counsel test. The focus on reasonableness and
professional judgment under the performance component of the ineffective
assistance of counsel test is on the competence of the advice, not on the
professionalism with which that advice has been delivered. Therefore, unless
the way the advice is delivered undermines the advice itself, the mere fact
that advice has been provided in an unprofessional manner will not satisfy the
test. As I have said, in the circumstances of this case, even if trial counsel
told Mr. Fiorilli that he would be an idiot if he testified, this could not
have undermined trial counsels advice.
(ii)
Failing to adequately explain why Mr. Fiorilli
should not testify
[86]
During his fresh evidence testimony, Mr.
Fiorilli alleged that trial counsel never explained why it was not a good idea
to testify. If this were true, this ground of appeal might succeed. However, I
have no confidence in this claim. Mr. Fiorilli was unable to provide a reliable
account of the relevant exchanges he had with trial counsel. He had little
memory of the discussions surrounding whether he would testify. He was confused
about the time and place of relevant conversations. In fact, he could provide
no detail about the content of the conversations he had with trial counsel
about testifying, other than to say he made clear to trial counsel that he
wanted to testify, trial counsel told him that if he testified he would be
eaten alive by the skilled and experienced Crown, it was not a good idea to
testify, and he was an idiot for wanting to testify. In describing the relevant
conversations, Mr. Fiorilli could offer only the gist of what was said. Quite
simply, the factual record he presents is not complete enough to reliably capture
the full scope of the advice that trial counsel gave him.
(iii)
Recommending against testifying
[87]
In his fresh evidence testimony, Mr. Fiorilli
identified some of the things he would have testified to had he been called as
a witness at trial, things he believes would have answered concerns that led to
his conviction. He also suggests on this appeal that if he had testified, he
would have had the benefit of the decision in
R. v. W.(D.)
, [1991] 1
S.C.R. 742. As I understand these and other submissions, Mr. Fiorilli is
arguing it was incompetent for trial counsel to recommend that he not testify.
[88]
I will assume, without deciding, that an
appellant can ground an ineffective assistance of counsel appeal on an
unreasonable recommendation to a client not to testify. I confess to some intuitive
reservations about this, as the decision whether to testify is ultimately the
clients decision to make. If trial counsel has reasonably provided the
appellant with the information required to make their own informed decision, I
am not certain the appellant can later challenge the competence of a
recommendation they accepted. But I will leave that to the side. I would instead
reject Mr. Fiorillis challenge to the competence of the recommendation not to
testify because this challenge cannot satisfy the performance component of the
ineffective assistance of counsel test.
[89]
It is important to understand that Mr. Fiorilli
cannot satisfy the performance component simply by establishing that it would
have been a sound or even a preferable trial strategy to have him testify
in his defence. To meet the performance component, Mr. Fiorilli would have to
establish that trial counsels recommendation not to testify fell outside the
broad spectrum of professional judgment that might be considered reasonable:
White
,
at p. 247. I am far from persuaded that this is so.
[90]
To be sure, I have no doubt that many defence
lawyers would have recommended that Mr. Fiorilli testify so that he could
attempt to clarify his role in the suspicious transactions by offering
explanations for the apparently compromising circumstances. But I also have no
doubt that other defence lawyers would have recommended the strategy trial
counsel pursued; that of leaving gaps in the evidence which might make it more
difficult for the trier of fact to arrive at findings beyond a reasonable
doubt, while attempting to point the finger of blame elsewhere. As Doherty J.A
observed in
Dunbar
, at para. 26, albeit in a slightly different
context, Clarification is not always an advantage. This is particularly so
where there is a risk that the clarification may not be credible, or where
the appellant is not apt to be a good witness.
[91]
Based on the record before us, I am not
persuaded that competent counsel would invariably have concluded that clarification
would have been an advantage in Mr. Fiorillis case. I have reviewed the
explanations Mr. Fiorilli proposes. By way of illustration, immediately below I
offer my evaluation of the reasonableness of the explanation he would have
provided had he testified about the gratuitous transfer of the Clinton property
to Mr. Cirillo. I have also reviewed Mr. Fiorillis fresh evidence testimony
and have acquired a measure of the kind of witness he would have made at trial.
Suffice it to say, I do not accept on this record that trial counsels advice
to Mr. Fiorilli not to testify in this case did not fall within the wide range
of reasonable professional assistance:
Archer
, at para. 119.
(2)
Did trial counsel lose crucial evidence
inconsistent with Mr. Fiorillis guilt?
[92]
Mr. Fiorilli claims he had a trust agreement
with Mr. Cirillo that, if proven, would explain why CCI transferred the Clinton
property to Mr. Cirillo without consideration shortly before the Gutnikov
transfer. He testified that CCI was holding the property in trust for Mr.
Cirillo. Mr. Fiorilli explained that he did this in order to help Mr. Cirillo
obtain money he required.
[93]
Mr. Fiorilli alleges that he provided this trust
agreement to trial counsel, but then trial counsel lost it. In my view, Mr.
Fiorilli has not proved the existence of a trust agreement on the balance of
probabilities, let alone that trial counsel had the trust agreement and lost it,
an allegation that was not even put to trial counsel during his fresh evidence
examination. Mr. Fiorilli has therefore failed to meet the factual component of
the ineffective assistance of counsel test on this issue.
[94]
First, there are consistency issues with Mr. Fiorillis
explanation for why Mr. Cirillo needed money, the purported motivation for
having a trust agreement. Mr. Fiorilli initially said the money was required so
that Mr. Cirillo, a Scientologist, could go to Scientology to take his
courses, [and] that he needed a half-a-million dollars or whatever. Mr.
Fiorilli then said he was helping Mr. Cirillo because Mr. Cirillo had prostate
cancer and Scientology would help him heal. Perhaps Mr. Fiorilli meant that Mr.
Cirillo wanted to take the half-a-million dollars in Scientology courses to
heal his cancer, but his explanation is far from clear.
[95]
In any event, problems remain. Mr. Fiorilli
testified that Mr. Cirillo was a top Scientology salesman on the Internet,
selling I think a million books. Yet Mr. Fiorilli also said that he had
always given Mr. Cirillo money because Mr. Cirillo never worked and was a con
man and a gambler who had always taken advantage of him. Even leaving aside the
contradiction between the testimony that Mr. Cirillo was a top online salesman
and the claim that he never worked, Mr. Fiorillis expressed disposition
towards Mr. Cirillo does not inspire confidence that he would have wanted Mr.
Cirillo to have the proceeds of the Clinton property.
[96]
Most importantly, Mr. Fiorilli failed to offer a
coherent explanation as to why a trust would have been used to furnish funds to
Mr. Cirillo. The only explanation Mr. Fiorilli offered was that the trust would
enable him to invest money in the stock market on Mr. Cirillos behalf, since
Mr. Cirillo did not have a bank account. Frankly, this makes no sense. There is
no evidence that money was being earned on the Clinton property pending the
Gutnikov transfer. So, what money was being invested while CCI supposedly held
the Clinton property in trust for Mr. Cirillo? And why would the trust be
collapsed by transferring the property to Mr. Cirillo immediately prior to the
Gutnikov transfer, if the purpose of the trust was to give Mr. Fiorilli access
to the funds so that he could invest them on Mr. Cirillos behalf? By
collapsing the trust, Mr. Cirillo, the so-called con man gambler, would be
legally entitled to receive the proceeds, not Mr. Fiorilli.
[97]
Quite simply, the evidence does not support a
finding on the balance of probabilities that there was a trust agreement with
Mr. Cirillo, let alone a finding that trial counsel was provided with such an agreement
and lost it.
(3)
Did trial counsel incompetently fail to marshal
evidence of Mr. Fiorillis innocence, or raise a theory of his defence?
[98]
Mr. Fiorilli argues that trial counsel failed to
marshal many signs of his innocence. Specifically, he argues that competent
trial counsel would have cross-examined Mr. Cirillo to prove that the trust
existed, and would have shown that Mr. Fiorilli had an alibi, had nothing to
gain by committing fraud, and that there were other suspects. Ultimately, Mr.
Fiorilli contends that his trial counsel failed to raise a theory of his
defence, and that he provided incoherent closing submissions.
[99]
I will begin with the generic allegations that
trial counsel failed to raise a theory of the defence or provide effective
closing submissions, and then address the more granular complaints I have
listed.
Generic allegations: the theory of the
defence and the closing submissions
[100]
I reject the suggestion that trial counsel proceeded without a
theory of the defence. I have alluded to that theory above. The explanation
provided by trial counsel in his fresh evidence affidavit is fully verified by
the trial record: instead of presenting an affirmative defence, trial counsels
strategy was to raise a reasonable doubt about whether Mr. Fiorilli
participated in the creation and submission of fraudulent mortgage
applications. Trial counsel attempted to do so by casting a cloud of suspicion
on others who were involved, a strategy that required a less is better
approach, lest the unanswered questions and gaps left by the Crown evidence be answered
or filled in inadvertently.
[101]
I accept that other counsel may have chosen to pursue different
strategies. However, it was not unreasonable for trial counsel to take the
approach he did. It is common for criminal allegations to be defended by
challenging the Crowns ability to prove those allegations beyond a reasonable
doubt. Further, this case accommodated trial counsels strategy. There would
have been no sense denying that the mortgage transactions were fraudulent. It
was patent that they were. And there would have been no sense in denying Mr.
Fiorillis involvement. As such, the prosecution would come down to whether the
Crown could prove that Mr. Fiorillis involvement was criminal. In these
circumstances, in my view it was a reasonable strategy for trial counsel to attempt
to create doubt relating to the nature and extent of Mr. Fiorillis involvement
by exploiting uncertainty about what had transpired.
[102]
Nor do I accept that trial counsels closing submissions were incoherent
and therefore incompetent. Even if they had been, Mr. Fiorilli cannot satisfy
the prejudice component of the ineffective assistance of counsel test on this
basis. It is evident that the trial judge fully understood the defence theory. I
see no reasonable probability that the outcome could have changed had trial
counsels closing submissions met the expectations Mr. Fiorilli alludes to in
his factum.
Granular Complaints
[103]
An ineffective assistance of counsel appeal is not an opportunity
for an appellant to benefit from a new trial by advancing arguments or
strategies that were not presented at trial, in the hope of attracting a
different result. As will often be the case in this type of appeal, Mr.
Fiorillis submissions about what competent counsel would have done differently
can readily be dismissed through a broad examination of the prejudice component.
[104]
First, as I have explained, Mr. Fiorillis claim that CCI held the
Clinton property in trust for Mr. Cirillo makes no sense. I cannot see how the
failure of trial counsel to try to prove the trust by cross-examining Mr.
Cirillo could have prejudiced his defence.
[105]
Second, trial counsels decision not to advance an alibi on Mr.
Fiorillis behalf could not have prejudiced Mr. Fiorilli because there was no
alibi to advance. Evidence that Mr. Fiorilli was hospitalized for some of the
relevant period could not assist in his defence, particularly not in a fraud
case involving falsely dated documents.
[106]
Third, no prejudice could have arisen from the failure of trial
counsel to suggest, in Mr. Fiorillis defence, that he had nothing to gain from
the fraudulent transactions. Mr. Fiorillis contention that he recouped only his
original investment is belied by proof that funds from the fraudulent
transactions were used to retire mortgages he had guaranteed in excess of the
purchase prices, and that he walked away with additional money from each
transaction. The fact that he made money from the fraudulent mortgages also undercuts
any utility in advancing his claim that he did not have to commit fraud to make
money from the real estate.
[107]
Fourth, Mr. Fiorilli could not have been prejudiced by the failure
of trial counsel to do more to show the fraudulent involvement of others in the
transactions charged, or in other transactions. The involvement of others in no
way exculpates Mr. Fiorilli. The trial judge was fully alive to the likely
involvement of others but appropriately noted that Mr. Fiorilli was convicted
based on evidence that points directly at Mr. Fiorilli as the person at the
helm of both scenarios.
[108]
I would therefore reject any suggestion that trial counsel was
ineffective by failing to present evidence of innocence on Mr. Fiorillis behalf.
(4)
Did trial counsel fail to pursue and review
disclosure?
[109]
Mr. Fiorilli alleges that trial counsel was incompetent in failing to
pursue disclosure relating to the involvement in other suspicious transactions of
some of those who were connected to the charged transactions. He also claims
that trial counsel failed to review the disclosure he did have relating to the
transactions that were the subject of the prosecution, and he alleges that trial
counsel failed to obtain copies of audiotapes, but incompetently rested content
to rely on transcripts, without questioning redactions in this material.
[110]
I have already explained my view as to why the failure of defence
counsel to pursue other suspicious transactions in evidence cannot ground an
ineffective assistance of counsel appeal. On the same footing, the failure to
pursue and review the disclosure relating to those other suspicious
transactions cannot do so either.
[111]
Nor can Mr. Fiorilli meet the prejudice component with the other
complaints he has made. Mr. Fiorilli has provided us with no basis for concluding
that trial counsel failed to review material disclosure, or that the audiotapes
would have added anything to the written disclosure that was received.
(5)
Did trial counsel fail to competently discredit key
Crown witnesses or challenge the appraisals?
[112]
Mr. Fiorilli argues that trial counsel failed to competently
discredit key Crown witnesses, most notably Ms. Gutnikov and Mr. Smith. He also
contends that trial counsel failed to competently challenge the appraisals of
the Clinton and Buttonwood properties adduced by the Crown at trial.
[113]
I would not accept these arguments. The trial judge was alive to the
self-serving nature of Ms. Gutnikovs evidence. He did not believe her claim
that she did not know she was doing anything wrong. Ultimately, the trial judge
found her material evidence credible because he concluded her account was
completely confirmed by documentation, including documentation showing her to
be a straw purchaser. I can therefore see no prejudice arising from the
failure by trial counsel to launch a more exerted attack on Ms. Gutnikovs credibility
and reliability by employing the strategies Mr. Fiorilli now suggests.
[114]
The same holds true with Mr. Smith. I am not satisfied that there is
a reasonable probability that cross-examining Mr. Smith differently could have
affected the outcome. Mr. Smith admitted that he knew he was signing fraudulent
mortgage application documents. Moreover, the trial judge was alive to the
possibility that Mr. Smith was more heavily implicated in the fraud than he
acknowledged.
[115]
Nor can I accept Mr. Fiorillis contention that trial counsels failure
to challenge the appraisals of the subject properties advances his ineffective
assistance of counsel appeal. Mr. Fiorilli holds out no evidence that those
appraisals were wrong. Moreover, the disparities between the initial purchase
prices and the subsequent straw purchaser sale prices, as well as those between
the mortgage advances and the recovery achieved when RBC sold the properties,
lend support on their own to the Crown theory that both subject properties were
overvalued when mortgage funds were obtained. Finally, as the trial judge was
quick to emphasize, the fraud charges would have been made out without proof of
loss arising from overvaluation. Quite simply, there is no reasonable
probability that the outcome of the trial could have changed had trial counsel
been able to discredit the appraisals.
(6)
Did trial counsel act incompetently by acting
outside his expertise, or by otherwise contravening the
Rules of Professional Conduct
?
[116]
As further indicia of ineffective assistance, Mr. Fiorilli presents
evidence that trial counsel promoted his practice by overstating his experience
in complex fraud cases, and acted outside his expertise in Mr. Fiorillis case.
He also identifies numerous other alleged contraventions of the Law Society of
Ontarios
Rules of Professional Conduct
, including trial counsels failure
to obtain a written retainer, his failure to record and retain his work product,
and improper billing practices, including his failure to keep proper dockets.
[117]
It is true that rules of professional conduct may be used to assist
in showing what may reasonably be expected of trial counsel:
White
,
at p. 247. However, as is evident from
R. v. G.D.B.
,
at paras.
5 and 29, and
Prebtani
, at paras. 141-42, not all matters of
professional competence are for appellate courts. Typically, matters of
professionalism and professional competence are for the professions governing body.
As the legal test makes clear, in an ineffective assistance of counsel appeal, an
appellate court will not address issues of professional competence unless an
appellant establishes that the incompetent acts or omissions impacted on the
fairness or reliability of the criminal trial. This is determined not by
exploring general questions, such as whether counsel accepted a retainer
outside their experience, but through a specific inquiry into trial counsels
performance at the trial. Nor is proof of counsels non-compliance with regulations
on matters like recordkeeping or billing germane to an ineffective assistance
of appeal.
CONCLUSION
[118]
As the governing jurisprudence makes clear, it is not our role to
conduct a forensic autopsy into the quality of Mr. Fiorillis legal
representation. I therefore do not want to be taken as criticizing or endorsing
the representation Mr. Fiorilli received. Our role is to apply the
ineffectiveness of counsel test to determine whether Mr. Fiorillis appeal should
succeed.
[119]
I have considered each of the challenges that Mr. Fiorilli raises to
the effectiveness of his representation. I have also considered the cumulative
impact of the concerns he raises. In my view, Mr. Fiorilli has not established
his sole ground of appeal. I would therefore dismiss his appeal.
Released: June
25, 2021 K.F.
David M. Paciocco J.A.
I agree. K. Feldman J.A.
I agree. Coroza J.A.
[1]
Mr. Fiorilli subsequently reconciled with trial counsel.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Smeltzer, 2021 ONCA 472
DATE: 20210625
DOCKET: C64381
Hourigan, Paciocco and Zarnett
JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Jordan Smeltzer
Appellant
Lance C. Beechener, for the appellant
Sarah Egan, for the respondent
Heard: June 22, 2021 by
videoconference
On appeal from the conviction entered on
July 5, 2017 by Justice Wayne G. Rabley of the Ontario Court of Justice.
REASONS FOR DECISION
FACTUAL BACKGROUND
[1]
On September 1, 2015, experienced drug unit
officers were on Proudfoot Lane in London, an area known for drug activity,
conducting an unrelated drug trafficking investigation.
[2]
After setting up to conduct surveillance for
that unrelated investigation, they observed the driver of a vehicle behave in
what they considered to be a suspicious manner. The driver first parked in a
lot in front of 565 Proudfoot Lane, one of a cluster of apartment buildings, where
he appeared to be looking around and texting. He then circled around one of the
buildings, exited the parking lot, and parked on a nearby public road which
bordered the parking lot.
[3]
Jordan Smeltzer, the appellant, then approached
the vehicle on foot from the direction of the parking lot of the Proudfoot Lane
apartment complex. He entered the vehicle. The vehicle drove a short distance
down the road, turned around, and then returned to the parking lot, this time coming
to a stop near the front of 585 Proudfoot Lane, in what the arresting officer
described as a more secluded spot than the exposed parking area in front of
565 Proudfoot Lane. Once the vehicle stopped, officers observed the appellant
passing something to the driver. Approximately 30 seconds later, the appellant
exited the vehicle and the vehicle left.
[4]
As the appellant was about to enter the building
at 585 Proudfoot Lane, the arresting officer, by ruse, induced the appellant to
approach him. The arresting officer testified that when the appellant got close
to him, he began to smell the strong odour of marijuana coming from the area
of [the appellants] person and the backpack. He then arrested the appellant.
[5]
A search incident to arrest of the backpack
disclosed approximately 259 grams of marijuana and a large bundle of cash.
During the search of the appellants person, three cellphones were also located.
ISSUES ON APPEAL
[6]
The appellant appeals his conviction for
possession of marijuana for the purpose of trafficking. He submits that the
trial judge erred in finding that the arresting officer had reasonable and
probable grounds to arrest and search him, and thereby improperly dismissed his
application under ss. 8 and 9 of the
Canadian Charter of Rights and
Freedoms
.
[7]
Under this umbrella ground, the appellant raises
three specific grounds of appeal:
(1)
The arresting officers explanation of his
grounds for the arrest relied on the fact that it occurred in a low-income,
high-crime area, and the trial judge failed to consider how this class-based
discrimination contaminated the arresting officers subjective grounds for
arrest.
(2)
The trial judge erred in concluding that the arresting
officer had objectively reasonable grounds for arresting and searching the
appellant, since the observed conduct of the parties was neutral and therefore
an unreliable indicator of drug trafficking activity.
(3)
The trial judge erred in accepting the arresting
officers evidence that he had smelled marijuana coming from the appellant and
his backpack.
[8]
During oral submissions, the appellants appeal
counsel (appeal counsel) pressed only this third ground of appeal. He did not
argue the second ground of appeal, and, although he made submissions on the
first ground, he acknowledged candidly that he did not expect the appeal to
turn on that ground.
[9]
At the end of the hearing, we dismissed the
appeal for reasons to follow. These are our reasons.
ANALYSIS
[10]
Although appeal counsel gave focused oral submissions,
since none of the grounds of appeal were formally abandoned, we will address
each of them in turn. We begin with the third ground, as listed above, which appeal
counsel emphasized before us.
The Smell of Marijuana
[11]
Appeal counsel urges that the trial judge erred
in his analysis of the arresting officers testimony that he had smelled
marijuana coming from the appellant and his backpack. He submits that the trial
judge was obliged to give this evidence more scrutiny than he did because this was
the key observation relied upon by the arresting officer to form his grounds, and
the appellants trial counsel (trial counsel) challenged the credibility of
this evidence.
[12]
In what we interpret to be a related argument, appeal
counsel says that the trial judge failed to consider the unreliability of smell
evidence when determining whether reasonable and probable grounds existed,
which appeal counsel argues he was obliged to do.
[13]
Finally, appeal counsel argues that the trial
judge erred in accepting the arresting officers evidence based on circular
reasoning.
[14]
We do not agree that the trial judge was obliged
to say more than he did in accepting the arresting officers evidence that he had
smelled marijuana. First, trial counsel did not make the credibility of this
specific testimony as central a focus of the trial as appeal counsel now suggests.
During cross-examination, trial counsel merely asked the arresting officer if
he was exaggerating his claim that he had smelled marijuana. By the way trial
counsel posed his questions, he did no more than imply that it was implausible that
the arresting officer could have detected the odour of marijuana while it was wrapped
in plastic and concealed in a backpack.
[15]
During his closing submissions, trial counsel
did make a bald general assertion that the arresting officers testimony was concocted.
However, he did not provide a basis for that assertion, nor did he tie it to
the arresting officers testimony that he had smelled marijuana prior to
arresting the appellant. The sole related argument that trial counsel made in
his closing submissions was that the arresting officer didnt smell anything
until he approached [the appellant] and arrested him. Put otherwise, the
ultimate challenge made at trial was not that the arresting officer had not
smelled marijuana, but that he had not smelled it before the appellant was
arrested.
[16]
Appropriately, in his reasons for decision, the
trial judge addressed the modest challenges trial counsel had made to the
credibility and reliability of the arresting officers smell evidence. As he
was entitled to do, the trial judge accepted the experienced arresting officers
evidence that marijuana has a strong pungent odour and that he could smell it
on the day in question. In doing so, the trial judge was clearly rejecting trial
counsels suggestion that it was implausible that the arresting officer had smelled
wrapped marijuana inside a backpack. Having rejected the sole basis for trial
counsels challenge to the smell evidence, the trial judge concluded that he
had no reason to reject the arresting officers testimony. Simply put, before
accepting the arresting officers evidence, the trial judge considered and
rejected the challenge that had been made to it. He was not obliged to say
more.
[17]
Nor was the trial judge obliged to demonstrate in
his reasons that he had considered that smell evidence can be highly subjective
and suspect. In
R. v. Gravesande
, 2015 ONCA 774, 128 O.R. (3d) 111, at
para. 40, Pardu J.A. was rightly critical of the trial judges failure to
allude to this concern where there was a case-specific reason to doubt an officers
smell evidence. Specifically, two correctional officers who had interacted with
Mr. Gravesande only moments earlier had not smelled the odour of marijuana that
a third correctional officer claimed to have smelled. Moreover, Pardu J.A. raised
this point as one of several examples from the trial judges reasoning that
reflected his uneven scrutiny of the evidence. Similar concerns are not present
in the appeal before us.
[18]
Finally, we do not accept appeal counsels
submission that the trial judge engaged in circular reasoning. We do not
interpret the trial judges reasons, at para. 21, as stating that the arresting
officer must have smelled marijuana or else he could not have arrested the
appellant. Rather, the trial judges comments must be read in the context of
trial counsels submission on smell. It thus becomes apparent that in the
impugned passage the trial judge was rejecting the suggestion that the
arresting officer had not smelled the marijuana until he had already arrested and
detained the appellant. The trial judges point was the arresting officers objective
in calling the appellant over in order to obtain the grounds for his arrest, supported
his testimony that he secured the grounds the smell before arresting the
appellant.
Relying on Neutral Behaviours
[19]
Appeal counsel was correct in not pressing the second
ground of appeal listed above, which was based on the contention that the
behaviours observed by the officers were neutral and thus not objective indicia
of a drug transaction.
[20]
The relevant series of events included: the
conduct of the driver upon arrival; the pickup of the appellant on a public
road rather than out front of the building he came from; the otherwise
pointless movement of the vehicle to a secluded area after the pickup; the
apparent hand-off of something within the vehicle from the appellant, who was carrying
a backpack; and the short duration of the meeting. The trial judge was entitled
to accept the testimony of experienced drug officers that, viewed together, this
series of events was consistent with a drug trafficking transaction.
[21]
We are satisfied that the cumulative behaviours
of the parties, coupled with the smell of marijuana coming from the appellant
immediately after departing the vehicle, provided reasonable and probable
grounds for arresting and searching the appellant.
The Character of the Neighbourhood
[22]
Appeal counsel was also correct not to press the
argument, advanced in the appellants factum, that the arresting officers
grounds were undermined by his reliance on the fact that these events occurred
in a low-income, high-crime area.
[23]
We agree that ones mere presence in a high-crime
area is not an objective indicium that one is involved in criminal activity:
R.
v. O.N.
, 2009 ABCA 75, 448 A.R. 253, at para. 40, citing
R. v. Mann
,
2004 SCC 52, [2004] 3 S.C.R. 59, at para. 47. As such, the arresting officer
should not have considered this factor in determining his grounds for arrest. However,
as indicated, based on the remaining grounds the arresting officer considered,
his conclusion that he had reasonable and probable grounds to arrest the
appellant was objectively reasonable.
[24]
We do not accept that the arresting officers
reliance on the fact that the apparent transaction occurred on the Proudfoot
Lane apartment complex constituted discrimination based on perceived class,
thereby contaminating and undermining the arresting officers subjective
grounds. The arresting officer found relevance in his knowledge that the Proudfoot
Lane apartment complex was a high-crime area, not that it was a low-income area.
He mentioned the low rents in the buildings when explaining why it is common
for the apartments to be used as drug stash houses. We see no indication that
he relied on the alleged poverty of the neighbourhood as an indicium of
criminal activity.
[25]
Had the arresting officer done so, or had he
expressed suspicion of criminal activity because the area was low-income, closer
consideration of the appellants submission on this point may have been
warranted. That submission, by analogy to this courts racial-profiling
decision in
R. v. Dudhi
, 2019 ONCA 665, 147 O.R. (3d) 546, is that reliance
on discriminatory stereotypes about poverty and crime should be treated as
tainting, and therefore undermining, an officers subjective grounds for
interfering with the liberty of a suspect. In the circumstances of this appeal,
however, we need not address this matter.
CONCLUSION
[26]
On the evidence, the trial judge was entitled to
find that the arresting officer had subjective grounds to believe there was a
credibly-based probability that the appellant had engaged in drug trafficking,
and that the arresting officers belief was objectively reasonable.
[27]
The appeal is therefore dismissed.
C.W. Hourigan J.A.
David M. Paciocco J.A.
B. Zarnett J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Manastersky v. Royal Bank of
Canada, 2021 ONCA 458
DATE: 20210624
DOCKET: C65121
Feldman, Brown and Miller JJ.A.
BETWEEN
James Anthony Manastersky
Plaintiff (Respondent)
and
Royal Bank of Canada and
RBC Dominion Securities Inc.
Defendant (
Appellant
)
Jeremy Devereux and Geoff Mens, for the
appellant
Nancy Shapiro, for the respondent
Heard: January 19, 2021 by video conference
On remand from the
Judgment of the Supreme Court of Canada dated November 12, 2020.
Brown J.A.:
I. OVERVIEW
[1]
This remand from the Supreme Court of Canada
involves the award of certain incentive plan-related damages to the respondent,
Mr. James Anthony Manastersky, in his wrongful dismissal action against his
employer, the appellant RBC Dominion Securities Inc. (RBCDS). At trial, RBCDS
conceded that it had terminated Mr. Manasterskys employment without cause. The
trial judge found that Mr. Manastersky was entitled to 18 months reasonable
notice upon termination: 2018 ONSC 966, 46 C.C.E.L. (4th) 316.
[2]
During his employment, Mr. Manastersky
participated in profit-sharing plans called carried interest plans. From late
2004 until his termination in 2014, Mr. Manastersky participated in the
Mezzanine Carried Interest Plan (the Mezzanine CIP). The trial judge awarded
Mr. Manastersky: (i) the sum of $953,392.50 in respect of the lost opportunity
to earn entitlements under the Mezzanine CIP during the 18-month reasonable
notice period: Judgment, para. 5; and (ii) the amount of $190,789.00 in respect
of Mr. Manasterskys share of investment proceeds under the Mezzanine CIP for
the period 2005 to 2013, as calculated using Mr. Manasterskys foreign exchange
methodology: Judgment, para. 6.
[3]
RBCDS appealed both parts of the award.
[4]
By reasons dated July 18, 2019, this court
(Feldman J.A. dissenting) allowed RBCDS appeal regarding the award of damages
in respect of the incentive plan. The court unanimously dismissed the appeal
regarding the foreign exchange methodology: 2019 ONCA 609, 146 O.R. (3d) 647
(the Original Decision).
[5]
Mr. Manastersky sought leave to appeal to the
Supreme Court of Canada. By Judgment dated November 12, 2020, the Supreme Court
remanded the case to this court pursuant to s. 43(1.1) of the
Supreme Court
Act
, R.S.C. 1985, c. S-26, with the direction that the case forming the
basis of the application for leave to appeal is remanded to this court for
disposition in accordance with
Matthews v. Ocean Nutrition Canada Ltd.
,
2020 SCC 26 (the Remand Directions)
[6]
This court sought and received remand submissions
from the parties and heard oral submissions on January 19, 2021.
II. THE
APPROACH ON A REMAND
[7]
On the remand of a case from the Supreme Court
with directions to dispose of the case in accordance with an identified
decision of that court, this court will reconsider its original decision in
light of the authoritative pronouncement of the Supreme Court on issues that
may have affected this courts disposition of the appeal. If the application of
the identified Supreme Court decision mandates a different disposition, this
court should alter its earlier decision in light of the holdings of that
decision; if it does not, this court should affirm its earlier decision:
Deslaurier
Custom Cabinets Inc. v. 1728106 Ontario Inc.
, 2017 ONCA 293, 135 O.R. (3d)
241, at para. 14, leave to appeal refused, [2016] S.C.C.A. No. 249;
Sankar
v. Bell Mobility Inc.
, 2017 ONCA 295, 410 D.L.R. (4th) 1, at para. 9,
leave to appeal refused, [2016] S.C.C.A. No. 251;
Mikelsteins v. Morrison
Hershfield Limited
, 2021 ONCA 155, at para. 16.
[8]
In performing the exercise required by the
Remand Directions, I have considered the following: (i) the
Matthews
decision; (ii) the Original Decision; (iii) the trial judges reasons; (iv) the
portions of the record relevant to the issue raised by the Remand Directions;
and (v) the submissions of the parties on the appeal and in respect of the
remand hearing. As these reasons address the parties submissions made on the
remand, they supplement and therefore should be read together with the Original
Decision.
III. THE
LAW AS AFFIRMED IN THE
MATTHEWS
DECISION
[9]
Upon the termination of employment without
cause, an employee is entitled to damages equivalent to what the employee would
have earned during the notice period, including compensation for bonuses or
incentives that would have been earned had the employer not breached the
employment contract:
Matthews
, at para. 48. The purpose of damages in
lieu of reasonable notice is to put employees in the position they would have
been in had they continued to work through to the end of the notice period:
Matthews,
at para. 59. The remedy for a breach of the implied term to provide
reasonable notice is an award of damages based on the period of notice which
should have been given, with the damages representing what the employee would
have earned in this period:
Matthews
, at para. 49.
[10]
Noting that how payments under incentive bonuses or plans
are to be included in these damages is a recurring issue in the law of wrongful
dismissal, the Supreme Court affirmed the two-step approach set out by this
court in
Lin v. Ontario Teachers Pension Plan
, 2016 ONCA 619, 402
D.L.R. (4th) 325,
Paquette v. TeraGo Networks Inc.
, 2016 ONCA 618, 352
O.A.C. 1, and
Taggart v. Canada Life Assurance Co.
(2006), 50 C.C.P.B.
163 (Ont. C.A.): at para. 49. The Supreme Court stated, at paras. 52-54, that
the two-step approach rests on two key principles:
(i)
When
employees sue for damages for wrongful dismissal, they are claiming for damages
as compensation for the income, benefits, and bonuses they would have received
had the employer not breached the implied term to provide reasonable notice;
and
(ii)
A contract
of employment effectively remains alive for the purposes of assessing the
employees damages, in order to determine what compensation the employee would
have been entitled to but for the dismissal.
[11]
Building on those two principles, the Supreme Court, at
para. 55, affirmed a two-step approach to determine whether an employee
dismissed without cause is entitled to damages in respect of a bonus or incentive
benefit:
Courts should accordingly ask two questions
when determining whether the appropriate quantum of damages for breach of the
implied term to provide reasonable notice includes bonus payments and certain
other benefits.
Would the employee have been entitled to
the bonus or benefit as part of their compensation during the reasonable notice
period?
If so, do the terms of the
employment
contract or bonus plan unambiguously take away or limit that common law right
?
[12]
The Supreme Court further clarified that resorting to the
so-called integral test does not play a role in all cases. Where there is
doubt about whether the employee would have received a discretionary bonus
during the reasonable period of notice, resorting to the test of whether a
benefit or bonus is integral to the employees compensation can assist in
answering the question of what the employee would have been paid during the
reasonable notice period:
Matthews,
at para. 58. By contrast, where
there is no doubt that the employee would have received a bonus or incentive
benefit during the notice period, there is no need to ask whether the bonus was
integral to the employees compensation:
Matthews
, at para. 59. At
the remand hearing, counsel for Mr. Manastersky acknowledged that, on the facts
of this case, the issue of whether the incentive benefit was integral does
not arise because the entitlement to payments under the Mezzanine CIP was not
discretionary.
[13]
The Original Decision identified the legal principles
applicable to the appeal as those set out in
Lin
,
Paquette
,
and
Taggart
, including the application of the two-step approach:
Original Decision, paras. 39-43. Consequently, I do not see the exercise on
this remand as applying any new legal principles identified in
Matthews
to the case on appeal; the legal principles affirmed in
Matthews
were
those applied in the Original Decision. Instead, I propose to look afresh at
the application of the two-step analysis to the case on appeal.
IV. THE
APPLICATION OF
MATTHEWS
TWO-STEP ANALYSIS
A.
What RBCDS
paid Mr. Manastersky on termination in respect of his Mezzanine CIP entitlement
[14]
Before reconsidering the application of the two-step
approach to the present case, it is worth recalling what compensation RBCDS
paid Mr. Manastersky in respect of his legal rights under the Mezzanine CIP
following his termination.
[15]
The Original Decision described, at paras. 8 to 12, the
various incentive plans that had formed part of Mr. Manasterskys employment
contract. The details of the Mezzanine CIPs in place at the date of termination
are set out at paras. 13 to 22 of the Original Decision. I see no need to
repeat them; I incorporate them in these reasons.
[16]
RBCDS terminated Mr. Manasterskys employment on February
14, 2014. As of that date, two funds Funds 1 and 2 had been established
under the Mezzanine CIP. Each fund contained a portfolio of investments for an
Investment Period. Mr. Manastersky had been granted points, or shares, in the
profits generated by the portfolios of both funds. No profits from either fund
had been distributed by the time of Mr. Manasterskys termination; his
interests in both funds had been carried from 2008 until 2014. Significant
payouts were made after RBCDS gave notice to Mr. Manastersky and wound-up the
funds: $3,624,079 in 2015; and $1,810,230 in 2016.
[17]
The trial judge found that Mr. Manastersky was entitled to
18-months notice, which ran from February 14, 2014 until August 14, 2015.
[18]
Several months after Mr. Manasterskys termination, RBCDS
began to wind-up Funds 1 and 2. It also approved the termination of the
Mezzanine CIP in respect of all future Investment Periods that is to say, no
further investment funds would be created within the Mezzanine CIP: Original
Decision, at para. 28.
[19]
At trial, Mr. Manastersky filed an Updated Earnings
Summary. It showed that during 2015 and 2016 he was fully paid his share of the
profits from the winding-up of Funds 1 and 2. Mr. Manastersky acknowledged that
RBCDS had paid him all profits from Funds 1 and 2 to which he was entitled
under the Mezzanine CIP.
[20]
The evidence therefore shows that both during and after Mr.
Manasterskys period of reasonable notice RBCDS administered the wind-up of
Funds 1 and 2 and paid out Mr. Manasterskys share of Fund profits. Put
differently, during and after his period of reasonable notice Mr. Manastersky
received all the incentive plan benefits to which he was entitled in respect of
the two funds that existed at the time of the termination of his employment.
B.
Analysis
[21]
Under the
Matthews
framework, the issue of any
limitations on an employees entitlement to bonus/incentive benefit
compensation typically (but not invariably) would arise under the second step
namely, do the terms of the employment contract or bonus plan unambiguously
take away or limit a common law right or entitlement upon the termination of
employment? The factual twist in the present case is that the issue of any
limitation on Mr. Manasterskys entitlement to further incentive benefits
during his period of reasonable notice falls more under
Matthews
first
step: would he have been entitled to receive payment of a CIP incentive benefit
as part of his compensation during the reasonable notice period? However, as
recognized in the Original Decision, at para. 51, incentive-benefit plans vary
greatly in their structure and pay-out terms, so the analysis in respect of one
type of incentive plan may not be transferable to the analysis of another type
of incentive plan.
[22]
In
Matthews
, the employees entitlement to a
long-term incentive plan payment the occurrence of a Realization Event such
as the sale of the employer was limited by the incentive plans requirement
that the employee be a full-time employee at the date of the Realization
Event. The Supreme Court held that the first step was clearly satisfied because
the Realization Event fell within the employees reasonable notice period; but
for the employees dismissal, he would have received the incentive payment:
Matthews,
at para. 59. In considering the second step, the Supreme Court held that
the language of full-time employee did not limit the employees entitlement
to the incentive payment when the Realization Event occurred during the period
of reasonable notice:
Matthews
, at paras. 65-67.
[23]
The circumstances of the present case differ from those in
Matthews
.
Here, the Mezzanine CIP did not place a limit on Mr. Manasterskys entitlement
to his carried interest incentives in the event of the termination of his
employment without cause. As stated in the Original Decision, at para. 17:
There is no dispute that at the time of his
termination, Mr. Manasterskys points were fully vested. When the employment of
a participant was terminated without cause, the participant continued as a
participant, retaining in all Portfolios with respect to which he or she has
Points, all rights represented by his or her Vested Points.
[24]
Instead, Mr. Manastersky takes issue with the treatment by
the majority in the Original Decision of the scope of his entitlement in
respect of the Mezzanine CIP incentive benefits during the period of reasonable
notice. He contends that he was entitled to more than merely the payment of his
share of the profits from Funds 1 and 2.
[25]
In applying
Matthews
first step, the majority in
the Original Decision concluded that Mr. Manastersky was entitled to benefits
during the period of reasonable notice in respect of Funds 1 and 2 because the
terms of the Mezzanine CIP linked his entitlement to incentive benefits to the
existence of discrete Investment Periods, each encompassing a specific
portfolio in a specific fund. Those terms of the Mezzanine CIP differed from
those considered in
Paquette
and
Lin
. As stated in the
Original Decision, at paras. 55-56:
The entitlement of a participant, such as Mr.
Manastersky, to earn payments under the Mezzanine CIP was tied to the existence
of the funds created for different Investment Periods. Two funds existed during
the last decade of Mr. Manasterskys employment and the period of reasonable
notice: Funds 1 and 2. In accordance with the terms of the Mezzanine CIP, Mr.
Manastersky was allocated a specific amount of points in respect of each Fund.
As Article 4.4 of the Mezzanine CIP clearly
stated, the status of a participant with respect to any Investment Period
shall not give any Participant the express or implied right
to any Points for any future Investment Period
.
[Emphasis added]
[26]
The Original Decision went on to state, in part, at paras.
61-62:
[T]he terms of the Mezzanine CIP provided that
Mr. Manastersky was not entitled to any further earnings under that plan:
i. The Management Committee was
entitled to terminate the Plan effective as of the end of any Investment
Period with respect to future Investment Periods: Art. 9.3. The Management
Committee did so. No new Fund 3 Investment Period was created;
ii. A participant was granted points
in respect to each Portfolio relating to a given Investment Period and those
points represented the Participants share of the portion of the aggregate
profits and losses of RBCDS with respect to that Portfolio: Art. 6.1.1;
iii. Any allocation of points in
connection with an Investment Period after the Funds 1 and 2 Investment Periods
would be done by way of a new allocation letter: Art. 6.1.3; and
iv. An employees status as a
participant in respect to any Investment Period did not give the participant
the express or implied right
to any Points for any future Investment
Period: Art. 4.4.
Those provisions, when combined with the
decision of the Management Committee to terminate the Plan, indicate that Mr.
Manastersky was not entitled to any common law damages in respect of the
Mezzanine CIP profit-sharing plan beyond those relating to his vested points
for Funds 1 and 2
[27]
Mr. Manastersky contends that analysis was in error. He
points to language used in
Matthews
, in respect of the second step of
the analysis, that a plans limitation on entitlement to an incentive payment
will not be effective unless it unambiguously limits or removes the
employees common law right, is absolutely clear and unambiguous or clearly
covers the exact circumstances which have arisen:
Matthews
, at
paras. 55 and 64-66.
[28]
Drawing on that language, Mr. Manastersky argues that the
terms of the Mezzanine CIP that permitted termination of the Plan effective as
of the end of any Investment Period with respect to future Investment Periods
(Art. 9.3) and stipulating that an employees status as a participant in
respect to any Investment Period did not give the participant the express or
implied right
to any Points for any future Investment Period (Art. 4.4)
could not operate to limit his entitlement to incentive compensation, during
the period of reasonable notice, to only the payout of his profit shares in
Funds 1 and 2. Mr. Manastersky contends that notwithstanding the language
defining the scope of his entitlement in the Mezzanine Plan (i.e., his common
law right), he is entitled to more because the provisions of the Mezzanine CIP
Arts. 4.4, 6.1.1, 6.1.3, and 9.3 did not clearly and unambiguously cover
the exact circumstances that arose in his case, namely the termination and
winding-up of Funds 1 and 2 during his period of reasonable notice.
[29]
Mr. Manastersky advances two bases upon which to calculate
the more to which he contends he is entitled as further damages for incentive
benefits during the notice period.
[30]
First, he submits that since, for all intents and purposes,
he was the only remaining employee beneficiary of the two funds, RBCDS was
required to give him reasonable notice of the termination of the funds
equivalent to the 18-months reasonable notice found by the trial judge. That
would mean RBCDS would have to continue to operate the Mezzanine Funds and make
new investments until the end of his period of reasonable notice (August 2015).
[31]
I see two difficulties with that submission.
[32]
First, in his evidence Mr. Manastersky acknowledged that
the Investment Period for Fund 1 ended on December 15, 2006, following the
departure of a senior plan member, and the Fund 2 Investment Period effectively
came to an end in 2013, prior to Mr. Manasterskys termination, when its
investments reached $158 million. While that was just shy of the $160 million
portfolio cap that would end an Investment Period, further investments in Fund
2 were not practical as the remaining $2 million was smaller than any deal the
Mezzanine Fund had done.
[33]
Second, there was no evidence adduced at trial that would
enable the court to determine whether deferring the process of winding-up Funds
1 and 2 from the summer of 2014 until the end of the notice period in August
2015 would have resulted in a higher payout to Mr. Manastersky of his share of
the profits in the funds. Further, as the CIP was a profit-sharing program,
there was no guarantee that making further investments would prove profitable
and increase Mr. Manasterskys payout.
[34]
The second basis for calculating the more is the one Mr.
Manastersky primarily relied upon at the appeal. At trial, Mr. Manastersky
admitted that he was not taking the position that he was entitled to an
allocation of points with respect to some new or notional Fund 3 Investment
Period that was never established by RBCDS under the Mezzanine CIP.
[35]
By taking that position, Mr. Manastersky seemed to
acknowledge that the conclusion of one Investment Period under the Mezzanine
CIP did not automatically require RBCDS to start a new one, as reflected in
Art. 9.3 of the Mezzanine CIP that entitled the Plans Management Committee to
terminate the Plan effective as of the end of any Investment Period with
respect to future Investment Periods.
[36]
Notwithstanding that acknowledgement, Mr. Manastersky
submits that he is entitled to more than his actual share of profits from the
realization of Funds 1 and 2 that he received both during and after the period
of reasonable notice. He contends that RBCDS should pay an additional amount in
respect of the notice period calculated by averaging the actual share of the
profits in Funds 1 and 2 that he received during and after the notice period
over the lifetimes of the funds and then applying the resulting annual average
(the Notional Annualized Historical Profit Share)
pro rata
to the
18-month notice period. Under that approach, Mr. Manastersky contends that
during the period of reasonable notice he should have received Mezzanine
CIP-related incentive benefits made up of two components: (i) first, the
payouts of $5,434,309 that RBCDS made to Mr. Manastersky during and after the
period of reasonable notice for his share in the profits of Funds 1 and 2,
calculated in accordance with the terms of the Mezzanine CIP; plus (ii) an
additional $953,392.50 in damages calculated by applying the Notional
Annualized Historical Profit Share for those same funds
pro rata
to
the 18-month period of reasonable notice.
[1]
[37]
I remain unpersuaded by that submission. The first step of
Matthews
requires ascertaining whether an employee would have been entitled to an
incentive or benefit as part of their compensation during the reasonable notice
period: at para. 55. Determining the content of that common law right requires
examining the characteristics of the incentive or benefit to which the employee
would be entitled. In many cases, the character of the incentive or benefit
will be an annual payment or bonus. But that is not the character of the common
law contractual benefit under the Mezzanine CIP. It was a carried interest
plan that quite clearly did not entitle its participants to annual payments. By
its terms, a participant was only entitled to receive a payment at the
conclusion of an Investment Period and the realization of a specific funds
investment portfolio. And, as noted, Mr. Manastersky carried his interest in
the two funds from 2008 until 2014 without receiving any annual payment; he was
paid his share of the profits from the two funds in 2015 and 2016.
[38]
To accede to Mr. Manasterskys submission would, in effect,
recast his common law, fund-specific entitlement to incentive compensation
under the Mezzanine CIP into a notional annual or annualized entitlement. The
trial judge and my colleague in dissent in the Original Decision acceded to Mr.
Manasterskys submission. With respect, I cannot.
[39]
Mr. Manasterskys position seeks to alter, in a fundamental
way, the character of the common law right to incentive compensation to which
he was entitled under his employment contract. The terms of an incentive plans
eligibility criteria and formula for calculating a bonus remain relevant to the
inquiry into what benefit the employee would have been entitled to as part of
his or her compensation during the reasonable period of notice:
Paquette
,
at para. 18. I do not read the
Matthews
decision as changing that
principle.
[40]
Matthews
provides
that damages for dismissal are designed to compensate the employee for the
income, benefits, and bonuses they would have received had the employer not
breached the implied term to provide reasonable notice: at para. 53. The terms
of Mr. Manasterskys employment contract did not entitle him to receive an
annual incentive payment. The terms entitled him to receive a fund-specific
incentive payment upon the end of a funds investment period. During his period
of reasonable notice, Mr. Manastersky was entitled to receive damages
calculated on the latter basis, not damages calculated on both bases. In my
view, RBCDS paid Mr. Manastersky that to which he was entitled at common law
and, with respect, the trial judge erred in concluding otherwise.
V. DISPOSITION
[41]
For these reasons, having considered the Original Decision
in light of
Matthews
, I would affirm the Original Decision.
[42]
I would order Mr. Manastersky to pay RBCDS its
costs of the remand fixed in the amount of $5,000.00, inclusive of
disbursements and applicable taxes.
David
Brown J.A.
I
agree. B.W. Miller J.A.
Feldman J.A. (dissenting):
A.
introduction
[43]
Mr. Manastersky sought leave to appeal this courts
majority decision to the Supreme Court of Canada. The issue to be decided was
essentially whether the majoritys decision overturning the trial judge, or the
dissenting reasons that would have upheld the trial judge, had correctly
applied the test for damages for wrongful dismissal, as set out in this courts
decisions in
Lin v. Ontario Teachers Pension Plan
, 2016 ONCA 619, 402
D.L.R. (4th) 325,
Paquette v. TeraGo Networks Inc.
, 2016 ONCA 618, 352
O.A.C. 1, and
Taggart v. Canada Life Assurance Co.
(2006), 50 C.C.P.B.
163 (Ont. C.A.).
[44]
Before considering whether to grant the appellant leave to
appeal, the Supreme Court heard an appeal from the Nova Scotia Court of Appeal
in
Matthews v. Ocean Nutrition Canada Ltd.
, 2020 SCC 26, 449 D.L.R.
(4th) 583, and reserved its decision. Ultimately, in
Matthews
, the
Supreme Court did not change the law of Ontario and endorsed this courts
approach in
Lin
,
Paquette
, and
Taggart
.
[45]
Without granting leave to appeal, the Supreme Court remanded
the appellants case to this court pursuant to s. 43(1.1) of the
Supreme
Court Act
, R.S.C. 1985, c. S-26, for disposition in accordance with
Matthews
v. Ocean Nutrition Canada Ltd.
, 2020 SCC 26.
[46]
Because the Supreme Court in
Matthews
adopted and
endorsed this courts jurisprudence that had been applied by the trial judge,
and by the majority and the dissent on the appeal, both the parties and this
court have had to grapple with the question of what issue was remanded to this
court for rehearing. To me, the correct approach is to ask the question: If the
trial judge had had the benefit of the
Matthews
decision, would he
have approached the case differently? Similarly, on appeal, the question for
this court would be: Did the trial judge err by failing to apply the principles
and the test as now set out by the Supreme Court in
Matthews
?
[2]
B.
The
Matthews
Decision
[47]
David Matthews was an experienced chemist who, from 1997,
occupied a number of senior management positions with Ocean Nutrition Canada
Ltd. (Ocean). In 2007, efforts to force Mr. Matthews out of the company
started, and he ultimately resigned in 2011, resulting in constructive
dismissal.
[48]
As a senior executive, Mr. Matthews was part of the
long-term incentive plan (LTIP), which included as a benefit a significant
payment in the event of the sale of the company. About 13 months after Mr.
Matthews was forced out, the company was sold for $540,000,000, but it refused
to pay him his entitlement under the LTIP on the basis that he did not comply
with a provision that required him to be a full-time employee on the date of
the sale.
[49]
In endorsing this courts decisions in
Lin
,
Paquette
,
and
Taggart
, the Supreme Court in
Matthews
made the following
important observations, at paras. 47-55, about the purpose of the two-step test
for determining a wrongfully dismissed employees entitlement to damages, and
how to apply it:
[47] In the case at bar, the only disagreement
in respect of reasonable notice turns on whether Mr. Matthews damages include
an amount to compensate him for his lost LTIP payment.
[48] In my respectful view, the majority of
the Court of Appeal erred by focusing on whether the terms of the LTIP were
plain and unambiguous instead of asking what damages were appropriately due
for Oceans failure to provide Mr. Matthews with reasonable notice. The issue
is not whether Mr. Matthews is entitled to the LTIP in itself, but rather what
damages he is entitled to and whether he was entitled to compensation for
bonuses he would have earned had Ocean not breached the employment contract. By
focusing narrowly on the former question, the Court of Appeal applied an
incorrect principle, resulting in what I see as an overriding error.
[49] Insofar as Mr. Matthews was
constructively dismissed without notice, he was entitled to damages
representing the salary, including bonuses, he would have earned during the
15-month period (
Wallace
, at paras. 65-67). This is so because the
remedy for a breach of the implied term to provide reasonable notice is an
award of damages based on the period of notice which should have been given,
with the damages representing what the employee would have earned in this
period (para. 115). Whether payments under incentive bonuses, such as the LTIP
in this case, are to be included in these damages is a common and recurring
issue in the law of wrongful dismissal. To answer this question, the trial
judge relied on
Paquette
and
Lin
from the Court of Appeal for
Ontario. I believe he took the right approach.
[50] In
Paquette
, the employee
participated in his employers bonus plan, which stipulated that employees had
to be actively employed on the date of the bonus payout. That language is
broadly comparable to that found in the LTIP which, at clause 2.03, requires
the claimant to be a full-time employee of the company. In Paquette, but for
the employees termination, the employee would have received the bonus within
the reasonable notice period. The motion judge in that case, however, concluded
that the employee was not entitled to the bonus because, while he may have been
notionally employed during the reasonable notice period, he was not
actively employed and so did not qualify under the terms of the plan.
[51] The employees appeal was allowed. The
Ontario Court of Appeal relied principally on its prior decision in
Taggart
v. Canada Life Assurance Co.
(2006), 50 C.C.P.B. 163, concerning a similar
question related to pension benefits. In that case, Sharpe J.A. rightly
cautioned that courts should not ignore the legal nature of employees claims.
The claim is not, he said, for the pension benefits themselves. Rather, it
is for common law contract damages as compensation for the pension benefits
[the employee] would have earned had [the employer] not breached the contract of
employment (para. 16). Consequently, a terminated employee is entitled to
claim damages for the loss of pension benefits that would have accrued had the
employee worked until the end of the notice period (para. 13). With respect to
the role of a bonus plans contractual terms, Sharpe J.A. explained that [t]he
question at this stage is whether there is something in the language of the
pension contract between the parties that takes away or limits that common law
right (para. 20).
[52] The Court of Appeal in
Paquette
built upon the approach in
Taggart
, proposing that courts should take
a two-step approach to these questions. First, courts should consider the
[employees] common law rights (para. 30). That is, courts should examine
whether, but for the termination, the employee would have been entitled to the
bonus during the reasonable notice period. Second, courts should determine
whether there is something in the bonus plan that would specifically remove the
[employees] common law entitlement (para. 31). The question, van Rensburg
J.A. explained, is not whether the contract or plan is ambiguous, but whether
the wording of the plan unambiguously alters or removes the [employees] common
law rights (para. 31).
[53] I agree with van Rensburg J.A. that this
is the appropriate approach. It accords with basic principles of damages for
constructive dismissal, anchoring the analysis around reasonable notice. As the
court recognized in
Taggart
, and reiterated in
Paquette
, when
employees sue for damages for constructive dismissal, they are claiming for
damages as compensation for the income, benefits, and bonuses they would have
received had the employer not breached the implied term to provide reasonable
notice (see also
Iacobucci v. WIC Radio Ltd.
, 1999 BCCA 753, 72
B.C.L.R. (3d) 234, at paras. 19 and 24;
Gillies v. Goldman Sachs Canada
Inc.
, 2001 BCCA 683, 95 B.C.L.R. (3d) 260, at paras. 10-12 and 25;
Keays
,
at paras. 54-55). Proceeding directly to an examination of contractual terms
divorces the question of damages from the underlying breach, which is an error
in principle.
[54] Moreover, the approach in
Paquette
respects the well-established understanding that the contract effectively
remains alive for the purposes of assessing the employees damages, in order
to determine what compensation the employee would have been entitled to but for
the dismissal (see, e.g.,
Nygard Int. Ltd. v. Robinson
(1990), 46
B.C.L.R. (2d) 103 (C.A.), at pp. 106-7, per Southin J.A., concurring;
Gillies
,
at para. 17).
[55] Courts should accordingly ask two
questions when determining whether the appropriate quantum of damages for
breach of the implied term to provide reasonable notice includes bonus payments
and certain other benefits. Would the employee have been entitled to the bonus
or benefit as part of their compensation during the reasonable notice period?
If so, do the terms of the employment contract or bonus plan unambiguously take
away or limit that common law right?
[50]
In my view, the key point made by the Supreme Court about
the first stage of the two-step test is that the purpose is to recognize that
the contract of employment is treated as alive and continuing to subsist during
the notice period, so that the question is, what would the employee have earned
or been entitled to receive had their employment not been wrongfully
terminated?
[51]
Mr. Matthews argued that since the sale of the company took
place during the 15-month reasonable notice period, he was
prima facie
entitled to common law damages for the lost LTIP payment. Oceans position was
that Mr. Matthews could not satisfy the first stage of the two-part test. Mr.
Matthews had a common law entitlement to damages only for all compensation and
benefits that are integral to his compensation, and the LTIP was not integral
because he did not have a vested right at the date of termination.
[52]
The Supreme Court rejected Oceans position. It agreed that
whether a bonus or benefit is integral to the employees compensation
assists in answering the question of what the employee would have been paid
during the reasonable notice period: at para. 58. However, in Mr. Matthews
case, there was no need to ask whether the benefit was an integral part of his
compensation because there was no question that, had he remained employed
during the notice period, he would have received the LTIP benefit. It was not a
discretionary payment, and he would have been entitled to it. Therefore, he was
prima facie
entitled to receive damages as compensation for the LTIP.
The only issue for the Supreme Court to resolve was whether the terms of the
LTIP unambiguously limited or removed Mr. Matthews common law right to receive
damages.
[53]
Turning to that issue, the Supreme Court examined the terms
of the LTIP to see if there were any that removed Mr. Matthews common law
entitlement. It concluded that the limiting terms did not have that effect. The
two relevant clauses provided:
2.03 CONDITIONS PRECEDENT:
[Ocean] shall have no obligation under this
Agreement to the Employee unless on the date of a Realization Event the
Employee is a full-time employee of [Ocean]. For greater certainty, this
Agreement shall be of no force and effect if the employee ceases to be an
employee of [Ocean], regardless of whether the Employee resigns or is
terminated, with or without cause.
2.05 GENERAL:
The Long Term Value Creation Bonus Plan does
not have any current or future value other than on the date of a Realization
Event and shall not be calculated as part of the Employees compensation for
any purpose, including in connection with the Employees resignation or in any
severance calculation.
[54]
The Supreme Court emphasized, at paras. 64-65, that the
wording of the LTIP must unambiguously limit[] or remove[] the employees
common law right, and that the provisions must be absolutely clear. To that
end, language requiring an employee to be full-time, like in clause 2.03,
would not suffice to remove an employees common law right to damages. Had Mr.
Matthews been given proper notice, he would have been a full-time employee
during the notice period.
[55]
The Supreme Court also noted, at para. 66, that where a
clause purports to remove an employees common law right to damages upon
termination with or without cause, such as clause 2.03, this language will
not suffice, pointing out that termination without cause does not mean
termination without notice. And in any event, because an employment contract is
not treated as terminated until after the reasonable notice period expires for
the purpose of calculating damages for wrongful dismissal, even if the clauses
had expressly referred to wrongful termination, that would not have been
sufficient to unambiguously alter the employees common law entitlement.
[56]
In the result, the Supreme Court concluded that under step
one, Mr. Matthews was
prima facie
entitled to the LTIP payment as part
of his compensation, and under step two, the terms of the LTIP did not
unambiguously remove that entitlement.
C.
Analysis
[57]
Based on the Supreme Courts approach and analysis in
Matthews
,
which follows
Lin
,
Paquette
, and
Taggart
, in my
view, had the trial judge had the benefit of the
Matthews
decision and
had he applied that decision as the legal framework for analyzing the
appellants claim, his analysis and conclusion would not have changed. And it
of course follows that there would be no basis to interfere with the trial judges
decision on appeal. I base this conclusion on paras. 38-48 of the trial judges
reasons:
[38] Benefit Plans generally include
limitations or conditions on payments out of the plan. Where an employee has
been dismissed without cause, it may be argued that the terms of such Benefit
Plans limit or eliminate the employees entitlements upon the termination of
his or her employment. In
Taggart v. Canada Life Assurance Co.
, Sharpe
J.A. explained the correct approach for analysing such issues. The first step in
the analysis is to determine the employees common law right to damages for
breach of contract. The second step is to determine whether the terms of the
relevant Benefit Plan alter or remove a common-law right. Moreover, clear
language is required to limit common law entitlements.
[39] Applying this analysis to the CIP, in my
view it is clear that the CIP represented an integral part of Manasterskys
compensation. His participation in the CIP was included in his Contract of
Employment and he continued to participate in the Plan throughout his 13 years
of employment at RBC. Although the allocation of a specific number of Points to
participants was discretionary, once awarded, Points could not be reduced
without the agreement of the participant. Manasterskys Points allocation had
remained constant since 2007, when he was awarded 50% of the total available
Points under the Plan. Because the entitlements under the Plan depended on
investment earnings from the Mezzanine Fund, the amounts earned by participants
would fluctuate from year to year. However the calculation of a participants
share of investment proceeds was nondiscretionary in the sense that it would be
determined through the application of the Payment Formula set out in the Plan
itself. Over the course of Manasterskys 13 years at RBC, his average share of
investment proceeds per investment year was approximately $635,000,
representing well over 50% of his total annual income.
[40] I note that in
Bain v. UBS Securities
Canada Inc.
, D.A. Wilson J. set out a general test for determining whether
a bonus is integral to the employees compensation. One element of the test was
whether the bonus was received each year, although in different amounts. It
might be noted that in this case no payments had been made from the CIP since
2007, since the Fund 2 investment period that had commenced in 2006 had not yet
concluded. Nevertheless, participants in the CIP continued to accumulate
entitlements each year. The fact that no actual payments had been made out of the
Plan since 2007 does not alter or diminish the significance and materiality of
the Plan to a participants annual compensation.
[41] In short, the CIP was a significant,
nondiscretionary variable form of compensation that represented more than half
of Manasterskys annual income, similar to the variable forms of incentive
compensation considered by Corbett J. in
Lin v. Ontario Teachers' Pension
Plan Board
. It was integral to his compensation and therefore forms part
of his presumptive entitlement to damages at common law during the notice
period.
[42] The second stage of the analysis is to
consider whether there are any provisions in the CIP which limit or eliminate
this presumptive entitlement upon termination of employment. The CIP did make
provision for the impact of a termination of employment on an employees
entitlements under the Plan. However, far from eliminating or limiting
Manasterskys entitlements upon termination, the CIP provided that all of
Manasterskys outstanding Points would immediately vest in the event that he
was terminated without cause. It was for this reason that the Termination Offer
provided that, despite the termination of his employment, Manasterskys rights
under the CIP remained fully vested. In short, the CIP did not purport to limit
or reduce Manasterskys entitlements under the Plan in the event that his
employment was terminated without cause.
[43] RBC argued that Manastersky was not
entitled to compensation in respect of the CIP during the common law notice
period by virtue of a provision which allowed RBC to terminate the Plan
effective as of the end of any Investment Period with respect to future
Investment Periods. As noted earlier, by the fall 2013, the CIP was nearing
the end of the investment period for Fund 2, by virtue of the fact that the
total amount invested through the Mezzanine Fund was approaching $160 million.
Upon the conclusion of the Fund 2 investment period, a new investment period
would automatically begin. However, RBC could also elect to terminate the CIP
with respect to future investment periods upon the conclusion of the Fund 2
investment period and prior to the commencement of Fund 3. In fact, RBC
exercised this right on June 25, 2014, when it terminated the CIP in respect of
future investment periods.
[44] I do not believe that the fact that RBC
had the option of terminating the Plan at the end of an investment period
should be regarded as limiting Manasterskys entitlement to notice at common
law. First, RBCs right to terminate the CIP was in no way tied to the
termination of Manasterskys employment. Far from containing clear language
limiting rights upon termination of employment, the provision in the CIP
permitting RBC to terminate the Plan did not purport to limit or reduce his
common law entitlements. Nor could it be said that the parties did not turn
their minds to the consequences flowing from the termination of Manasterskys
employment on his entitlements under the CIP. In fact, the CIP enhanced
Manasterskys entitlements in the event his employment was terminated without
cause, through accelerated vesting of his Points.
[45] Further, the fact that RBC terminated the
CIP in respect of future investment periods on June 25, 2014, four months after
Manasterskys dismissal without cause, does not alter this analysis. As Sharpe
JA explained in
Taggart
, in cases where a terminated employee seeks
compensation for entitlements under a benefit plan, the claim is not for the
benefits themselves. Rather, the claim is for common law contract damages as compensation
for the benefits that the employee would have earned had the employer not
breached the contract of employment. The employee is claiming for the lost
opportunity to continue to earn or receive benefits that would have been
available in the event their employment had continued. As of the date of the
Termination Offer, RBC had not in fact terminated the CIP, and it therefore
remained in place as an integral component of Manasterskys compensation.
[46] What if Manasterskys employment had
continued past February 14, 2014 and in June 2014 RBC had terminated the CIP
without offering Manastersky some alternate, comparable form of compensation?
Although consistent with the terms of the CIP, this would have amounted to a
unilateral significant reduction in his compensation, as it would have
eliminated the opportunity for him to continue to accrue entitlements through
the CIP. This would in all likelihood have amounted to a constructive
dismissal, thereby triggering an entitlement to damages at common-law,
including damages for the lost opportunity to continue to earn entitlements
under the CIP.
[47] In any event, RBC had not in fact
terminated the CIP as of the date of Manasterskys termination of employment.
Nothing in the CIP purported to limit or restrict his entitlements under the
Plan upon the termination of his employment. His termination without cause
deprived him of the opportunity to continue to earn entitlements under the CIP
and he is entitled to be compensated in damages for that lost opportunity.
[48] RBC also argues that rather than
terminate the CIP, it could simply have elected to cease making any additional
investments in the Mezzanine Fund, effectively eliminating Manasterskys
opportunity to earn additional entitlements under the CIP. But if RBC could not
directly reduce Manasterskys compensation unilaterally, it could not achieve
the same result through indirect means. To be sure, RBC was perfectly entitled
to make investment decisions as to how and where it wished to invest its capital
but, in doing so, it could not escape its contractual and common law
obligations to Manastersky. [Footnotes omitted.]
[58]
The trial judge applied all of the principles from
Matthews
.
He applied the two-step test by first determining the appellants common law right
to damages for breach of contract, and second determining whether the CIP
altered or removed the appellants common law right. And he took note that
clear language is required to limit common law entitlements.
[59]
At the first step, to determine the appellants common law
right to damages, he addressed the question whether the CIP represented an
integral part of the appellants compensation, focusing on the evidence of the
significance and materiality of the CIP to the appellants annual compensation,
regardless of whether it was paid or just accrued annually.
[60]
At the second step, the trial judge found that the terms of
the CIP provided for full vesting on termination without cause, and did not
purport to reduce the appellants entitlement upon the termination of his
employment. He considered the effect of the provisions that allowed the
respondent to terminate the CIP for future investments, which it ultimately did
during the notice period. However, interpreting those provisions, as he was
entitled to do (
Sattva Capital Corp. v. Creston Moly Corp.
, 2014 SCC
53, [2014] 2 S.C.R. 633), the trial judge found that the respondents option to
terminate the CIP did not limit the appellants entitlement to notice at common
law. He also specifically rejected the respondents argument that because it
could terminate the CIP by simply ceasing to make additional investments into
the Fund, it was entitled to thereby reduce the appellants compensation by
eliminating his opportunity to earn his entitlements under the CIP. The trial
judge concluded that the respondents freedom to make investment decisions did
not allow it to escape its contractual and common law obligations.
[61]
In his analysis of the terms of the CIP, the trial judge
addressed their effect on termination under step two, as well as their effect
on the appellants common law entitlement under step one. In fact, as my
colleague observes, at para. 21, the twist in this case is that the court was
required to determine whether the terms of the CIP limited the appellants
common law entitlement. The trial judge addressed this issue directly by
interpreting the terms of the CIP in the context of the factual record.
[62]
The determination at step one as to whether the CIP
constituted an integral part of the appellants compensation package was the
key issue before the court at trial and on appeal.
[3]
While it is
acknowledged that the CIP was not discretionary, the question whether it formed
an integral component of the appellants compensation arose because the
respondent took the position that it was entitled to discontinue the CIP (which
it did during the notice period) without replacing it with a comparable
benefit. My colleague accepts the respondents position that Mr. Manasterskys
entitlement was fund-specific, and that the appellant did not have any further
right to claim common law damages once the Fund was wound up and he received
the value of his vested interest in the CIP. However, whether the appellants
entitlement was fund-specific was the question before the court. Under step
one, the issue was whether the appellant was entitled to receive an equivalent
benefit once the fund was wound up, because the CIP benefit formed an integral
part of his compensation.
[63]
My colleague says that the appellant was only entitled to
the CIP and that he got what he was entitled to. He relies on the fact that the
respondent was not obliged to start a third Fund.
[64]
The appellant does not dispute the respondents entitlement
to make business decisions, including whether to continue with the Mezzanine
Fund or the CIP. However, that does not determine his entitlement to be
compensated at the level reflected by his participation in the Fund through the
CIP. That turns on whether the CIP formed an integral part of his compensation
package. The trial judge found at step one that it did, in the paragraphs
quoted above. I agree with his analysis.
[65]
Furthermore, the terms of the CIP do not undermine the
conclusion that it formed an integral part of the appellants compensation.
There are no terms in the CIP or in the appellants employment agreement that
unambiguously state that if the respondent decided to terminate the CIP, the
effect would be to discontinue the employees right to receive compensation at
a level based on the performance of the Fund. The trial judge found that there
was no unambiguous language that would affect the appellants common law
entitlement. I agree with that finding as well.
[66]
While the Supreme Court in
Matthews
endorsed the
requirement for unambiguous language in order to disentitle an employee at
stage two, it follows that the same requirement applies at stage one. In
endorsing the requirement, the Supreme Court referred to the principle of
contractual interpretation for unilateral contracts that clauses excluding or
limiting liability be strictly construed. It stated, at paras. 64-65, that the
principle applies with particular force, and added that the provisions of
the agreement must be absolutely clear and unambiguous. There is no basis to
suggest that the court intended to limit this requirement to the stage two
portion of the analysis.
[67]
The appellant was hired to be a director of the Mezzanine
Fund and to be compensated in significant part based on the performance of the
Fund through the CIP. Eventually the respondent decided to bring the Fund
in-house and to eliminate the CIP incentive performance plan. The respondent
was certainly entitled to do that as a business decision. However, the result
was to effectively eliminate the appellants position with the respondent as
the director of the Fund. When the respondent decided to make that decision, it
was obliged to give the appellant reasonable notice, and to pay him what he
would have earned during that period or to offer him a comparable position at a
comparable rate of compensation. Failure to do so would constitute constructive
dismissal:
Farber v. Royal Trust
, [1997] 1 SCR 846, at paras. 33-36.
When it became clear that there would be no comparable position, the respondent
terminated the appellants employment, whereupon he was entitled to be paid
what he would have earned had he remained employed during the reasonable notice
period.
[68]
Although the respondents Mezzanine CIP was a complex,
high-end financial vehicle, as was the appellants very remunerative
entitlement to his points allocation in it, the law with respect to the
two-step process for determining entitlement to damages in lieu of notice for
wrongful termination of employment, set out by the Supreme Court in
Matthews
,
applies to it in the same way as it does to a more simple bonus or benefit. The
court asks first, what is the employees common law entitlement during the
notice period, and second, whether the terms of the employment contract or
bonus plan unambiguously take away or limit that common law right on
termination.
[69]
In this case, there is no language that purports to reduce
the appellants compensation if the CIP is discontinued (step one), or to limit
the appellants entitlement because of his dismissal (step two). The language
that my colleague focuses on is the right of the respondent to discontinue the
plan. That right is merely the right of any business to make business decisions
in its own interest. It is not an unambiguous right to also reduce the
appellants compensation, either while he remains employed or is in the
reasonable notice period following the termination of his employment.
[70]
What the Supreme Courts decision in
Matthews
emphasized, at para. 65, is how absolutely clear and unambiguous the
provisions of the employment agreement must be to remove an employees common
law right to damages. There is no language in the appellants employment
agreement stating that if the CIP is terminated, so also is his entitlement to
be compensated at the same level.
[71]
In my view, the trial judge was correct in his analysis of
the CIP, and in his application of the law as it was then and as confirmed in
Matthews
.
The trial judges decision remains entitled to the deference of this court.
[72]
I would affirm my original decision to dismiss the appeal
from the trial judges decision, with costs.
Released: June 24, 2021 K. F.
K. Feldman J.A.
[1]
The trial judge, at paras. 50-51, averaged Mr. Manasterskys CIP
entitlement over the period 2005 to 2013 (9 years), calculated a notional
annual entitlement from Funds 1 and 2, and the multiplied it by the 1.5 years
reasonable notice period.
[2]
In
British Columbia (Ministry of Forests) v. Teal Cedar Products
Ltd.
, 2015 BCCA 263, 70 B.C.L.R. (5th) 318, at para. 2, the Court of Appeal
for British Columbia, considering a remand after the Supreme Courts decision
in
Sattva Capital Corp. v. Creston Moly Corp.
, 2014 SCC 53, [2014] 2
S.C.R. 633, stated that the remand hearing was to be treated as a fresh appeal:
Although this Court can inform itself from its earlier reasons, the appeals
are to be reconsidered having particular regard for the law as stated in
Sattva
.
The remand decision was appealed to the Supreme Court, where the result was
overturned: see
Teal Cedar Products Ltd. v. British Columbia
, 2017 SCC
32, [2017] 1 S.C.R. 688. But the Supreme Court stated, at para 78: However, on
remand, the Court of Appeal had the benefit of
Sattva
, and its decision
was specifically directed toward reconsidering the majoritys decision in light
of
Sattva
.
[3]
My colleague comments, at para. 12, of his reasons that counsel for
the appellant in oral submissions agreed that because the CIP was not
discretionary, the issue of whether the CIP was integral did not arise. As I
understand her comment in the context of her full submissions, she agreed that
because the CIP was not discretionary, it was unnecessary to consider whether
it was integral on that basis. However, the issue in the case remains whether
the employer could cancel the CIP without replacing it or giving reasonable
notice, and that turns on whether it was integral to the appellants
compensation package.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Murray v. Pier 21 Asset
Management Inc., 2021 ONCA 466
DATE: 20210624
DOCKET: C66936 & C67356
Pepall, Roberts and Thorburn
JJ.A.
BETWEEN
Emily Murray and 2327342 Ontario
Inc.
Plaintiffs (Respondents/Appellants)
and
Pier 21 Asset Management Inc.,
David
Star and 8165246 Canada Inc.
Defendants (Appellants/Respondents)
Igor Ellyn and Kathryn J. Manning, for
the appellants (C66936)/respondents (C67356)
Edward J. Babin, Cynthia L. Spry and Michael
Bookman, for the respondents (C66936)/appellants (C67356)
Heard: May 26, 2021 by video
conference
On appeal from the judgment of Justice Michael
A. Penny of the Superior Court of Justice, dated April 12, 2019 and September
25, 2020, with reasons reported at 2019 ONSC 316, 2019 ONSC 4501, 2019 ONSC
7230, 2020 ONSC 2153, 150 O.R. (3d) 419, and 2020 ONSC 5606.
COSTS ENDORSEMENT
[1]
The parties have agreed not to seek any costs of
the appeal motions or the appeals.
S.E. Pepall
J.A.
L.B. Roberts
J.A.
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 complainants 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.J. R.-M., 2021 ONCA 454
DATE: 20210624
DOCKET: C65626
Watt, Benotto and Harvison Young
JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
J.J. R.-M.
Appellant
Scott Reid, for the appellant
Jeremy D. Tatum, for the respondent
Heard: May 19, 2021 by video
conference
On appeal from the conviction entered on
January 31, 2018 and the sentence imposed on March 1, 2018 by Justice Meredith Donohue
of the Superior Court of Justice, sitting with a jury.
REASONS FOR DECISION
[1]
The appellant appeals his conviction before a judge and jury on counts
of sexual interference and sexual assault of his stepdaughter. He says that the
trial judge made the following reversible errors:
a.
She erred in
ruling that certain post-incident evidence should be admitted;
b.
She erred in
failing to instruct the jury to disregard an improper aspect of the Crowns closing
which suggested that the complainants behavioural issues were related to the
sexual abuse by the appellant;
c.
She erred in
refusing to exclude photographs of the defendant and the complainant taken in
her bedroom on grounds that it violated s. 8 of the
Canadian
Charter of Rights and Freedoms
.
[2]
There is no merit to any of these grounds for the following reasons.
The Post-Incident Conduct
[3]
The appellants adult daughter was a witness at the trial. She testified
that during a visit with the appellant while he was in custody after being
charged, the appellant had asked her to destroy a black bag containing the
complainants clothing which he had left in an outbuilding near the familys
home. The Crown brought a pre-trial motion asking that this evidence be
admitted as it was after-the-fact conduct relevant to an issue at trial.
[4]
There was no dispute as to the relevance of the evidence to the
allegations. It was anticipated that there would be evidence led that the
appellant had bought his stepdaughter see-through clothing that he asked her to
wear with nothing on underneath while her mother was absent. The heart of the
appellants submissions on appeal is that the trial judge erred in failing to
weigh the probative value of this evidence against its prejudicial effect. He
argues that the prejudicial effect was high because, in his view, a jury would
be likely to assume that the daughter was telling the truth unless there was
evidence of motivation on her part to lie. While the appellants counsel was of
the view that there was such motivation, this was evidence that was bad
character evidence, including evidence that the appellant physically abused his
children, that he had abducted them and spirited them out of their home country
illegally, and that he had reacted very negatively when his daughter came out
to him. This reality put the appellant in an untenable position because he
was faced with the choice of addressing the daughters evidence on its own
terms, or introducing bad character evidence.
[5]
We do not agree. As the appellant conceded, the evidence was highly
probative in the circumstances. In her ruling allowing the Crowns application,
the trial judge correctly instructed herself on the applicable principles of
the law, and there is no suggestion that her instructions to the jury erred
with respect to the treatment of post-incident conduct. The appellant
cross-examined the witness extensively on her motivation to lie due to her
fathers reaction to her coming out, and to her report of having been sexually
assaulted on one occasion. In addition, the appellant and the appellants wife
were both rigorously cross-examined on discrepancies between their respective
testimonies as to where the black bag was found.
[6]
In short, we see no error. As the trial judge correctly held, it was up
to the jury to decide whether the appellant had asked his daughter to find and
destroy the bag. The material question was whether the appellant had made this
request. The defence made strategic decisions as to what factors it brought out
that could constitute motives to lie on the daughters part and rigorously
cross-examined her on them. There was no basis for excluding this evidence as
submitted by the appellant.
The Crowns Closing Submission
[7]
The appellant takes issue with the Crowns comment in its closing to the
jury that the complainants behaviour after the summer during which the alleged
incidents took place made sense because it was more in keeping with that
summer she had after being sexually assaulted.
[8]
The appellant claims that this statement was entirely speculative,
prejudicial, and rendered the trial unfair. We disagree. First of all, we note
that the defence closing also contained statements that arguably invited
speculation in the other direction. More importantly, there was no objection
from Mr. Reid, who was also the trial counsel. This is particularly striking given
that following the charge to the jury, counsel asked for, and the trial judge
made, some clarifying instruction to the jury. He did not raise the issue of
the closing. Closing submissions are to be given significant latitude, and the
trial judges charge was balanced in that it included a fair summary of both
sides positions.
The s. 8 Argument
[9]
Finally, the appellant submitted in his factum that the trial judge
erred in ruling that the circumstances of the delivery of certain photos to the
police did not violate his s. 8 rights. The photos had been inadvertently found
by the appellants daughter on her (disabled) sisters tablet, and the daughter
who found them downloaded them so they could be provided to the police. The
trial judge made her finding on the basis that that the daughter who provided
the photos to the police was acting as an independent actor and not as a state
agent, and that those actions were not subject to s. 8 scrutiny. We see no
error in this conclusion and no merit in this ground of appeal.
[10]
The
appeal is dismissed.
David Watt J.A.
M.L. Benotto J.A.
A. Harvison Young J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Johnson v. Rajanna, 2021 ONCA 453
DATE: 20210623
DOCKET: C68567
Rouleau, Hoy and van Rensburg
JJ.A.
BETWEEN
Phyllis
Johnson
Plaintiff (Appellant)
and
Dr. Shobha Rajanna, Dr.
Anthony Sterling, Margaret Doe
and Mary Doe
Defendants (
Respondents
)
Daniel Lamberto Ambrosini, for the
appellant
Monica Tessier, for the respondents
Heard: May 31, 2021 by video conference
On
appeal from the order of Justice Michael T. Doi of the Superior Court of Justice,
dated April 22, 2020, with reasons reported at 2020 ONSC 2489.
REASONS FOR DECISION
[1]
The appellant appeals the motion judges order,
granting summary judgment in favour of the respondents, dismissing her action
against them. She also seeks leave to adduce fresh evidence on appeal,
consisting of the affidavit and report of Dr. Ronald M. Kellen, a retired
dentist.
[2]
The appellant raises several arguments on
appeal. It is unnecessary to address all of them. As we will explain, we admit
the fresh evidence. We are persuaded that, with the benefit of the fresh
evidence, the motion judge would have adjourned the summary judgment motion.
Accordingly, we set aside the dismissal of the appellants action.
The background
[3]
In March 2015, the appellant commenced an action
against the respondents for dental malpractice arising out of Dr. Rajannas
extraction of a molar in April 2013. The appellant, a walk-in patient, was 70
years old at the time of the extraction. She alleged that she suffered nerve
damage from the procedure, which resulted in lost sensation and feeling in the
lower left side of her tongue and mouth.
[4]
In February 2016, the respondents gave the
appellant notice of their intention to seek a summary dismissal of the action
because she had not obtained expert evidence to establish that the respondents
had failed to meet the standard of care.
[5]
Over the course of the litigation, the appellant
was represented by several lawyers. She had difficulty obtaining an expert
report.
[6]
The respondents summary judgment motion was
originally returnable January 16, 2019. However, the appellant and her
then-counsel requested an adjournment in order to allow additional time to seek
and retain an expert to provide an expert report. The adjournment was granted,
and, on February 21, 2019, a timetable was ordered, peremptory to all parties
to the action. That timetable required the appellant to serve her responding
record by September 2, 2019. In a court attendance on another matter on August
20, 2019, the appellant was reminded that the timelines continued to apply.
[7]
When the summary judgment motion was ultimately
heard on Wednesday, March 11, 2020, the appellant represented herself. At the
outset of the hearing, she handed up a two-page, undated and unsigned, written
submission to the motion judge. It stated that after meeting on Saturday with a
retired dentist, who was not identified, and reviewing her documentation, we
found three discrepancies which might constitute negligence or malpractice. The
letter went on to briefly describe the concerns.
[8]
The motion judge, after making some inquiries of
the appellant, concluded that she was unable to obtain an expert report to
support her claim against the respondents and that, given the complexity
surrounding the application of clinical dental skills in determining liability,
this was not a case where liability could be determined without expert
admissible evidence addressing the standard of care and causation. Because the
appellant had not delivered expert evidence to support her dental malpractice
claim, and the respondents had adduced their own expert evidence which states
that the dental treatment at issue met the expected standard of care, he found
there was no genuine issue to be tried.
The fresh evidence
[9]
In his affidavit, Dr. Kellen deposes that: he is
the retired dentist who assisted the appellant in preparing her two-page
written submission; his initial contact with the appellant was on Friday, March
6, 2020; when he met with her on Saturday, March 7, 2020, he agreed to be
retained to assist in her case; he had reviewed her file and identified issues
that suggested the possibility of negligence but he required additional time to
investigate them and complete his final report; he could not attend the hearing
on March 11, 2020 due to health reasons; and he advised the appellant to give
the judge the written submission and seek an adjournment so that he would have
enough time to complete his report.
[10]
After the hearing, the appellant instructed Dr.
Kellen to complete his report, which he did on May 15, 2020.
[11]
In his affidavit, Dr. Kellen deposes that,
Based on my review of the file provided by Ms. Johnson, and direct interviews
with Ms. Johnson, I am of the opinion there is very likely negligence and
dental malpractice by the Defendants that require a more fulsome disclosure and
appropriate adjudication. He attaches his report, dated May 15, 2020.
[12]
The opinions expressed in his report include
that:
·
The paraesthesia (numbness) almost certainly
developed from additional injection(s) possibly with a damaged needle. It
would be negligence if Dr. Rajanna used a 27-gauge needle (rather than a
25-gauge needle) to administer the anaesthetic or if she failed to test the
needle point for a bur prior to re-use. The fact that the paraesthesia happened
to both the lingual nerve and the inferior alveolar nerve raises the
probability that more than one block injection was used and that one or more of
the further injections had a bur-damaged needle tip, which would have torn
nerve tissue.
·
The x-ray showed that the appellants bone is
dense, with narrow periodontal ligament space around the tooth being extracted.
This definitely increased extraction difficulty. There is no indication in the
chart that there was any pre-planning or consideration of the potential
problems with the extraction that developed. This indicates negligence.
·
When Dr. Rajanna realized the difficulties with
the extraction, there is no indication that she stopped, re-assessed, or
considered aborting and referring the appellant to a nearby oral surgeon. That
is negligence.
Application of the test for admission of
fresh evidence
[13]
R. v. Palmer
,
[1980] 1 S.C.R. 759, at p. 775, established the test for the admission of fresh
evidence on appeal:
1.
The evidence should not be admitted if, by due
diligence, it could have been adduced at trial, but this general principal will
not be applied as strictly in criminal cases as in civil cases;
2.
The evidence must be relevant in the sense that
it bears on a decisive or potentially decisive issue;
3.
The evidence must be credible in the sense that
it is reasonably capable of belief; and
4.
The evidence must be such that if believed, it
could reasonably, when taken with the other evidence adduced at trial, be
expected to have affected the result.
[14]
The respondents argue that the proposed fresh
evidence does not satisfy the first, third and fourth
Palmer
criteria.
We disagree. In our view, all four factors are satisfied in this case.
[15]
As to the first factor, the respondents say that
the time to adduce expert evidence was before the hearing of the summary
judgment motion. They point out that the appellant had several years to obtain
a supportive expert report and, according to her, had approached at least ten
dentists, trying to do so.
[16]
That is so, but that very submission supports
the appellants position that she was trying, throughout, to obtain an expert
report. She spoke of her difficulty in finding someone to opine that a fellow
dentist was negligent. She only succeeded in finding Dr. Kellen days before the
scheduled summary judgment motion. Once she located him, she followed up to
ensure that his report was completed promptly, within approximately two months
of the hearing date.
[17]
There is no dispute that the second factor is
satisfied. The expert evidence is clearly relevant to the issue that was before
the motion judge.
[18]
As to the third factor, the respondents say that
the fresh evidence is not credible because Dr. Kellens report is not
accompanied by an assurance of his objectivity, in the form of an
acknowledgment of the experts duty (Form 53), signed by Dr. Kellen, as
required by r. 53.03(2.1) of the
Rules of Civil Procedure
, R.R.O.
1990, Reg. 194. Further, they say that Dr. Kellen makes groundless assumptions
and assertions about Dr. Rajanna, which should lead this court to conclude
he cannot meet his obligation to provide the court with a fair, objective and
non-partisan opinion.
[19]
The respondents are correct that the report is
not accompanied by a Form 53 and, in portions of his report, Dr. Kellen made
certain assumptions which he characterized as a couple of unsubstantiated
theorizations because of large information gaps and things that do not fit.
[20]
To the extent there are deficiencies in Dr.
Kellens report, they may speak to a lack of experience as an expert witness or
the preparation of the report without input by counsel. We view them more as
deficiencies that go to the fourth
Palmer
factor, and that could prove
fatal if not rectified before trial or a further summary judgment motion.
Nonetheless, in our view, Dr. Kellens evidence is reasonably capable of
belief.
[21]
Turning to the fourth
Palmer
factor,
the respondents argue that Dr. Kellens report suffers from a further,
fundamental deficiency: it fails to definitively opine on both standard of care
and causation. Dr. Kellen could have expressed his opinions with greater
clarity. But, contrary to the respondents assertion, his opinions, summarized
above, address both standard of care and causation.
[22]
In our view, if the motion judge had the benefit
of Dr. Kellens affidavit and report he would not have granted summary judgment
in favour of the respondents.
[23]
As the respondents argue, there are problems
with the report Dr. Kellen prepared. And we note the lengthy history of this
matter, the reminders to the appellant about the necessity of an expert report,
and the peremptory timetable in place. We appreciate that there was in
important interest in finality in this case.
[24]
However, the respondents were seeking a summary
dismissal of the appellants action and had the onus of establishing there was
no genuine issue requiring a trial. There appears to be no dispute that the
appellant suffers from a real injury numbness in the lower left side of her
mouth and tongue as a result of the dental procedure performed. Further, the
transcript reveals that the motion judge made inquiries of the appellant when
she handed up the letter. Unfortunately, the appellant did not specifically
request an adjournment or clearly advise that she had retained an expert. The motion
judge would not have appreciated from her submissions that, at the time the
motion was heard, she had retained Dr. Kellen to provide an expert report and
he had requested more time to complete his report.
[25]
We are persuaded that, faced with a 77 year-old
self-represented party, seemingly of limited means, who suffered injury as a
result of a dental procedure, who had struggled to secure an expert, who had
retained an expert at the time she appeared before him, and who then secured a
supportive expert report, the motion judge would have concluded that it was in
the interests of justice to adjourn the motion to provide the appellant with an
opportunity to cure the deficiencies in the expert report.
Disposition
[26]
Accordingly, we allow the appeal and set aside
the dismissal of the appellants action and the costs below, without prejudice
to the respondents right to bring a further summary judgment motion. Should
the respondents elect to bring a further summary judgment motion, the
privileged materials included in the motion record below and in the responding
materials on this appeal should not form part of the motion record.
Paul
Rouleau J.A.
Alexandra
Hoy J.A.
K.
van Rensburg J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Laurentian University of Sudbury
(Re), 2021 ONCA 448
DATE: 20210623
DOCKET: M52471
Hoy, Pepall and Zarnett JJ.A.
In the Matter of the
Companies Creditors Arrangement Act
,
R.S.C. 1985, c. C-36, as amended;
And in the Matter of a Plan of Compromise or Arrangement
of Laurentian University of Sudbury
Andrew J. Hatnay, Demetrios Yiokaris, and
Sydney Edmonds, for the moving party, Thorneloe University
D.J. Miller, Scott McGrath and Derek
Harland, for the responding party, Laurentian University of Sudbury
Vern W. DaRe, for the responding party,
Firm Capital Mortgage Fund Inc.
Heard: in writing
Motion for leave to appeal from the order
of Chief Justice Geoffrey B. Morawetz of the Superior Court of Justice, dated May
2, 2021, with reasons reported at 2021 ONSC 3272 and 2021 ONSC 3545.
REASONS FOR DECISION
[1]
Laurentian University of Sudbury (Laurentian) is a publicly funded,
bilingual and tricultural post-secondary institution, serving domestic and
international undergraduate and graduate students.
[2]
On February 1, 2021, it sought and obtained protection under the
Companies Creditors Arrangement Act
, R.S.C. 1985, c. C-36
(CCAA), to permit it to restructure, financially and operationally, in order
to emerge as a sustainable university for the benefit of all stakeholders.
[3]
When it sought CCAA protection, Laurentian, with the assistance of the
Monitor, identified a number of areas in which a financial restructuring was
required. These included a downsizing of the number of programs being
offered by Laurentian, and new, sustainable collective
agreements with the association and the union representing Laurentian faculty
and staff. Laurentian also identified, at the outset of the CCAA proceeding,
that it would be necessary to have a fundamental readjustment or realignment of
its arrangements with the three Federated Universities:
Thorneloe
University (Thorneloe), Huntington University (Huntington) and University
of Sudbury (USudbury).
[4]
A court-ordered mediation facilitated Laurentian reaching
agreements with parties to the collective agreements; however, Laurentian was
not successful in reaching what it considered to be the required readjustments
with the Federated Universities.
[5]
On April 1, 2021, Laurentian sent notices of disclaimer
of the agreements later described in these reasons to the Federated Universities.
The Monitor approved the disclaimer notices.
[6]
Thorneloe brought a motion pursuant to s. 32(2) of the
CCAA challenging its disclaimer notice. (USudbury brought a similar motion,
which was heard by a different judge.) Thorneloe and USudbury also brought a
joint cross-motion, seeking an order to amend the Loan Amendment Agreement
dated April 20, 2021 (DIP Amendment Agreement) by deleting the
condition that further financing and the extension of the DIP loan maturity
date was conditional on disclaimer of agreements with the Federated
Universities.
[7]
The CCAA judge dismissed Thorneloes motion and the
cross-motion. Thorneloe now seeks leave to appeal both decisions. At the heart
of its submissions is its contention that allowing the disclaimer will result
in Thorneloes insolvency and yet provide only
de minimis
financial
benefit to Laurentian, and that the motive for the disclaimer is the elimination
of competition, which is inconsistent with the duty to act in good faith.
[8]
Thorneloe also seeks leave to admit fresh evidence
consisting of an affidavit of its President. No opposition was taken by the responding
parties to the fresh evidence and, in the circumstances, leave to admit the
fresh evidence is granted.
[9]
For the reasons that follow, we dismiss Thorneloes
leave motion.
A.
BACKGROUND
Relationship between Laurentian and
Federated Universities
[10]
In 1960, Thorneloe, Huntington and USudbury were established by the
Anglican, United and Roman Catholic churches, respectively. As religiously affiliated
institutions, they were not eligible for government funding.
[11]
The Province of Ontario passed
An Act to Incorporate Laurentian
University of Sudbury
, S.O. 1960, c. 151, and Laurentian was established.
[12]
In September 1960, Laurentian entered into Federation Agreements
with Huntington and USudbury. Two years later, Thorneloe also entered into a federation
agreement with Laurentian (1962 Federation Agreement).
[13]
In its Third Report, dated April 26, 2021, the Monitor described the
relationship that existed between the Federated Universities and Laurentian
prior to the disclaimers:
The Federated Universities do not admit or
register their own students, nor do they grant their own degrees (with the
exception of Theology at Huntington and Thorneloe). All Federated University
programs and courses are offered through [Laurentian], and all students apply to
[Laurentian]. Students who enroll in a program at [Laurentian] may take
elective courses at any or all of the three Federated Universities as well as [Laurentian],
which are all physically located on [Laurentians] campus. Students enrolled in
programs, courses, majors and minors that are administered by the Federated
Universities are students of [Laurentian] and these courses are credited
towards a degree from [Laurentian], which has the sole authority to confer
degrees upon students (with the exception of Theology at Huntington and
Thorneloe).
[A]s all students are students of [Laurentian]
regardless of whether they are enrolled in programs or take courses at one of
the Federated Universities, the Federated Universities do not directly bill or
collect tuition.
[14]
The Monitors Third Report also described the financial arrangements
between Laurentian and the Federated Universities under Financial Distribution
Notices sent by Laurentian to each of the Federated Universities in May 2019, amending
the Proposed Grant Distribution and Service Fees agreement between Laurentian, USudbury,
Thorneloe, and Huntington, dated November 10, 1993:
[Laurentian] and the Federated Universities
have certain financial agreements in place pursuant to which [Laurentian]
receives, allocates and distributes a portion of [Laurentians] revenue to the
Federated Universities in accordance with a funding formula (the
Federated Funding Formula
).
Through this Federated Funding Formula, [Laurentian] compensates the Federated
Universities for delivering programs and services to [Laurentian] students. The
key terms of the Federated Funding Formula include the following:
a. A portion of provincial grants received by [Laurentian]
are distributed to the Federated Universities based on the proportion of
students enrolled in the Federated Universities programs;
b. A portion of tuition fees received by [Laurentian]
are distributed to the Federated Universities based upon student enrolment in
courses offered through the Federated Universities; and
c. An offsetting charge for service fees
charged by [Laurentian] to the Federated Universities in exchange for [Laurentian]
providing certain support services to the Federated Universities (calculated as
15% of grant and tuition revenues distributed to the Federated Universities).
[Bold in original.]
CCAA Proceeding
[15]
Under the Amended and Restated Initial Order dated February 11, 2021,
the CCAA judge approved a debtor-in-possession (DIP) interim financing
agreement in the principal amount of $25 million.
[16]
After the commencement of the CCAA proceeding, Laurentian participated
in a mediation with some stakeholders. As a result of mediation, Laurentian entered
into term sheets for new agreements with both the Laurentian University Faculty
Association and the Laurentian University Staff Union, which have been approved
by the CCAA judge. The new agreements are expected to generate an estimated
annual savings of approximately $30.3 million, growing to $33.5 million over
the next few years.
[17]
Laurentian delivered disclaimer notices to each of the Federated
Universities on April 1, 2021. The notices disclaim the Federation Agreements
and Financial Distribution Notices with each of the Federated Universities.
[18]
Huntington
accepted its disclaimer and entered into the Huntington Transition Agreement
with Laurentian. Among other things, it was agreed that Huntington would no
longer deliver courses or programs as credit toward Laurentian degrees and
Laurentian would no longer transfer funding to Huntington. The Huntington
Transition Agreement contained a most favoured nation clause, whereby if
Thorneloe or USudbury are permitted to continue to receive funding from
Laurentian to teach courses or programs, Huntington will be similarly entitled.
[19]
USudbury
announced on March 12, 2021 that it would change to a francophone-only
university. USudburys motion to oppose its disclaimer was dismissed by Gilmore
J.: see
Laurentian University of Sudbury v. University of
Sudbury
, 2021 ONSC 3392. USudbury is not seeking leave to appeal
that decision.
[20]
On
April 20, 2021, Laurentian and the DIP Lender, Firm Capital Mortgage Fund Inc.,
entered into a DIP Loan Amendment Agreement,
which made the
advance of an additional $10 million in DIP financing to Laurentian and the
extension of the DIP loan maturity date subject to several conditions, including
the following:
The Disclaimers of the Borrowers Federation
Agreements and Financial Distribution Notices with each of Huntington
University, Thorneloe University and the University of Sudbury (collectively,
the Federated Universities) issued on April 1, 2021 shall become effective,
binding and final on May 1, 2021.
[21]
On April 21, 2021, the CCAA judge directed that [i]f Thorneloe or
USudbury have questions in respect of the DIP Loan, they can be directed to the
Monitor: 2021 ONSC 2983, at para. 5.
[22]
In its Third Report, the Monitor stated that the notices of
disclaimer would enhance the prospects of a viable compromise and that, without
them, Laurentian was unlikely to be able to complete a viable plan.
Decision Below
[23]
Thorneloe applied for an order that the 1962 Federation Agreement,
and the 2019 Financial Distribution Notice between Laurentian and Thorneloe, not
be disclaimed.
[24]
Under s. 32(1), the debtor company may, on notice to the other
parties to an agreement and the monitor, disclaim an agreement to which the
company is a party on the day on which CCAA proceedings commence. The monitor
must approve the proposed disclaimer (otherwise, the debtor is required to make
an application to the court for an order that the agreement be disclaimed). The
counterparty has 15 days after notice is given under s. 32(1) to make an
application to the court for an order that the agreement not be disclaimed. Section
32(4) describes the factors to be considered by the court in deciding whether
to make the order:
(4)
In deciding whether to make the order, the court is to
consider, among other things,
(a)
whether the monitor approved the proposed disclaimer or
resiliation;
(b)
whether the disclaimer or resiliation would enhance the
prospects of a viable compromise or arrangement being made in respect of the
company; and
(c)
whether the disclaimer or resiliation would likely cause
significant financial hardship to a party to the agreement.
[25]
The CCAA judge noted that s. 32(4) requires a balancing of
interests. In his words, the courts discretion is exercised by weighing the
competing interests and prejudice to the parties and assessing whether the
disclaimer
is fair and reasonable. After engaging in that balancing
exercise, he concluded that the better choice, or, to put it another way, the
least undesirable choice, was to uphold the notice of disclaimer.
[26]
In reaching that conclusion, he considered, among other things, the three
itemized s. 32(4) factors. He took into account the fact the Monitor approved the
disclaimer and that the Monitors reasons for approving the disclaimer reflect[ed]
a proper balancing of the competing interests of Laurentian and all
stakeholders, including Thorneloe. Among other things, the Monitor noted in
its Third Report that Laurentian has limited opportunities to increase its
revenues and that even though some net savings have been achieved that are
significant and address Laurentians operational deficit, they are unlikely to
be sufficient to cover other items, including the repayment of the DIP Facility
and the payment of distributions to creditors pursuant to a plan of compromise
or arrangement. The Monitor concluded that the additional savings to Laurentian
that would result from the disclaimers were required for (Laurentian) to have
a reasonable opportunity to put forward a viable plan of compromise or
arrangement and effect a successful restructuring, and that despite the hardship
to the Federated Universities that it would cause, the disclaimers were
necessary.
[27]
The CCAA judge noted that Laurentian had identified that if the
disclaimers involving Thorneloe and USudbury were upheld, together with the
Huntington Transition Agreement, it would result in $7.7 million of additional
funds remaining with Laurentian on an annual basis. That represented a real
source of annual financial relief for Laurentian. He addressed Thorneloes
argument that its relationship with Laurentian has only a minor financial
impact on Laurentian:
Thorneloe counters by indicating that it is only one of three
Federated Universities; the $7.7 million figure cannot be attributed, in total,
to Thorneloe. At first glance, this is an attractive and persuasive argument.
It does not, however, take into account that Huntington, in negotiating its
settlement with Laurentian, has included what is known colloquially as a
"most favoured nation" clause. Quite simply, if Thorneloe is able to
negotiate a better alternative than the agreement negotiated by Huntington,
Huntington is in a position to reopen negotiations with Laurentian to obtain
similar treatment. Therefore, it seems to me that although there are three Federated
Universities involved, their positions are interlinked and interrelated to such
a degree that the $7.7 million calculation is relevant to take into account on
this motion.
The Notices of Disclaimer are, in my view,
central to the Applicant's restructuring. The Disclaimer will result in
millions of dollars of additional tuition and grant revenue remaining within
Laurentian. As noted in both the affidavit of Dr. Haché and the Monitor's
Report, each time a Laurentian student takes an elective course offered through
Thorneloe, revenue associated with that course is transferred from Laurentian
to Thorneloe. Because the Applicant has the capacity to independently offer
students the vast majority of all necessary programs and electives within its
existing cost structure, each course taken by a Laurentian student through
Thorneloe represents lost revenue for Laurentian.
[28]
The CCAA judge also took into account the position of the DIP Lender,
which Thorneloe challenged on a number of grounds. In his view, there was no
basis to question the legitimacy of the DIP Lender or the conditions it put
forward. The DIP Lender was entitled to take into account commercial reality in
assessing its options. The DIP Lender was approved in February 2021, after a
competitive process, with no party objecting and no appeals being filed.
[29]
As for Thorneloes objection to the reluctance of the DIP Lender to
be cross-examined (which Thorneloe renews before this court), he noted that no
affidavit had been filed by a representative of the DIP Lender and that there
was no evidence that the DIP Lender had any ulterior motive in negotiating the
condition to extend additional financing and extend the term.
[1]
[30]
The CCAA judge rejected Thorneloes argument that Laurentian acted
in bad faith, contrary to s. 18.6 of the CCAA.
[31]
The CCAA judge found that the disclaimer would enhance the prospects
of a viable restructuring and also noted the significant compromise and
hardship experienced by other stakeholders.
[32]
Lastly, he considered the third itemized factor (whether the
disclaimer would likely cause significant financial hardship to a party to the
agreement). He recognized the significant financial impact of the disclaimer on
Thorneloe, acknowledging that it could lead to the cessation of its operations.
However, if the disclaimer was not effective, it could lead to an unraveling of
Laurentians restructuring and the collapse of Laurentian, which would have a
significant impact on all faculty, students, the greater community and
Thorneloe. In other words, it could lead to the collapse of not just Laurentian
but of Thorneloe as well. At the end of the day, the least undesirable choice
was to uphold the notice of disclaimer.
[33]
In
separate reasons, he also concluded that the criteria for approving the DIP
Amendment Agreement were met. In reaching that conclusion, he adopted his earlier
reasons for rejecting Thorneloes arguments relating to the DIP financing.
B.
ANALYSIS
Leave Test
[34]
Section
13 of the CCAA provides that any person dissatisfied with an order or a
decision made under the CCAA may appeal from the order or decision with leave.
Leave to appeal in CCAA proceedings is to be granted sparingly
and
only where there are serious and arguable grounds that are of real and
significant interest to the parties.
As this court recently
explained in
Laurentian University of Sudbury (Re)
, 2021 ONCA 199, at
paras. 20-22, this cautious approach is a function of several factors:
First, a high degree of deference is owed to
discretionary decisions made by judges supervising CCAA proceedings, who are
steeped in the intricacies of the
CCAA
proceedings they oversee.
Appellate intervention is justified only where the supervising judge erred in
principle or exercised their discretion unreasonably:
9354-9186 Qu
é
bec inc. v. Callidus Capital Corp.
, 2020 SCC 10, 78 C.B.R. (6th) 1, at paras. 53 to 54.
Second, CCAA proceedings are dynamic. It is
often inappropriate to consider an exercise of discretion by the supervising
judge in isolation of other exercises of discretion by the judge in
endeavouring to balance the various interests:
Edgewater Casino Inc. (Re)
,
2009 BCCA 40, 51 C.B.R. (5th) 1, at para 20.
Third, CCAA restructurings can be time sensitive.
The existence of, and delay involved in, an appeal can be counterproductive to
a successful restructuring.
[35]
In
addressing whether leave should be granted, the court will consider four
factors, specifically whether:
(a)
the proposed appeal is
prima facie
meritorious or frivolous;
(b)
the points on the proposed appeal
are of significance to the practice;
(c)
the points on the proposed
appeal are of significance to the action; and
(d)
whether the proposed appeal will
unduly hinder the progress of the action.
See:
Nortel Networks Corp. (Re)
,
2016 ONCA 332, 130 O.R. (3d) 481, at para. 34.
Leave is Not Warranted
[36]
As we will explain, we refuse to grant leave because the proposed
appeal is not
prima facie
meritorious, it is
not of significance to the practice and granting leave would unduly hinder the
progress of the action. While we agree that the proposed appeal is of
significance to the action, that factor alone is not a sufficient basis on
which to grant leave.
Leave not Prima Facie Meritorious
[37]
Thorneloe proposes that five questions be answered should leave be
granted:
1.
Can the CCAA, a statute whose purpose is to
prevent
bankruptcies, be used by a debtor to eliminate competition and
cause
the bankruptcy of another solvent entity (in this case, another university)?
2.
Should section 32 of the CCAA be interpreted so broadly that it
allows the disclaimer of an agreement that will result in the bankruptcy of the
counter-party, for the purpose of eliminating competition,
and
where
the potential financial gain to the debtor is both uncertain and immaterial?
3.
What inferences should be drawn by the CCAA court where a DIP lender
demands the disclaimer of an agreement that will cause the bankruptcy of the
counter-party or else it will refuse to extend a loan maturity date and advance
further funds, yet the DIP lender refuses to attend an oral examination and
refuses to produce documents and answer questions as to why it demands the
disclaimer?
4.
What is the role of the CCAA Court when confronted with a
transaction condition that calls for the disclaimer of an agreement which the
debtor admits is motivated to eliminate competition, and then presented as a
threat that if the CCAA Court does not uphold the disclaimer, the debtor may
not be able to restructure?
5.
What are the factors applicable on persons to act in good faith
under section 18.6 of the CCAA, and in particular where Laurentian and/or the
DIP lender seek to close down Thorneloe for the admitted motive of eliminating
Thorneloe as a competitor?
[Italics in original.]
[38]
We are not satisfied that the proposed appeal, challenging the CCAA
judges discretionary decision to approve the disclaimer and to refuse to
delete the condition in the DIP Amendment Agreement, is
prima facie
meritorious. In reaching that conclusion we are cognizant that factual findings
are owed considerable deference as are discretionary decisions, absent an
extricable legal error. Each of Thorneloes proposed questions has embedded in it
factual assertions that run contrary to the CCAA judges factual findings and
each challenges the way he exercised his discretion.
[39]
For example, Thorneloes first two proposed appeal questions, about
whether a disclaimer can be used if its effect is to eliminate competition and cause
the bankruptcy of a solvent party, do not raise an extricable legal point,
given the CCAA judges findings.
[40]
On those findings, Laurentian and Thorneloe were not truly competitors.
They were working in a federated arrangement. Thorneloes course offerings
could only be taken up by Laurentian students, and they could compete with course
offerings of Laurentian, only because the parties had entered into the
federated arrangement. Contrary to Thorneloes assertion, there was no
admission by Laurentian that its motive was to eliminate Thorneloe as the
competition. The evidence of Laurentians President, Dr. Haché, was simply that
Laurentian had the capacity itself and the need to provide the courses that the
Federated Universities were providing to Laurentian students.
[41]
Moreover, Laurentian is insolvent and the CCAA judge found that if
Laurentian collapses, Thorneloe will collapse. Thorneloe could only be an
ongoing solvent entity if Laurentian could successfully restructure while
keeping the agreements with Thorneloe in place. But that option was not
available, as the CCAA judge accepted the Monitors view that the disclaimer of
the agreements was necessary for a viable restructuring of Laurentian to
occur.
[42]
As for Thorneloes other proposed appeal questions, the CCAA judge engaged
in a serious and carefully considered exercise that required him to balance the
proposed disclaimer for Laurentian against the detrimental impact on Thorneloe.
He clearly explained what factors he was taking into account in making a
determination under s. 32 and how he weighed competing considerations. He
recognized the serious financial impact that approving the disclaimer could
have on Thorneloe. He addressed Thorneloes argument, which is repeated before
this court, that the financial impact of not disclaiming the Thorneloe
agreements, would be minimal for Laurentian and explained why he disagreed. He
also considered and rejected allegations of bad faith. As the CCAA judge
supervising the proceeding, he was aware of the bigger picture, including the
savings that had already been achieved by Laurentian through the CCAA process. He
addressed Thorneloes arguments relating to the DIP Lender and found that there
was no need to question its legitimacy or the conditions it put forward.
[43]
Fundamentally, he found that the disclaimer would enhance the
prospects of a viable plan of compromise or arrangement, while disallowing it
could lead to the inability of Laurentian to restructure and to Laurentians collapse,
which would also entail the collapse of Thorneloe. The CCAA judge expressed the
choice succinctly and accuratelyit was between allowing the disclaimer, recognizing
the hardship it would cause Thorneloe, and disallowing the disclaimer,
recognizing the hardship it could cause Laurentian and Thorneloe. In our view,
the choice he made cannot be faulted. We would also observe that this
conclusion was available in the absence of any consideration of the position of
the DIP Lender.
[44]
In conclusion, while we recognize the serious financial implications
of the disclaimer for Thorneloe, we are simply not persuaded that there is an
arguable basis for interfering with the CCAA judges factual findings or legal conclusions.
Significance to the Action
[45]
We accept that the proposed appeal is of significance to the action given
the significant implications of the disclaimer for Thorneloe and for
Laurentian. However, the significance of the proposed appeal to the action is
insufficient to justify leave. This courts comment in
Nortel
,
at
para. 95, is apt:
[S]tanding alone, this factor is insufficient
to warrant granting leave to appeal. To perhaps state the obvious,
typically parties tend to seek leave to appeal a decision that is of
significance to an action.
No Significance to the Practice
[46]
We
are not satisfied that the proposed appeal is of significance to the practice
as the issues raised turn on the application of the law to the particular facts
of the case.
Appeal Would Hinder Progress of the Action
[47]
In our view, there is a risk that an appeal would be a distraction
from the real-time restructuring efforts. Laurentian and the DIP Lender also
raise legitimate concerns that attempting to unscramble the egg through an
appeal would unduly hinder the progress of the CCAA proceeding.
C.
DISPOSITION
[48]
Leave to admit the fresh evidence is granted and leave to appeal is
refused. In the circumstances, there shall be no order for costs.
Alexandra
Hoy J.A.
S.E.
Pepall J.A.
B.
Zarnett J.A.
[1]
In its reply factum on the leave motion, Thorneloe argues
that r. 39.03 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,
would have been available to elicit information from the DIP Lender. It is
unclear whether Thorneloe pursued that procedural route. That said, and in any
event, it was reasonable for the CCAA judge to propose that written questions
be posed to the Monitor.
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